Exhibit
10.4


 


SECOND AMENDED AND RESTATED


WAREHOUSING CREDIT AGREEMENT


 





















 


	
  LIST OF EXHIBITS

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  - Warehouse
  Borrowing Base Formula

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  - Covenant Compliance
  Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit C-1

  	
   

  	
  - National City Amended and Restated
  Warehouse Promissory Note

  
	
   

  	
   

  	
   

  
	
  Exhibit C-2

  	
   

  	
  - Comerica Amended and
  Restated Warehouse Promissory Note

  
	
   

  	
   

  	
   

  
	
  Exhibit C-3

  	
   

  	
  - Colonial Warehouse
  Promissory Note

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  - Second Amended and
  Restated Pledge, Security and Collateral Agency Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  - Amended and Restated
  Swing Promissory Note

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  - Form of Opinion
  of Counsel

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  - Form of
  Additional Lender Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
   

  	
  - Form of
  Commitment Schedule and Allocation Notice

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
   

  	
  -
  Form of Monthly Servicing Portfolio Report

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1

  	
   

  	
  - Approved Investor
  List

  
	
   

  	
   

  	
   

  
	
  Schedule 2.1

  	
   

  	
  - Warehouse Pro Rata
  Shares and Warehouse Line Commitments

  
	
   

  	
   

  	
   

  
	
  Schedule 6.1

  	
   

  	
  - Information Relating
  to Company Representations and Warranties

  
	
   

  	
   

  	
   

  
	
  Schedule 6.13

  	
   

  	
  - Affiliates

  
	
   

  	
   

  	
   

  



 





















 


SECOND AMENDED AND
RESTATED WAREHOUSING CREDIT AGREEMENT


 


THIS
SECOND AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT (as
amended, modified and restated from time to time, this “Credit Agreement”) is
made and effective as of the 30th day of August, 2004, by and among (i) WASHTENAW MORTGAGE COMPANY, a Michigan corporation with its
principal place of business located at 3767 Ranchero Drive, Ann Arbor, Michigan
48108 (the “Company”), (ii)(a) NATIONAL CITY BANK OF
KENTUCKY, a national banking association with a place of business
located at 101 South Fifth Street, Louisville, Kentucky 40202 (“National City”),
(b) COMERICA BANK, a Michigan banking
corporation with its principal place of business located at 500 Woodward
Avenue, MC:3256, Detroit, Michigan 48226 (“Comerica”), and COLONIAL BANK, N.A., a national banking
association with its principal place of business located at 201 East Pine
Street, Suite 730, Orlando, Florida 32801 (“Colonial”) (National City,
Comerica and Colonial are hereinafter referred to individually as a “Bank” and
collectively as the “Banks”), and (iii) NATIONAL
CITY BANK OF KENTUCKY, in its capacity as Agent for the Banks party
hereto from time to time (in such capacity, the “Agent”).


 


P  R
E  L  I  M  I  N  A  R  Y   S  T  A  T  E
M  E  N  T :


 


WHEREAS, the Company has
heretofore obtained from National City and Comerica a warehouse line of credit
in the current maximum principal amount of Eighty Million Dollars
($80,000,000.00), and the Banks now desire to renew and increase such warehouse
line of credit in the maximum principal amount of One Hundred Million Dollars
($100,000,000.00), subject to the terms and conditions set forth in this Credit
Agreement, including without limitation, the right of the Company and the Agent
in their sole, joint discretion to increase such maximum principal amount
(without amendment to this Credit Agreement or any of the other Loan Documents)
by adding one or more additional lenders, each as a “Bank” hereunder, by
approving each such additional lender as an Applicant Financial Institution
pursuant to Section 11.1 hereof (the “Warehouse
Line”);


 


WHEREAS, the Banks desire
to establish the Warehouse Line in favor of the Company upon the terms and
conditions set forth in this Credit Agreement; and


 


NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein contained, the
parties hereto agree as follows:


 


ARTICLE 1


 


DEFINITIONS AND
ACCOUNTING TERMS


 


1.1                                 Definitions.  In addition to the definitions set forth in
the opening paragraph and the preliminary statement of this Credit Agreement,
the following terms shall have the meanings set forth below (such meanings to
be equally applicable to both the singular and plural form of the terms
defined):


 


“Additional Lender
Agreement” shall have the meaning assigned thereto in Section 11.1
hereof.


 


“Adjusted Tangible Net
Worth” shall mean, as of any date of determination, GAAP Net Worth minus
the sum of: (i) capitalized mortgage servicing rights of the Company, (ii) capitalized
excess servicing fees of the Company, (iii) the aggregate book value of
the intangible assets of the Company, (iv) all assets pledged to secure the
debts of Affiliates or other entities, (v) the aggregate amount of
advances


 





















 


and loans by the Company
to its owners, officers, directors, employees or Affiliates, (vi) investments
in Affiliates, (vii) any other asset designated by the Agent in writing to
the Company to be unacceptable; provided, the Company shall have ten (10) calendar
days from receipt of such written designation to respond thereto, and (viii) any
recorded gains of the Company related to adjustments required under FASB 133
for accrued hedging gains or losses that have not been realized as actual
contractual gains, and plus the sum of: (a)  the lesser of [I] one
and one-quarter of one percent (1.25%) of the unpaid principal balance of the
Net Servicing Portfolio or [II] the appraised value of the Pledged Servicing
Rights which are not designated as either Servicing Under Contract for Sale or
Servicing Held for Bulk Sale, (b) eighty percent (80%) of the sales price
of Servicing Under Contract for Sale (as calculated under the terms of the
Contract for Sale) not to exceed one and six-tenths of one percent (1.60%) of
the unpaid balance of the residential mortgages being serviced under the
designated Servicing Under Contract for Sale, and (c) any recorded losses
of the Company related to adjustments required under FASB 133 for accrued
hedging gains or losses that have not been realized as actual contractual
losses.


 


“Adjusted Total
Indebtedness” shall mean, as of any date of determination, the Company’s
Total Indebtedness minus the sum of (i) Notes and Drafts payable by
the Company pursuant to the various Loan Documents, and (ii) any accrued
liabilities related to FASB 140 adjustments for loans not actually repurchased
or required to be repurchased from the agencies.


 


“Adjustment Date”
shall have the meaning assigned thereto in Section 11.1
hereof.


 


“Advance” shall
mean, as applicable, a Warehouse Advance, a Swing Advance or an Excess Advance.


 


“Affiliate” shall
mean (i) any Person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, the Company, including without
limitation, , or (ii) any Person who is a director or officer of the
Company or of any Person described in clause (i) above.  For purposes of this definition, control of a
Person shall mean the power, direct or indirect, to vote ten percent (10%) or
more of the securities having ordinary voting power for the election of
directors of such Person or to direct the management or policies of such
Person, whether through the ownership of voting securities, or otherwise.


 


“Aged Loan” shall
mean, as of any date:


 


(a)                                  Any
Loan, which is not a Wet Loan, an Extended Wet Loan, a Jumbo Loan or an
Alternative Lending Loan, which has been pledged as Collateral for more than
one hundred eighty (180) calendar days (calculated from the date upon which the
Advance relating to such Loan is made hereunder);


 


(b)                                 Any
Servicing Under Contract for Sale or Servicing Held for Bulk Sale, which has
been pledged as Collateral for more than one hundred fifty (150) calendar days
(calculated from the date upon which the Advance relating to such Loan is made
hereunder);


 


(c)                                  Any Alternative Lending Loan which has
been pledged as Collateral for more than ninety (90) calendar days (calculated
from the date upon which the Advance relating to such Loan is made hereunder);


 


(d)                                 Any Jumbo Loan which has been pledged as
Collateral for more than one hundred twenty (120) calendar days (calculated
from the date upon which the Advance relating to such Loan is


 


2





















 


made hereunder);


 


(e)                                  Any
Extended Wet Loan which has been pledged as Collateral for more than fifteen (15)
calendar days (calculated from the date upon which the Advance relating to such
Loan is made hereunder); and


 


(f)                                    Any
Wet Loan which has been pledged as Collateral for more than ten (10) calendar
days (calculated from the date upon which the Advance relating to such Loan is
made hereunder).


 


“Aged Security”
shall mean a Mortgage-backed Security which has been pledged as Collateral for
more than forty-five (45) calendar days (calculated from the first date upon
which the Agent obtained a security interest therein).


 


“Agency Qualified A
Minus Advance” shall mean a Warehouse Advance requested to fund an Agency
Qualified A Minus Loan.


 


“Agency Qualified
A Minus Advance Sublimit” shall mean an amount equal to four
and two-tenths of one percent (4.2%) of the Total Warehouse Line Commitment;
provided, however, that said sublimit shall be subject to the following further
limitations: (i) each Advance requested to fund Agency Qualified A Minus
Loans shall not exceed the maximum loan amount under applicable agency underwriting
criteria for loans which are commonly referred to in the secondary market as “A
Minus” loans; and (ii) all Agency Qualified A Minus Loans to the same
borrower shall be aggregated by the Company as a single Agency Qualified A
Minus Loan for purposes of this sublimit.


 


“Agency Qualified A
Minus Collateral Usage” shall mean that percentage of Eligible Collateral
calculated by dividing the aggregate Collateral Value of all Agency Qualified A
Minus Loans by the sum of the aggregate Collateral Value of all Eligible
Collateral less the aggregate Collateral Value of all Servicing Under
Contract for Sale and all other Pledged Servicing Rights.


 


“Agency Qualified A
Minus Loan” shall mean a Loan: (i) the entire interest of which is
owned by the Company and which is secured by a First Mortgage; (ii) which
is not an FHA or VA; (iii) which conforms to the underwriting criteria of
any or both of Fannie Mae or FHLMC for loans which are commonly referred to in
the secondary market as “A Minus” loans, as defined by the Agent in its sole
judgment and discretion, and (iv) which is subject to a Firm Commitment or
Standby Commitment, provided such Loan is not a Jumbo Loan.


 


“Agent” shall have
the meaning assigned to that term in the introduction of this Credit Agreement,
and includes any successor Agent under Section 10.12
hereof.


 


“Agent Fee” shall
have the meaning assigned thereto in Section 2.14B
hereof.


 


“Agent’s Main Office”
shall mean those offices of the Agent located at 101 South Fifth Street,
Louisville, Kentucky.


 


“Aggregate Outstanding
Balance” shall mean the sum of the Aggregate Outstanding Warehouse Balance plus
the Aggregate Outstanding Excess Balance.


 


3





















 


“Aggregate Outstanding
Excess Balance” shall mean the aggregate unpaid principal balance of all
Excess Advances, if any.


 


“Aggregate Outstanding
Warehouse Balance” shall mean the aggregate unpaid principal balance of all
Warehouse Advances and Swing Advances.


 


“Alternative Lending
Advance” shall mean an Advance requested to fund an Alternative Lending
Loan.


 


“Alternative Lending
Advance Sublimit” shall mean an amount equal to twelve and one-half of one
percent (12.5%) of the Total Warehouse Line Commitment.


 


“Alternative Lending
Collateral Usage” shall mean that percentage of Eligible Collateral
calculated by dividing the aggregate Collateral Value of all Alternative
Lending Loans by the sum of the aggregate Collateral Value of all Eligible
Collateral less the aggregate Collateral Value of all Servicing Under Contract
for Sale, Servicing Held for Bulk Sale and all other Pledged Servicing Rights.


 


“Alternative Lending
Loan” shall mean a Loan the entire interest of which is owned by the
Company and which is one of the following: 
(i) a Second Mortgage Loan, or (ii) a HELOC Loan, provided
such Loan is not a Jumbo Loan.


 


“Applicant Financial
Institution” shall have the meaning assigned thereto in Section 11.1 hereof.


 


“Appraisal of Pledged
Servicing Rights” shall mean an appraisal of the Pledged Servicing Rights
as determined in accordance with accepted methods of appraising by a qualified
appraiser who is reasonably acceptable to the Agent.


 


“Appraised Value”
shall mean, with respect to an interest in real estate, the then current fair
market value thereof as of a recent date satisfactory to the Agent, as
determined by the FHA or the VA, if applicable, or, if there is no such
determination, then as determined in accordance with accepted methods of
appraising by a qualified appraiser who is a member of the American Institute
of Real Estate Appraisers or other group of professional appraisers and who is
reasonably acceptable to the Agent.


 


“Approved Investors”
shall mean the financial institutions approved for the shipment of Eligible
Collateral by the Agent and listed on Schedule 1.1
attached hereto and made a part hereof by this reference, which listing shall
include the address of each such Approved Investor, the name of the contact
person for such Approved Investor and the telephone number of such contact
person.  The Agent may from time to time,
at its sole and absolute discretion, agree to add financial institutions to the
list of Approved Investors provided that a financial institution shall not be
deemed to be an Approved Investor until such time as the Agent has notified the
Company that such financial institution has been approved by the Agent.  The Agent may from time to time remove any
financial institution from the list set forth in Schedule 1.1
for cause by giving the Company prior notice of such removal; provided,
however, the Agent agrees to honor any commitment for delivery of Loans for
purchase by any removed investor if (i) such commitment was entered into
prior to the Company’s receipt of the related removal notification or (ii) such
commitment was entered into after the Company’s receipt of the related removal
notification but such commitment involved a rate lock decision made by the
Company prior to the Company’s receipt of such notification.  From and after the Company’s receipt of
notice removing an investor from the Approved Investor list, the


 


4





















 


Company shall not enter into any additional commitments for delivery of
Loans for purchase by that investor.


 


“Approved Servicing
Purchaser” shall mean NationsBank, Chase Manhattan Mortgage Corporation or
such other purchaser of servicing rights approved in writing by the Agent.


 


“Average Monthly
Available Deposits” shall mean the monthly average of free collected
balances maintained in non-interest bearing accounts in the name the Company
(or held by the Company in trust for third parties) with a Bank, after
deducting any unpaid service charges or float required by such Bank under its
normal practices to compensate such Bank for the maintenance of such accounts and
taking into consideration reserve requirements and the other costs of complying
with applicable law (including but not limited to any FDIC premium applicable
to such accounts).


 


“Balance Funded Bank”
shall mean National City.


 


“Balance Funded Base
Rate” shall mean the per annum rate of one and one-quarter of one percent
(1.25%).


 


“Bank” and “Banks”
shall mean each of Comerica, Colonial and National City in its respective
individual capacity and any other Applicant Financial Institution which is
added as a Bank hereunder by the Company and the Agent.


 


“Bankruptcy Code”
shall mean Title 11 of the United States Code entitled “Bankruptcy” as now and
hereafter in effect, or any successor statute.


 


“Base Rate” shall
mean the variable per annum rate equal to the Federal Funds Effective Rate plus
one and one-quarter of one percent (1.25%).


 


“Billing Statement”
shall have the meaning assigned thereto in Section 2.9
hereof.


 


“Borrowing Base Report”
shall mean the report prepared by the Agent to calculate the Warehouse
Borrowing Base in accordance with the formula set forth in Exhibit A
to this Credit Agreement.


 


“Business Day”
shall mean for all purposes any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the state in which the Agent’s Main
Office for purposes of performing its obligations under this Credit Agreement
as set forth on the signature pages of this Credit Agreement or is a day
on which (i) banking institutions located in such state are authorized or
required by law or other governmental action to close, or (ii) the United
States Federal Reserve Bank is closed.


 


“Closing Date”
shall mean the date on which the initial Advance is made to the Company and the
conditions set forth in Article 4
hereof are satisfied.


 


“Collateral” shall
mean the assets of the Company, as more particularly described in Section 2.1 of the Security Agreement in which the
Agent, for the benefit of the Banks in proportion to their Pro Rata Shares, has
a Security Interest.


 


5





















 


“Collateral Documents”
shall mean the Security Agreement and all other agreements, instruments,
documents, and other papers creating, evidencing, or representing the
Collateral or the Security Interests therein.


 


“Collateral Handling
Fees” shall have the meaning assigned thereto in Section 2.14B hereof.


 


“Collateral Mortgage
Documents” shall have the meaning assigned thereto in the Security
Agreement.


 


“Collateral Proceeds
Account” shall mean the “no access” deposit account maintained by the Agent
at the main office of the Agent in the name of the Agent for the benefit of the
Company and to which the Company shall have no access, for the purposes of
receiving the proceeds of the Collateral and other funds as provided in this
Credit Agreement and the Security Agreement.


 


“Collateral Value”
shall mean as of any date:


 


(a)                                  With
respect to a Loan which constitutes Eligible Collateral on such date and which
is not an Alternative Lending Loan, ninety-eight percent (98%) of the least of (i) the
net amount paid by the Company for such Loan, (ii) the unpaid principal
balance of such Loan less all discounts collected by the Company in connection
with such Loan, and (iii) if available, the purchase price under the
Commitment to which such Loan has been assigned;


 


(b)                                 With
respect to a Loan which constitutes Eligible Collateral on such date and which
is an Alternative Lending Loan, ninety-five percent (95%) of the least of (i) the
net amount paid by the Company for such Loan, (ii) the unpaid principal
balance of such Loan less all discount points collected by the Company in
connection with such Loan, and (iii) the purchase price under the
Commitment to which such Loan has been assigned;


 


(c)                                  With
respect to Pledged Servicing Rights which are not designated as Servicing Under
Contract for Sale or Servicing Held for Bulk Sale and which constitute Eligible
Collateral on such date, an amount equal to the amount by which the lesser of (i) sixty-five
percent (65%) of the appraised value of the Pledged Servicing Rights or (ii) one
percent (1.0%) of the unpaid principal balance of the residential mortgages
relating to such Pledged Servicing Rights. 
For the purposes of this subparagraph, the term “appraised value” shall
mean the then current market valuation of the Pledged Servicing Rights
performed by a valuation firm acceptable to the Agent, such valuation to be
done semi-annually and dated during September and March of each
calendar year and delivered to the Agent by December 31 and June 30,
respectively, of such calendar year.  If
such valuation provides a range of economic value, the Borrowing Base
calculation shall be based upon the midpoint of such range; and


 


(d)                                 With
respect to Servicing Under Contract for Sale which constitutes Eligible
Collateral on such date, and the contract sales price is provided by the
Company at the time of the Advance, an amount equal to the lesser of (i) eighty
percent (80%) of the sale price under the Contract for Sale (as calculated
under the terms of the Contract for Sale) or (ii) one and three-quarters
of one percent (1.75%) of the unpaid principal balance of the residential
mortgages relating to the Servicing Under Contract for Sale, and with
respect to Servicing Held for Bulk Sale which constitutes Eligible Collateral
on such date, or   Servicing Under
Contract for Sale which constitutes Eligible Collateral on such date, and the
contract sales price is not provided by the Company at the time of the
Advance,  an amount equal to the lesser
of


 


6





















 


(i) sixty-five percent (65%) of the appraised value of the Pledged
Servicing Rights which are not designated as Servicing Under Contract for Sale,
(ii) one percent (1.0%) of the unpaid principal balance of the residual
mortgages related to the Pledged Servicing Rights after subtracting any pledged
servicing designated as Servicing Under Contract for Sale.


 


Notwithstanding anything
contained in (a) through (d) above to the contrary:


 


A.                                   The
Collateral Value of all Wet Loans and Extended Wet Loans shall not exceed, in
the aggregate, the Wet Advance Sublimit;


 


B.                                     The
Collateral Value of All Extended Wet Loans shall not exceed, in the aggregate,
the Extended Wet Advance Sublimit;


 


C.                                     The
Collateral Value of all Jumbo Loans shall not exceed, in the aggregate, the
Jumbo Advance Sublimit;


 


D.                                    The
Collateral Value of all Alternative Lending Loans shall not exceed, in the
aggregate, the Alternative Lending Advance Sublimit;


 


E.                                      The
Collateral Value of all Pledged Servicing Rights (excluding the Servicing Under
Contract for Sale and Servicing Held for Bulk Sale) shall not exceed, in the
aggregate, the Working Capital Advance Sublimit;


 


F.                                      The
aggregate Collateral Value of all Servicing Under Contract for Sale and
Servicing Held for Bulk Sale shall not exceed, in the aggregate, the Servicing
Advance Sublimit; provided, further, that the Collateral Value of all Servicing
Under Contract for Sale shall not exceed the Servicing Under Contract Advance
Sublimit and the Collateral Value of all Servicing Held for Bulk Sale
shall not exceed the Servicing Held for Bulk Sale Advance Sublimit;


 


G.                                     Each
Wet Loan which the Agent determines has not been funded by the Company on the
date the Advance in respect of such Wet Loan is made by the Banks to the
Company, shall have a Collateral Value of zero (0);


 


H.                                    Each
Extended Wet Loan in respect of which the Company shall not have delivered all
of the Collateral Documents to the Agent within fifteen (15) calendar days
after the Advance in respect of such Loan is made by the Banks to the Company,
shall have a Collateral Value of zero (0);


 


I.                                         Each
Extended Wet Loan, which has been designated by the Company to be funded under
the Fannie Mae ASAP Programs and in respect of which repayment-in-full has not
been received by the Agent within fifteen (15) calendar days after the Advance
in respect of such Loan is made by the Banks to the Company, shall have a
Collateral Value of zero (0);


 


J.                                        Each
Extended Wet Loan which the Agent determines has not been funded by the Company
on the date the Advance in respect of such Extended Wet Loan is made by the
Banks to the Company, shall have a Collateral Value of zero (0);


 


K.                                    If
the Agent shall reasonably determine that the Collateral Value otherwise


 


7





















 


assigned to an item of
Eligible Collateral does not accurately reflect the value thereof, then, upon
notice to the Company such item of Collateral (i) if it is a Loan which
constitutes Eligible Collateral which is not an Alternative Lending Loan, shall
instead have a collateral value equal to ninety-eight percent (98%) of the
market value as determined by the Agent, (ii) if it is a Loan which
constitutes Eligible Collateral which is an Alternative Lending Loan, shall
instead have a Collateral Value equal to ninety-five percent (95%) of the
market value as determined by the Agent, (iii) if it is a Servicing Under
Contract for Sale  which constitutes
Eligible Collateral, it shall instead have a Collateral Value equal to eighty
percent (80%) of the sale price as determined by the Agent, and if it is
a Servicing Held for Bulk Sale which constitutes Eligible Collateral, it shall
instead have a Collateral Value equal to sixty-five (65%) of the anticipated
sale price as determined by the Agent in its sole discretion based upon
information provided by the Company, and (iv) if it is Pledged Servicing
Rights which constitute Eligible Collateral but which are not Servicing Under
Contract for Sale or Servicing Held for Bulk Sale, it shall instead have a
Collateral Value equal to sixty-five percent (65%) of the market value of such
Pledged Servicing Rights as determined by the Agent; provided, however, that in
no event shall any mark to market with respect to any item of Eligible
Collateral under this subsection result in such item of Eligible
Collateral having a higher Collateral Value than such item would otherwise
have;


 


L.                                      All
Aged Loans shall have a Collateral Value of zero (0);


 


M.                                 All
Loans which are under trust receipt in accordance with the terms of the Security
Agreement which are not returned to the Agent within the time specified in the
Security Agreement shall have a Collateral Value of zero (0);


 


N.                                    The
Collateral Value of all Loans which are under trust receipt in accordance with
the terms of the Security Agreement shall not exceed, in the aggregate, the
principal amount permitted under the Security Agreement; and


 


O.                                    The
Collateral Value of any Jumbo Loan constituting Eligible Collateral shall not
exceed One Million Two Hundred Thousand Dollars ($1,200,000.00).


