ELEVENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
EXHIBIT
10.33
ELEVENTH
AMENDMENT TO
AMENDED
AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS
ELEVENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT (the
“Eleventh Amendment”) is made and entered into as of the 27th day of December,
2004, by and among (i) (a) UNITED
FINANCIAL MORTGAGE CORP., an
Illinois corporation with its principal place of business located at 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 (“United”), and (b)
VISION
MORTGAGE GROUP, INC., a
Wisconsin corporation with its principal place of business located at 0000 X.
Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (“Vision”) (collectively, the “Company”),
(ii) (a) NATIONAL
CITY BANK OF KENTUCKY, a
national banking association with a place of business located at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (“National City”), (b) BANK
ONE, NA, a
national banking association with its principal place of business located in
Chicago, Illinois (“Bank One”), (c) COMERICA
BANK, a
Michigan banking corporation with its principal place of business located at 000
Xxxxxxxx Xxxxxx, XX: 3256, Xxxxxxx, Xxxxxxxx 00000 (“Comerica”), (d)
COLONIAL
BANK, N.A., a
national banking association with a principal place of business located at 000
X. Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“Colonial”), and (e)
HSBC
BANK USA, NATIONAL ASSOCIATION, a
national banking association with its principal place of business at Xxx XXXX
Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 (“HSBC”) (National City, Bank One, Comerica, Colonial
and HSBC are each individually referred to as a “Bank” and collectively as the
“Banks”), and (iii) NATIONAL
CITY BANK OF KENTUCKY, in its
capacity as Agent for the Banks (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:
A. Pursuant
to that certain Amended and Restated Warehousing Credit Agreement dated as of
August 1, 2003, among the Company, the Banks party thereto and the Agent, as
heretofore amended from time to time (the “Existing Credit Agreement”), the
Agent and the Banks have established a warehousing line of credit facility in
favor of the Company in the current, temporary maximum principal amount of One
Hundred Forty Million Dollars ($140,000,000.00) (the “Warehouse Line”), for the
purposes set forth therein.
B. The
Company has now requested that the Agent and Banks amend the Existing Credit
Agreement in order to extend the temporary increase in the maximum principal
amount of the Warehouse Line to One Hundred Forty Million Dollars
($140,000,000.00) to and until the close of business on March 1,
2005.
C. The Agent
and the Banks are willing to and desire to amend the Existing Credit Agreement
in the manner described above, upon the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth in the Existing Credit Agreement and herein, and for other
good and valuable consideration, the mutuality, receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Each
capitalized term used herein, unless otherwise expressly defined herein, shall
have the meaning set forth in the Existing Credit Agreement.
2. The
following definitions, as contained in Article
1 of the
Existing Credit Agreement, are hereby amended and restated in their entirety to
read as follows:
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“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 mean, as applicable, either (i) One Hundred Forty
Million Dollars ($140,000,000.00) to and until the close of business on March 1,
2005, or (ii) One Hundred Ten Million Dollars ($110,000,000.00) from March 2,
2005 to and until the Termination Date, subject in each case to the right of the
Company and the Agent in their sole, joint discretion to increase such amount by
adding one or more Applicant Financial Institutions as a “Bank” or “Banks”
hereunder, or as otherwise permitted under Section
11.1
hereof.
“Warehouse
Line” shall
mean the line of credit established by the Agent and Banks in favor of the
Company under Article
2 of this
Credit Agreement in the maximum principal amount of, as applicable, either (i)
One Hundred Forty Million Dollars ($140,000,000.00) to and until the close of
business on March 1, 2005, or (ii) One Hundred Ten Million Dollars
($110,000,000.00) from March 2, 2005 to and until the Termination Date, subject
in each case to the right of the Company and the Agent in their sole, joint
discretion to increase such amount by adding one or more Applicant Financial
Institutions as a “Bank” or “Banks” hereunder.
“Warehouse
Notes” shall
mean, collectively, (i) that certain Amended and Restated Warehouse Promissory
Note dated as of December 27, 2004, made by United and Vision, jointly and
severally, 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
attached hereto as Exhibit
C-1 and made
a part hereof by this reference, 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 dated as of October 21, 2004, made by
United and Vision, jointly and severally, payable to the order of Bank One, and
in the face principal amount of Twenty-Five Million Dollars ($25,000,000.00), a
form of which is attached hereto as Exhibit
C-2 and made
a part hereof by this reference, as the same may hereafter be amended, modified,
renewed, replaced and/or restated from time to time, (iii) that certain Amended
and Restated Warehouse Promissory Note dated as of December 27, 2004, made by
United and Vision, jointly and severally, payable to the order of HSBC Bank USA,
and in the face principal amount of Twenty-Five Dollars ($25,000,000.00), a form
of which is attached hereto as Exhibit
C-3 and made
a part hereof by this reference, as the same may hereafter be amended, modified,
renewed, replaced and/or restated from time to time, (iv) that certain Amended
and Restated Warehouse Promissory Note dated as of December 27, 2004, made by
United and Vision, jointly and severally, payable to the order of Comerica, and
in the face principal amount of Twenty Million Dollars ($20,000,000.00), a form
of which is attached hereto as Exhibit
C-4 and made
a part hereof by this reference, as the same may hereafter be amended, modified,
renewed, replaced and/or restated from time to time, (v) that certain Amended
and Restated Warehouse Promissory Note dated as of October 21, 2004, made by
United and Vision, jointly and severally, payable to the order of Colonial, and
in the face principal amount of Twenty-Five Million Dollars ($25,000,000.00), a
form of which is attached hereto as Exhibit
C-5 and made
a part hereof by this reference, as the same may hereafter be amended, modified,
renewed, replaced and/or restated from time to time, and (vi) when executed and
delivered, any such additional Warehouse Promissory Note, 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, substantially in
the form of the Warehouse Promissory Note attached hereto as Exhibit
C-1 (other
than the amount thereof), as the same may thereafter be amended, modified,
renewed, replaced and/or restated from time to time.”
