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Exhibit 10.27
SECOND AMENDMENT TO CREDIT AGREEMENT
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This Second Amendment to Credit Agreement (this "Amendment"), is
entered into effective as of the 31st day of January, 2000, by and among
MORTGAGE PORTFOLIO SERVICES, INC. a Delaware corporation ("Borrower"), NAB ASSET
CORPORATION, a Texas corporation ("Guarantor"), and BANK UNITED, as Agent
("Agent") and the lenders party to the Original Agreement, as defined below
("Lenders").
Section 1. Recitals. Borrower, Guarantor, Agent, and Lenders have
entered into that certain Credit Agreement dated June 15, 1999 ("Original
Agreement") for the purposes and consideration therein expressed, pursuant to
which Lenders have agreed to make loans to Borrower as therein provided.
Borrower, Guarantor, Agent, and Lenders desire to amend the Original Agreement
for the purposes expressed herein. Therefore, Borrower, Guarantor, 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 Original
Amendment shall have the same meanings whenever used in this Amendment. Unless
the context otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them as follows:
(a) "Amendment" means this Second Amendment to the Credit
Agreement.
(b) "Credit Agreement" means the Original Agreement as amended by
First Amendment to Credit Agreement and as amended hereby.
Section 2. Amendments. Section 6.09 of the Original Agreement is hereby
restated as follows:
"Section 6.09 NET WORTH. Borrower's Consolidated
Tangible Net Worth shall never be less than Seven Million
Dollars ($7,000,000.00), computed as of the end of each month.
As of the end of each Fiscal Quarter, Guarantor's Consolidated
Net Worth plus Subordinated Debt, if any, shall not be less
than Five Million Dollars ($5,000,000.00)."
In connection with the amendment of Section 6.09, Exhibit D-1 to the
Credit Agreement is deleted in its entirety, and Exhibit D-1 attached
hereto is substituted therefor.
Section 3. Conditions Precedent. Lenders' agreement to enter into this
Amendment is conditioned upon delivery by Guarantor and Stanwich Financial
Services Corp. ("Junior Creditor") of a subordination agreement, in form and
substance acceptable to Lenders, subordinating at least $3,000,000 of debt due
and owing from Guarantor to the Junior Creditor to the Obligations.
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Section 3. Representations. Borrower represents and warrants that all
of the representations and warranties contained in the Credit 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.
Section 4. Consent and Ratification by Guarantor. Guarantor (i)
consents to the terms and provisions of this Amendment and the transactions
contemplated herein, (ii) ratifies and confirms its Guaranty dated as of June
15, 1999 is in full force and effect in accordance with its terms and, without
limiting the provisions thereof in any manner, applies to the Notes of even date
herewith given by Borrower to each of the Lenders and (iii) acknowledges that
its Guaranty is not subject to any claims, offsets, defenses, or counterclaims
of any nature whatsoever.
Section 5. Severability. In the event any one or more provisions
contained in the Credit 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. Borrower agrees to pay all out-of-pocket costs and
expenses of Agent in connection with the preparation, operation, administration
and enforcement of this Amendment.
Section 7. Ratification of Agreements. Except as amended hereby,
Borrower ratifies and confirms that Original Agreement, the Security
Instruments, 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 Borrower under the Notes, the Original
Agreement, and all other Loan Documents, as modified hereby. Any reference to
the Original Agreement in any Loan Document shall be deemed to be references to
the Original Agreement as amended hereby. Each of the undersigned officers of
Borrower and Guarantor executing this Amendment represent and warrant that he
has full power and authority to execute and deliver this Amendment on behalf of
Borrower and Guarantor, respectively, that such execution and delivery has been
duly authorized, and that the resolutions and affidavits previously delivered to
Agent, in connection with the execution and delivery of the Original Agreement,
are and remain in full force and effect and have not been altered, amended or
repealed in anywise.
Section 8. No Waiver. Borrower and Guarantor agree that no Event of
Default and no Default has been waived or remedied by the execution of this
Amendment by Agent, and any such Default or Event of Default heretofore arising
and currently continuing shall continue after the execution and delivery hereof.
Without in any way limiting the foregoing, Agent and Lenders acknowledges that
as of September 30, 1999, Guarantor reported a Consolidated Net Worth of
$4,100,000. The Loan Documents impose a minimum net worth covenant of $5,000,000
for Guarantor. Lenders' and Agent's agreement to enter into this Amendment shall
not constitute (a) a waiver of any existing Event of Default under the Loan
Documents, including, without limitation, Guarantor's failure to comply with the
minimum net worth covenant as set forth above; (b) a waiver of any right,
remedy, or recourse of Lenders exercisable upon any existing event of default or
any subsequent Event of Default; or (c) a waiver of any of Lenders' rights,
remedies, or recourses under the Loan Documents or as provided by the laws of
the State of Texas. Furthermore, Lenders shall
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have the right, at any time and from time to time, to insist upon strict
performance by Borrower and Guarantor of all terms and conditions set forth in
the Loan Documents, and Lenders' agreement to enter into this Amendment
notwithstanding the referenced existing Event of Default in no way affects
Borrower's or Guarantor's obligations to timely make any and all payments now of
hereafter due under the Loan Documents and/or to perform any or all of its
obligations under the Loan Documents.
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. 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.
EXECUTED as of the date set forth above.
BORROWER:
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MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By:
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Xxxxx X. Xxxxxx, President
GUARANTOR:
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NAB ASSET CORPORATION,
a Texas corporation
By: /s/ Xxxx Xxxxxx
Xxxx X. Xxxxxx, Senior Vice President
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AGENT:
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BANK UNITED
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, A.V.P.
Mortgage Banker Finance
LENDERS:
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BANK UNITED
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, A.V.P
Mortgage Banker Finance
RESIDENTIAL FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