 


“Commitment” shall
mean a Firm Commitment or a Standby Commitment.


 


“Commitment Fee”
shall have the meaning assigned thereto in Section 2.14A
hereof.


 


“Commitment Schedule and
Allocation Notice” shall mean a notice in the form of the Commitment Schedule and
Allocation Notice in effect on the Effective Date attached hereto as Exhibit H.


 


“Company” shall
have the meaning assigned thereto in the introduction to this Credit Agreement.


 


“Conforming Loan”
shall mean a Loan secured by a Conforming Mortgage.


 


“Conforming Mortgage”
shall mean a mortgage securing a Loan which is eligible for purchase by any or
all of Fannie Mae or FHLMC or such other investors acceptable to the Agent,
which mortgage must be a First Mortgage.


 


8





















 


“Contract for Sale”
shall mean any loan servicing purchaser and sale agreement between the Company,
as seller, and an Approved Servicing Purchaser, as buyer, in form acceptable to
the Agent.


 


“Covenant Compliance
Certificate” shall mean the certificate to be furnished to the Agent on
behalf of the Banks in accordance with Sections 4.2(a) and
7.3(b) hereof and in the form of Exhibit B
attached to this Credit Agreement, together with a spreadsheet or other working
papers showing the calculations used to prepare such certificate.


 


“Credit Agreement”
shall have the meaning assigned thereto in the introduction of this Credit
Agreement.


 


“Default Rate”
shall mean: (i) with respect to the then or thereafter outstanding
principal balance of the Swing Note and the Notes bearing interest at the Base
Rate, a rate per annum equal to the sum of (a) three percent (3%) per
annum, plus (b) the Base Rate, or (ii) with respect to then or
thereafter outstanding principal balance of the Notes bearing interest at the
Balance Funded Base Rate, a rate per annum equal to the sum of (a) three
percent (3%) per annum, plus (b) the Balance Funded Base Rate.


 


“Document Custodian”
shall mean National City acting as the custodian of the Loans for purposes of
facilitating the pool certification and issuance of Mortgage-backed Securities.


 


“Drafts” shall
mean those instruments drawn on National City for funding of mortgage closings
which have not yet been received by National City for payment but which are
reported as liabilities on the Company’s financial statements.


 


“Dry Balances”
shall mean that portion of the aggregate outstanding principal balance of
Advances made to fund Loans for which the documentation identified in Section 4.1 of the Security Agreement has been delivered
to the Agent.


 


“Dry Collateral Usage”
shall mean that percentage of Eligible Collateral calculated by dividing the
aggregate Collateral Value of all Dry Loans by the sum of the aggregate
Collateral Value of all Eligible Collateral less the aggregate
Collateral Value of all Servicing Under Contract for Sale, Servicing Held for
Bulk Sale and all other Pledged Servicing Rights.


 


“Dry Loan” shall
mean a Loan the Collateral Documents for which have been delivered to the Agent
and the entire interest of which Loan is owned by the Company.


 


“Electronic Tracking
Agreement” shall mean that certain Electronic Tracking Agreement by and
among the Company, the Agent, MERS and MERSCORP, in the form attached hereto as
Exhibit K and made a part
hereof by this reference.


 


“Electronic
Transmittals” shall mean the electronic delivery to the Agent of collateral
data and collateral transaction data in the format prescribed by the Agent.


 


“Eligible Collateral”
shall mean, collectively and as of any date, the following:


 


(a)                                  Each
Mortgage-backed Security (i) which shall have been and remains pledged to
the Agent as collateral agent (for the benefit of the Banks) under and pursuant
to the Security Agreement,


 


9





















 


(ii) which is not an Aged Security, and (iii) in respect of
which the representations, warranties and agreements contained in this Credit
Agreement and the Security Agreement are true and correct;


 


(b)                                 Each
Loan (i) which is a Dry Loan, a Wet Loan, Jumbo Loan, an Alternative
Lending Loan, an Agency Qualified A Minus Loan or an Extended Wet Loan, without
duplication, (ii) which constitutes Collateral, (iii) which is not an
Aged Loan, (iv) which has not been shipped to an Approved Investor for
more than the maximum number of days allowed under the Security Agreement and
no purchase proceeds have been received by the Agent, (v) in respect of
which the representations, warranties and agreements contained in this Credit
Agreement, the Security Agreement and each of the other Loan Documents are true
and correct, and (vi) no default has occurred and is continuing on such
Loan;


 


(c)                                  Each
Loan (i) that is a Discretionary Loan (as defined in Section 9.20 hereof) without
duplication, (ii) that constitutes Collateral, and (iii) that is not
subject to any lien or security interest other than that granted under the Loan
Documents; and


 


(d)                                 Pledged
Servicing Rights, including all Servicing Advances.


 


“ERISA” shall have
the meaning assigned thereto in Section 6.12
hereof.


 


“Event of Default”
shall mean any of the events set forth in Section 8.1
hereof.


 


“Excess Advances”
shall mean the cash amount advanced under the terms of Section 2.2
hereof.


 


“Excess Pro Rata Share”
shall mean the entire outstanding principal amount of the Excess Advances, all
as held by the Agent.


 


“Extended Wet Advance”
shall mean a Warehouse Advance requested to fund an Extended Wet Loan.


 


“Extended Wet Advance
Sublimit” shall mean an amount equal to five percent (5.0%) of the Total
Warehouse Line Commitment.


 


“Extended Wet Balances”
shall mean that portion of the aggregate outstanding principal balance of
Advances made to fund Extended Wet Loans.


 


“Extended Wet Loan”
shall mean a Loan the entire interest of which is owned by the Company and the
Collateral Documents relating to such Loan have not been delivered to the Agent
in more than ten (10) calendar days but no more than fifteen (15) calendar
days have elapsed since the day the Advance relating to such Loan is made by
the Banks.


 


“Extended Wet
Collateral Usage” shall mean that percentage of Eligible Collateral
calculated by dividing the aggregate Collateral Value of all Extended Loans by
the sum of the aggregate Collateral Value of all Eligible Collateral less
the aggregate Collateral Value of all Servicing Under Contract for Sale,
Servicing Held for Bulk Sale and all other Pledged Servicing Rights.


 


“Fannie Mae “
shall mean the Fannie Mae.


 


10





















 


“Fannie Mae ASAP
Programs” shall mean, collectively, all of the relevant Fannie Mae early
funding programs set forth in the Fannie Mae Tri-Party Agreement.


 


“Fannie Mae Tri-Party
Agreement” shall mean that certain letter agreement dated as of November 1,
1996 among the Company, the Agent and Fannie Mae pursuant to which Fannie Mae has
agreed to wire transfer to the Collateral Proceeds Account all cash proceeds
for each Early Funding Transaction defined therein.


 


“FDIC” shall mean
the Federal Deposit Insurance Corporation.


 


“Federal Funds
Effective Rate” shall mean, for any period, a fluctuating interest rate
equal for each day during such period to 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 such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three (3) federal funds brokers of
recognized standing selected by the Agent in its sole discretion.


 


“FHA” shall mean
the Federal Housing Administration.


 


“FHA Loan” shall
mean a Loan secured by a FHA Mortgage.


 


“FHA Mortgage”
shall mean a first mortgage securing a FHA Loan which is guaranteed by, or is
eligible to be guaranteed by, the FHA pursuant to the provisions of the
National Housing Act, as amended.


 


“FHLMC” shall mean
the Federal Home Loan Mortgage Corporation.


 


“FICO Score” shall
mean the credit score obtained by using the credit score methodology provided
by Fair Isaac Corporation.


 


“Firm Commitment”
shall mean a commitment from a substantial and reputable lending institution,
investor, or security dealer, reasonably satisfactory to the Agent, to purchase
from the Company a Loan or Loans or a Mortgage-backed Security or Securities
under which commitment the Company is obligated to sell such Loan, Loans, or
Mortgage-backed Security or Securities.


 


“First Mortgage”
shall mean a mortgage, deed of trust, or other security deed in land and other
interests in real property (including, without limitation, leasehold interests)
and the structures, improvements, fixtures, and buildings located thereon, or
in other rights and interests in real property which secures a Loan and, which
mortgage, deed of trust, or other security deed is subject to no prior or
superior mortgage, deed of trust or security deed in the land and other
interests in real property encumbered by such mortgage, deed of trust, or other
security deed.


 


“Funding Account”
shall mean the “no access” deposit account in the name of the Agent for the
benefit of the Company and maintained by the Agent at the main office of the
Agent into which each Bank’s Warehouse Advance or Swing Advance is to be
funded.


 


11





















 


“Funding Date”
shall have the meaning assigned thereto in Section 2.4C hereof.


 


“GAAP” shall mean
those generally accepted accounting principles set forth in the opinions and
pronouncements of the Financial Accounting Standards Board and its predecessors
and the American Institute of Certified Public Accountants or those generally
accepted principles of accounting which have other substantial authoritative
support and are applicable in the circumstances as of the date of application,
as such principles are from time to time supplemented and amended.


 


“GAAP Net Worth”
shall mean, as of any date of determination, the Company’s net worth as
determined in conformity with GAAP.


 


“GNMA” shall mean
the Government National Mortgage Association.


 


“HELOC Loan” shall
mean an Alternative Lending Loan secured by a Home Equity Mortgage.


 


“Highest Lawful Rate”
shall have the meaning assigned thereto in Section 2.8B
hereof.


 


“Home Equity Mortgage”
shall mean a mortgage, deed of trust or other security deed in land and other
interests in real property (including, without limitation, leasehold interests)
and the structures, improvements, fixtures and buildings located thereon, and
in other rights and interests in real property, which secures a Loan, and which
mortgage, deed of trust or other security deed which may be subject to a prior
or superior mortgage, deed of trust or other security deed in the land and
other interest in real property encumbered by such mortgage, deed of trust or
other security deed.


 


“Jumbo Advance”
shall mean an Advance requested to fund a Jumbo Loan, which advance shall not
exceed One Million Two Hundred Thousand Dollars ($1,200,000.00).


 


“Jumbo Advance
Sublimit” shall mean an amount equal to twenty percent (20%) of the Total
Warehouse Line Commitment; provided, however, that said sublimit shall be
subject to the following further limitations: (i) Advances requested to
fund Jumbo Loans with an original principal amount in excess of Seven Hundred
Fifty Thousand Dollars ($750,000.00) shall be limited to twenty-four percent
(24%) of the Jumbo Advance Sublimit; and (ii) Advances requested to fund
Jumbo Loans that are also Wet Loans or Extended Wet Loans shall be limited to
thirty percent (30%) of the Jumbo Advance Sublimit.


 


“Jumbo Balances”
shall mean that portion of the aggregate outstanding principal balance of
Advances made to fund Loans for which the documentation identified in Section 4.1 of the Security Agreement has not been delivered
to the Agent.


 


“Jumbo Collateral
Usage” shall mean that percentage of Eligible Collateral calculated by
dividing the aggregate Collateral Value of all Jumbo Loans by the sum of the
aggregate Collateral Value of all Eligible Collateral less the aggregate
Collateral Value of all Servicing Under Contract for Sale, Servicing Held for
Bulk Sale and all other Pledged Servicing Rights.


 


“Jumbo Loan” shall
mean a Loan, the amount of which exceeds Fannie Mae or FHLMC guidelines for
maximum eligible amount and the entire interest of which is owned by the
Company and which is secured by a Jumbo Mortgage covering a completed
one-to-four family residential property which


 


12





















 


is underwritten to be eligible for purchase by an Approved Investor,
provided that such Loan does not have a loan-to-value ratio greater than one
hundred percent (100%).


 


“Jumbo Mortgage”
shall mean a First Mortgage securing a Loan which meets all of the requirements
of a Conforming Mortgage except that the principal amount of such Loan exceeds
the maximum amount eligible for purchase by either Fannie Mae or FHLMC.


 


“Kentucky Uniform
Commercial Code” shall mean the Uniform Commercial Code from time to time
in effect in the Commonwealth of Kentucky, as the same is revised, amended,
modified and supplemented from time to time.


 


“Loan” shall mean
a residential real estate mortgage loan purchased, refinanced or made by the
Company, evidenced by a promissory note, and secured by a mortgage or deed of trust
or similar instrument creating an enforceable first or second lien upon a
completed one-to-four family residential property which was financed with the
proceeds of such loan.


 


“Loan Documents”
shall mean, collectively, this Credit Agreement, the Notes, the Security
Agreement, the Electronic Tracking Agreement, the other Collateral Documents
and any and all other documents executed in connection therewith, each as may
be amended, modified, supplemented and restated from time to time.


 


“MERS” shall mean
the Mortgage Electronic Registration System, Inc.


 


“MERSCORP” shall
mean MERSCORP, Inc.


 


“MERS Loan” shall
mean any Loan made by the Company that is secured by a MERS Mortgage.


 


“MERS Member”
shall mean any entity which is a member of MERS, in good standing and in
compliance with all rules, regulations, procedures and requirements set forth
by MERS, including, but not limited to the payment of membership dues.


 


“MERS Mortgage”
shall mean any first mortgage or second mortgage registered by the Company on
the MERS System.


 


“MERS System”
shall mean the Mortgage Electronic Registration System established by MERS.


 


“Net Income” shall
mean, for the period in question, the net income (or loss) of the Company for
such period taken as a single accounting period determined in accordance with
GAAP.


 


“Net Servicing
Portfolio” shall mean the Servicing Portfolio less (i) all loans that
are more than sixty (60) days past due, (ii) loans pledged to secure the
debts of Affiliates and (iii) servicing designated as Servicing Under
Contract for Sale or Servicing Held for Bulk Sale.


 


“Non-recourse
Servicing Portfolio” shall mean the Servicing Portfolio minus all
Recourse Servicing Obligations included in the Servicing Portfolio.


 


13





















 


“Notes” shall
mean, collectively, the Warehouse Notes and the Swing Note.


 


“Obligor” shall
mean a person or other entity who now or hereafter is or becomes liable to the
Company with respect to any of the Collateral.


 


“Person” shall
mean any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability
company, institution, entity, party, or government (whether national, federal,
state, county, city, municipal, or otherwise, and including, without
limitation, any instrumentality, division, agency, body, or department
thereof), whether acting in an individual, fiduciary, or other capacity,
including, without limitation, any Affiliate.


 


“Plan” shall have
the meaning assigned thereto in Section 7.12
hereof.


 


“Pledged Servicing
Rights” shall mean that portion of the Servicing Portfolio pledged to the
Agent, for the benefits of the Banks, as Collateral.


 


“Prevailing
Time” shall mean the prevailing time in Louisville, Kentucky.


 


“Pro Rata Share”
shall mean, as appropriate, a Bank’s Warehouse Pro Rata Share or Excess Pro
Rata Share.


 


“Recourse Servicing
Obligation” shall mean any Fannie Mae, FHLMC, GNMA or private investor
recourse servicing obligation which specifically provides that the Company must
repurchase a Loan upon the occurrence of a default under such Loan or any other
program which specifically provides that the Company must repurchase a Loan
upon the occurrence of a default under such Loan.


 


“Regulation D”
shall mean Regulation D of the Board of Governors of the Federal Reserve
System as in effect from time to time.


 


“Request for Advance”
shall mean a Request for Warehouse Advance or a Request for Swing Advance, as
appropriate.


 


“Request for Excess
Advance” shall mean a written request for an Excess Advance by the Company
in a form acceptable to the Agent in its sole discretion.


 


“Request for Swing
Advance” shall mean a written request for a Swing Advance by the Company in
a form acceptable to the Agent in its sole discretion.


 


“Request for Warehouse
Advance” shall mean a written request for a Warehouse Advance by the
Company in the form prescribed from time to time by the Agent in its sole discretion.


 


“Requisite Banks”
shall mean either (i) when an Event of Default does not exist, Banks
holding more than sixty-six and sixty-seven hundredths of one percent (66.67%)
of the sum of the Total Warehouse Line Commitment, or (ii) when an Event
of Default does exist, Banks holding more than sixty-six and sixty-seven
hundredths of one percent (66.67%) of the sum of the Aggregate Outstanding
Warehouse Balance, as of the date of determination of the Requisite Banks.


 


14





















 


“Second Mortgage”
shall mean a mortgage which is subject to only one prior or superior mortgage,
deed of trust, or other security deed in the land and other interests in real
property encumbered by such mortgage.


 


“Second Mortgage Loan”
shall mean a Loan made by the Company, the interest of which is owned by the
Company and which is secured by a Second Mortgage.


 


“Secured Obligations”
shall have the meaning assigned thereto in the Security Agreement.


 


“Security Agreement”
shall mean the Second Amended and Restated Pledge, Security and Collateral
Agency Agreement of even date herewith by and between the Company and the Agent
for the benefit of the Banks in proportion to their Pro Rata Share and
substantially in the form of Exhibit D
attached to this Credit Agreement, as amended, modified, supplemented and
restated from time to time.


 


“Security Interest”
shall mean every security interest, pledge, lien, hypothecation, and other
encumbrance on or in any of the assets of the Company now or hereafter granted
by the Company to the Agent (for the ratable benefit of the Banks) or any Bank,
whether pursuant to this Credit Agreement, the Security Agreement, or
otherwise.


 


“Servicing Advance”
shall mean an Advance requested to fund either a Servicing Under Contract
Advance or a Servicing Held for Bulk Sale Advance, as applicable.


 


“Servicing Advance
Sublimit” shall mean an amount equal to thirteen percent (13%) of the Total
Warehouse Commitment; provided, however, that said sublimit shall be subject to
the Servicing Held for Bulk Sale Advance Sublimit and the Servicing Under
Contract Advance Sublimit.


 


“Servicing Held for
Bulk Sale” shall mean a portion of the Servicing Portfolio designated by
the Seller as being accumulated for future bulk sale under a Contract for Sale
between the Company, as seller, and an Approved Servicing Purchaser.


 


“Servicing Held for
Bulk Sale Advance” shall mean an Advance requested to fund that portion of
the Servicing Portfolio that has been designated by the Company to be
accumulated for future sale to an Approved Servicing Purchaser under a Contract
for Sale.


 


“Servicing Held for
Bulk Sale Advance Sublimit” shall mean an amount equal to the least of (i) sixty-five
percent (65%) of the appraised value of the Pledged Servicing Rights which are
not designated as Servicing Under Contract for Sale, (ii) one percent
(1.0%) of the unpaid principal balance of the residual mortgages related to the
Pledged Servicing Rights after subtracting any pledged servicing designated as
Servicing Under Contract for Sale, or (iii) the amount of the overall
Servicing Advance Sublimit less the aggregate amount of all outstanding
Servicing Under Contract Advances.


 


“Servicing Portfolio”
shall mean, as of any particular date, the then aggregate unpaid principal
balance of the one-to-four family residential real estate mortgage loans which
are then being serviced by the Company pursuant to mortgage selling and
servicing contracts and mortgage pool purchasing contracts entered into with
Fannie Mae, GNMA, the FHLMC, or other investors acceptable to the Agent.


 


15





















 


“Servicing Report”
shall mean that certain monthly report prepared by the Company showing, among
other things, (i) the purchase price and sale date for the Company’s
Servicing Under Contract for Sale which are the subject of a Contract for Sale
with an Approved Servicing Purchaser, and (ii) the anticipated sale date
and purchase price for the Company’s Servicing Held for Bulk Sale which in the
future are to be the subject of a Contract for Sale with an Approved Servicing
Purchaser, such report to be in a form prescribed by the Agent from time to
time.


 


“Servicing Under
Contract Advance” shall mean an Advance requested to fund that portion of
the Servicing Portfolio that has been designated to be sold to an Approved
Servicing Purchaser under a Contract for Sale.


 


“Servicing Under
Contract Advance Sublimit” shall mean an amount equal to the least of (i) eighty
percent (80%) of the purchase price for the Servicing Under Contract for Sale
as set forth in the most recent Servicing Report delivered by the Company to
Agent, as calculated based upon the current Contract for Sale for the related
servicing rights designated by the Company to be delivered to the related
Approved Servicing Purchaser, (ii) one and three-quarters of one percent
(1.75%) of the unpaid principal balance of the residential mortgages being
serviced under the designated Servicing Under Contract for Sale, or (iii) the
amount of the overall Servicing Advance Sublimit less the aggregate
principal amount of all outstanding Servicing Held for Bulk Sale Advances.


 


“Servicing Under
Contract for Sale” shall mean a portion of the Servicing Portfolio
specifically designated by the Seller as being delivered subject to a current,
executed Contract for Sale between the Company, as seller, and an Approved
Servicing Purchaser.


 


“Standby Commitment”
shall mean a commitment from a substantial and reputable lending institution,
investor, or security dealer, reasonably satisfactory to the Agent, to purchase
from the Company within a specified time period a Loan or Loans, or a
Mortgage-backed Security or Securities, in an aggregate principal amount which
conforms to the criteria set forth therein, under which commitment the Company
has the right, but is not obligated, to sell such Loan, Loans, or Mortgage-backed
Security or Securities.


 


“Swing Advance”
shall mean the cash amount advanced under the Warehouse Line by the Agent to or
for the account of the Company under the terms of Section 2.2A
of this Credit Agreement.


 


“Swing Advance
Limitations” shall have the meaning assigned thereto in Section 2.2A hereof.


 


“Swing Line” shall
mean the swing line of credit established by the Agent pursuant to Article 2 hereof and in the maximum
principal amount determined by the Agent in its sole discretion.


 


“Swing Note” shall
mean the Amended and Restated Swing Promissory Note in substantially the form
of Exhibit E attached hereto, and
which shall evidence all Swing Advances.


 


“Tangible Net Worth”
shall mean, as of any date of determination, the sum of the total shareholders’
equity in the Company (including capitalized servicing rights and capitalized
excess servicing fees and retained earnings) less the aggregate book value of
all intangible assets (as determined in accordance with GAAP) including,
without limitation, goodwill, trademarks,trade names, service marks,


 


16





















 


copyrights, patents, licenses, franchises and unamortized debt discount
and expenses, but excluding in any event, servicing rights of the Company.


 


“Termination Date”
shall mean the earlier of: (i) the date set forth in Section 9.11
below; or (ii) the date the Agent declares this Credit Agreement to be
terminated, pursuant to Section 8.3
below; or (iii) such earlier date as may be selected by the Company upon (a) at
least forty-five (45) days prior written notice to the Agent and each of the
other Banks and (b) prepayment by the Company of all amounts due and owing
by the Company under this Credit Agreement and each of the other Loan
Documents.


 


“Total Indebtedness”
shall mean, as of the date of any determination, all indebtedness of the
Company, as determined in accordance with GAAP, including, without limitation,
all unpaid Secured Obligations, all amounts due under all capital leases, all
accounts and trade payables, and all other liabilities and obligations of the
Company, excluding, however, all repurchase obligations.


 


“Total Warehouse Line
Commitment” shall mean the total aggregate principal amount of all
Warehouse Line Commitments as determined from time to time in accordance with
the provisions of Article 2 and
Article 11 of this Credit
Agreement and shall be equal to One Hundred Million Dollars ($100,000,000.00),
unless such amount is increased pursuant to Section 11.1
of this Credit Agreement.


 


“Unmatured Event of
Default” shall mean any event which, with the lapse of time, or with notice
to the Company, or both, would constitute an Event of Default.


 


“Unqualified Amount”
shall have the meaning assigned thereto in Section 2.8B
hereof.


