Exhibit 10.24
FIFTH AMENDMENT TO AMENDED
AND RESTATED WAREHOUSING
CREDIT AND SECURITY AGREEMENT
This Fifth Amendment to the Amended and Restated Warehousing Credit and
Security Agreement (this "Amendment"), is entered into effective as of the 31st
day of August, 2001 by and among MORTGAGE PORTFOLIO SERVICES, INC., a Delaware
corporation ("Company"), NAB ASSET CORPORATION ("Guarantor"), WASHINGTON MUTUAL
BANK, FA, a federal association, successor by merger to BANK UNITED, in its
capacity as one of the Lenders and Administrative Agent and Collateral Agent for
the Lenders ("Agent"), the lenders party to the Warehouse Agreement, as defined
below ("Lenders"), CENTEX FINANCIAL SERVICES, INC., a Nevada corporation
("Centex"), and CENTEX CORPORATION, a Nevada corporation.
Section 1. Recitals. Company, Agent, and Lenders have entered into that
certain Amended and Restated Warehousing Credit and Security Agreement dated
August 28, 2000 (as amended on October 15, 2000, November 13, 2000, April 30,
2001, and May 21, 2001 the "Warehouse Agreement") for the purposes and
consideration therein expressed, pursuant to which Lenders have agreed to make
loans to Company as therein provided. Company, Guarantor, Centex, Centex
Corporation, Agent, and Lenders desire to amend the Warehouse Agreement to
extend the Termination Date of the Commitment and make such other modifications
as more particularly set forth herein. Therefore, Company, Guarantor, Centex,
Centex Corporation, Agent, and Lenders hereby agree as follows, intending to be
legally bound:
Section 2. Definitions and References. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms in the
Warehouse Agreement shall have the same meanings whenever used in this
Amendment.
Section 3. Amendments. The Warehouse Agreement is hereby amended, as
follows:
(a) The following definition in Section 1.1 of the Warehouse Agreement
is hereby amended as follows:
"Termination Date" shall mean the earlier to occur of (i)
December 31, 2001, or (ii) the date which is two (2) Business Days
following the Administrative Agent's receipt of Notice from Centex that
the Stock Purchase Agreement has terminated or will terminate or (iii)
such earlier date upon which Lenders' obligation to fund shall be
terminated pursuant to the terms of this Agreement.
Section 4. Representations and Other Agreements. (a) Company represents
and warrants that all of the representations and warranties contained in the
Warehouse Agreement and all instruments and documents executed pursuant thereto
or contemplated thereby are true and correct in all material respects on and as
of this date.
(b) Notwithstanding anything contained in the Warehouse Agreement, as
amended hereby, or in any other Loan Document to the contrary, Company agrees
that it shall not request or be entitled to receive any Advances on or after the
Termination Date.
(c) The maturity date of each Lender's Note is hereby renewed and
extended to sixty (60) days following the Termination Date.
Section 5. Severability. In the event any one or more provisions
contained in the Warehouse Agreement or this Amendment should be held to be
invalid, illegal or unenforceable in any respect, the validity, enforceability
and legality of the remaining provisions contained herein and therein shall not
be affected in any way or impaired thereby and shall be enforceable in
accordance with their respective terms.
Section 6. Expenses. Company agrees to pay all out-of-pocket costs and
expenses (including reasonable attorney's fees and expenses) of the Agent and
the Lenders in connection with the preparation, operation, administration and
enforcement of this Amendment.
Section 7. Ratification of Agreements. (a) Except as amended hereby,
Company ratifies and confirms that the Warehouse Agreement and all other Loan
Documents are and remain in full force and effect in accordance with their
respective terms and that all Collateral is unimpaired by this Amendment and
secures the payment and performance of all indebtedness and obligations of
Company under the Notes, the Warehouse Agreement, and all other Loan Documents,
as modified hereby.
