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EXHIBIT 10.9
AMENDMENT NO. 6 TO
SECOND AMENDED AND RESTATED MORTGAGE WAREHOUSING AGREEMENT
THIS AMENDMENT ("Amendment") is dated as of August 27, 1999, by and
among Comerica Bank, a Michigan banking corporation ("Comerica"), First Union
National Bank, successor by merger to Corestates Bank, N.A. ("FUNB"),
Residential Funding Corporation, a Delaware corporation ("RFC") and National
City Bank of Kentucky, a national banking association ("NCBank") (collectively,
Comerica, FUNB, RFC and NCBank are referred to as "Lenders"), Comerica Bank, as
Agent for Lenders (in such capacity, "Agent"), and Rock Financial Corporation, a
Michigan corporation ("Borrower");
RECITALS:
WHEREAS, BORROWER, Agent and Lenders entered into a certain Second
Amended and Restated Mortgage Warehousing Agreement dated November 13,1997, as
amended by Amendment No. 1 dated January 30, 1998, Amendment No. 2 dated April
2, 1998, Amendment No. 3 dated July 13, 1998, Amendment No. 4 dated November 16,
1998 and Amendment No. 5 and Waiver dated January 25, 1999 (as amended, the
"Agreement"); and
WHEREAS, Borrower, Agent and Lenders desire to further amend the
Agreement as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Borrower and Michigan National Bank, a national banking association
("Michigan National") have formed Rock Home Loans at Michigan National, L.L.C.,
a Michigan limited liability company ("Rock Home Loans"), the sole members of
which are Borrower and Michigan National, for the purpose of engaging in the
origination, purchase and sale of mortgage loans. Pursuant to a Mortgage
Warehousing Agreement between Rock Home Loans and Michigan National dated April
14, 1999, Michigan National made available to Rock Home Loans a mortgage
warehousing line of credit (the "Rock Home Loans Warehousing Agreement"). In
connection with the Rock Home Loans Warehousing Agreement, Rock Home Loans,
Michigan National and Comerica entered into a Custodial Agreement dated April
14, 1999, as amended by Amendment No. 1 dated of even date herewith (as amended,
the "Custodial Agreement"), a copy of which is attached hereto as Exhibit A,
under which Comerica agreed to act as collateral custodian for the benefit of
Michigan National. The Lenders hereby consent to (a) the formation of Rock Home
Loans, (b) the extensions of credit to Rock Home Loans under the Rock Home Loans
Warehousing Agreement, and (c) the Custodial Agreement and Comerica's
obligations thereunder.
2. The definition of "Loan Documents" in Section 1.02 of the Agreement
is amended and restated to read in its entirety as follows:
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"Loan Documents means this Agreement, the Security Agreement, the
Notes, the Michigan National Intercreditor Agreement and all other
documents, instruments or agreements executed in connection with or securing
or "supporting the foregoing or the Loan."
3. The following definitions are added to Section 1.02 of the Agreement:
"Business Day shall mean any day on which commercial banks are open for
business in Detroit, Michigan.
Countrywide Remittances shall have the meaning given the term in the
Michigan National Intercreditor Agreement.
Michigan National shall mean Michigan National Bank, a national banking
association.
Michigan National Collateral shall have the meaning given the term in
the Michigan National Intercreditor Agreement.
Michigan National Intercreditor Agreement shall mean the Intercreditor
Agreement by and among Comerica, as Agent and as Collateral Custodian under
the Rock Home Loans Custodial Agreement, and Michigan National in the form
of Exhibit J hereto, as it may be amended from time to time.
Rock Home Loans shall mean Rock Home Loans at Michigan National,
L.L.C., a Michigan limited liability company.
Rock Home Loans Account shall have the meaning given the term in the
Michigan National Intercreditor Agreement.
Rock Home Loans Collateral Custodian shall mean Comerica, as collateral
custodian for Michigan National under the Rock Home Loans Custodial
Agreement.
Rock Home Loans Custodial Agreement shall mean that certain Custodial
Agreement by and among Comerica, Rock Home Loans and Michigan National dated
April 14, 1999, as amended by Amendment No. 1 dated August 27, 1999, as it
may be further amended from time to time.
Rock Home Loans Warehousing Agreement shall mean the Mortgage
Warehousing Agreement between Rock Home Loans and Michigan National dated
April 14, 1999, as it may be amended from time to time.
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Sweep Account shall have the meaning given the term in the Michigan
National Intercreditor Agreement.
Sweep Account Reconciliation shall have the meaning given the term in
the Michigan National Intercreditor Agreement."
4. The last sentence of Section 2.05 of the Agreement is amended and restated
to read in its entirety as follows:
"The proceeds from the sale of Mortgage Loans securing the Loan shall
be paid directly to the Restricted Account and applied against the Loan by
Agent on a daily basis, except that the proceeds from the sale of Mortgage
Loans securing the Loan which constitute Countrywide Remittances shall be
paid directly to the Sweep Account and transferred to the Restricted Account
in accordance with Section 2.07 hereof and once transferred to the
Restricted Account applied against the Loan in accordance with the
foregoing."
5. Section 2.07 of the Agreement is amended and restated to read in its
entirety as follows:
"2.07 Countrywide Remittances; Sweep Account; Disbursements from Sweep
Account, Michigan National Intercreditor Agreement.