 


“Usage Fee” shall
have the meaning assigned thereto in Section 2.14C
hereof.


 


“VA” shall mean
the Veterans Administration.


 


“VA Loan” shall
mean a Loan secured by a VA Mortgage.


 


“VA Mortgage”
shall mean a First Mortgage securing a VA Loan which is guaranteed by, or is eligible
to be guaranteed by, the VA pursuant to the provisions of the Servicemen’s
Readjustment Act of 1944, as amended.


 


“Warehouse Advance”
shall mean the cash amount advanced under the Warehouse Line by the Banks to or
for the account of the Company under the terms of Section 2.1
of this Credit Agreement.


 


“Warehouse Borrowing
Base” shall mean that amount which is determined according to the formula
set forth in Exhibit A to this Credit
Agreement.


 


“Warehouse Commitment
Pro Rata Share” shall mean with respect to each Bank, the percentage set
forth opposite that Bank’s name on Schedule 2.1
to this Credit Agreement, as the same shall be amended from time to time as
provided herein.


 


“Warehouse Line”
shall have the meaning assigned thereto in the Preliminary Statement.


 


“Warehouse Line
Commitment” or “Warehouse Line Commitments” shall mean the
commitment of each Bank to maintain or make Warehouse Advances as set forth in Section 2.1 hereof.


 


17





















 


“Warehouse Notes”
shall mean, collectively, (i) that certain Amended and Restated Warehouse
Promissory Note of even date herewith, made by the Company, payable to the
order of National City, and in the face principal amount of Forty-Five Million
Dollars ($45,000,000.00), a form of which is annexed hereto as Exhibit C-1, as the same may hereafter be amended,
modified, renewed, replaced and/or restated from time to time, (ii) that
certain Amended and Restated Warehouse Promissory Note of even date herewith,
made by the Company, payable to the order of Comerica, and in the face
principal amount of Thirty-Five Million Dollars ($35,000,000.00), a form of
which is annexed hereto as Exhibit C-2,
as the same may hereafter be amended, modified, renewed, replaced and/or
restated from time to time, (iii) that certain Warehouse Promissory Note
of even date herewith, made by the Company, payable to the order of Colonial,
and in the face principal amount of Twenty Million Dollars ($20,000,000.00), a
form of which is annexed hereto as Exhibit C-3,
as the same may hereafter be amended, modified, renewed, replaced and/or
restated from time to time, and (iv) when executed and delivered, any such
additional Warehouse Promissory Note, substantially in the form annexed hereto
as Exhibit C-1 made by the Company,
payable to the order of any respective Applicant Financial Institution as shall
be added as a “Bank” hereunder, and in the face principal amount of such
Applicant Financial Institution’s Warehouse Line Commitment, as the same may
thereafter be amended, modified, renewed, replaced and/or restated from time to
time.


 


“Warehouse Pro Rata
Share” shall mean, with respect to each Bank, the percentage calculated by
dividing the average monthly sum of the Aggregate Outstanding Warehouse Balance
plus the Aggregate Outstanding Excess Balance attributable to such Bank
by the average monthly total of the Aggregate Outstanding Warehouse Balance plus
the Aggregate Outstanding Excess Balance.


 


“Wet Advance”
shall mean an Advance requested to fund a Wet Loan.


 


“Wet Advance Sublimit”
shall mean, as applicable, (i) during the first five (5) Business
Days and the last five (5) Business Days of each calendar month, an amount
equal to fifty-five percent (55%) of the Total Warehouse Line Commitment, and (ii) during
all other periods of time in any calendar month, an amount equal to fifty
percent (50%) of the Total Warehouse Line Commitment.


 


“Wet Balances”
shall mean that portion of the aggregate outstanding principal balance of
Advances made to fund Loans for which the documentation identified in Section 4.1 of the Security Agreement has not been
delivered to the Agent.


 


“Wet Collateral Usage”
shall mean that percentage of Eligible Collateral calculated by dividing the
aggregate Collateral Value of all Wet Loans by the sum of the aggregate
Collateral Value of all Eligible Collateral less the aggregate
Collateral Value of all Servicing Under Contract for Sale, Servicing Held for
Bulk Sale and all other Pledged Servicing Rights.


 


“Wet Loan” shall
mean a Loan the entire interest of which is owned by the Company and the
Collateral Documents relating to such Loan have not been delivered to the Agent
and not more than ten (10) calendar days have elapsed since the day the
Advance relating to such Loan is made by the Banks.


 


“Working Capital
Advance” shall mean an Advance requested to fund the general operating
needs of the Company in the normal course of business.


 


“Working Capital
Advance Sublimit” shall mean the lesser of: (i) sixty-five percent
(65%) of the appraised value of the Pledged Servicing Rights which are not
designated as Servicing Under Contract for Sale or Servicing Held for Bulk
Sale, (ii) one percent (1.0%) of the unpaid principal balance of


 


18





















 


the residential mortgages related to the Pledged Servicing Rights after
subtracting any pledged servicing designated as Servicing Under Contract for
Sale or Servicing Held for Bulk Sale, or (iii) an amount equal to seven
and two-tenths of one percent (7.2%) of the Total Warehouse Line Commitment.


 


1.2                                 Accounting
Terms.  All accounting terms, except
as their meanings may be modified by this Credit Agreement, shall have the
meanings given them in accordance with GAAP.


 


ARTICLE 2


 


THE WAREHOUSE LINE


 


2.1                                 Warehouse
Advances. Each Bank severally agrees to lend to the Company, and the
Company agrees to borrow from each Bank, on the terms and conditions of this
Credit Agreement, an aggregate amount not exceeding such Bank’s respective
Warehouse Line Commitment, and the aggregate amount of all such Warehouse Line
Commitments shall equal the Total Warehouse Line Commitment; provided, however
the Total Warehouse Line Commitment includes a Wet Advance Sublimit, an
Extended Wet Advance Sublimit, a Working Capital Advance Sublimit, a Jumbo
Advance Sublimit, an Alternative Lending Advance Sublimit, a Sublimit, a
Servicing Held for Bulk Sale Advance Sublimit and a Servicing Under Contract
Advance Sublimit. Subject to the terms and conditions contained herein,
Warehouse Advances may be repaid and reborrowed until the Termination Date.
Each Bank’s commitment to make Warehouse Advances under this Section 2.1 is herein called its “Warehouse Line
Commitment” and such commitments of all Banks in the aggregate are herein
called the “Total Warehouse Line Commitment”. The Total Warehouse Line
Commitment is equal to One Hundred Million Dollars ($100,000,000.00) to and
until the Termination Date, and shall be available to the Company as Advances,
subject to the right of the Agent and the Company in their sole, joint
discretion to increase such amount by adding one or more Applicant Financial
Institutions as a “Bank” or “Banks” hereunder pursuant to the provisions of Section 11.1 hereof.  The principal amount set forth above (as the
same may be increased pursuant to the terms hereof) shall be available to the
Company as Warehouse Advances, Excess Advances and Swing Advances, subject to
the terms and conditions hereof, at such times prior to the Termination Date
and in such sums, as the Company may request.


 


Notwithstanding the
foregoing, the Banks shall not be obligated to make a Warehouse Advance which, (a) when
added to the sum of the Aggregate Outstanding Warehouse Balance plus the
Aggregate Outstanding Excess Balance, would cause the Aggregate Outstanding
Warehouse Balance plus the Aggregate Outstanding Excess Balance to
exceed the Warehouse Borrowing Base at such time; (b) when added to the
sum of the Aggregate Outstanding Warehouse Balance plus the Aggregate
Outstanding Excess Balance, would cause or result in a violation of the
financial covenants set forth in Article 6 hereof;
(c) if such Advance is a Wet Advance, when added to the aggregate
outstanding balance of all Wet Advances and Extended Wet Advances would cause
or result in a violation of the Wet Advance Sublimit; (d) if such Advance
is an Extended Wet Advance, when added to the outstanding balance of all
Extended Wet Advances would cause or result in a violation of the Wet Advance
Sublimit or the Extended Wet Advance Sublimit; (e) if such Advance is a
Working Capital Advance, when added to the outstanding balance of all Working
Capital Advances would cause or result in a violation of the Working Capital
Advance Sublimit; (f) if such Advance is a, when added to the outstanding
balance of all s would cause or result in a violation of the Sublimit; (g) if
such Advance is a Jumbo Advance, when added to the outstanding of all Jumbo
Advances would cause or result in a violation of the Jumbo Advance Sublimit; (h) if
such Advance is an Alternative Lending Advance, when added to the outstanding
balance of all Alternative Lending Advances would cause or result in a
violation of the Alternative Lending Advance Sublimit; (i) if such Advance
is a


 


19





















 


Servicing Under Contract Advance or a Servicing Held for Bulk Sale
Advance, when added to the outstanding balance of all Servicing Under Contract
Advances or Servicing Held for Bulk Sale Advances, respectively, would cause or
result in a violation of any or all of the Servicing Under Contract Advance
Sublimit, the Servicing Held for Bulk Sale Advance Sublimit or the Servicing
Advance Sublimit; (j) if such Advance would cause or result in the Aggregate
Outstanding Warehouse Balance plus the Aggregate Outstanding Excess Balance
to exceed the Total Warehouse Line Commitment; or (k) if such Advance is an
Agency Qualified A Minus Advance, when added to the outstanding balance of all
Agency Qualified A Minus Advances, would cause or result in a violation of the
Agency Qualified A Minus Advance Sublimit. The Banks shall not be obligated to
honor any Request for Warehouse Advance if the disbursement of funds thereunder
would occur on or after the Termination Date, or if an Event of Default has
occurred and has not been cured within the specified grace period, or if such
disbursement would cause or result in an Event of Default or an Unmatured Event
of Default.


 


2.2                                 Swing
Advances and Excess Advances by Agent.


 


A.                                   Swing
Advances.  Upon the terms and subject
to the conditions contained in this Credit Agreement, the Agent may for its own
account and at its own discretion, make one or more Swing Advances to the
Company, the aggregate unpaid principal amount of which at any time, including
those then to be made, shall not exceed the least of (i) the sum of the
Total Warehouse Line Commitment at such time less the sum of the
Aggregate Outstanding Warehouse Balance plus the Aggregate Outstanding
Excess Balance at such time, (ii) the sum of the Agent’s Warehouse Line
Commitment at such time less the amount of the Aggregate Outstanding
Warehouse Balance plus the Aggregate Outstanding Excess Balance then
allocated to the Agent, and (iii) Twenty Million Dollars ($20,000,000.00);
provided, that, the sum of the Aggregate Outstanding Warehouse Balance plus
the Aggregate Outstanding Excess Balance plus the Swing Advance to be
made by the Agent, shall not exceed the Warehouse Borrowing Base as set forth
in the most recent Borrowing Base Report prepared by the Agent on the day of
the making of such Swing Advance plus the Collateral Value of the
Eligible Collateral delivered to the Agent on that day and which is not
included in the most recent Borrowing Base Report (the “Swing Advance
Limitations”).  Subsequent to a Swing
Advance being made by the Agent, the Agent may at any time (and in any event
shall no less frequently than one (1) time each week) in its sole and
absolute discretion, demand the Banks (including the Bank serving as the Agent)
to advance under their respective Warehouse Notes and pay the Agent an amount
equal to their respective Warehouse Commitment Pro Rata Share of the Warehouse
Advance necessary to repay the then current aggregate outstanding balance of
all Swing Advances.  On each day on which
the Agent makes a demand for payment before 2:00 p.m. Prevailing Time, on
any particular Business Day, whether before or after the occurrence of an Event
of Default, each Bank shall irrevocably and unconditionally purchase from the
Agent, without recourse or warranty, an undivided interest and participation in
the Swing Advances then outstanding, by paying to the Agent, in same day funds
available to the Agent at the Agent’s Main Office, in an amount equal to such
Bank’s Warehouse Commitment Pro Rata Share of all Swing Advances then
outstanding, and thereafter, the Banks’ respective interest in such Swing
Advance, shall in all respects be treated as a Warehouse Advance, but such
Advance shall continue to be evidenced by the Swing Note.  In the event the Agent makes such demand of
the Banks after 2:00 p.m. Prevailing Time on any particular Business Day,
the Banks shall be required to make their respective payments to the Agent
before 12:00 noon Prevailing Time on the immediately succeeding Business Day.


 


B.                                     Excess
Advances by Agent.  Upon the terms
and subject to the conditions contained in this Credit Agreement, in the event
the Agent is prevented from making a Swing Advance hereunder as a result of the
application of the Swing Advance Limitations outlined above the Agent may for


 


20





















 


its own account and at its sole discretion, make one or more Excess
Advances to the Company, the aggregate unpaid principal amount of which at any
time, including those to be made, shall not exceed the lesser of (i) the sum
of the Total Warehouse Line Commitment at such time minus the sum of the
Aggregate Outstanding Warehouse Balance plus the Aggregate Outstanding
Excess Balance at such time, and (ii) the amount of the Agent’s Warehouse
Line Commitment at such time minus the sum of the Agent’s Pro Rata Share
of the Aggregate Outstanding Warehouse Balance plus the Aggregate
Outstanding Excess Balance at such time; provided, that, the sum of the
Aggregate Outstanding Warehouse Balance plus the Aggregate Outstanding
Excess Balance plus the Excess Advance to be made by the Agent, shall
not exceed the Warehouse Borrowing Base as set forth in the most recent
Borrowing Base Report prepared by the Agent on the day of the making of the
Excess Advance plus the Collateral Value of the Eligible Collateral
delivered to the Agent on that day and which is not included in the most recent
Borrowing Base Report.  Subsequent to an
Excess Advance being made by the Agent, the Agent may at any time (and in any
event no less frequently than one (1) time each week) in its sole and
absolute discretion request the other Banks to pay their Warehouse Commitment
Pro Rata Share of the Warehouse Advance necessary to repay all or any portion
of the Excess Advances then outstanding. 
On each Business Day on which the Agent makes a demand for payment
before 2:00 p.m. Prevailing Time, whether before or after the occurrence
of an Event of Default, each Bank shall pay to the Agent its Warehouse
Commitment Pro Rata Share of the Warehouse Advance necessary to pay the Excess
Advances designated by the Agent to be reallocated and paid by the Banks, such
payments shall be wired to the Agent, in same day funds available to the Agent
at the Agent’s Main Office, in an amount equal to such Bank’s Warehouse
Commitment Pro Rata Share of all Excess Advances then designated by the Agent
to be reallocated and paid by the Banks. 
In the event the Agent makes such demand of the Banks after 2:00 p.m.
Prevailing Time on any particular Business Day, the Banks shall be required to
make their respective payments to the Agent before 12:00 noon Prevailing Time
on the immediately succeeding Business Day.


 


2.3                                 Notes.


 


A.                                   Warehouse
Advances. The lending described above, to be made through Warehouse
Advances made by the Banks in accordance with the terms set forth herein, shall
be evidenced by the Warehouse Notes of the Company substantially in the form of
Exhibits C-1, C-2 and C-3 to this
Credit Agreement.  The aggregate amount
of the Warehouse Advances made under the Warehouse Notes, less repayments of
principal, shall be the principal amount owing and unpaid on such Warehouse
Notes. The Warehouse Notes shall be payable in the manner, and shall bear
interest at the rates, specified therein and in this Credit Agreement.


 


B.                                     Swing
Advances.  The lending described
above, to be made through Swing Advances made by the Agent for its own account
in accordance with the terms set forth herein, shall be evidenced by the Swing
Note made by the Company payable to the order of the Agent substantially in the
form of Exhibit E to this Credit
Agreement.  The aggregate amount of Swing
Advances made under the Swing Note, less repayments of principal, shall be the
principal amount owing and unpaid on the Swing Note.  The Swing Note shall be payable in the
manner, and shall bear interest at the rates, specified in this Credit
Agreement.


 


C.                                     Excess
Advances.  The lending described
above, to be made through Excess Advances by the Agent for its own account in
accordance with the terms set forth herein, shall be evidenced by the Warehouse
Note made by the Company made payable to National City substantially in the
form of Exhibit C-1 to this Credit
Agreement.  The aggregate amount of the
Warehouse Advances plus


 


21





















 


Excess Advances made under the Warehouse Note referenced above, less
repayments of principal, shall be the principal amount owing and unpaid on such
Warehouse Note.


 


2.4                                 Manner
of Borrowing.


 


A.                                   Request
for Advance.  The Company shall
deliver to the Agent, not later than 1:00 p.m. Prevailing Time on the
Business Day on which the Company desires to obtain an Advance, an original (or
facsimile copy) executed Request for Advance (which shall be irrevocable)
specifying the amount of the Advance which it desires to borrow.  Agent in its sole discretion can treat any
Request for Advance as either (i) a Request for Advance, (ii) a
Request for Swing Advance, or (iii) a Request for Excess Advance, as
applicable.  On the date of the Agent’s
receipt of a Request for Advance if: (a) no Event of Default or Unmatured
Event of Default has occurred and is then existing; (b) all terms and
conditions of this Credit Agreement required to be satisfied prior to the
making of the particular type of Advance, including without limitation, all
conditions precedent specified in Article 4
hereof, are in fact satisfied; (c) all terms and conditions of the
Security Agreement required to be satisfied prior to the making of a Warehouse
Advance are in fact satisfied; and (d) the making of such Advance shall
not cause or result in either a violation of any of the terms of this Credit
Agreement or of the Security Agreement, an Event of Default, or an Unmatured
Event of Default, the Agent shall (xx) in the case of a Warehouse Advance,
credit each Bank’s Pro Rata Share of such Warehouse Advance received by the
Agent to the Company in accordance with the terms set forth below, (yy) in the
case of a Swing Advance, credit the amount of such Swing Advance to the
Company, and (zz) in the case of an Excess Advance, credit the amount of such
Excess Advance to the Company.  Requests
for a Warehouse Advance received by the Agent after 1:00 p.m. Prevailing
Time will not be processed as a Warehouse Advance, but may be treated, at the
Agent’s sole discretion, as a Swing Advance. 
Requests for Advance received by the Agent after 4:00 p.m.
Prevailing Time will not be processed by the Agent as a Request for Warehouse
Advance until the immediately succeeding Business Day.


 


B.                                     Disbursement
of Bank’s Warehouse Pro Rata Share. 
All Warehouse Advances requested by the Agent under this Credit
Agreement shall be made by the Banks simultaneously and proportionately to
their respective Warehouse Pro Rata Shares of each such Warehouse Advance, it
being understood that, except as provided in Section 2.4C
below, no Bank shall be responsible for any default by any other Bank of that
other Bank’s obligation to fund its Warehouse Pro Rata Share of a Warehouse
Advance requested hereunder nor shall the Warehouse Line Commitment of any Bank
be increased or decreased as a result of the default by any other Bank of that
other Bank’s obligation to fund its Warehouse Pro Rata Share of a Warehouse
Advance requested hereunder.  Promptly
after receipt by the Agent of a Request for Advance pursuant to this Section 2.4, the Agent shall notify each Bank of the
Warehouse Advance requested by the Company pursuant thereto and each Bank’s
Warehouse Pro Rata Share of such Warehouse Advance.  Each Bank shall make its Warehouse Pro Rata
Share of each Warehouse Advance (other than a Swing Advance or an Excess
Advance) to be made to the Company available to the Agent, in same day funds,
at the Agent’s Main Office not later than 3:00 p.m. Prevailing Time on the
date the Request for Advance from the Company is received by the Agent.  The time of the Agent’s receipt of same day
funds from the Banks which are wire transferred through the Federal Reserve
System shall be based upon the Federal Reference Number and the “time out” for
any such wire transfer.  Upon satisfaction
or waiver of the conditions precedent specified in Section 4.1
hereof in the case of the initial Advance and Section 4.2
hereof in the case of any subsequent Advance, the Agent shall make the proceeds
of each Advance requested by the Company available to the Company on the date
specified above by causing an amount of same day funds equal to the proceeds of
the Banks’ respective Pro Rata Shares of such Warehouse Advance received by the
Agent at its office located at the address set forth in the preceding


 


22





















 


sentence to be credited to the Company; provided, however, with respect
to each Wet Advance or Extended Wet Advance (whether in the Form of a
Warehouse Advance, Swing Advance or Excess Advance), the proceeds thereof shall
be deposited into the Funding Account, and at the option of the Agent, be (i) transferred
to the Company’s operating account to be wire transfers initiated by the
Company via the Agent’s mechanism for accessing the Federal Reserve Wire
Transfer System directly to the Company’s agent responsible for closing the
related Wet Loan, or if the Company closes its own Wet Loan, then directly to
the Company or the Company’s agent, (ii) funded by a draft or check on the
Agent or one of its affiliates, which draft or check shall be made payable to
the Company’s agent responsible for closing the related Wet Loan, or if the
Company closes its own Wet Loan, then directly to the Company or the Company’s
agent, (iii) funded by an cashiers check issued by the Agent on behalf of
the Company and made payable to the Company’s agent responsible for closing the
related Wet Loan or Extended Wet Loan, or (iv) disbursed in such other
manner as is acceptable to the Company and the Agent.


 


C.                                     Assumptions
by Agent for Advances; Failure to Fund by a Bank.  Unless the Agent shall have been notified by
any Bank prior to the date that such Bank’s Warehouse Pro Rata Share of a
Warehouse Advance is to be made (the “Funding Date”) that such Bank does not
intend to make available to the Agent such Bank’s Warehouse Pro Rata Share of
such Warehouse Advance requested on such Funding Date, the Agent may assume
that such Bank has made such amount available to the Agent on such Funding Date
and the Agent may, in its sole discretion, but shall not be obligated to, make
available to the Company a corresponding amount on such Funding Date.  If such corresponding amount is not in fact
made available to the Agent by such Bank, the Agent shall be entitled to
recover a Two Hundred Dollar ($200.00) processing fee plus such
corresponding amount owed on demand from such Bank together with interest
thereon, for each day from such Funding Date until the date such amount is paid
to the Agent, at the customary rate set by the Agent for the correction of
errors among banks for three (3) Business Days and thereafter at the
Default Rate. If such Bank does not pay such corresponding amount forthwith
upon the Agent’s demand therefor, the Agent shall notify the other Banks and
each of the other Banks shall immediately pay to the Agent a pro rata share
(excluding in such calculation the Bank which failed to fund) of such amount
not funded by a Bank; provided, however, no Bank shall be obligated to fund any
amount under this Credit Agreement in excess of that Bank’s Warehouse Line
Commitment, as applicable.  If any
portion of the amount not funded by a Bank is not paid to the Agent by the
other Banks in accordance with the immediately preceding sentence, the Agent
shall promptly notify the Company and the Company shall immediately pay such
corresponding amount to the Agent and shall pay interest on such amount for
each day from such Funding Date until the date such amount is paid to the
Agent, at the applicable interest rate borne by the particular Advance, which
amount shall be paid to the Agent at the next monthly billing.  Nothing in this Section 2.4
shall be deemed to relieve any Bank from its obligation to fulfill its
Warehouse Line Commitment hereunder or to prejudice any rights that the Company
may have against any Bank as a result of any default by such Bank
hereunder.  In the event any Bank gives
notice to the Agent that such Bank does not intend to fund its Pro Rata Share
of any Warehouse Advance to be made to the Company or in the event any Bank otherwise
fails to fund its Pro Rata Share of any Warehouse Advance to be made to the
Company, the Agent shall promptly notify the other Banks of the occurrence of
any such event and the other Banks shall each fund a pro rata share (excluding
in the calculation the nonfunding Bank) of the nonfunding Bank’s Warehouse Pro
Rata Share of each Advance not funded by such Bank; provided, however, no Bank
shall be obligated to fund any amount under this Credit Agreement in excess of
its Warehouse Line Commitment.  In the
event any Bank gives notice to the Agent that such Bank does not intend to fund
its Pro Rata Share of any Warehouse Advance to be made to the Company or in the
event any Bank otherwise fails to fund its Pro Rata Share of any Advance to be
made to the Company, the Agent shall telephonically notify the Company of the
occurrence of any such event.  The
Warehouse Pro Rata Share of principal payments (from any source whatsoever)
payable hereunder to a Bank which fails to fund


 


23





















 


its Pro Rata Share of any Warehouse Advance, Swing Advance or Excess
Advance, shall be paid on a pro rata basis to the Banks which funded that Bank’s
Pro Rata Share of such Warehouse Advance, Swing Advance or Excess Advance, as
applicable until the amount which those Banks funded for the Bank which failed
to fund, has been repaid in full (the “Repayment Date”).  Notwithstanding anything contained hereunto
the contrary, in the event that any Bank fails to fund its Pro Rata Share of
any Warehouse Advance on a Funding Date, on such Funding Date all conditions
precedent to such Warehouse Advance have been satisfied, such Bank shall
forfeit all consent and voting rights for all purposes hereunder and under the
other Loan Documents for the entire period of time commencing upon its failure
to fund on the Funding Date and ending on the Repayment Date; provided,
however, such forfeiture shall not apply to the right of a Bank to consent to
any amendment or modification of this Credit Agreement or any other Loan
Documents which require the consent of the Agent and all of the Banks pursuant
to the terms of Section 9.20
hereof.