(b) Each of the undersigned officers of Company, Guarantor, Centex, and
Centex Corporation executing this Amendment represents and warrants that he has
full power and authority to execute and deliver this Amendment on behalf of the
party for whom he is executing this Amendment, that such execution and delivery
has been duly authorized by all necessary corporate action of such party, and
with respect to the Company and Guarantor, each of its respective officers
represents and warrants that the resolutions and affidavits previously delivered
to Agent, in connection with the execution and delivery of the Warehouse
Agreement, are and remain in full force and effect and have not been altered,
amended or repealed in anywise.
(c) Any reference to the Warehouse Agreement in any Loan Document shall
be deemed to be references to the Warehouse Agreement as amended hereby.
(d) Except as amended hereby, each of the Agent and the Lenders ratifies
and confirms that the Warehouse Agreement and all other Loan Documents are and
remain in full force and effect in accordance with their respective terms.
(e) Each of the undersigned officers of the Agent and the Lenders
represents and warrants that he has full power and authority to execute and
deliver this Amendment on behalf of the party for whom he is executing this
Amendment and that such execution and delivery has been duly authorized.
Section 8. No Waiver. Company agrees that no Event of Default and no
Default has been waived or remedied by the execution of this Amendment by Agent
and Lenders, and any
Page 2
such Default or Event of Default heretofore arising and currently continuing
shall continue after the execution and delivery hereof. Agent and Lenders
represent and warrant to Centex that they are not aware of any Default or Event
of Default that is existing as of the date hereof.
Section 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and, to the extent
applicable, by federal law.
Section 10. Counterparts and Gender. This Amendment may be executed in
any number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Each gender used herein shall
include and apply to all genders, including the neuter.
Section 11. Joinder of Guarantor, Centex and Centex Corporation. By
their execution hereof, Guarantor, Centex, and Centex Corporation each hereby
(i) acknowledges and consents to the terms, conditions and agreements contained
in this Amendment and (ii) ratifies and confirms its obligations under the Loan
Documents, including, without limitation, the Third Amendment to Amended and
Restated Warehousing Credit and Security Agreement dated April 30, 2001 among
the parties hereto and such obligations remain in full force and effect, subject
to no claims or offsets against, or defenses or counterclaims to such
obligations.
Section 13. NO ORAL AGREEMENTS. THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature Pages Follow]
Page 3
EXECUTED this 31st day of August, 2001.
COMPANY:
-------
MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
------------------------------------
XXXXX X. XXXXXX, President
NOTICE ADDRESS:
--------------
Mortgage Portfolio Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
Facsimile: 214.821.7352
Telephone: 000.000.0000
Page 4
GUARANTOR:
---------
NAB ASSET CORPORATION,
a Texas corporation
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice-President
NOTICE ADDRESS:
---------------
NAB Asset Corporation
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: 214.821.3689
Telephone: 000.000.0000
Page 5
WASHINGTON MUTUAL BANK, FA, a
federal association, successor by
merger to BANK UNITED, as
Administrative Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
XXXXXXX X. XXXXXXX,
Assistant Vice President
Mortgage Banker Finance
NOTICE ADDRESS:
---------------
Washington Mutual Bank, FA
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx, Vice President
Facsimile: 713.543.4292
Telephone: 000.000.0000
Page 6
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation, as Lender
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Director
NOTICE ADDRESS:
---------------
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: 301.215.6288
Telephone: 000.000.0000
Page 7
CENTEX FINANCIAL SERVICES, INC.,
a Nevada corporation
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Asst. Treasurer
NOTICE ADDRESS:
---------------
Centex Financial Services, Inc.
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxxxx
Facsimile: 214.758.7814
Telephone: 000.000.0000
Page 8
CENTEX CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: EVP & CFO
NOTICE ADDRESS:
---------------
Centex Corporation
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxx Xxxxxxxxx
Facsimile: 214.981.6858
Telephone: 000.000.0000
Page 9