(a) Borrower and Rock Home Loans shall open with Comerica and maintain
in effect the Sweep Account, which Sweep Account shall be maintained as a
"no access" account to Borrower, Rock Home Loans or any other person other
than Rock Home Loans Collateral Custodian and Agent. The Sweep Account shall
be used in the manner set forth in this Agreement and the Michigan National
Intercreditor Agreement.
(b) To obtain certain cost savings for Rock Home Loans, in which
Borrower is a member, except as otherwise provided herein, all Countrywide
Remittances shall be paid directly to the Sweep Account (and Countrywide
shall be so instructed by Borrower and, pursuant to the Rock Home Loans
Custodial Agreement, by Rock Home Loans).
(c) Agent shall retain an exclusive security interest in and lien on
the Collateral for the benefit of the Lenders, whether in the Sweep Account
or otherwise, pursuant to this Agreement, the Security Agreement and all
other documents, instruments and agreements made in connection therewith;
and, except for Rock Home Loans Collateral Custodian's rights under the Rock
Home Loans Custodial Agreement, Michigan National shall retain an exclusive
security interest in and lien on the Michigan National Collateral, whether
in the Sweep Account or otherwise,
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pursuant to the Rock Home Loans Warehousing Agreement and all other
documents, instruments and agreements made in connection therewith.
(d) Agent, Rock Home Loans Collateral Custodian, Michigan National,
Borrower and Rock Home Loans have entered into the Michigan National
Intercreditor Agreement, a copy of which is attached hereto as Exhibit J,
describing in greater detail the rights and responsibilities of Agent and
Michigan National with respect to the Sweep Account. The Lenders agree to be
bound by all of the terms and conditions thereof.
(e) Comerica may, and at the direction of Majority Lenders shall, at
any time and for any reason, immediately on notice to Borrower, Rock Home
Loans and Michigan National, whether or not an Event of Default or a
Custodial Agreement Default (as defined in the Rock Home Loans Custodial
Agreement) has occurred and is continuing or exists, prohibit the further
use of the Sweep Account in the manner set forth in Paragraph 4(f) of the
Rock Home Loans Custodial Agreement, whereupon Borrower shall immediately
notify Countrywide thereof (with a copy thereof to be sent to Agent) and
Borrower shall direct and cause Countrywide to make all amounts payable by
Countrywide on account of the purchase of any Collateral or Michigan
National Collateral shipped by Agent or Rock Home Loans Collateral Custodian
after the date of such prohibition, directly to the Restricted Account or
Rock Home Loans Account respectively.
(f) Comerica shall transfer funds in the Sweep Account in accordance
with and subject to the terms of the Michigan National Intercreditor
Agreement."
6. The reference to "and" at the end of subsection 8 of Section 3.01.01 on
page 20 of the Agreement is deleted, the period at the end of subsection 9 of
Section 3.01.01 on page 20 of the Agreement is replaced with "; and", and the
following subsection 10 is added to Section 3.01.01:
"10. The Sweep Account and all Collateral and other amounts therein,
except for the Michigan National Collateral."
7. The Intercreditor Agreement attached as Exhibit J hereto is added to the
Agreement as Exhibit J thereto.
8. Borrower hereby represents and warrants that, after giving effect to the
amendments contained herein, (a) execution, delivery and performance of this
Amendment, and any other documents and instruments required under this
Amendment, or the Agreement are within the Borrower's corporate powers, have
been duly authorized, are not in contravention of law or the terms of Borrower's
Articles of Incorporation or Bylaws, and do not require the consent or approval
of any governmental body, agency or authority; and this Amendment and any other
documents and instruments required under this Amendment or the Agreement will be
valid and binding in
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accordance with their terms; (b) the continuing representations and warranties
of Borrower set forth in Section 5 of the Agreement (Sections 5.01-5.16) are
true and correct on and as of the date herewith, with the same force and effects
as if made on and as of the date herewith; and (c) no Event of Default, or
condition or event which, with the giving of notice or the running of time, or
both, would constitute an Event of Default under the Agreement, has occurred and
is continuing on or as of the date hereof.
9. Except as expressly modified by this Amendment, all of the terms and
conditions of the Agreement shall remain in full force and effect.
10. This Amendment shall not become effective unless and until each of the
following conditions precedent has been satisfied:
(a) The Agent shall have received a counterpart of this Amendment
executed by Borrower, Agent and each Lender.
(b) Due execution and acknowledgment by all parties to the Intercreditor
Agreement in the form of Exhibit J attached hereto.
(c) The Agent and the Borrower shall have entered into an Amendment No.
2 to Amended and Restated Security Agreement in form and substance satisfactory
to Agent.
11. Capitalized terms not defined herein shall have the meanings ascribed to
them in the Agreement.
12. This Amendment may be signed in any number of counterparts and by
different parties on separate counterparts, and each such counterpart when
executed and delivered shall constitute an original but all such counterparts
shall together constitute one and the same Amendment.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
COMERICA BANK, AS AGENT AND ROCK FINANCIAL CORPORATION
A LENDER
By: Xxxxxx X. Xxxx By: Xxxxxx Xxxxxxx
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Its: Account Officer Its: CEO
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FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO
CORESTATES BANK, N.A., AS A LEADER
By: Xxxxxx X. Xxxxxx
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Its: Vice President
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RESIDENTIAL FUNDING CORPORATION,
AS A LENDER
By: Xxxxxxx Xxxxxxx
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Its: Director
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NATIONAL CITY BANK OF
KENTUCKY, AS A LENDER
By: Xxxxx Xxxxx
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Its: Asst. Vice President
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