 


2.5                                 Records.


 


A.                                   Advances.  The Agent shall record the names and
addresses of the Banks and the Warehouse Pro Rata Shares of the Advances of
each Bank from time to time in the records of the Agent.  The Company, the Agent and the Banks may
treat each Person whose name is so recorded in the records of the Agent as a
Bank hereunder for all purposes of this Credit Agreement.  The Agent’s records maintained pursuant to
this Section 2.5 shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice to the Agent.


 


B.                                     Payments.  The Agent shall record each repayment or
prepayment in respect of the principal amount of the Banks’ Warehouse Pro Rata
Shares in the Advances in the Agent’s records. 
Any such recordation in accordance with the terms of this Credit
Agreement shall be conclusive and binding on the Company absent demonstrable
error; provided, that failure to make any such recordation, or any error
in such recordation, shall not affect the Company’s obligation to repay all
Advances to the Banks in accordance with this Credit Agreement, the Warehouse
Notes and the Swing Note.


 


C.                                     Bank’s
Records.  Each Bank shall record on
its internal records its Warehouse Pro Rata Share of each Advance made by it to
the Company and each payment in respect thereof.  Any such recordation in accordance with the
terms of this Credit Agreement shall be conclusive and binding on the Company
absent demonstrable error; provided, that failure to make any such
recordation, or any error in such recordation, shall not affect the Company’s
obligation to repay all Warehouse Advances to the Banks in accordance with this
Credit Agreement, the Warehouse Notes and the Swing Note; provided further,
that in the event of any inconsistency between the Agent’s records and any Bank’s
records, the Agent’s records shall govern in the absence of demonstrable or
demonstrable error.


 


2.6                                 Certain
Representations.  Each Request for
Advance shall be deemed to be the representation of the Company and of the
officer making such request that: (a) all conditions precedent set forth
in Article 4 hereof have been satisfied;
(b) the Company is in compliance with all financial covenants set forth in
Article 5 hereof; (c) the
representations and warranties contained in Article 6
hereof remain true and correct; and (d) no Event of Default and no
Unmatured Event of Default has occurred and is then existing, or will exist
upon completion of the requested Advance.


 


24





















 


2.7                                 Payment
of the Warehouse Notes.


 


A.                                   Termination
Date.  On the Termination Date,
without necessity of notice or demand, the Company shall pay to the Agent for
the account of the Banks the full amount of the outstanding principal balance
of, and all accrued but unpaid interest on, the Warehouse Notes and the Swing
Note.


 


B.                                     Borrowing
Base Deficiency.  If, at any time,
and for any reason, including without limitation a reduction in the Collateral
Value or any part thereof by virtue of such value being marked to market, the
sum of the Aggregate Outstanding Warehouse Balance plus the Aggregate
Outstanding Excess Balance exceeds the Warehouse Borrowing Base, as determined
by the Agent, then the Company shall immediately pay to the Agent an amount
equal to the amount by which the sum of the Aggregate Outstanding Warehouse
Balance plus the Aggregate Outstanding Excess Balance exceeds the
Warehouse Borrowing Base.


 


C.                                     Proceeds
of Collateral.  The proceeds from the
Collateral shall be payable to the Agent for application to the Warehouse Notes
and other Secured Obligations under and in accordance with the terms of the
Security Agreement.


 


2.8                                 Rates
of Interest.


 


A.                                   Applicable
Rates of Interest.  Each Advance
shall bear interest on the unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or the Balance Funded Base Rate, as the case may
be.  The outstanding principal balance of
the Swing Note and each Warehouse Note shall bear interest as follows: (i) at
the Balance Funded Base Rate for that portion of the average monthly aggregate
principal balance of a Balance Funded Bank’s Warehouse Note which does not
exceed the Average Monthly Available Deposits maintained by the Company with
such Bank, and (ii) at the Base Rate for that portion of the average
monthly aggregate principal balance of a Bank’s Warehouse Note which exceeds
such Average Monthly Available Deposits maintained by the Company with such
Bank.


 


B.                                     Highest
Lawful Rate.  Notwithstanding
anything to the contrary contained in this Credit Agreement or the Notes, at no
time shall the interest rate payable on the Warehouse Advances, together with
all fees and other amounts payable hereunder to the extent the same constitute
or are deemed to constitute interest, exceed the maximum rate of interest
allowed by applicable law (the “Highest Lawful Rate”).  In respect of any period during the term of
this Credit Agreement, any amount paid to any Bank, to the extent the same
shall (but for the provisions of this Section 2.8B)
constitute or be deemed to constitute interest, would exceed the maximum amount
of interest permitted by the Highest Lawful Rate during such period (such
amount being hereinafter referred to as an “Unqualified Amount”), then,
notwithstanding anything to the contrary contained in this Section 2.8,
such Unqualified Amount shall be applied or shall be deemed to have been
applied as a prepayment on the Advances.


 


2.9                                 Interest
Payments.  As soon as reasonably
possible subsequent to the availability of the account analysis statement, the
Agent shall deliver to the Company and each Bank an interest billing statement
(the “Billing Statement”), which Billing Statement shall set forth the interest
accrued with respect to the outstanding principal balance of the Warehouse
Notes and the Swing Note bearing interest from and including the first day of
the preceding month through the last day of such month computed in the manner
set forth in Section 2.8A;
provided, that any failure or delay in delivering such interest billing
statement or any inaccuracy therein shall not affect any of the Company’s
obligations and liabilities hereunder. 
Interest shall be payable, (i) in the case of the outstanding
principal balance of the Warehouse Notes and the Swing


 


25





















 


Note on the fifth (5th) calendar day after receipt of the
Billing Statement referred to above and (ii) upon repayment of any of the
outstanding principal balance of the Warehouse Notes and the Swing Note at
maturity (by reason of acceleration or otherwise).  Any interest accruing at the Default Rate
shall be payable on demand.


 


2.10                           Post-Maturity
Interest.  Any principal payments on
the Swing Note and the Warehouse Notes not paid when due and, to the extent
permitted by applicable law, any interest payments on the Swing Note and
Warehouse Notes or any fees or other amounts owed hereunder not paid when due,
in each case whether at stated maturity, by notice of prepayment, by
acceleration or otherwise, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate equal to the applicable
Default Rate.  Payment or acceptance of
the increased rates of interest provided for in this Section 2.10
is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of the Agent or any Bank.


 


2.11                           Computation
of Interest.  Interest on the Notes
shall be computed on the basis of a 360-day year, in each case for the actual
number of calendar days elapsed in the period during which it accrues.


 


2.12                           General
Provisions Regarding Prepayments and Payments.


 


A.                                   Prepayments.  The Company may, at any time and from time to
time, prepay all or any portion of the outstanding principal balance of the
Notes without premium or penalty.  All
prepayments (whether voluntary or involuntary, at maturity, by acceleration or
otherwise) of the outstanding principal balance of the Notes shall be applied, first,
to the repayment of the accrued and unpaid interest on and outstanding
principal balance of the Swing Note to the full extent thereof, second,
to any delinquent fees, costs or expenses, third, to the repayment of
the accrued and unpaid interest on and outstanding principal balance of all
Excess Advances, and fourth, to the repayment of the outstanding
principal balance of all Warehouse Advances. 
All prepayments of the outstanding principal balance of the Warehouse
Notes shall be applied first to principal bearing interest at the Base Rate to
the full extent thereof, then to principal bearing interest at the Balance
Funded Base Rate to the full extent thereof, in a manner which minimizes the
amount of any payments required to be made by the Company pursuant to Section 2.12 hereof.


 


B.                                     Manner
and Time of Payment.  All payments of
principal, interest and fees hereunder, under the Swing Note and under the
Warehouse Notes by the Company shall be made without defense, setoff and
counterclaim and upon the Agent’s receipt of notice from the Company, which
notice shall not be given later than the fifth (5th) calendar day after the
Company’s receipt of the Billing Statement under Section 2.9
hereof, the Agent shall be authorized to charge the Company’s “DDA Account”
maintained at National City (Account #71435776) to pay all principal (to the
extent that the funds in the Collateral Proceeds Account are not sufficient to
make a payment of principal), interest and fees due hereunder, provided there
are sufficient funds available in such account for that purpose.  If there are not sufficient funds available
in such account for that purpose or if the Agent has not received notice from
the Company authorizing the Agent to charge the Company’s “DDA Account”, the
Company shall make such payments in same day funds and delivered to the Agent
not later than 1:00 p.m. Prevailing Time on the date due at the Agent’s
Main Office, for the account of the Banks; funds received by the Agent after
that time shall be deemed to have been paid by the Company on the next
succeeding Business Day.


 


26





















 


C.                                     Apportionment
of Payments.  Except as otherwise
provided herein, the Agent shall apportion all principal and interest payments
on the Warehouse Notes, in each case proportionately to the Banks’ respective
Warehouse Pro Rata Shares.  The Agent
shall promptly distribute to each Bank at its primary address set forth below
its name on the appropriate signature page hereof or such other address as
any Bank may request, its Warehouse Pro Rata Share of (i) all such
payments when received by the Agent, and (ii) the usage fees and
commitment fees under Section 2.14
hereof when received by the Agent.


 


D.                                    Payments
on a Business Day.  Whenever any
payment to be made hereunder or under the Warehouse Notes or the Swing Note
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest on the
underlying principal payment due hereunder, under the Swing Note or under the
Warehouse Notes or of the fees hereunder, as the case may be.


 


2.13                           Set-Off.  The Company hereby irrevocably authorizes
each Bank, upon the occurrence of an Event of Default to set off the liability
of the Company on the Warehouse Notes and the Swing Note, without notice,
against all deposits and credits of the Company with, and any and all claims of
the Company against, such Bank at any time outstanding provided, however, that
the Banks shall not offset against deposits and credits of the Company held in
trust or in a custodial capacity for third parties.


 


2.14                           Fees.


 


A.                                   Commitment.  The Company agrees to pay to each of the
Banks, a monthly commitment fee (the “Commitment Fee”), in arrears, computed at
the rate of one-eighth of one percent (0.125%) per annum on the amount of such
Bank’s Warehouse Line Commitment.


 


B.                                     Collateral
Handling/Agent’s Fee.  The Company
agrees to pay to the Agent such collateral handling fees (collectively, the “Collateral
Handling Fees”) and the agent fee (the “Agent Fee”) in the amounts and at the
times set forth in the fee letter issued by the Agent to the Company.  As provided in such fee letter, the full
amount of the applicable Agent Fee shall be due and payable in advance.


 


C.                                     Usage Fee.  In
addition to the Base Rates paid by the Company on the Notes, the Company agrees
to pay the following usage fees (the “Usage Fees”):


 


(i)                                     A
usage fee computed at the rate of one-quarter of one percent (.25%) per annum
times the Extended Wet Collateral Usage multiplied by the sum of the aggregate
unpaid principal balance of all Warehouse Advances less the aggregate
unpaid principal balance of all Working Capital Advances, Servicing Held for
Bulk Sale Advances and Servicing Under Contract Advances;


 


(ii)                                  A
usage fee computed at the rate of one-quarter of one percent (.25%) per annum times
the Wet Collateral Usage multiplied by the sum of the aggregate unpaid
principal balance of all Warehouse Advances less the aggregate unpaid
principal balance of all Working Capital Advances, Servicing Held for Bulk Sale
Advances and Servicing Under Contract Advances;


 


27





















 


(iii)                               A
usage fee computed at the rate of one percent (1.00%) per annum multiplied by
the aggregate unpaid principal balance of all Working Capital Advances;


 


(iv)                              A
usage fee computed at the rate of one-half of one percent (.50%) per annum
times the Alternative Lending Collateral Usage multiplied by the sum of the
aggregate unpaid principal balance of all Warehouse Advances less the
aggregate unpaid principal balance of all Working Capital Advances, Servicing
Held for Bulk Sale Advances and Servicing Under Contract Advances; and


 


(v)                                 A
usage fee computed at the rate of fifty-five one hundredths of one percent
(.55%) per annum multiplied by the aggregate unpaid principal balance of all Servicing
Under Contract Advances and Servicing Held for Bulk Sale Advances.


 


There shall be no usage
fee payable on Agency Qualified A Minus Advances.


 


D.                                    Amendment
Fees; Documentation Review Fees.  The
Company agrees to (i) reimburse the Agent for all legal fees reasonably
incurred in connection with any amendment to the Loan Documents and (ii) pay
to each of the Banks and the Agent an amendment fee equal to Three Hundred
Seventy Five Dollars ($375.00) for each amendment to the Loan Documents;
provided, however, the Company shall not be required to pay such $375.00
amendment fee to any of the Banks in connection with any amendment of the Loan
Documents which is executed (either individually or as part of a series of
amendments) for the sole purpose of extending the Termination Date for not more
than an aggregate of one hundred twenty (120) days.  Nothing contained in this Section 2.14 shall compel the Agent or the Banks to
authorize or execute any amendment to the Loan Documents, all such amendments
being subject to the compete discretion of the Agent and the Banks. Further,
the Company agrees to pay to each of the Banks and the Agent a document review
fee equal to Seven Hundred Fifty Dollars ($750.00) for reasonable expenses
incurred in reviewing the initial documentation required to add any Applicant
Financial Institution as a “Bank” hereunder.


 


E.                                      Payment
of Fees.  The Usage Fees and the
Collateral Handling Fees shall be payable in arrears each month and all such
fees together with the Agent fee shall be computed on the basis of a 360-day
year, in each case for the actual number of calendar days elapsed during the
period during which it accrues.  The
Agent shall compute the amounts of the Usage Fees and the Collateral Handling
Fees and include such fees on the Billing Statement to be delivered to the
Company each month under Section 2.9
hereof.  The Company shall pay to the
Agent the Usage Fees and the Collateral Handling Fees set forth in such Billing
Statement within five (5) calendar days of its receipt of a Billing
Statement.


 


F.                                      Fees
Non-Refundable.  The fees payable
under this Section 2.14 once paid shall
be non-refundable, in whole or in part under any circumstances, absent
demonstrable error in the calculation of such fees.


 


2.15                           Commitments.  The Company shall obtain and maintain
Commitments which, in the aggregate, equal or exceed the aggregate amount of
the Advances for all Pledged Loans financed and outstanding under this Credit
Agreement. If an Event of Default shall occur hereunder or under the other Loan
Documents, at the option of the Agent or the Requisite Banks, such Commitments
shall be assigned by the Company to the Agent, for the benefit of the Banks in
proportion to their Pro Rata Shares.


 


28





















 


2.16                           Special
Provisions Governing Rates.


 


(a)                                  Notwithstanding
any other provision of this Credit Agreement to the contrary, the Agent’s
determination of LIBOR shall be final, conclusive and binding upon all parties
in the absence of manifest error.  In the
event that (i) it becomes unlawful for Agent or any Bank to make or
maintain LIBOR loans, or (ii) by reasons of circumstances occurring after
the date of this Credit Agreement affecting the London Interbank Market,
adequate and fair means do not exist for ascertaining LIBOR on the basis
provided for in the definition thereof, the Agent or such Banks shall promptly
notify Company, and during such time, the Agent’s and such Bank’s obligation to
offer the base rates set forth in Section 2.8
hereof shall be suspended during such period of time.


 


(b)                                 In
the event any applicable law, order, regulation, treaty or directive issued by
any central bank or other governmental authority, or in the governmental or
judicial interpretation thereof, or compliance by the Agent with any request or
directive (whether or not having the force of law) issued subsequent to the
date hereof by any central bank or other governmental authority:


 


(i)                                     does
or shall subject the Agent or any Bank to any tax of any kind whatsoever with
respect to this Credit Agreement or any Advances made hereunder, or change the
basis of taxation of payments to the Agent or any Bank of principal, fee,
interest or any other amount payable hereunder except for the change in the
rate of tax on the overall net income of the Agent or any Bank imposed by the
jurisdiction in which Agent or any Bank maintains its principal office; or


 


(ii)                                  does
or shall impose on the Agent or any Bank any other condition;


 


and the result of any of the foregoing is to increase
the cost to the Agent or any Bank of making any Advance or  renewing or maintaining this Credit Agreement
or reduce any amount receivable in respect thereof or to reduce the rate of
return on the capital of the Agent or any Bank or any Person controlling the
Agent or any Bank, then in any such case, the Company shall promptly pay to the
Agent or any Bank upon its written demand any additional amounts necessary to
compensate the Agent or any Bank for such additional cost or reduced amounts
receivable or rate of return as reasonably determined by Agent with respect to
this Credit Agreement or Advances made hereunder.  If the Agent or any Bank becomes entitled to
claim any additional amounts pursuant to this section, it shall promptly notify
the Company of the event by reason of which it has become so entitled and
provide the Company with a certificate specifying any additional amounts
payable and how they are calculated.  The
provisions of this section shall survive the termination of this Credit
Agreement and payment of all other Secured Obligations.


 


ARTICLE 3


 


COLLATERAL SECURITY


 


3.1                                 Collateral.  To secure the payment of the Warehouse Notes,
the Swing Note and all other Secured Obligations, the Company shall grant to
the Agent for the ratable benefit of the Banks in proportion to their Pro Rata
Shares, Security Interests in such of its Loans, Mortgage-backed Securities,
and other assets constituting Collateral as may be required under the terms of
the Security Agreement.


 


29





















 


3.2                                 Security
Agreement.  The Company shall execute
and deliver to the Agent for the ratable benefit of the Banks in proportion to
their Pro Rata Shares, the Security Agreement.


 


3.3                                 Priority
of Security Interests.  The Security
Interests shall be first and prior security interests subject to the
limitations set forth in the Loan Documents. 
The Company, the Agent and the Banks hereby acknowledge and agree that
the Agent, on behalf of and for the ratable benefit of the Banks, now has, and
shall continue to have, a first and prior pledge and security interest in and
to the Collateral, as collateral security for the Advances, the other Secured
Obligations, and any other obligations and/or liabilities due and owing by the
Company pursuant to this Credit Agreement and each of the other Loan Documents,
without priority, distinction or preference of any kind whatsoever.


 


3.4                                 Release
of Security Interest.  If no Event of
Default or Unmatured Event of Default has occurred and is then continuing, the
Agent, for and on behalf of the Banks, at the request of the Company, shall
release its Security Interest in any item of Collateral so long as after giving
effect to any such requested release the Warehouse Borrowing Base shall not be
less than the sum of the Aggregate Outstanding Warehouse Balance plus
the Aggregate Outstanding Excess Balance, and provided that any such release of
Collateral shall occur only if expressly permitted by the terms of the Security
Agreement, and then only strictly in compliance with the terms thereof.


 


ARTICLE 4


 


CONDITIONS PRECEDENT


 


4.1                                 Closing;
Initial Advance.  The obligation of
the Agent and the Banks to close the financing contemplated hereunder and make
the initial Warehouse Advance under this Credit Agreement shall be subject to the
satisfaction of the following conditions precedent:


 


(a)                                  Evidence
of Corporate Existence of the Company. 
The Company shall have furnished the Agent with a copy of the Company’s
Articles of Incorporation and all amendments thereto, certified by the Secretary
of State of Michigan, together with an original certificate from said Secretary
of State, dated not more than fifteen (15) calendar days prior to the date of
this Credit Agreement, stating that the Company is a corporation duly
organized, validly existing, and in good standing under the laws of such state,
and a copy of the Bylaws of the Company and all amendments thereto, certified
by the secretary of the Company to be true, accurate and complete.  The Company shall also provide the Agent with
a Certificate of Qualification and a Certificate of Good Standing/Existence
from each state where the Company is required to be qualified as a foreign
corporation.


 


(b)                                 Corporate
Resolutions.  The Company shall have
furnished to the Agent copies of resolutions reflecting all necessary corporate
action taken by the Company to authorize the execution, delivery, and
performance of this Credit Agreement, the Warehouse Notes and all other Loan
Documents to which the Company is a party, certified by the secretary of the
Company to be true, correct, and in full force and effect as of the date of
this Credit Agreement.


 


(c)                                  Incumbency
Certificate.  The Company shall have
furnished the Agent with incumbency certificates with respect to the officers
of the Company, as applicable, authorized to execute and deliver this Credit
Agreement and each of the other Loan Documents to which the Company is a party
on behalf of the Company.


 


30





















 


(d)                                 Credit
Agreement.  This Credit Agreement
shall have been duly executed by the Company, the Agent and the Banks and
delivered to the Agent.


 


(e)                                  Loan Documents.  Each
of the other Loan Documents not otherwise specifically referenced in this Section 4.1 shall have been duly
executed by the Company and delivered to the Agent.


 


(f)                                    Warehouse
Notes and the Swing Note.  The
Warehouse Notes and the Swing Note shall have been duly executed by the Company
and delivered to the Banks or the Agent, as applicable.


 


(g)                                 Financing
Statements.  The Company shall have
executed and delivered, in appropriate form for filing in all appropriate
governmental offices, such Uniform Commercial Code financing statements with
respect to the Collateral as the Agent shall reasonably request.


 


(h)                                 Evidence
of Insurance.  The Company shall have
furnished the Agent with evidence of the insurance coverage required to be
maintained by the Company pursuant to Section 7.1(i) hereof.


 


(i)                                     Financial
Statements.  The Company shall have
furnished the Banks with a copy of its audited financial statements as of December 31,
2003, and a copy of its unaudited financial statements as of June 30,
2004.


 


(j)                                     Termination
Statements and Releases.  All Uniform
Commercial Code Termination Statements and mortgage releases necessary to
release of record all existing liens and security interests encumbering any of
the Collateral other than those in favor of the Agent on behalf of and for the
benefit of the Banks, shall have been duly executed and delivered by all
appropriate or necessary parties.


