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EXHIBIT 10.1
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (this "Amendment") is entered into as of this 9th day of
March 2000, by and between U.S. HOME MORTGAGE CORPORATION, a Florida
corporation (the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation (the "Lender").
WHEREAS, the Company and the Lender have entered into a single family
revolving warehouse facility with a present Commitment Amount of $80,000,000,
to finance the origination and acquisition of Mortgage Loans as evidenced by a
Promissory Note in the principal sum of $80,000,000, dated October 1, 1999 (the
"Note"), and by a Second Amended and Restated Warehousing Credit and Security
Agreement dated October 1, 1999, as the same may have been amended or
supplemented (the "Agreement");
WHEREAS, the Company has notified the Lender that the Parent has
entered into an agreement pursuant to which the Parent will cease to exist and
the Company will become a wholly owned, second tier subsidiary of Lennar
Corporation (the "Acquisition"); and
WHEREAS, without the prior written consent of the Lender, the
Acquisition would result in an Event of Default under Section 8.1(n) of the
Agreement; and
WHEREAS, the Company has requested that the Lender consent to the
Acquisition and waive any Event of Default that would otherwise occur under the
Agreement; and
WHEREAS, the Lender is willing to consent to the Acquisition and to
waive any Event of Default that would otherwise occur under the Agreement,
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment shall be
as of the effective date and time of the Acquisition.
3. Section 1.1 of the Agreement is amended by adding the following
definition in the appropriate alphabetical order:
"Construction Subsidiary" means any corporation, association
or other business entity engaged in the construction of improvements
on residential real property and all of the capital stock of which is,
directly or indirectly, owned by the Parent.
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4. Section 1.1 of the Agreement is amended to delete the following
definition in its entirety, replacing it with the following definition:
"Construction/Perm Mortgage Loan" means a First Mortgage Loan
in a principal amount not to exceed $600,000, made for financing the
purchase of real property and the construction of improvements on such
real property by a Construction Subsidiary, and which is converted to
a Permanent Mortgage Loan at the completion of the improvements.
"Parent" shall mean Lennar Corporation.
5. Section 2.2(c) of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
2.2(c) Before funding, the Lender shall have a
reasonable time (1 Business Day under ordinary circumstances)
to examine such Advance Request and the Collateral Documents
to be delivered prior to such requested Advance, as set forth
in the applicable Exhibit hereto, and may reject such of them
as do not meet the requirements of this Agreement or of the
related Purchase Commitment. The Lender shall have no
obligation to make a Wet Settlement Advance directly to a
Construction Subsidiary against a Mortgage Loan unless the
Lender has received satisfactory evidence from the title
company closing the Mortgage Loan that such Mortgage Loan is
closed and funded.
6. Section 5.17(c) of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
5.17(c) Prior to each Construction Advance, the
Company shall have received (1) a report of the stage of
completion of the improvements as set forth in the
construction accounting system of the Construction Subsidiary
confirming completion of the work for which the Construction
Advance is being requested and (2) a title insurance updated
endorsement for such Construction Advance if the title
insurance policy has a "pending disbursements clause"
requiring an endorsement to the title insurance policy to
insure each Construction Advance after the closing of the
Construction/Perm Mortgage Loan.
7. Pursuant to Section 9 of the Agreement, the Company must provide
Notice of consummation of the Acquisition to the Lender in a timely manner.
8. The Company must deliver to the Lender (a) an executed original of
this Amendment; (b) an executed Certificate of Secretary with corporate
resolutions; (c) the Notice required by Section 7 of this Amendment; and (d) a
$350 document production fee.
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9. The Company represents, warrants and agrees that (a) there exists
no Default or Event of Default under the Loan Documents, (b) the Loan Documents
continue to be the legal, valid and binding agreements and obligations of the
Company enforceable in accordance with their terms, as modified herein, (c) the
Lender is not in default under any of the Loan Documents and the Company has no
offset or defense to its performance or obligations under any of the Loan
Documents, (d) the representations contained in the Loan Documents remain true
and accurate in all respects, and (e) there has been no material adverse change
in the financial condition of the Company from the date of the Agreement to the
date of this Amendment.
10. Except as hereby expressly modified, the Agreement is otherwise
unchanged and remains in full force and effect, and the Company ratifies and
reaffirms all of its obligations thereunder.
11. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this
Amendment to be duly executed on their behalf by their duly authorized officers
as of the day and year above written.
U.S. HOME MORTGAGE CORPORATION,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Its: Vice President
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ Xxx Xxxxx
---------------------------
Xxx Xxxxx
Its: Director
00
XXXXX XX XXXXX)
) xx
XXXXXX XX XXXXXX)
Xx March 28, 2000, before me, a Notary Public, personally appeared
Xxxxxx X. Xxxxxx, the Vice President of U.S. HOME MORTGAGE CORPORATION,
a Florida corporation, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Notary Public
My Commission Expires: 3/26/03
STATE OF MARYLAND )
) ss
COUNTY OF XXXXXXXXXX)
On April 3, 2000, before me, a Notary Public, personally appeared
Xxx Xxxxx , the Director of RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxxx von dem Xxxxx
----------------------------
Xxxxxxxxx von dem Xxxxx
Notary Public
(SEAL) My Commission Expires: 10/15/01
