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Exhibit 10.11
AMENDMENT NO. 5 TO
SECOND AMENDED AND RESTATED
MORTGAGE WAREHOUSING AGREEMENT AND WAIVER
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THIS AMENDMENT AND WAIVER ("Amendment") is dated as of January 25,
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");
R E C I T A L S :
A. 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 and Amendment No. 4 dated November 16,
1998 (as amended, the "Agreement").
B. Borrower, Agent and Lenders desire to further amend the
Agreement and waive certain provisions thereof as hereinafter
set forth.
NOW THEREFORE, the parties hereto agree as follows:
1. Xxxxx Xxxxx has ceased to be the President of Borrower and
Borrower has requested that Agent and Lenders waive Borrower's noncompliance
with Section 7.09(iii) of the Agreement (and any resulting Event of Default)
arising therefrom. Agent and Lenders are willing to do so as hereinafter set
forth. For purposes of this Agreement only, Agent and the Lenders hereby waive
Borrower's noncompliance, prior to the effective date of this Amendment, with
Section 7.09(iii) of the Agreement and any Event of Default resulting therefrom.
The foregoing waiver shall not act as a waiver of any other transaction, act or
omission, whether related or unrelated to Xxxxx Xxxxx'x ceasing to be the
President of Borrower. The foregoing waiver will not extend to or affect any
obligation, covenant or Event of Default not expressly waived hereby or
otherwise impair any of Agent's and/or any Lender's rights consequent therefrom.
2. Section 7.09 of the Agreement is amended and restated to read
in its entirety as follows:
"7.09 No Change in Management, Ownership or Control. Change in
any material respect its executive management, ownership or control of
its business operations. For purposes of this Section 7.09, if (i) Xxx
Xxxxxxx shall cease to own 35% or more of all issued and outstanding
classes of stock of Borrower, or (ii) Xxx Xxxxxxx shall cease to be the
Chairman of the Board of Directors and Chief Executive Officer of
Borrower, then Borrower shall be in default of this Section 7.09."
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3. 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 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 effect 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.
4. Except as expressly modified by this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
5. This Amendment shall not become effective unless and until the
Agent shall have received a counterpart of this Amendment executed by Borrower,
Agent and each Lender.
6. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Agreement.
7. 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.
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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: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Its: Vice President Its: President and CEO
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FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO
CORESTATES BANK, N.A., AS A LENDER
By: /s/ Xxxxxx Xxxxxx
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Its: Vice President
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RESIDENTIAL FUNDING CORPORATION,
AS A LENDER
By: /s/ Xxxxxxx Xxxxxxx
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Its: Director, Warehouse Lending
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NATIONAL CITY BANK OF
KENTUCKY, AS A LENDER
By /s/ Xxxx Sievetink
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Its: Vice President
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