 


(k)                                  UCC
Search Reports.  UCC Search Reports
in the name of the Company obtained from all appropriate government offices.


 


(l)                                     Agency
Audits.  The Company shall have
furnished the Agent with a copy of the results of any field audit of the
Company’s business and/or records performed by GNMA, Fannie Mae, FHLMC, for the
Department of Housing and Urban Development within two (2) years prior to
the date of this Credit Agreement, together with a copy of all subsequent
correspondence relating to such audit between the Company and such agency, to
the extent copies of such field audits have not been heretofore delivered to
the Agent.


 


(m)                               Fannie
Mae Tri-Party Agreement.  The Fannie
Mae Tri-Party Agreement shall be duly executed and delivered by the Company,
the Agent and Fannie Mae.


 


(n)                                 Other
Documents.  Such other documents or
instruments or reports as the Agent, at the request and direction of the
Requisite Banks, may reasonably request.


 


(o)                                 Other
Loans.  The Company shall furnish the
Agent with a summary description of any and all existing loan agreements for
amounts of One Hundred Thousand Dollars


 


31





















 


($100,000.00) or more to
which the Company is a party, such summary shall be provided as a part of Schedule 6.1.


 


(p)                                 Loan
Fees.  The Company shall pay Three
Hundred Seventy Five Dollars ($375.00) to each of the Banks other than Colonial
and Seven Hundred Fifty Dollars ($750.00) to Colonial as compensation for the
Banks for consummation of closing of the financing and as full reimbursement
for all costs and expenses incurred by each Bank in connection therewith, which
costs and expenses shall not otherwise be reimbursable hereunder.


 


(q)                                 Authorized
Signer Letter.  The Authorized Signer
Letter in form acceptable to the Agent in its sole discretion.


 


(r)                                    Power
of Attorney.  The Power of Attorney,
substantially in the form of Exhibit D to the Security Agreement, shall
have been duly executed and delivered by the Company.


 


(s)                                  Representation
and Warranty Disclosures.  The
Company shall have provided the Agent with the representation and warranty
disclosures to be attached as Schedule 6.1
hereof.


 


(t)                                    Reimbursement
for Closing Expenses.  The Company
shall have reimbursed the Agent for all costs incurred by the Agent in
connection with the implementation of the Warehouse Line, including without
limitation, reasonable costs and expenses of Agent’s legal counsel and the cost
of any field exam ordered by Agent.


 


4.2                                 All
Advances.  The obligation of the
Banks to make their Pro Rata Share of any Warehouse Advance (including the
initial Warehouse Advance), and the Agent’s election to make any Swing Advance
or Excess Advance hereunder shall be subject to each of the following
conditions precedent:


 


(a)                                  Covenant Compliance Certificate.  In
accordance with the provisions of Section 7.3(b) below,
the Company shall have executed and delivered to the Agent a completed Covenant
Compliance Certificate, together with a spread sheet or other working papers
showing the calculations used to prepare such certificate.


 


(b)                                 No
Default or Unmatured Event of Default. 
As of the date of the making of such Advance, no Event of Default or
Unmatured Event of Default shall have occurred and be then existing.


 


(c)                                  Compliance
with Loan Documents.  The Company
shall be in full compliance with all conditions and provisions of this Credit
Agreement, the other Loan Documents, and all related instruments and documents.


 


(d)                                 No
Adverse Change.  No material adverse
change shall have occurred in the condition of the Company, financial or
otherwise, or in the earnings, affairs, or business prospects of the Company,
since the date of this Credit Agreement.


 


32





















 


(e)                                  Representations
and Warranties.  The representations
and warranties contained in Article 6
of this Credit Agreement and in the Security Agreement shall be true in all
material respects on the date of such Advance with the same force and effect as
though made on and as of that date.


 


ARTICLE 5


 


FINANCIAL COVENANTS


 


So long as any portion of
the Advances made under this Credit Agreement remains unpaid or this Credit
Agreement continues in effect, unless all of the Banks otherwise consent in
writing, the Company shall abide by each of the following covenants:


 


5.1                                 Borrowing
Bases.  The sum of the Aggregate
Outstanding Warehouse Balance plus the Aggregate Outstanding Excess
Balance shall not exceed the Warehouse Borrowing Base.


 


5.2                                 Adjusted
Tangible Net Worth. The Adjusted Tangible Net Worth of the Company shall at
all times be greater than the sum of Seventeen Million Five Hundred Thousand
Dollars ($17,500,000.00) plus fifty percent (50%) of the cumulative sum
of GAAP net income after January 1, 2004; provided, however, in no event
shall the Company be required to maintain a minimum Adjusted Tangible Net Worth
in excess of Twenty Million Dollars ($20,000,000.00).


 


5.3                                 Leverage
Ratio.  The ratio of Total
Indebtedness to Adjusted Tangible Net Worth shall not exceed 12 to 1.


 


5.4                                 Servicing
Portfolio.  The Company’s
Non-recourse Servicing Portfolio shall at all times be greater than One Billion
Dollars ($1,000,000,000.00).


 


5.5                                 Adjusted
Leverage Ratio.  The ratio of
Adjusted Total Indebtedness to Adjusted Tangible Net Worth shall not exceed one
to one.


 


5.6                                 GAAP
Net Worth.   The GAAP Net Worth of
the Company shall at all times be greater than the sum of Fourteen Million
Dollars ($14,000,000.00) plus fifty percent (50%) of the cumulative sum
of GAAP net income after January 1, 2004; provided, however, in no event
shall the Company be required to maintain a minimum GAAP Net Worth in excess of
Sixteen Million Dollars ($16,000,000.00).


 


The parties hereto
acknowledge and agree that in the event that any of the foregoing covenants are
materially changed as a result of a change in GAAP, the Banks, the Agent and
the Company will amend the terms of this Article 5
to accurately reflect the agreement between the Banks and the Company with
respect to such financial covenants.


 


ARTICLE 6


 


REPRESENTATIONS AND
WARRANTIES


 


To induce the Agent and
the Banks to enter into this Credit Agreement and to make Advances pursuant
thereto, the Company represents and warrants to the Agent and Banks as follows,
which


 


33





















 


representations and warranties shall survive the execution and delivery
of this Credit Agreement and shall be deemed to be continuing representations
and warranties until the Warehouse Notes, the Swing Note, and the other
obligations herein have been respectively paid in full to the Banks and this Credit
Agreement has been fully terminated:


 


6.1                                 Corporate
Organization and Good Standing.  The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of its state of incorporation, and it has the requisite power
and authority to own its properties and to conduct its business in the manner
in which such business is presently conducted. The correct legal name of the
Company, its state of incorporation, and the correct address of its principal
place of business are set forth in Schedule 6.1
to this Credit Agreement.


 


6.2                                 Qualification.  The Company is duly qualified to transact
business and is in good standing as a foreign corporation in every foreign
jurisdiction where the failure to so qualify would materially and adversely
affect the Company’s business or its properties.


 


6.3                                 Power
and Authority.  The Company has the
requisite power and authority, corporate and otherwise, to enter into this
Credit Agreement, to make the borrowings herein contemplated, to execute and
deliver the Loan Documents to which it is a party, and to perform its
obligations hereunder and thereunder, all of which have been duly authorized by
all proper and necessary corporate action, and the same do not and will not:


 


(a)                                  violate
or conflict with any provision of the articles of incorporation or bylaws of
the Company;


 


(b)                                 violate
or conflict with the provisions of any agreement, law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award to which the Company
is a party or by which it or its property is bound;


 


(c)                                  result
in, or require the creation or imposition of, any lien, pledge, security
interest, charge or encumbrance of any nature upon or with respect to any
property now or hereafter owned by the Company, other than such liens and
security interests as contemplated by the Security Agreement;


 


(d)                                 conflict
with, result in a breach of, or constitute a default under, any indenture, loan
agreement, credit agreement, or any other agreement or instrument to which the
Company is a party or by which it or its property is bound.


 


6.4                                 Binding
Effect.  This Credit Agreement and
the other Loan Documents to which the Company is a party are valid, binding,
and legally enforceable obligations of the Company in accordance with their
respective terms (subject only to limitations as to enforceability which might
result from bankruptcy, reorganization, insolvency, or similar laws affecting
creditors’ rights generally).


 


6.5                                 Financial
Condition.  The Company’s audited
financial statements as of December 31, 2003 (which have been prepared in
conformity with GAAP applied on a basis consistent with that of the preceding
fiscal year), and its unaudited financial statements as of June 30, 2004,
copies of which have been furnished to the Banks, pursuant to Section 4.1(j) of this Credit Agreement, present fairly
the financial condition of the Company as at such date and the results of their
operations for the period then ended. There has been no material adverse change
in said financial condition except as disclosed in Schedule 6.1


 


34





















 


to this Credit Agreement. The Company does not have any contingent
obligations, liabilities, taxes, or other outstanding financial obligations
which are material in the aggregate, except as described in Schedule 6.1 to this Credit Agreement.


 


6.6                                 Properties.  The Company has good and marketable title to
all of its properties and assets, and none of its assets are subject to any
mortgage, pledge, title retention lien, security interest, or encumbrance,
except for those permitted by Section 7.2(i) hereof
and those described in Schedule 6.1
to this Credit Agreement.


 


6.7                                 Litigation.  No litigation, tax claim, proceeding,
dispute, or governmental proceeding is pending or, to its knowledge, threatened
against the Company, which (a) involves an uninsured claim of over Two
Hundred Fifty Thousand Dollars ($250,000.00) against the Company, or (b) in
the opinion of the Company, may have a material adverse effect on the business
or condition (financial or other), affairs, or operations of the Company, or (c) involves
or may affect the validity or enforceability of any Loan Document or the
perfection or priority of any lien created thereby, except those matters
described in Schedule 6.1 to this Credit
Agreement.


 


6.8                                 Regulations
U and X.   No part of the proceeds of
the borrowings hereunder will be used for any purpose other than financing
Loans.  No part of the proceeds of the
borrowings hereunder will be used to purchase or carry any margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying
any margin stock, and the Company is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any such margin stock. 
If requested by the Agent or any Bank, the Company will furnish the
Agent or such Bank with a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in said Regulation.  The Company also warrants that no part of the
proceeds of the borrowings hereunder will be used by it for any purpose which
violates, or which is inconsistent with, the provisions of Regulation X of said
Board of Governors.


 


6.9                                 Investment
Company Act.  The Company is not an
investment company or a company controlled by an investment company within the
meaning of the Investment Company Act of 1940, as amended.


 


6.10                           Securities
Act.  The Company has not issued any
unregistered securities in violation of the registration requirements of the
Securities Act of 1933, as amended, or of any other law, and is not violating
any rule, regulation, or requirement under the Securities Act of 1933, as
amended, or the Securities and Exchange Act of 1934, as amended. The Company is
not required to qualify an indenture under the Trust Indenture Act of 1939, as
amended, in connection with its execution and delivery of the Warehouse Notes
or the Swing Note.


 


6.11                           Permits; Consents, Etc6.11Permits; Consents, etc.;
Compliance.  The Company has all necessary
certificates, licenses, authorizations, registrations, permits and approvals
necessary to own and operate its property and to conduct its business as it is
currently being conducted.  No consent,
approval or authorization of, or registration, declaration, or filing with, any
governmental authority is required on the part of the Company or either
Guarantor in connection with the execution and delivery of this Credit
Agreement or the other Loan Documents (other than filings to perfect the
Security Interests), or in connection with the performance of or compliance
with the terms, provisions, and conditions hereof except for those that have
been obtained.  The Company and each
Affiliate is in compliance with all applicable statutes, regulations and orders
of,


 


35





















 


and all applicable restrictions imposed by, all governmental bodies and
agencies in respect of the conduct of its or his business and the ownership of
its or his property.  Each Loan at the
time it was originated complied in all material respects with applicable local,
state and federal laws, including, but not limited to, all applicable predatory
and abusive lending laws.  None of the
Loans are “high cost”, “high rate”, “high fee” or “predatory” as defined by the
applicable predatory and abusive lending laws.


 


6.12                           ERISA.  No fact or circumstance, including but not
limited to any Reportable Event within the meaning of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), exists in connection with
any Plan of the Company (“Plan” shall mean an employee pension benefit plan or
pension covered by ERISA which is guaranteed by the Pension Benefit Guaranty
Corporation or any successor thereto which might constitute grounds for the
termination of any such Plan by the Pension Benefit Guaranty Corporation or any
successor thereto or for the appointment of a trustee to administer any such
Plan. For purposes of this representation and warranty, the Company shall be
deemed to have knowledge of all facts attributable to any administrator of any
such Plan.


 


6.13                           Affiliates.  The correct legal name of each Affiliate, the
state of its organization (or, if a natural person, of his or her domicile),
and the percentage of its capital stock or equity that is directly or
indirectly owned by the Company, where the percentage of the Company’s stock
which is directly or indirectly owned by each Affiliate, are set forth in Schedule 6.13 to this Credit Agreement.


 


6.14                           Tax
Returns and Payments.  The Company
has filed all tax returns required by law to be filed by it and has paid all
taxes, assessments and other governmental charges levied upon its properties,
assets, income and franchisees, other than those not yet delinquent and those,
not substantial in aggregate amount, which are being contested in good faith by
the Company.  The charges, accruals and
reserves on the books of the Company in respect of their taxes are adequate in
the opinion of the Company.  The Company
knows of no material unpaid assessment for additional taxes or any basis for
such assessment.


 


6.15                           No
Defaults.  The Company is not in
default in the payment or performance of any of its obligations or in the
performance of any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which it is a party or by which it or any of its
assets may be bound, which default would have a material adverse effect on the
business, operations, assets or condition, financial or otherwise, of the
Company, taken as a whole.  No Event of
Default or Unmatured Event of Default hereunder or under the other Loan
Documents has occurred and is continuing. 
The Company is not in default under any order, award or decree of any
court, arbitrator or governmental authority binding upon or affecting it or by
which any of its assets may be bound or affected which default would have a
material adverse effect on the business of the Company.  The Company is not subject to any order,
award or decree which is likely to materially adversely affect the ability of
the Company to carry on its business as currently conducted or the ability of
the Company to perform its obligations under this Credit Agreement, the Notes
or the other Loan Documents to which it is a party.


 


6.16                           Holding
Company.  The Company is not a “holding
company” or a “subsidiary company” of a “holding company”, within the meaning
of the Public Utility Holding Company Act of 1935, as amended.


 


6.17                           Contingent
Obligations.  The Company does not
have on the date hereof any material contingent obligations, material
liabilities for taxes, material long-term leases or unusual material forward or
long-term commitments, which have not been disclosed to the Agent in writing
prior to the date


 


36





















 


of this Credit Agreement.


 


6.18                           No
Violations.  The Company is not a
party to any contract or agreement or subject to any charter or other corporate
restriction which materially and adversely affects its business, property or
financial condition.  The execution,
delivery and performance of this Credit Agreement, the Notes and the other Loan
Documents to which the Company is a party will not result in the violation of
or be in conflict with or constitute a default under the Articles of
Incorporation or Bylaws of the Company or any term or provision of any
mortgage, loan agreement or other instrument, or any judgment, decree,
governmental order, statute, rule or regulation, by which the Company is
bound or to which any of its assets is subject and will not result in the
creation or imposition of any lien on the assets of the Company except as
contemplated by this Credit Agreement. 
The Company is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the Company, any
agreement relating thereto or any other contract or agreement (including its
Articles of Incorporation) which restricts or otherwise limits the incurring of
the indebtedness to be represented by this Credit Agreement, the Notes and the
other Loan Documents.


 


6.19                           Disclosure;
Solvency.  Neither this Credit
Agreement nor any other document furnished to the Agent or any Bank by or on
behalf of the Company in connection with the credit facilities contemplated
herein contains any statement of any material fact which is untrue or misstates
a material fact necessary in order to make the statements contained herein or
therein not misleading.  There is no fact
known to the Company which materially adversely affects or in the future will
(so far as the Company can now foresee) materially adversely affect the
business, operations, affairs or condition of the Company or any of its
properties which has not been set forth in this Credit Agreement or in the
other documents furnished to the Agent or any Bank by or on behalf of the
Company in connection with the credit facilities contemplated herein.  The Company is currently solvent; and neither
the issuance and delivery of the Warehouse Notes, or the Swing Note, nor the
performance of the transactions contemplated hereunder or thereunder, will
render the Company insolvent, inadequately capitalized to undertake the
transactions contemplated hereunder or to undertake the businesses in which it
is presently engaged or about to engage or render the Company unable to pay its
debts as they become due; the Company is not contemplating either the filing of
a petition by it or the commencement of a case by it under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
its property; and the Company has no knowledge of any Person contemplating the
filing of any such petition or commencement of any such case against the
Company.


 


ARTICLE 7


 


COVENANTS


 


7.1                                 Affirmative Covenants.  So
long as any portion of the Secured Obligations under this Credit Agreement,
including the Notes, remains unpaid or this Credit Agreement continues in
effect, unless the Agent and all of the Banks otherwise consent in writing, the
Company shall abide by each of the following covenants and agreements:


 


(a)                                  Payment
and Performance of Obligations.  The
Company will pay all principal, interest, fees, and other charges with respect
to the Notes and any other obligations when and as the same become due and
payable, will strictly observe and perform all covenants, agreements, terms,
conditions, and limitations contained in this Credit Agreement and the other
Loan Documents, and will do all things necessary to prevent any forfeiture or
impairment of a


 


37





















 


Bank’s rights hereunder
or thereunder, and to prevent the occurrence of any Event of Default or an
Unmatured Event of Default.


 


(b)                                 Notice
of Default.  The Company shall
promptly notify the Agent in writing of the occurrence of any Event of Default
or Unmatured Event of Default, specifying in connection with such notification
all actions proposed to be taken to remedy such circumstance.


 


(c)                                  Notice
of Non-Payment.  The Company shall notify
the Agent in writing of the occurrence of any failure or refusal by the Company
to pay any amount in excess of Two Hundred Fifty Thousand Dollars ($250,000.00)
payable under any agreement to which it is a party (other than trade payables
less than sixty (60) calendar days past due), within ten (10) calendar
days of such failure or refusal, unless the Company is diligently and in good
faith contesting its obligations to make such payment by appropriate action.


 


(d)                                 Notice
of Legal Proceedings.  The Company
shall, promptly upon becoming aware of the existence thereof, notify the Agent
in writing of the institution of any litigation, legal proceeding, or dispute
with any person or tribunal, that might materially and adversely affect the
condition, financial or otherwise, or the earnings, affairs, business
prospects, or properties of the Company, or that involves or may affect the
validity of enforceability of any Loan Document or the perfection or priority
of any lien created thereby.


 


(e)                                  Continuation
of Primary Business.  The Company
shall continue to maintain the character of its primary business as currently
conducted.


 


(f)                                    Maintenance
of Corporate Existence, Qualification and Assets.  The Company shall at all times maintain (i) its
legal existence as a corporation; (ii) its qualification to transact
business and good standing as a foreign corporation in all jurisdictions where
the failure to so qualify would materially and adversely affect the nature of
its properties or the conduct of its businesses; and (iii) all franchises,
licenses, rights, and privileges necessary for the proper conduct of its
businesses.


 


(g)                                 Maintenance
of Security.  The Company shall
execute and deliver to the Agent for the benefit of the Banks all mortgages,
security agreements, financing statements, assignments, and such other
documents and instruments, and all supplements thereto, and continuation
statements thereof, and take such other actions as the Agent deems reasonably
necessary in order to maintain as the valid, enforceable, and first priority
liens and Security Interests granted to the Agent for the ratable benefit of
the Banks.


 


(h)                                 Payment
of Taxes and Claims.  The Company
shall pay all taxes imposed upon it or upon any of its properties or with
respect to its franchises, business, income, or profits before any material
penalty or interest accrues thereon. The Company shall also pay all material
claims (including without limitation claims for labor, services, materials, and
supplies) for sums which have or shall become due and payable and which by law
have or might become a vendor’s lien or a mechanics’, laborers’, materialmen’s,
statutory, or other lien affecting any of its properties; provided, however,
that the Company shall not be required to pay any such taxes or claims if (i) the
amount, applicability, or validity thereof is being contested in good faith by
appropriate legal proceedings promptly initiated and diligently conducted; and (ii) the
Company


 


38





















 


shall have set aside on
its books reserves (segregated to the extent required by generally accepted
accounting principles) adequate with respect thereto.


 


(i)                                     Maintenance
of Insurance.  The Company shall at
all times maintain, or cause to be maintained, insurance covering such risks as
is customarily carried by prudent businesses similarly situated, including,
without limitation, hazard and general liability coverages, and fidelity bond
and mortgagee errors and omissions coverages in conformity with the
requirements set forth in Section 2.7 if the GNMA Mortgage-backed
Securities Guide, Handbook 5500.3. All such insurance shall be written by such
insurers and in such form, amount, and coverage as may be satisfactory to the
Agent, naming the Agent, for the benefit of the Banks, as additional insured or
loss payee, as applicable.  The Company
shall provide the Agent with a certificate from one or more reputable insurance
companies setting forth the amount or amounts of coverage and containing an
agreement from each such insurance company that no termination, expiration,
cancellation, or lapse of any such insurance policy shall occur without at
least thirty (30) calendar days advance written notice to the Agent.


 


(j)                                     Compliance
with Laws and Agreements.  The
Company shall comply with the provisions of any laws and the provisions of any
agreements material to its businesses and operations and shall maintain its
abilities to perform its obligations under all agreements material to its
businesses and operations.


 


(k)                                  Inspections.  The Company shall, at any reasonable time and
from time to time upon prior notice, permit any agents or representatives of
the Agent and/or Banks to inspect, examine, and make copies of and abstracts
from its records and books of account, and to discuss its affairs, finances,
and accounts with any of its officers, management employees, or independent
public accountants (and by this provision the Company hereby authorizes said
accountants to discuss with the Agent and/or Banks and their respective agents
or representatives the Company’s affairs, finances, and accounts).  The Company shall have the right to have a
representative present at any of the inspections, examinations or discussions
conducted by the Agent and/or Banks; provided, however, the Agent and/or Banks
shall not be required to delay any of such inspections, examinations or
discussions to accommodate the presence of such representative or
representatives.


 


(l)                                     Records.  The Company shall keep accurate records and
books of account reflecting all of its financial transactions, in which
complete entries shall be made in accordance with GAAP consistently applied.


 


(m)                               ERISA.  With respect to any Plan maintained or
adopted by the Company, the Company shall (i) at all times make prompt
payments of contributions required to be made to meet the minimum funding
standards of ERISA; (ii) promptly, after the filing thereof, furnish to
the Agent copies of all reports of prohibited transactions and accumulated
funding deficiencies required to be made pursuant to the provisions of ERISA;
and (iii) notify the Agent promptly of the occurrence of any Reportable
Event (as defined in ERISA).


 


(n)                                 Further
Assurances.  The Company shall
execute and deliver such other and further instruments, documents, or
assurances as in the judgment of the Agent or the Banks may be reasonably
required to more effectively create or perfect the Security Interests or to
confirm


 


39





















 


or evidence the
obligations imposed by the terms and provisions of this Credit Agreement and
the other Loan Documents.