3. The
fourth sentence in the first paragraph of Section
2.1 of the
Existing Credit Agreement is hereby amended and restated in its entirety to read
as follows:
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“The
Total Warehouse Line Commitment is equal to, as applicable, either (i) One
Hundred Forty Million Dollars ($140,000,000.00) to and until the close of
business on March 1, 2005, or (ii) One Hundred Ten Million Dollars
($110,000,000.00) from March 2, 2005 to and until the Termination Date, and as
may be increased in either case by the Company and the Agent in their sole,
joint discretion by adding one or more Applicant Financial Institutions as a
“Bank” or “Banks” hereunder, or as further permitted under Section
11.1
hereof.”
4. The
Existing Credit Agreement is hereby amended by amending and restating
Exhibits
C-1, C-3, C-4 and H and Schedule 2.1 thereof
to read in their entirety as set forth on Exhibits
C-1, C-3, C-4 and H and Schedule 2.1 attached
to this Eleventh Amendment and made a part hereof by this
reference.
5. The
Company represents and warrants that no Event of Default has occurred to date
under the Existing Credit Agreement or any other Loan Document and that no
Unmatured Event of Default currently exists under any of the Loan
Documents.
6. This
Eleventh Amendment may be executed in one or more counterparts, each of which
shall constitute an original and all of the same shall constitute one and the
same instrument.
7. This
Eleventh Amendment shall be effective as of the date of delivery to the Agent of
each of the following: (i) this Eleventh Amendment and each of the other
agreements and instruments referred to herein or related hereto, each duly
executed by each of the parties thereto, (ii) the Amended and Restated Warehouse
Promissory Notes related hereto, each duly executed and delivered by United and
Vision, (iii) an authorizing resolution from the respective boards of directors
from each of United and Vision, (iv) payment to each of the Banks of an
amendment fee equal to $375.00, and (v) all such other security documents,
opinions, instruments and certificates as may be required by Agent or its
counsel in order to consummate the transactions contemplated herein.
8. This
Eleventh Amendment and the related writings and the respective rights and
obligations of the parties shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Kentucky.
9. This
Eleventh Amendment shall be binding upon, and shall inure to the benefit of, the
Company, the Banks and the Agent and their respective successors and
assigns.
10. This
Eleventh Amendment and the agreements, instruments and other documents referred
to herein, constitute the entire agreement of the parties with respect to, and
supersede all prior understandings of the parties with respect to the subject
matter hereof. No change, modification, addition or termination of this Eleventh
Amendment shall be enforceable unless in writing signed by the party against
whom enforcement is sought.
11. Each of
United and Vision hereby makes, declares, ratifies and/or reaffirms, as
applicable, all of the representations, warranties, covenants, agreements and
obligations set forth in the Existing Credit Agreement and each of the other
Loan Documents, as amended and modified hereby, as each of the same apply to
United and Vision individually or collectively as the Company, as
applicable.
12. Notwithstanding
anything to the contrary contained herein or in the Security Agreement or other
Loan Documents, the term “Company” as used in the Security Agreement and each of
the other Loan Documents shall have the meaning given to it in this Eleventh
Amendment and shall mean United and Vision as joint and several co-borrowers and
co-debtors, as applicable. Without limiting the generality of the foregoing,
United and Vision expressly covenant and agree that pursuant to the
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amendments provided for in this Eleventh Amendment,
(i) the pledge, assignment, transfer and grant of security interest set forth in
the Security Agreement is made by both United and Vision, and (ii) the
Collateral described in the Security Agreement shall include all of the right,
title and interest of United and Vision in the property described therein.
Further, United and Vision do hereby authorize the Agent, on behalf of the
Banks, to, at any time and from time to time, file in any one or more
jurisdictions financing statements that describe the Collateral (as such term
shall apply to United and Vision as the collectively redefined “Company”
herein), together with continuation statements thereof and amendments thereto,
without the signature of either United or Vision and which contain any
information required by the Kentucky Uniform Commercial Code or the Uniform
Commercial Code, as revised, applicable to such jurisdiction for the sufficiency
or filing office acceptance of any financing statements, continuation statements
or amendments.
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remainder of this page has been intentionally left blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Eleventh Amendment to
Amended and Restated Warehousing Credit Agreement to be duly executed as of the
day and year first above written.
By:
_______________________________________
Title:
______________________________________
VISION
MORTGAGE GROUP, INC.
By:
_______________________________________
Title:
______________________________________
(collectively,
the “Company”)
NATIONAL
CITY BANK OF KENTUCKY
By:
______________________________________
Title:
_____________________________________
Section
1. BANK ONE,
NA
By:
________________________________________
Title:
_______________________________________
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COMERICA
BANK
By:
________________________________________
Title:
_______________________________________
COLONIAL
BANK, N.A.
By:
________________________________________
Title:
_______________________________________
1.1 HSBC BANK
USA, NATIONAL ASSOCIATION
By:
______________________________________
Title:
_____________________________________
(collectively,
the “Banks”)
NATIONAL
CITY BANK OF KENTUCKY
By:
_____________________________________
Title:
____________________________________
(the
“Agent”)
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