FIFTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
FIFTEENTH
AMENDMENT TO
AMENDED
AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS
FIFTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT
(the
“Fifteenth Amendment”) is made and entered into as of the 7th day of June, 2005,
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)
XXXXXXXXXXX.XXX,
INC.,
a
California corporation with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (“PlusFunding”) (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) XX
XXXXXX XXXXX BANK, N.A. (successor by merger to BANK ONE, NA, main offices
Chicago),
a
national banking association with its principal place of business located
in
Chicago, Illinois (“XX Xxxxxx”), (c) COMERICA
BANK,
a
Michigan banking corporation with its principal place of business located
at 000
Xxxxxxxx Xxxxxx, XX: 3256, Xxxxxxx, Xxxxxxxx 00000 (“Comerica”), and (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”) (National City,
Bank One, Comerica and Colonial 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 maximum principal amount of One Hundred
Seventy Million Dollars ($170,000,000.00) (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 increase the maximum principal amount of the Warehouse
Line to One Hundred Eighty-Five Million Dollars ($185,000,000.00) and (ii)
provide for certain other modifications thereto.
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:
“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 One Hundred Eighty-Five Million Dollars
($185,000,000.00), subject 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 One Hundred Eighty-Five
Million Dollars ($185,000,000.00), subject 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 May 18, 2005, made by the Company, payable to the order
of
National City, and in the face principal amount of Seventy-Five Million Dollars
($75,000,000.00), 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 June 7, 2005, made by
the
Company, payable to the order of XX Xxxxxx, and in the face principal amount
of
Forty Million Dollars ($40,000,000.00), 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 May 18, 2005, made by
the
Company, payable to the order of Comerica, and in the face principal amount
of
Thirty Million Dollars ($30,000,000.00), 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, (iv) that certain Amended
and Restated Warehouse Promissory Note dated as of May 18, 2005, made by
the
Company, payable to the order of Colonial, and in the face principal amount
of
Forty Million Dollars ($40,000,000.00), 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:
“The
Total Warehouse Line Commitment is equal to One Hundred Eighty-Five Million
Dollars ($185,000,000.00), as may be increased 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-2, C-3, and H and Schedule 2.1 thereof
to read in their entirety as set forth on Exhibits
C-2, C-3 and H and Schedule 2.1 attached
to this Fifteenth Amendment and made a part hereof by this
reference.
5.
The
Company has previously informed the Agent and the Banks that it is currently
in
the process of dissolving XxxxXxxxxxx.xxx, Inc. as a California corporation
and
that the Company is no longer making Loans under the Warehouse Line in the
name
of XxxxXxxxxxx.xxx, Inc. Notwithstanding the foregoing, the Company acknowledges
and agrees that PlusFunding shall remain as a co-borrower and co-obligor
under
the Credit Agreement, each of the Warehouse Notes (as redefined herein) and
each
of the other Loan Documents for all purposes thereunder.
6.
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.
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7.
This
Fifteenth 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.
8.
This
Fifteenth Amendment shall be effective as of the date of delivery to the
Agent
of each of the following: (i) this Fifteenth 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 Note related hereto, duly executed and delivered by the Company,
payable to the order of XX Xxxxxx, (iii) payment to each of the Banks of
an
amendment fee equal to $375.00, and (iv) 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.
Notwithstanding the foregoing, the Agent and the Banks may permit this Fifteenth
Amendment to become effective prior to the actual delivery of the aforementioned
amendment fee; provided, however, in such event, the Company agrees and
covenants to pay such fee to the Banks promptly upon receipt of an invoice
with
respect thereto.
9.
This
Fifteenth 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.
10.
This
Fifteenth 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.
11.
This
Fifteenth 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
Fifteenth Amendment shall be enforceable unless in writing signed by the
party
against whom enforcement is sought.
12.
The
Company 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.
13.
Notwithstanding
anything to the contrary contained herein or in the Security Agreement, the
Notes or any of the other Loan Documents, and further notwithstanding that
PlusFunding may not be an actual signatory to each such Loan Document, the
term
“Company” as used in the Credit Agreement, the Security Agreement, the Notes and
each of the other Loan Documents shall mean United and PlusFunding as joint
and
several co-borrowers, co-obligors and/or co-debtors, as applicable. Without
limiting the generality of the foregoing, United and PlusFunding expressly
covenant and agree that pursuant to the amendments provided for in this
Fifteenth Amendment, (i) the pledge, assignment, transfer and grant of security
interest set forth in the Security Agreement is made by both United and
PlusFunding, and (ii) the Collateral described in the Security Agreement
shall
include all of the right, title and interest of United and PlusFunding in
the
property described therein. Further, United and PlusFunding 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 PlusFunding as the
collectively defined “Company”), together with continuation statements thereof
and amendments thereto, without the signature of either United or PlusFunding
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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IN
WITNESS WHEREOF, the parties hereto have caused this Fifteenth Amendment
to
Amended and Restated Warehousing Credit Agreement to be duly executed as
of the
day and year first above written.
| UNITED FINANCIAL MORTGAGE CORP. | ||
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| By: | /s/ | |
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| Title: | ||
| XXXXXXXXXXX.XXX, INC. | ||
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| By: | /s/ | |
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| Title: | ||
| (collectively, the “Company”) | ||
| NATIONAL CITY BANK OF KENTUCKY | ||
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| By: | /s/ | |
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| Title: | ||
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XX
XXXXXX XXXXX BANK, N.A. (successor by merger
to BANK ONE, NA, main offices
Chicago)
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| By: | /s/ | |
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| Title: | ||
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| COMERICA BANK | ||
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| By: | /s/ | |
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| Title: | ||
| COLONIAL BANK, N.A. | ||
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| By: | /s/ | |
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| Title: | ||
| (collectively, the “Banks”) | ||
| NATIONAL CITY BANK OF KENTUCKY | ||
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| By: | /s/ | |
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| Title: | ||
| (the “Agent”) | ||
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