 


(o)                                 Change
in Name or Location.  The Company
shall notify the Agent in writing at least thirty (30) calendar days in advance
of any change in location of its principal place of business, chief executive
office, or place where records are kept, or of any proposed change of corporate
name. To the extent not in the physical possession of the Agent, the Collateral
and all books and records pertaining thereto shall be maintained and stored at
the location specified on Schedule 6.1
to this Credit Agreement, and the Company shall not remove any part of the
Collateral from such location, other than temporarily in the ordinary course of
business, unless the Company shall have provided the Agent with prior written
notification of such change in location in accordance with the terms of this section and
shall have assisted the Agent in filing such security agreements, financing
statements, or other notices deemed necessary by the Agent to preserve and
maintain the continued validity, enforceability, and priority of the Banks’
lien on and Security Interest in the Collateral.


 


(p)                                 Other
Loan Agreements.  The Company shall
give written notice to the Agent at least five (5) calendar days prior to
entering into any other loan agreement similar in purpose or effect to this
Credit Agreement.


 


(q)                                 Senior
Management.  The Company shall notify
the Agent in writing requesting Agent’s consent at least thirty (30) calendar
days prior to any proposed change in the Company’s senior management, i.e., the
chief financial officer and any other officers of the Company who hold
positions at or above senior vice president.


 


(r)                                    Change
of Ownership.  The Company shall
notify the Agent in writing at least thirty (30) days prior to any proposed
change of control in the ownership of the capital stock of the Company promptly
upon obtaining knowledge of the same.


 


(s)                                  Sale
of Servicing Rights.  The Company
shall give the Agent written notice at least thirty (30) calendar days prior to
consummating any sale, transfer, or other disposition of any servicing rights,
or any interest in its Servicing Portfolio which is not prohibited by Section 7.2(h) hereof.


 


(t)                                    Insured
Closing Letters.  The Company shall
cause all Loans financed with the proceeds of an Advance to be closed under an
insured closing letter issued by a major nationally recognized title company
acceptable to the Agent.


 


(u)                                 Appraisals.  The Company shall obtain not less than on a
semi-annual basis an appraisal of the Servicing Portfolio from an independent
appraiser acceptable to the Agent and shall provide a copy thereof to the Agent
within thirty (30) days following the minimum appraisal dates of December 31
and June 30 of each calendar year.


 


(v)                                 Change
in Laws; Increased Costs.  In the
event that any applicable law, order, regulation, treaty or directive issued by
any central bank or any other applicable governmental authority, or in the
governmental or judicial interpretation or application thereof, or compliance
by any Bank with any request or directive (whether or not having the force of
law) issued subsequent to the date hereof by any central bank or other
applicable governmental


 


40





















 


authority:  (i) does or shall subject any Bank to
any tax of any kind whatsoever with respect to this Credit Agreement or any
Advances made hereunder, or change the basis of taxation of payments to such
Bank of principal, fee, interest or any other amount payable hereunder (except
for change in the rate of tax on the overall net income of such Bank imposed by
the jurisdiction in which such Bank maintains its principal office); (ii) does
or shall impose, modify or hold applicable any reserve, capital requirement,
special deposit, compulsory loan or similar requirements against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Bank which are not otherwise included in the determination
of the Base Rate; or (iii) does or shall impose on such Bank any other
condition; and the result of any of the foregoing is to increase the cost to
such Bank of making, renewing or maintaining any Advance hereunder or
maintaining its respective Warehouse Line Commitment, or to reduce any amount
receivable in respect thereof or to reduce the rate of return on the capital of
such Bank or any Person controlling such Bank, then, in any such case, the
Company shall promptly pay to the Agent for remittance to such Bank, upon its
written demand made through the Agent, any additional amounts necessary to
compensate such Bank for such additional cost or reduced amounts receivable or
rate of return as reasonably determined by such Bank with respect to this Credit
Agreement or the Advances made hereunder. 
If a Bank becomes entitled to claim any additional amounts pursuant to
this Section 7.1(v), it shall promptly
notify the Company through the Agent of the event by reason of which it has
become so entitled.  In conjunction with
such notification, such Bank shall provide the Company with a certificate
specifying any additional amounts payable pursuant to the foregoing sentence,
which certificate shall set forth a calculation of such amounts in sufficient
detail and according to reasonable and customary computation methods.  The provisions of this Section 7.1(w)
shall survive the termination of this Credit Agreement and the payment of all
Secured Obligations hereunder.


 


(w)                               MERS.  During any time during which the Company is
using the MERS System, the Company shall (a) at all times, maintain its
status as a MERS Member, (b) at all times, employ officers who have the
authority, pursuant to a corporate resolution from MERS, to execute assignments
of mortgage in the name of MERS in the event deregistration from the MERS
System is necessary or desirable, (c) at all times remain in full
compliance all terms and conditions of membership in MERS, including the
MERSCORP, Inc. “Rules of Membership” most recently promulgated by
MERSCORP, Inc., the “MERS Procedures Manual” most recently promulgated by
MERS, and any and all other guidelines or requirements set forth by MERS or
MERSCORP, as each of the foregoing may be modified from time to time,
including, but in no way limited to compliance with guidelines and procedures
set forth with respect to technological capabilities, drafting and recordation
of mortgages, registration of mortgages on the MERS System, including
registration of the interest of the Agent in such mortgages and membership
requirements, (d) promptly, upon the request of the Agent, execute and
deliver to the Agent an assignment of mortgage, in blank, with respect to any
MERS Mortgage that the Agent determines shall be removed from the MERS System, (e) immediately
provide to Agent a copy of any notice received from MERS or MERSCORP pursuant
to Section 4(a) of the Electronic tracking Agreement, and (f) at
all times maintain an Electronic Tracking Agreement in full force and
effect.  The Company shall not
de-register or attempt to de-register any mortgage from the MERS System unless
the Company has complied with the requirements set forth in the Electronic
Tracking Agreement and the requirements hereof and the Security Agreement
relating to a release of Collateral.


 


41





















 


7.2                                 Negative
Covenants.  So long as any portion of
the Secured Obligations remains unpaid or this Credit Agreement continues in
effect, unless the Agent and all of the Banks otherwise consent in writing, the
Company shall not violate any of the following covenants and agreements:


 


(a)                                  Limitation
on Indebtedness.  The Company shall
not incur, create, assume, or otherwise be or become directly or indirectly
liable with respect to any indebtedness if, as a result thereof, the Company is
in violation of any of the covenants set forth in this Credit Agreement.


 


(b)                                 Amendment
of Corporate Documents.  The Company
shall not cause or permit any amendment of its Articles of Incorporation or any
material change in its Bylaws in effect as of the date hereof.


 


(c)                                  Redemption
and Distributions.  Except as
permitted under Section 7.2(n) hereof,
Company shall not: (i) apply any of its property to the purchase,
redemption, or other retirement of any shares of any class of its capital
stock; (ii) set apart any sum for the payment of or for any dividends on,
or for the purchase, redemption, or other retirement of any shares of any class
of its capital stock; or (iii) make any other distribution, by reduction
of capital or otherwise, in respect of any shares of any class of its capital
stock.


 


(d)                                 Mergers,
Sales, Transfers or Other Disposition of Assets.  The Company shall not: (i) dissolve or
otherwise dispose of all or any material portion of its assets, or acquire all
or any material portion of the assets or outstanding capital stock of any other
business entity; (ii) sell, lease, or otherwise transfer or dispose of any
material assets for less than the higher of book value or fair market value
(except assets no longer usable in Company’s business); (iii) consolidate
with or merge into another corporation or other legal entity or permit one or
more other such entities to consolidate with or merge into it; (iv) effect
any material change in its capitalization; or (v) sell, lease, transfer,
lend, or convey any of its material assets to an Affiliate.


 


(e)                                  VA
Guaranties and FHA Insurance. The Company shall not commit or suffer to be
committed any act which would invalidate the guarantee of the VA or insurance
by the FHA or cause any impairment to the validity of or priority of the
mortgage lien which secures any of the Loans, pledged to the Agent for the
ratable benefit of the Banks hereunder and under the Security Agreement.  In the event that any such guarantee or
insurance should lapse or otherwise be invalidated, the Company shall, within
fifteen (15) days of such lapse or invalidation, cause the Loan affected by
such lapse or invalidation to be removed from Collateral, with either (i) substitution
of such other property constituting Collateral hereunder of at least equal
value, or (ii) payment of the Advance made by the Banks with respect to
such Loan.


 


(f)                                    Maintenance
of Qualifications.  The Company shall
not commit or suffer to be committed any act which would adversely affect (i) its
eligibility to participate as an FHA approved mortgagee, as an approved lender
under the VA guarantee program, as an approved seller-servicer by GNMA, as an
approved seller-servicer of mortgage notes to Fannie Mae and to FHLMC in the
FHLMC regions in which it operates, or (ii) its eligibility to issue
Mortgage-backed Securities or to service the mortgage pools formed with respect
to Mortgage-backed Securities.


 


(g)                                 Servicing
Portfolio.  The Company shall not
commit or suffer to be committed any act which would constitute a material
breach of any contract to which the Company


 


42





















 


now is or hereafter
becomes a party under which the Company is obligated to service Loans for
another Person. The Company shall not pledge, assign, grant a security interest
in, or otherwise encumber any servicing rights or any other interest in its
Servicing Portfolio except as permitted in Section 7.2(i) below.
The Company shall not permit the Servicing Portfolio to include any Recourse
Servicing Obligations except those Recourse Servicing Obligations included in
the Servicing Portfolio at time of closing, without first obtaining the consent
of the Agent and the Requisite Banks, which will not be unreasonably withheld.


 


(h)                                 Sale
of Servicing Rights.  Without the
prior written consent of all the Banks, the Company shall not sell, transfer,
or otherwise dispose of any servicing rights, or any other interest in its
Servicing Portfolio if, as a result of any such sale, transfer or other
disposition, (i) the Aggregate Outstanding Warehouse Balance plus
Aggregate Outstanding Excess Balance would exceed the Warehouse Borrowing Base,
(ii) an Event of Default would result hereunder, or (iii) the
Servicing Portfolio would be smaller than the amount specified in Section 5.4 of this Credit Agreement.


 


(i)                                     Liens.  The Company shall not create or permit to
exist, any mortgage, pledge, title retention, lien, lease purchase, or other
encumbrance or security interest, with respect to any assets now owned or
hereafter acquired by the Company except: (i) the Security Interests and
the liens and security interests created under the Collateral Documents; (ii) materialmen’s,
mechanics’, suppliers’, tax, or warehousemen’s liens, statutory liens of
landlords and other like liens arising in the ordinary course of business which
are not yet due or which are being contested in good faith by appropriate
proceedings; (iii) liens incurred or deposits made in the ordinary course
of business in connection with workers’ compensation, unemployment
compensation, and other types of social security, or to secure the performance
of other statutory obligations; (iv) encumbrances consisting of zoning
regulations, easements, rights of way, survey exceptions, and other similar restrictions
on the use of real property, and minor irregularities in titles thereto which
do not materially impair their use in the operation of its business; (v) liens
on Mortgage-backed Securities which are not pledged to the Banks and liens on
such Mortgage-backed Securities which secure the repurchase obligations of the
Company with respect to such Mortgage-backed Securities; (vi) liens and
security interests incurred or made in the purchase of property or equipment in
the ordinary course of business; (vii) existing liens and security
interests described in Schedule 6.1
to this Credit Agreement; and (viii) the liens and security interests
granted to Fannie Mae, GNMA and FHLMC with respect to the Servicing Portfolio.


 


(j)                                     Guaranties.  The Company shall not guaranty, endorse,
assume, become surety for, indemnify, or otherwise become or be responsible for
the obligations of any Person except: (i) endorsements of negotiable
instruments for deposit or collection in the ordinary course of business and (ii) obligations
incurred in connection with the sale of Loans and servicing rights owned by the
Company in the ordinary course of business of the Company.


 


(k)                                  Use
of Funds.  The Company shall not use
any funds provided by the Agent and the Banks under this Credit Agreement, or
by any Advance for any purpose other than funding or purchasing Loans.  The Company shall not use the proceeds of any
Working Capital Advance, Dry Advance, Extended Wet Advance, Wet Advance, Jumbo
Advance, Servicing Held for Bulk Sale Advance, Servicing Under Contract
Advance, Agency Qualified A Minus Advance or Alternative Lending Advance for
any purpose other than the purposes encompassed by the definition of those
terms in Article 1 of this Credit
Agreement.  In addition to the foregoing,
the


 


43





















 


Company shall not use any
funds provided by the Banks under this Credit Agreement or by any Warehouse
Advance for the purpose of making any Loan that would be subject to the
provisions of the Home Ownership and Equity Protection Act of 1994 or other
federal or state legislation relating to “high cost” mortgage lending.


 


(l)                                     Capital
Expenditures.  The Company shall not
make, or incur obligations for, any capital expenditures in any fiscal year,
including, without limitation, capitalized lease obligations, in excess of Five
Hundred Thousand Dollars ($500,000.00) for the Company determined on a
non-cumulative basis.


 


(m)                               Loans
and Advances.  Other than existing
loans to shareholders, the Company shall not, other than in the ordinary course
of its business, make any loan or advance to any Person (including without
limitation Affiliates) if such loan or advance would cause the aggregate amount
of all such loans and advances to all such Persons to be in excess of Five
Hundred Thousand Dollars ($500,000.00), exclusive, however, of the amount of
all reasonable salaries, benefits, and occupational expenses that have
traditionally been borne by the Company.


 


(n)                                 Dividends,
Redemption and Distributions. The Company shall not do any of the
following, if an Event of Default or an Unmatured Event of Default then exists
hereunder, or, if as a result of such action or actions, an Event of Default or
an Unmatured Event of Default would exist hereunder: (i) declare or pay in
any fiscal year cash dividends; (ii) declare or pay any dividends payable
in its capital stock on any shares of any class of its capital stock; (iii) apply
any of its property to the purchase, redemption, or other retirement of any
shares of any class of its capital stock; (iv) set apart any sum for the
payment of any dividends on, or for the purchase, redemption, or other
retirement of, any shares of any class of its capital stock; or (v) make
any other distribution, by reduction of capital or otherwise, in respect of any
shares of any class its capital stock.


 


(o)                                 Mortgage
Loan Early Purchase and Sale/Repurchase Facilities.  The Company shall not, without the prior
written consent of the Agent thereto, enter into any agreement providing
facilities for the early purchase or the sale and repurchase of mortgage loans
and/or mortgage backed securities. Notwithstanding the foregoing, in the event
the Agent consents to the Company entering into agreements for such facilities,
at the Agent’s request, the Company covenants and agrees to execute and deliver
an Intercreditor Agreement, fully executed by all of the Company’s then current
and proposed mortgage warehouse lenders and parties to such early purchase and
sale/repurchase facilities, substantially in a form prescribed by the Agent, on
or before the date of implementation of such facilities.


 


7.3                                 Reporting
Requirements.  So long as any portion
of the Secured Obligations, including the Notes, remains unpaid or this Credit
Agreement remains in effect, unless the Agent and the Requisite Banks otherwise
consent in writing, the Company shall furnish to the Agent and the Banks the
following reports:


 


(a)                                  Annual
Reports.  As soon as available, and
in any event within ninety (90) calendar days after the end of each fiscal year
of the Company, the Company shall furnish to each of the Banks (i) a
complete annual audited financial statement of the Company with consolidating
statements showing the annual financial statements of the Company, with all
notes thereto, prepared in reasonable detail in accordance with GAAP and in
detail reasonably satisfactory to the


 


44





















 


Agent, which shall
contain at least a balance sheet, a statement of profit and loss and
stockholder’s equity, and a statement of cash flows, set forth in each case in
comparative form with corresponding figures from the preceding fiscal year for
and (ii) to the extent the same is prepared for, the management letter
prepared by the firm of independent certified public accountants in connection
with the certification of the annual audited financial statements of.  Each annual audited financial statement of
shall be duly certified by a firm of independent certified public accountants
of recognized national standing or otherwise acceptable to the Requisite
Banks.  The certified report of such firm
shall include a statement to the effect that the examination made in preparing
and certifying such annual audited financial statement has not disclosed the
existence of a condition or event at the end of the fiscal year which
constitutes an Event of Default or Unmatured Event of Default hereunder, or a
statement specifying the nature and period of existence of any such condition
or event disclosed by such examination.


 


(b)                                 Operational
Reports.  As soon as available, and
in any event within forty-five (45) calendar days after the end of each
quarter, shall furnish to each of the Banks financial statements for the
preceding quarter, prepared on a basis consistent with prior periods and in
accordance with generally accepted accounting principles, such quarterly
financial statements shall contain at least a balance sheet of as of the end of
such quarter and a statement of profit and loss for such quarter and for the
fiscal year to date.  As soon as
available, and in any event within forty-five (45) calendar days after the end
of each month, the Company shall furnish to each of the Banks (i) financial
statements for the preceding month, prepared on a basis consistent with
prior periods and in accordance with generally accepted accounting principles,
such monthly statements shall contain at least a balance sheet of the Company
as of the end of such month and a statement of profit and loss for such month
and for the fiscal year to date, (ii) a duly executed Covenant
Compliance Certificate, (iii) production numbers for the
quarter and year-to-date, (iv) a duly executed and completed pledged
servicing report, and (v) a servicing portfolio report and
analysis, including the servicing rights of the Company, which shall show the
status of all mortgages which are a part of the Servicing Portfolio, including
those which are delinquent, all in substantially the same form and detail as
set forth in Exhibit I  attached
hereto and made a part hereof by this reference.


 


(c)                                  Servicing
Report; Mortgage Position Report.  As
soon as available and in any event within fifteen (15) calendar days after the
end of each month, or more frequently if requested by the Agent, the Servicing
Report and a mortgage position report which details the Company’s market and
commitment positions relative to Loans in pipeline and closed Loans in
inventory, such mortgage position report to be in form as is reasonably
acceptable to the Agent.


 


(d)                                 Agency
Audits.  Promptly upon delivery to
the Company, the Company shall furnish to the Agent a copy of the results of
any field audit of the Company’s business and/or records performed by GNMA,
Fannie Mae, FHLMC or the Department of Housing and Urban Development, together
with a copy of all subsequent correspondence relating to such audit between the
Company and such agency.


 


(e)                                  Updated
List of Approved Investors.  The
Company shall deliver or cause to be delivered to the Agent an updated list of
all Approved Investors, immediately upon any change in the same, which list
must include the (a) investor name, (b) contact person, (c) address,
(d) phone number, and (e) and upon request by the Agent, the
financial statements for such Approved Investor.


 


45





















 


(f)                                    Other
Reports and Information.  The Company
shall deliver or cause to be delivered to the Agent and/or the Banks such
information (not otherwise required to be furnished under this Credit Agreement
or the other Loan Documents) respecting its business, affairs, assets, and
liabilities, and such statements, lists of property and accounts, reports,
opinions, certifications, and documents as the Agent may from time to time
reasonably request.


 


ARTICLE 8


 


EVENTS OF DEFAULT


 


8.1                                 Events
of Default. The occurrence of one or more of the following events shall
constitute an “Event of Default” hereunder immediately upon the expiration of
any grace or cure period which is specifically set forth herein as being
applicable with respect to such event:


 


(a)                                  Default
under any Loan Documents.  The
occurrence of an Event of Default under this Credit Agreement or any other of
the Loan Documents.


 


(b)                                 Payments.  The Company shall fail to make any payment of
principal, interest, fees, or other amounts with respect to the obligations or
liabilities of the Company to the Agent or any Bank, whether under this Credit
Agreement or any other Loan Document, including without limitation the
obligations set forth in the Notes, or otherwise, on or before the date such
payment is due, and such failure shall continue for a period of ten (10) calendar
days.


 


(c)                                  Covenant Defaults.  The
Company shall fail to perform or observe any covenant, agreement, or provision
contained in this Credit Agreement or the other Loan Documents by it to be performed
or observed, including without limitation the covenants set forth in Articles 5 and 7 of this Credit Agreement and such failure
with respect thereto shall continue for a period of thirty (30) calendar days,
except for the covenants contained in Article 5 and Sections 7.l (a), (b), (c), (e), (f), (g), (i), (k), (o) and (s) and Section 7.2 of
this Credit Agreement, for which there shall be no grace period except as
specified in Section 8.l(b) hereof.


 


(d)                                 Representations
and Warranties.  Any representation
or warranty made or deemed made by the Company herein or in any other Loan
Document, including without limitation the representations and warranties set
forth in Article 6 of this Credit
Agreement, or in any certificate, schedule, statement, report, notice or
writing furnished by or on behalf of the Company to the Agent or any Bank,
whether furnished prior to, contemporaneously with, or subsequent to the
execution of this Credit Agreement, is untrue or is breached in any material
respect.


 


(e)                                  Default
on Indebtedness.  Any creditor or any
representative of any creditor of the Company declares, or is or becomes
entitled to declare, any indebtedness of the Company which exceeds One Hundred
Thousand Dollars ($100,000.00), to be due and payable prior to its expressed
maturity by reason of any default by the Company in the performance or
observance of any obligation or condition, or any such indebtedness becomes due
by its terms and is not promptly paid or extended.


 


(f)                                    Insolvency.  The Company becomes insolvent or generally
does not or admits in writing its inability to pay its debts as they become
due, or applies for, consents to, or


 


46





















 


acquiesces in the
appointment of a trustee or receiver of the Company or its property; or in the
absence of such application, consent, or acquiescence, a trustee or receiver is
appointed for the Company or for a substantial part of its property and is not
discharged within forty-five (45) calendar days; or any bankruptcy, reorganization,
debt arrangement, or other proceeding under any bankruptcy or insolvency law is
instituted by or against the Company and, if instituted against the Company, is
consented to or acquiesced in by the Company, or remains for thirty (30) calendar
days undismissed.


 


(g)                                 Dissolution or Liquidation.  Any
dissolution or liquidation proceeding is instituted by or against the Company
and, if instituted against the Company, is consented to or acquiesced in by the
Company, or remains for thirty (30) calendar days undismissed.


 


(h)                                 Termination
or Suspension of Business.  The
transaction of the usual business of the Company is terminated or suspended.


 


(i)                                     Judgments.  The entry of a single uninsured money
judgment or multiple judgments against the Company which, either singularly or
in the aggregate, are in excess of One Hundred Thousand Dollars ($100,000.00),
unless such judgment shall be satisfied, discharged, or stayed within thirty
(30) calendar days after the entry thereof, and if stayed, within ten (10) calendar
days after the expiration or lapse of any such stay.


 


(j)                                     Material
Adverse Change.  The occurrence of
any material adverse change in the condition of the Company, financial or
otherwise.


 


(k)                                  ERISA.  The occurrence of any Reportable Event (as defined
in ERISA) or any other fact or circumstance which constitutes grounds for the
termination of any Plan, as defined in Section 6.12
hereof, of the Company by the Pension Benefit Guaranty Corporation or any
successor thereto or for the appointment by an appropriate United States
District Court of a trustee to administer any such Plan shall have occurred and
be continuing for thirty (30) calendar days; or any Plan of the Company shall
be terminated within the meaning of ERISA; or a trustee shall be appointed by
the appropriate United States District Court to administer any Plan of the
Company; or the Pension Benefit Guaranty Corporation or any successor thereto
shall institute proceedings to terminate any Plan of the Company or to appoint
a trustee to administer any such Plan; and, upon the occurrence of any of the
foregoing, the aggregate amount of the vested unfunded liability under all such
Plans exceeds ten percent (10%) of the stockholders’ equity of the Company, and
such liability is not covered by insurance.


 


(l)                                     Change
of Management or Ownership.  The
Company implements any change in the senior management or ownership of the
Company without obtaining Agent’s prior written consent.


 


8.2                                 Remedies
Not Exclusive.  The rights and
remedies provided in this Credit Agreement, the Notes, the Collateral Documents
and all other Loan Documents are cumulative, may be exercised in such sequence
or combination as the Requisite Banks (or all of the Banks if the context so
requires pursuant to Section 9.20
hereof) may elect, and are not exclusive of any rights or remedies otherwise
provided by law.


 


47





















 


8.3                                 Remedies
Upon Event of Default.  If an Event
of Default shall have occurred, subject to the provisions of Section 9.20 hereof, the Agent shall, at the request of
all of the Banks, and may, with the consent of the Requisite Banks, exercise
any one or more of the other rights and remedies, and any other remedies
provided in any of the Loan Documents, as the Requisite Banks in their sole
discretion may deem necessary or appropriate; (provided, however, that if any
Event of Default specified in Sections 7.1(a), 7.1(f) or
7.1(g) hereof shall occur, the
principal of, and all interest on, the Notes and other liabilities hereunder
shall thereupon become due and payable concurrently therewith and the Banks’
obligations to make Advances hereunder shall immediately terminate, without any
further action by the Agent or any Bank and without presentment, demand,
protest, notice of default, notice of acceleration or of intention to
accelerate or other notice of any kind, all of which the Company hereby
expressly waives:


 


(a)                                  Acceleration.  Declare the unpaid balance of the Notes,
including principal, interest, and any fees or other obligations, or any part
thereof, to be immediately due and payable, without demand, presentment, or
further notice of any kind, the same being hereby expressly waived by the
Company, whereupon it shall be due and payable.


 


(b)                                 Advances;
Termination.  Refuse to make any
further Advances or readvances under any of the Notes, and terminate the
Warehouse Line Commitments under this Credit Agreement and the other Loan
Documents.


 


(c)                                  Judgment.  Reduce any claim to judgment.


 


(d)                                 Offset.  Exercise the rights of offset and/or banker’s
lien against the interests of the Company in and to every property of the
Company (other than escrow deposits or custodial trust accounts managed by the
Company) which is in the possession of a Bank to the extent of the full amount
of the Company’s obligations to such Bank.


 


(e)                                  Foreclosure/Repurchase.  Exercise all those rights and remedies
allowed to secured parties by all applicable laws, including without limitation
the Kentucky Uniform Commercial Code and the Uniform Commercial Code as enacted
in any other jurisdiction in which the Collateral or any portion thereof may be
located.


 


(f)                                    Possession.  Enter upon the premises of the Company and
take immediate possession of the Collateral, with or without legal process,
either personally or by means of a receiver appointed by a court of competent
jurisdiction.


 


(g)                                 Collection
of Accounts.  Collect and receive all
accounts, rents, income, revenue, earnings, issues, and profits arising from
the Collateral or any part thereof.


 


(h)                                 Exercise
of Rights.  Exercise any and all
other rights afforded by any applicable laws or by this Credit Agreement and
the other Loan Documents at law, in equity, or otherwise, including, but not
limited to, the rights to bring suits or other proceedings before any tribunal
of competent jurisdiction, either for specific performance of any covenant or
condition contained in the Loan Documents or in aid of the exercise of any
right granted to the Agent or a Bank in this Credit Agreement or any other Loan
Document.


 


8.4                                 Performance
by the Banks.  Should the Company
fail to observe or perform any covenant, duty, or promise by it to be observed
or performed under the terms of this Credit Agreement or


 


48





















 


the other Loan Documents, the Agent or the Banks may, in their
discretion and without any obligation to do so, perform or attempt to perform,
such covenant, duty, or promise on behalf of the Company, and, in the event the
Agent or a Bank should do so, the Company shall immediately upon demand
reimburse the Agent or such Bank for all its expenses, disbursements, fees, and
costs incurred in connection therewith, with interest thereon at the rate
specified in the Notes. The Agent and the Banks do not assume and shall never
have, except by its express written consent, any liability or responsibility
for the performance of any covenant, duty, or promise of the Company hereunder.


 


8.5                                 Attorneys;
Accountants; Other Third Parties.  In
the exercise of their rights under this Credit Agreement, the Notes, or the
other Loan Documents, the Agent and the Banks may retain, consult with, and
otherwise utilize the services of counsel, accountants and other third parties.
Whenever attorneys or accountants are used by the Agent or a Bank in the exercise
of any of its remedies under this Credit Agreement, the Notes, or the other
Loan Documents, or otherwise, including collection or enforcement of this
Credit Agreement, the Notes, or the other Loan Documents, or to enforce,
defend, declare, or adjudicate any of the Agent’s or a Bank’s rights under any
of such instruments and documents or in any of the Collateral, whether by suit,
negotiation, or otherwise, such reasonable attorneys’, accountants’ and other
third parties’ fees as are incurred by the Agent or a Bank in connection
therewith shall be payable by the Company to the fullest extent allowed by law
provided that an Event of Default has occurred hereunder or it is otherwise
determined that the Company is liable to the Agent or a Bank hereunder or under
the other Loan Documents.


 


8.6                                 Appraisal
of Servicing Portfolio.  In addition
to any other remedies provided hereunder, if an Event of Default shall have
occurred, the Requisite Banks may require the Company to have an independent
appraisal performed on the Servicing Portfolio at the sole cost and expense of
the Company.


 


ARTICLE 9


 


MISCELLANEOUS


 


9.1                                 Expenses.  As agreed upon under a separate letter, the
Company agrees to reimburse the Agent, upon demand, for reasonable attorneys’
fees and legal expenses, incurred in connection with the preparation, review,
and amendment of this Credit Agreement, and, if an Event of Default has
occurred hereunder or if it is otherwise determined that the Company is liable
to the Agent or a Bank, for all reasonable out-of-pocket expenses (including
reasonable attorneys’ fees and legal expenses), incurred in enforcing or
attempting to enforce the obligations of the Company hereunder and under the
Notes and the other Loan Documents, which obligations shall survive any termination
of this Credit Agreement.


 


9.2                                 Non-Liability
of Banks.  The relationship between
the Company and the Banks is, and shall at all times remain, solely that of
debtor and creditor, and the Banks neither undertake nor assume any
responsibility or duty to review, inspect, supervise, pass judgment upon, or
inform the Company of any matter in connection with any aspect or phase of the
Company’s businesses, operations, or condition, financial or otherwise. The
Company shall rely entirely upon its own judgment with respect to all such
matters, and any review of, inspection of, supervision of, exercise of judgment
on, or supply of information to, the Company by the Agent or a Bank in
connection with any such matter is for the protection and benefit of the Banks,
and neither the Company nor any third party is entitled to rely thereon.


 


49





















 


9.3                                 Waivers.
Etc. No failure to exercise and no delay in exercising, on the part of the
Banks or the Agent or any holder of the Notes, of any power or right hereunder
or under the Notes or the other Loan Documents and no course of dealing between
the Company and the Agent or a Bank or the holder of the Notes, shall operate
as a waiver thereof; nor shall any single or partial exercise of any power or
right preclude any other or further exercise thereof or the exercise of any
other power or right.


 


9.4                                 Amendments.  Except as set forth in Section 9.20
hereof, no amendment, modification, or supplement to this Credit Agreement, the
Notes, or the other Loan Documents, or to any other document or instrument
executed or issued by any of the parties hereto in connection with the
transactions contemplated herein, shall be binding unless executed in writing
by all parties hereto; and this provision of this Credit Agreement shall not be
subject to waiver by any party and shall be strictly enforced.


 


9.5                                 Taxes.  The Company agrees to pay, and save the Agent
and the Banks harmless from all liability for, any stamp or other taxes
(otherwise than by a change in taxation of a Bank’s overall net income) which
may be payable with respect to the execution or delivery of this Credit
Agreement, the Notes, and the other Loan Documents, which obligation of the
Company shall survive the termination of this Credit Agreement.


 


9.6                                 Governing
Law.  This Credit Agreement shall be
construed in accordance with and governed by the law of the Commonwealth of
Kentucky, without giving effect to the conflict of laws principles thereof.  Any suit, action, or proceeding against the
Company with respect to this Credit Agreement, the Notes, the other Loan
Documents or the Collateral or any part thereof, may be brought in the courts
of the Commonwealth of Kentucky, or in the United States District Court for the
Western District of Kentucky, as the Agent and the Requisite Banks in their
sole discretion may elect, and the Company hereby consents to the jurisdiction
of such courts for the purpose of any such suit, action, or proceeding.  Any suit, action, or proceeding brought by the
Company against the Agent or a Bank with respect to this Credit Agreement, the
Notes, the other Loan Documents or the Collateral or any part thereof, shall be
brought in any of such courts; provided, however, that the Agent and the Banks
do not waive their right to petition for removal of any action brought in the
courts of the Commonwealth of Kentucky to a United States District Court should
it elect to do so.  The Company hereby
irrevocably waives any and all objections to the jurisdiction of said courts,
including without limitation lack of personal jurisdiction, lack of venue, and forum
non  conveniens.  Service of
any writ, process, summons, or complaint upon the Company may be made by mail
upon it at the address stated in this Credit Agreement, upon any registered
agent for service of process, or upon the Kentucky Secretary of State, or by
any other method provided by law. 
Service by any such method shall be conclusively deemed to be legally
sufficient in all respects, and the Company hereby irrevocably waives any
objection to the service or sufficiency of service of any writ, process,
summons, or complaint which is served in accordance with the foregoing.


 


9.7                                 Section Titles;
Table of Contents.  The section titles
and the table of contents contained in this Credit Agreement are inserted for
convenience only and shall not govern the interpretation of any of the
provisions of this Credit Agreement.


 


9.8                                 Reliance
by the Agent and the Banks.  All
covenants, agreements, representations, and warranties made herein by the
Company shall, notwithstanding any investigation by the Agent and the Banks, be
deemed to be material to the Agent and the Banks and to have been relied upon
by the Agent and the Banks and shall survive the execution and delivery of this
Credit Agreement.


 


50





















 


9.9                                 Severability.
The provisions of this Credit Agreement are severable.  If any provision hereof shall be held invalid
or unenforceable in whole or in part by a court of competent jurisdiction, the
remainder of this Credit Agreement shall not thereby fail or be rendered void
or unenforceable, but shall continue in full force and effect, with only the
invalid or unenforceable provision rendered a nullity and severed from this
Credit Agreement.


 


9.10                           Survival
of Representations and Warranties. 
All representations and warranties made by the Company in this Credit
Agreement shall survive the execution hereof, the delivery of the Notes and the
making of all Advances, and the Banks and the Agent shall be entitled to rely
on such representations and warranties at all times.


 


9.11                           Termination.  This Credit Agreement shall terminate on the
earlier of: (i) the close of business on August 29, 2005; or (ii) the
date this Credit Agreement is terminated pursuant to Section 8.3
above; or (iii) such earlier date as may be selected by the
Company upon (a) at least forty-five (45) days prior written notice to the
Agent and each of the other Banks, and (b) prepayment by the Company of
all amounts due and owing by the Company under this Credit Agreement and each
of the other Loan Documents, at which time no further Advances can be made
hereunder and all Notes then outstanding shall be immediately due and payable.


 


9.12                           Counterparts;
Effectiveness.  This Credit Agreement
and any amendments, waivers, consents, or supplements may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Credit Agreement shall become effective upon the later
of: (a) the receipt by the Agent of a counterpart hereof executed by the
Company; or (b) the delivery to the Company of a counterpart hereof
executed by the Banks and the Agent.


 


9.13                           Entire
Agreement.  This Credit Agreement,
the Notes, the other Loan Documents and all other documents related to any of
the foregoing or otherwise contemplated hereunder embody the final and entire
agreement between the parties hereto relating to the subject matter hereof and
thereof and supersede any and all prior commitments, arrangements,
representations, understandings and agreements and any and all oral agreements
between the parties relating to the subject matter hereof.  There are no unwritten, oral agreements
between the parties.


 


9.14                           Exhibits
and Schedules.  The Exhibits and
Schedules to this Credit Agreement are a part hereof, and are hereby
incorporated by reference as if fully set out where first mentioned herein.


 


9.15                           Indemnity.  The Company shall indemnify and hold harmless
the Banks, the Agent, their respective successors, assigns, agents and
employees, from and against any and all claims, actions, suits, proceedings,
costs, expenses, damages, fines, penalties and liabilities, including, without
limitation, reasonable attorneys’ fees and costs, arising out of, connected
with or resulting from (a) this Credit Agreement or any of the other Loan
Documents, (b) the operation of the business of the Company, (c) the
Agent’s and/or any Bank’s preservation or attempted preservation of the
Collateral, or (d) any failure of the Liens granted to the Agent in its
capacity as agent for the Banks in the Collateral to be or to remain perfected
or to have the priority as contemplated herein and in the Collateral Documents;
provided, the Company shall have no obligation to indemnify the Banks for any
loss caused in whole or in part by the Banks’ or the Agent’s gross negligence
or willful misconduct.  At the Agent’s or
any Bank’s request, the Company shall, at its own cost and expense, defend or
cause to be defended any and all such actions or suits that may be brought
against the Agent or any such Bank as a result of this Credit Agreement or any
of the other Loan Documents, unless the claim arose due to gross negligence or
willful misconduct on the part


 


51





















 


of the Agent or any such Bank and, in any event, shall satisfy, pay and
discharge any and all judgments, awards, penalties, costs and fines that may be
recovered against the Agent or applicable Bank in any such action, plus all
reasonable attorneys’ fees and costs related thereto to the extent permitted by
applicable law; provided, however, that the Agent or each Bank shall give the
Company, to the extent the Agent or such Bank seeks indemnification from the
Company under this Section 9.15,
written notice of any such claim, demand or suit as soon as practicable after
the Agent or applicable Bank has received written notice thereof, and the Agent
or applicable Bank shall not settle any such claim, demand or suit, if the
Agent or such Bank seeks indemnification therefor from the Company, without
first giving notice to Company of the Agent’s or such Bank’s desire to settle
and obtaining the consent of Company to the same, which consent Company hereby
agrees not to unreasonably withhold or delay.


 


9.16                           Role
of the Banks.  Notwithstanding any of
the terms or conditions hereof or of the other Loan Documents to the contrary,
the Banks shall not have, and by their execution and acceptance of this Credit
Agreement hereby expressly disclaim, any obligation or responsibility for the
management, conduct or operation of the business and affairs of the Company.  Any term or condition hereof, or of any of
the other Loan Documents, permitting the Banks to take or refrain from taking
any action with respect to the Company or the Collateral shall be deemed solely
to permit the Banks to audit and review the management, operation and conduct
of the business and affairs of the Company and to maintain and preserve the
security given by the Company to the Agent, in its capacity as agent for the
Banks, for the Secured Obligations, and may not be relied upon by any other
Person.  Further, the Banks shall not
have, have not assumed, and by their execution and acceptance of this Credit
Agreement hereby expressly disclaim, any liability or responsibility for the
payment or performance of any indebtedness or obligation of the Company, and no
term or condition hereof, or of any of the other Loan Documents, shall be
construed otherwise.


 


9.17                           Notices.  All notices required or permitted to be given
hereunder shall be given in writing and shall be personally delivered or sent
by telecopier, by express courier service or by registered or certified United
States mail, return receipt requested, postage prepaid, addressed as follows
(or to such other address as to which any party hereto shall have given the
other written notice):


 


	
  If to the
  Company:

  	
   

  	
  Washtenaw Mortgage
  Company

  
	
   

  	
   

  	
  3767 Ranchero Drive

  
	
   

  	
   

  	
  Ann Arbor, Michigan
  48108

  
	
   

  	
   

  	
  Attn: 

  	
  Nathan Howard

  
	
   

  	
   

  	
   

  	
  Controller and CFO

  
	
   

  	
   

  	
  Ph: 

  	
  734-662-9733 (x611)

  
	
   

  	
   

  	
  Fax: 

  	
  734-741-5663

  



 


52





















 


	
   

  	
   

  	
  cc:

  	
  Andrew J.
  Broder, Esq.

  
	
   

  	
   

  	
   

  	
  Vicko, Lane,
  Payne & Broder, P.C.

  
	
   

  	
   

  	
   

  	
  32100 Telegraph Road

  
	
   

  	
   

  	
   

  	
  Suite 200

  
	
   

  	
   

  	
   

  	
  Bingham Farms, Michigan
  48025

  
	
   

  	
   

  	
   

  	
  Ph:

  	
  (248) 642-7733

  
	
   

  	
   

  	
   

  	
  Fax: 

  	
  (248) 642-7557

  
	
   

  	
   

  	
   

  
	
  If to National City as a Bank or as the Agent:

  	
   

  	
  At the telecopy number
  or address specified below the applicable signature of National City.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  cc: 

  	
  Jeffrey A. Hamilton, Esq.

  
	
   

  	
   

  	
   

  	
  Reed Weitkamp
  Schell & Vice PLLC

  
	
   

  	
   

  	
   

  	
  500 West Jefferson
  Street, Suite 2400

  
	
   

  	
   

  	
   

  	
  Louisville, KY 40202

  
	
   

  	
   

  	
   

  	
  Ph: 

  	
  (502) 589-1000

  
	
   

  	
   

  	
   

  	
  Fax: 

  	
  (502) 562-2200

  
	
   

  	
   

  	
   

  
	
  If to the other
  Banks:

  	
   

  	
  At the telecopy number
  or address specified below the signature of the applicable Bank.

  



 


All notices hereunder
shall be deemed given upon the earliest of (a) actual delivery in person
or by telecopier, (b) one (1) Business Day after delivery to an
express courier service, or (c) three (3) Business Days after having
been deposited in the United States mails, in accordance with the
foregoing.  Any notice of an Event of
Default to the Company shall be sent by personal delivery, express courier
service or by registered or certified mail in accordance with this Section 9.17.


 


9.18                           Ratable
Sharing.  Except as otherwise
specifically set forth in this Credit Agreement, including without limitation,
in Article 2 hereof and this Section 9.18, each Bank agrees with each other Bank
that (i) with respect to all amounts received by them which are applicable
to the payment of principal of or interest on the Warehouse Advances or fees
relating thereto including, without limitation, all amounts received by such
Bank pursuant to the exercise of the right of set-off pursuant to this Credit
Agreement, equitable adjustment will be made so that all such amounts will be
shared among the Banks proportionately to their respective Pro Rata Shares
whether received by voluntary payment, by the exercise of the right of set-off
or banker’s lien, by counterclaim or cross action or by the enforcement of any
or all of the Secured Obligations owed by the Company to the Banks hereunder
and under the Notes, and (ii) if any of them shall exercise any right of
counterclaim, set-off, banker’s lien or similar right with respect to amounts
owed by the Company hereunder, that Bank shall apportion the amount recovered
as a result of the exercise of such right pro rata in accordance with (a) all
amounts outstanding at such time owed by the Company to it hereunder, and (b) all
amounts otherwise owed by the Company to it, and (iii) if any of them
shall thereby through the exercise of any right of counterclaim, set-off,
banker’s lien or otherwise, or as adequate protection of a deposit treated as
cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal and interest due with respect
to the Warehouse Advances made by that Bank or any other amount payable
hereunder (collectively, the


 


53





















 


“Aggregate Amount Due” to such Bank), which is greater than the
proportion received by any other Bank in respect of the Aggregate Amount Due to
such other Bank, then the Bank receiving such proportionately greater payment
shall (y) notify each other Bank and the Agent of such receipt and (z) purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the Aggregate Amount Due to the other Banks so that
all recoveries of Aggregate Amount Due shall be shared by the Banks in
proportion to their respective Pro Rata Shares; provided that if all of
part of such proportionately greater payment received by such purchasing Bank
is thereafter recovered from such Bank, those purchases shall be rescinded and
the purchase prices paid for such participations shall be returned to that Bank
to the extent of such recovery, but without interest.  The Company expressly consents to the
foregoing arrangements and agrees that any participant in respect of any
Advance may exercise any and all rights of banker’s lien, set-off or
counterclaim with respect to any and all rights of banker’s lien, set-off or
counterclaim with respect to any and all monies owing by the Company to that
participant as fully as if that participant were a Bank in the amount of such
participation held by that participant. 
Notwithstanding anything contained herein to the contrary, immediately
upon the occurrence of an Event of Default, acceleration of the Secured
Obligations and/or termination, the Banks hereby absolutely and unconditionally
agree to purchase or sell, as applicable, such participation in the Warehouse
Advances, Swing Advances and Excess Advances outstanding as shall be required
to assure that each Bank holds its Warehouse Commitment Pro Rata Share of all
such Advances.


 


9.19                           Assignment.  This Credit Agreement may not be assigned by
the Company without the prior written consent of the Banks.  All rights of the Banks hereunder shall inure
to the benefit of their respective successors and assigns, and all obligations,
covenants and agreements of the Company shall bind its successors and assigns,
if any.


 


9.20                           Consent
of Banks.  Any amendment or
modification of this Credit Agreement or any other Loan Document, or waiver of
any term or provision hereof or thereof, shall require the affirmative written
consent of the Agent and the Requisite Banks; provided, notwithstanding
anything herein to the contrary, the following shall require the affirmative
written consent of the Agent and all of the Banks:  (i) except as permitted under the terms
of the Security Agreement, the release of any part of the Collateral from the
liens respectively created by the Loan Documents, (ii) the termination,
cancellation or release of any Loan Documents, (iii) the decrease in the
interest rate(s) borne by the Advances, other than decreases in the interest
rate(s) borne by the Advances by virtue of any decreases or changes in the
Federal Funds Effective Rate as expressly contemplated herein, (iv) any
reduction in the amount of the installments of principal due under this Credit
Agreement or the Notes or in the aggregate principal amount of principal due
thereunder, (v) any extension of the Termination Date or the due dates of
any installments of principal of and/or accrued interest on the Notes, (vi) any
change in the definition of the term Requisite Banks, (vii) any change in
the amount or the calculation of the Non-Usage Fee or the Usage Fees, (viii) any
change in the computation of (including any change in the definition of any
term used in) the Warehouse Borrowing Base, or (ix) any amendment to Section 2.7 hereof or this Section 9.20
or any other section of this Credit Agreement that expressly
requires the consent of all of the Banks. 
In addition to the foregoing, and notwithstanding anything in this
Credit Agreement to the contrary, no amendment, modification or waiver shall
increase a Bank’s Warehouse Line Commitment without the prior written consent
of the Company, the Agent and such Bank; provided, however, the consent of the
other Banks shall not be required to implement an increase to the Total
Warehouse Line Commitment whether such increase shall be on a temporary or
permanent basis. Further, notwithstanding anything to the contrary in this Section 9.20 or elsewhere in this Credit Agreement, (y)
with the approval of the Requisite Banks, the Agent may temporarily waive or
suspend one or more of this Credit Agreement’s eligibility requirements or
conditions for a particular grouping of Loans to qualify as Eligible Collateral
where their failure to so qualify is beyond


 


54





















 


the Company’s reasonable control and if the Agent and the Requisite
Banks believe at the time of such temporary waiver or suspension that the
factors which apparently caused such disqualification will be eliminated in a
reasonably short time, and (z) in addition to the provisions of the foregoing
subclause (y) Agent may, in its sole discretion, warehouse or continue to
warehouse Loans (“Discretionary Loans”) which would otherwise fail to qualify
as Eligible Collateral or waive or temporarily suspend or delay any obligation
of the Company hereunder in connection with such Discretionary Loans,
including, without limitation, suspension of any mandatory prepayment due in
connection with such Discretionary Loans, so long as the aggregate Advances
outstanding at any one time against such Discretionary Loans shall not exceed
Five Million Dollars ($5,000,000.00). 
Each Loan which the Agent warehouses or continues to warehouse as a
particular type of Loan pursuant to subclause (y) or (z) above, shall, for the
entire time such Loan is warehoused pursuant to such subclause, be treated as
such particular type of Loan for all purposes under this Credit Agreement and
each of the other Loan Documents.


 


ARTICLE 10


 


THE AGENT


 


10.1                           Appointment.  Each Bank hereby irrevocably designates,
appoints and authorizes National City to act as Agent for such Bank under this
Credit Agreement, to act as collateral agent for such Bank under all Loan
Documents and all Uniform Commercial Code Financing Statements filed pursuant
thereto and to execute and deliver or accept on behalf of each of the Banks the
other Loan Documents.  Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to act as the Agent
under and in accordance with the provisions of the Security Agreement.  Each Bank hereby irrevocably authorizes, and
each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Agent to take such action on behalf of such Bank
and such holder under the provisions of this Credit Agreement and the other
Loan Documents and any other instruments and agreements referred to herein, and
to exercise such powers and to perform such duties hereunder as are
specifically delegated to or required of the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.  National City agrees to act as the Agent on
behalf of the Banks to the extent provided in this Credit Agreement, and
National City expressly acknowledges and agrees that it is holding the other
Loan Documents for the benefit of the Banks to secure the payment and
performance of the Notes and the other obligations of the Company under the
Loan Documents.


 


10.2                           Delegation
of Duties.  The Agent may perform any
of its duties hereunder by or through agents or employees and, subject to Sections 10.5, 10.6 and 10.7 hereof, shall be entitled to
engage and pay for the advice or services of any attorneys, accountants or
other experts concerning all matters pertaining to its duties hereunder and to
rely upon any advice so obtained.


 


10.3                           Nature
of Duties; Independent Credit Investigation.  The Agent shall have no duties or
responsibilities except those expressly set forth in this Credit Agreement and
the other Loan Documents and no implied covenants, functions, responsibilities,
duties, obligations, or liabilities shall be read into this Credit Agreement or
shall otherwise exist.  National City
agrees that it shall administer its responsibilities and duties as Agent
hereunder and under the other Loan Documents with at least the same degree of
care that it customarily employs in the administration of similar credit
facilities for its own account.  The
duties of the Agent shall be mechanical and administrative in nature and shall
include the duty to provide to each Bank an executed original of such Bank’s
Note and an executed original of this Credit Agreement and a copy of the other
Loan Documents; the Agent shall not have by reason of this Credit Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Credit


 


55





















 


Agreement, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this Credit
Agreement except as expressly set forth herein. The Agent shall provide the
Banks copies of all notices and documents received by it in its capacity as
Agent hereunder or under any of the other Loan Documents except as otherwise
specifically provided herein.  Each Bank
expressly acknowledges (i) that the Agent has not made any representations
or warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Company shall be deemed to constitute any
representation or warranty by the Agent to any Bank; (ii) that it has made
and will continue to make, without reliance upon the Agent, its own independent
investigation of the financial condition and affairs and its own appraisal of
the creditworthiness of the Company in connection with this Credit Agreement
and the making and continuance of the Warehouse Advances hereunder; and (iii) except
as expressly provided herein, that the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the making of any Advance or at any time or times
thereafter.


 


10.4                           Actions
in Discretion of the Agent; Instructions from the Banks.  The Agent agrees, upon the written request of
the Requisite Banks, to take or refrain from taking any action of the type
specified as being within the Agent’s rights, powers or discretion herein, provided
that the Agent shall not be required to take any action which exposes the Agent
to legal liability or which is contrary to this Credit Agreement or any other
Loan Documents or applicable law.  In the
absence of a request by the Requisite Banks, the Agent shall have authority, in
its sole discretion, to take or not to take any such action, unless this Credit
Agreement specifically requires the consent of the Requisite Banks or all of
the Banks.  Any action taken or failure
to act pursuant to such instructions or discretion shall be binding on the
Banks, subject to Section 10.6
hereof.  Subject to the provisions of Section 10.6 hereof, no Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Requisite Banks or all of the Banks, as applicable, or in the absence of such
instructions, in the absolute discretion of the Agent.


 


10.5                           Reimbursement
and Indemnification of the Agent by the Company.  The Company unconditionally agrees to pay or
reimburse the Agent and save the Agent harmless against (i) liability for
the payment of all reasonable and necessary out-of-pocket costs, expenses and
disbursements, including fees and expenses of counsel and consultants, incurred
by the Agent (a) in connection with the development, negotiation,
preparation, printing, execution, interpretation and performance of this Credit
Agreement and the other Loan Documents, subject to the provisions of Sections 9.1 and 10.7 hereof, (b) relating
to any Company requested amendments, waivers or consents pursuant to the
provisions hereof, (c) in connection with the enforcement of this Credit
Agreement or any other Loan Document or collection of amounts due hereunder or
thereunder or the proof and allowability of any claim arising under this Credit
Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and (d) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or under any other Loan Document or
in connection with any foreclosure/repurchase, collection or bankruptcy
proceedings, and (ii) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Agent, in its capacity as such, in any way relating to or arising
out of this Credit Agreement or any other Loan Document or any action taken or
omitted by the Agent hereunder or thereunder; provided that the Company
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(a) if the same results from the Agent’s or the Banks’ gross negligence or
willful misconduct, or (b) if the Company was not given notice of the
subject claim and the opportunity to participate in the defense thereof, at its
expense, or (c) if the same results from a compromise or settlement


 


56





















 


agreement entered into without the consent of the Company which consent
shall not be unreasonably withheld.


 


10.6                           Exculpatory
Provisions.  Neither the Agent nor
any of its directors, officers, employees, agents or affiliates shall (i) be
liable to any Bank for any action taken or omitted to be taken by it or them
hereunder, or in connection herewith including pursuant to any other Loan
Documents, including without limitation, the provision of any notice or copies
of documents to the Banks, unless caused by its or their own gross negligence
or willful misconduct, (ii) be responsible in any manner to any of the
Banks for the effectiveness, enforceability, genuineness, validity or the due
execution of this Credit Agreement or any other Loan Document or for any
recital, representation, warranty, document, certificate, report or statement
herein or made or furnished under or in connection with this Credit Agreement
or any other Loan Document, or (iii) be under any obligation to any of the
Banks to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions hereof or thereof on the part of the
Company, or the financial condition of the Company, or the existence or
possible existence of any Event of Default or default under the Loan Documents.  Neither the Agent nor any Bank nor any of
their respective directors, officers, employees, agents, attorneys or
affiliates shall be liable to the Company or any other Person for consequential
damages resulting from any breach of contract, tort or other wrong in connection
with the negotiation, documentation or administration of the Loan Documents or
the collection of the Warehouse Advances, except for those caused by or
resulting from the gross negligence or willful misconduct thereof.


 


10.7                           Reimbursement
and Indemnification of the Agent by the Banks.  Each Bank agrees to reimburse and indemnify
the Agent (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so) in proportion to its Warehouse Pro Rata
Share from and against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Agent, in its capacity as such, in any way relating to or arising
out of this Credit Agreement or any other Loan Document or any action taken or
omitted by the Agent hereunder or thereunder, provided that no such
reimbursement shall be required with respect to expenses incurred by the Agent
during the time period through the date hereof and no Bank shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements if the same relates
to or arises out of the Agent’s gross negligence or willful misconduct.


 


10.8                           Reliance
by the Agent.  The Agent shall be
entitled to rely upon any writing, telegram, telex or teletype message,
facsimile, resolution, notice, consent, certificate, letter, cablegram,
statement, order or other document or conversation by telephone or otherwise
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon the advice and opinions of counsel
and other professional advisers selected by the Agent.  The Agent shall be fully justified in failing
or refusing to take any action hereunder unless it shall first be indemnified
to is satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action.


 


10.9                           Notice
of Default.  The Agent shall not be
deemed to have knowledge or notice of the occurrence of any default under the
Loan Documents or Event of Default unless the Agent has received written notice
from a Bank or the Company referring to this Credit Agreement, specifically
describing such default or Event of Default and stating that such notice is a “notice
of default.”  In the event that the Agent
receives such a notice of an occurrence of an Event of Default, the Agent shall
give prompt notice thereof to the Banks. 
If an Event of Default shall occur, the Agent shall take such actions as
shall be reasonably


 


57





















 


directed by the Requisite Banks or all of the Banks, as
applicable.  Unless and until the Agent
shall have received such instructions, the Agent may (but shall not be
obligated to) take such action or refrain from taking such action, as it shall
deem advisable in the best interests of the Banks.


 


10.10                     The Banks
in Their Individual Capacities.  With
respect to its Warehouse Line Commitment and the Warehouse Advances made by it,
the entity which is the Agent shall have the same rights and powers hereunder
as any other Bank and may exercise the same as though it were not the Agent,
and the term “Banks” shall, unless the context otherwise indicates, include the
entity which is the Agent in its individual capacity.  National City and its affiliates and each of
the Banks and their respective affiliates may, without liability to account,
except as prohibited herein, make loans to, accept deposits from, discount
drafts for, act as trustee under indentures of, and generally engage in any
kind of banking or trust business with, the Company and its Affiliates, in the
case of the entity which is the Agent, as though it were not acting as Agent
hereunder and in the case of each Bank, as though such Bank were not a Bank
hereunder.


 


10.11                     Holders of
Notes.  The Agent may deem and treat
any payee of any Note as the owner thereof for all purposes hereof unless and
until written notice of the assignment or transfer thereof shall have been
filed with the Agent.  Any request,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.


 


10.12                     Successor
Agent.  The Agent (i) may resign
as Agent with the consent of the Company, such consent not to be unreasonably
withheld, or (ii) shall resign if such resignation is requested by the
Requisite Banks, in either case (i) or (ii) by giving not less than
sixty (60) calendar days prior written notice to the Company and the
Banks.  If the Agent shall resign under
this Credit Agreement, then either (a) the Requisite Banks shall appoint
from among the Banks a successor agent for the Banks, subject to the consent of
such successor agent by the Company, such consent not to be unreasonably
withheld, or (b) if a successor agent shall not be so appointed and
approved within the sixty (60) calendar day period following the Agent’s notice
to the Banks of its resignation, then the Agent shall appoint, with the consent
of the Company, such consent not to be unreasonably withheld, a successor agent
who shall serve as Agent until such time as the Requisite Banks appoint, and
the Company consents, which consent shall not be unreasonably withheld, to the
appointment of, a successor agent.  Upon
its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the Agent and
the term “Agent” shall mean such successor agent, effective upon its
appointment, and the former Agent’s rights, powers and duties as Agent shall be
terminated without any other or further act or deed on the part of such former
Agent or any of the parties to this Credit Agreement.  After the resignation of any Agent hereunder,
the provisions of this Article 10
shall not by reason of such resignation be deemed to be released from liability
for any actions taken or not taken by it while it was an Agent under this
Credit Agreement.  Notwithstanding
anything contained herein to the contrary, during the occurrence and
continuance of an Event of Default hereunder, all actions may be taken under
this Section 10.12 without
the necessity of obtaining the consent of the Company.


 


10.13                     Calculations.  In the absence of gross negligence or willful
misconduct, the Agent shall not be liable for any error in computing the amount
payable to any Bank whether in respect of the Warehouse Advances or the fees or
other amounts due to the Banks under this Credit Agreement.  In the event an error in computing any amount
payable to any Bank is made, the Agent, the Company and each affected Bank
shall, forthwith upon discovery of such error, make such adjustments as shall
be required to


 


58





















 


correct such error.  In no event,
however, shall the Company be required to pay more than the amount of error
itself.


 


10.14                     Beneficiaries.  Except as set forth in Sections
10.5 and 10.12 hereof, the provisions of this Article 10
are solely for the benefit of the Agent and the Banks, and the Company shall
not have any rights to rely on or enforce any of the provisions hereof.  In performing its functions and duties under
this Credit Agreement, the Agent shall act solely as agent of the Banks and
does not assume and shall not be deemed to have assumed any obligation toward
or relationship of agency or trust with or for the Company or any other Person.


 


ARTICLE 11


 


ADDITIONAL BANKS;
ASSIGNMENTS AND PARTICIPATIONS


 


11.1                           Additional
Banks.  The Agent with the consent of
the Company may at any time propose that one or more commercial banks each of
which is organized under the laws of the United States or any state thereof or
organized under the laws of any other country, or a political subdivision
thereof (provided that such foreign bank is acting through a branch or agency
located in the United States, or is organized under the laws of a country that
is a member of the Organization for Economic Cooperation and Development or a
political subdivision of such country), is regularly engaged in the business of
mortgage warehouse lending, and has capital and surplus of at least Three
Hundred Million Dollars ($300,000,000.00) (each, an “Applicant Financial
Institution”) become an additional Bank hereunder. At such time, the Company or
the Agent, as applicable, shall notify the other parties hereto of the identity
of such Applicant Financial Institution and such Applicant Financial
Institution’s proposed Warehouse Line Commitment (which must not be less than
Ten Million Dollars ($10,000,000.00)); provided, however, notwithstanding
anything contained herein to the contrary, without the prior written consent of
the Agent and the Requisite Banks, the Total Warehouse Line Commitment shall
never exceed One Hundred Fifty Million Dollars ($150,000,000.00).  The Agent and the Company shall mutually
agree on the effective date on which such Applicant Financial Institution shall
become a party hereto and a Bank hereunder (the “Adjustment Date”).  On such Adjustment Date: (i) the Agent
shall deliver to the Company and each of the Banks a Commitment Schedule and
Allocation Notice to be effective from such Adjustment Date; (ii) such
Applicant Financial Institution shall pay to the Agent, no later than 12:00
noon Prevailing Time, an amount equal to such Applicant Financial Institution’s
Pro Rata Share of the Aggregate Outstanding Warehouse Balance and the Aggregate
Outstanding Excess Balance to be funded on such Adjustment Date, as applicable,
whereupon, the Agent shall thereupon remit to the Banks their respective shares
of such funds, as applicable, and following such Adjustment Date, fees and
interest accrued on Loans to but not including such Adjustment Date shall be
payable to the Banks in accordance with their respective  Pro Rata Shares prior to such Adjustment Date
before giving effect to the readjustment thereof pursuant to the Commitment Schedule and
Allocation Notice provided by the Company on such Adjustment Date; (iii) 
the Agent, the Company and such Applicant Financial Institution shall execute
and deliver an agreement in the form of that attached hereto as Exhibit G (an “Additional Lender Agreement”), which
agreement shall constitute an amendment to this Credit Agreement to the extent
necessary to reflect the inclusion of such Applicant Financial Institution as a
Bank hereunder, and if in connection with the inclusion of such Applicant
Financial Institution as a Bank hereunder, the Total Warehouse Line Commitment
will be increased, the parties hereto will execute any additional amendments to
the Loan Documents as the  Agent
reasonably requests to reflect such increase; (iv)  the Company shall
execute and deliver new Notes, as applicable, to such Applicant Financial
Institution; (v) subject to the requirements described above, such
Applicant Financial Institution shall become a party hereto and a Bank
hereunder and shall be entitled to all rights,


 


59





















 


benefits and privileges accorded a Bank hereunder and under the other
Loan Documents and shall be subject to all obligations of a Bank hereunder and
under the other Loan Documents; and (vi)  the Applicant Financial
Institution shall pay to the Agent a registration fee in an amount determined
by the Agent in its sole discretion covering the admission of the Applicant
Financial Institution into this Credit Agreement.  Notwithstanding anything contained herein to
the contrary, the Company may, with the prior written consent of the Agent and
the Requisite Banks, reduce the Total Warehouse Line Commitment in multiples of
Two Million Five Hundred Thousand Dollars ($2,500,000.00); provided, however,
any such reduction (y) shall not reduce the ratio of the Total Warehouse Line
Commitment to the National City Line Commitment to less than 4:1, and (z) any
such reduction shall be prorated as to the Banks, except reductions which occur
during the annual renewal period which shall only require the consent of the
Company and the Agent.  Furthermore, the
Company may, with the prior written consent of the Agent, remove any financial
institution as a Bank hereunder with or without cause.  In addition to the foregoing and
notwithstanding anything contained herein to the contrary, the Agent and the
Company may in their joint discretion implement an increase in the Total
Warehouse Line Commitment, on either a temporary or permanent basis, by
increasing any particular Bank’s respective Warehouse Line Commitment;
provided:  (i) no Bank’s Warehouse
Line Commitment may be increased without such Bank’s prior written consent, (ii) any
such increase must not be less than Two Million Five Hundred Thousand Dollars
($2,500,000.00) and must be a multiple of Two Million Five Hundred Thousand
Dollars ($2,500,000.00); (iii) the Total Warehouse Line Commitment shall
never exceed One Hundred Fifty Million Dollars ($150,000,000.00) without the
prior written consent of the Agent and the Requisite Banks; and (iv) the
Agent, the Company and the respective Bank whose Warehouse Line Commitment is
increasing (the “Increased Bank”) shall mutually agree on the Adjustment Date
for such increase and on such Adjustment Date [a] the Agent shall deliver to
the Company and each Bank a Commitment Schedule and Allocation Notice to
be effective from such Adjustment Date, [b] the Agent, the Company and the
Increased Bank shall execute and deliver to the other Banks an amendment
document implementing such increase, and [c] the Company shall execute and
deliver a new Warehouse Promissory Note to such Increased Bank reflecting such
increase.


 


11.2                           Assignments and Participations.  Any
Bank may, with the prior written consent of the Agent and Company, which
consent shall not unreasonably be withheld, assign all or any portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Warehouse Line Commitment, Loans, or its Warehouse Note) to
one or more banks or other financial institutions having experience as a
co-bank in credit facilities similar to the Agreement (each an “Assignee”),
provided, however, (a) no such consent by the Agent and Company shall be
required in the case of any assignment to another Bank or any Affiliate of such
Bank or another Bank; (b) no such consent by Agent and Company shall be
required in the case of an assignment while an Event of Default exists and is
continuing; and (c) any partial assignment shall be in an amount at least
equal to Five Million Dollars ($5,000,000.00) and integral multiples of Five
Hundred Thousand Dollars ($500,000.00) in excess thereof, and (c) each
such assignment shall be effected by means of an assignment agreement
reasonably acceptable to Agent, the assigning Bank and the Assignee (an “Assignment
and Acceptance Agreement”).  From and
after the effective date specified in the Assignment and Acceptance Agreement
approved by the Agent, the Assignee thereunder shall be a party hereto and have
the rights and obligations of the assigning Bank hereunder, the assigning Bank
shall be relieved from its obligations hereunder to a corresponding extent,
this Credit Agreement shall be amended to reflect such assignment, and the
Agent and the Company shall make appropriate arrangements so that a new Note is
issued to the Assignee and such assigning Bank, as appropriate.  In connection with any such assignment, the
assigning Bank shall pay to the Agent an administration fee for processing such
assignment in the amount of One Thousand Five Hundred Dollars ($1,500.00). Each Bank may, at no additional cost to the
Company, grant participations in all or any part of the outstanding principal
balance of its Warehouse Notes and its Warehouse Line Commitment to one or


 


60





















 


more Persons provided that (i) any such disposition shall not,
without the consent of the Company, require the Company to file a registration
statement with the Securities and Exchange Commission or apply to qualify the
Warehouse Advances or the Warehouse Notes under the blue sky law of any state; (ii) the
holder of any such participation shall not be entitled to require such Bank to
take or omit to take any action hereunder; and (iii) any Person to whom
such disposition has been made shall not be considered a “Bank” for purposes of
this Credit Agreement.  No Bank shall, as
between the Company and that Bank, be relieved of any of its obligations
hereunder as a result of any granting of participations in all or any part of
the outstanding principal balance of its Warehouse Notes or its Warehouse Line
Commitment of or other obligations owed to such Bank. Notwithstanding anything
contained here and to the contrary, any Bank may at any time pledge or sign or
any portion of such Bank’s rights under this Credit Agreement and the other
Loan Documents to a Federal Reserve Bank.


 


ARTICLE 12


 


WAIVER OF JURY TRIAL


 


THE COMPANY, THE BANKS
AND THE AGENT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS CREDIT AGREEMENT OR THE
OTHER LOAN DOCUMENTS.  THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  THE COMPANY, THE BANKS AND THE AGENT
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH SUCH PARTY TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT THE COMPANY, THE BANKS AND THE AGENT
HAVE ALREADY RELIED ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS WITH THE
OTHERS.  THE COMPANY, THE BANKS AND THE
AGENT FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS CREDIT
AGREEMENT OR THE OTHER LOAN DOCUMENTS. 
IN THE EVENT OF LITIGATION, THIS CREDIT AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


[The remainder of
this page has been intentionally left blank]


 


61





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Credit Agreement to be executed as of the day and year first above
written.


 


 


	
   

  	
  WASHTENAW MORTGAGE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  Washtenaw Mortgage
  Company

  
	
   

  	
   

  	
  3767 Ranchero Drive

  
	
   

  	
   

  	
  Ann Arbor, Michigan
  48108

  
	
   

  	
  Attn:

  	
  Howard Nathan

  
	
   

  	
   

  	
  Vice President and CFO

  
	
   

  	
  Fax:

  	
  734-741-5663

  
	
   

  	
  Ph:

  	
  734-662-9733 (x611)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Company”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL CITY BANK OF KENTUCKY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  National City Bank
  of Kentucky

  
	
   

  	
   

  	
  101 South Fifth Street

  
	
   

  	
   

  	
  Louisville, KY 40202

  
	
   

  	
  Attn:

  	
  Gary Sieveking

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
  Fax:

  	
  (502) 581-4154

  
	
   

  	
  Ph:

  	
  (502) 581-7660

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (“National City”)

  
						



 


62





















 


	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  Comerica Bank

  
	
   

  	
   

  	
  500 Woodward Ave., MC:
  3256

  
	
   

  	
   

  	
  Detroit, Michigan 48226

  
	
   

  	
  Attn:

  	
  Heather Hogle

  
	
   

  	
   

  	
  Account Representative

  
	
   

  	
  Fax:

  	
  (313) 222-9295

  
	
   

  	
  Ph:

  	
  (313) 222-5740

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (“Comerica”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COLONIAL
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  Mortgage Warehouse
  Lending Division

  
	
   

  	
   

  	
  201 East Pine Street,
  Suite 730

  
	
   

  	
   

  	
  Orlando, Florida 32801

  
	
   

  	
  Attn:

  	
  Jennifer Branker

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
  Fax:

  	
  (407) 835-6690

  
	
   

  	
  Ph:

  	
  (407) 835-6700

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (“Colonial”)

  
						



 


63





















 


	
   

  	
  NATIONAL CITY BANK OF KENTUCKY,
  in its

  
	
   

  	
  capacity as Agent for the Banks

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  National City Bank
  of Kentucky

  
	
   

  	
   

  	
  101 South Fifth Street

  
	
   

  	
   

  	
  Louisville, KY  40202

  
	
   

  	
  Attn:

  	
  Gary Sieveking

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
  Fax:

  	
  (502) 581- 4154

  
	
   

  	
  Ph:

  	
  (502) 581-7660

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Agent”)

  
						



 


64