FOURTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
FOURTEENTH
AMENDMENT TO
AMENDED
AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS
FOURTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT
(the
“Fourteenth Amendment”) is made and entered into as of the 18th day of May,
2005, by and among (i) UNITED
FINANCIAL MORTGAGE CORP., an
Illinois corporation with its principal place of business located at 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 (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”), (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”), and (e)
HSBC
BANK USA, NATIONAL ASSOCIATION,
a
national banking association with its principal place of business at Xxx
XXXX
Xxxxxx, 00xx
Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 (“HSBC”) (National City, Bank One, Comerica, Colonial
and HSBC 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, temporary maximum principal amount of
One
Hundred Forty Million Dollars ($140,000,000.00) (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 (i) increase the maximum principal amount of the Warehouse
Line to One Hundred Ninety-Five Million Dollars ($195,000,000.00), (ii) remove
XxxxXxxxxxx.xxx, Inc. (“PlusFunding”) as a joint and several co-borrower under
the Existing Credit Agreement and each of the other Loan Documents, and (iii)
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:
“Aged
Loan”
shall
mean, as of any date:
(a)
Any
Loan,
which is not a Wet Loan, a Repurchase Loan or an Extended Period Shipped
Loan,
which has been pledged as Collateral for more than one hundred twenty (120)
calendar days (calculated from the date upon which the Advance relating to
such
Loan is made hereunder); or
(b)
Any
Wet
Loan which has been pledged as Collateral for more than twelve (12) calendar
days (calculated from the date upon which the Advance relating to such Loan
is
made hereunder); or
(c)
Any
Repurchase Loan which has been pledged as Collateral for more than one hundred
eighty (180) calendar days (calculated from the date upon which the Advance
relating to such Loan is made hereunder); or
(d)
Any
Extended Period Shipped Loan which has been shipped to an Approved Investor
or
the Document Custodian in accordance with the Security Agreement for more
than
sixty (60) calendar days (calculated from the date upon which the related
Bailee
Letter is delivered pursuant to the Security Agreement).
“Company”
shall
mean United Financial Mortgage Corp., for all purposes under this Credit
Agreement, the Notes and each of the other Loan Documents.
“Loan
Documents”
shall
mean, collectively, this Credit Agreement, the Warehouse Notes, the Swing
Note,
the Security Agreement, any Hypothecation Agreement executed pursuant to
Section
5.6
hereof,
the Intercreditor Agreement, the Triparty Agreement, the Collateral Assignment,
the other Collateral Documents and any and all other documents executed in
connection therewith, each as may be amended, modified, supplemented and
restated from time to time.
“Super
Jumbo Advance Sublimit”
shall
mean an amount equal to Ten Million Dollars ($10,000,000.00).
“Swing
Note”
shall
mean the Amended and Restated Swing Promissory Note dated as of May 18, 2005,
made by the Company, payable to the order of the Agent, and in the face
principal amount of Twenty Million Dollars ($20,000,000.00), a form of which
is
attached hereto as Exhibit
E and
made
a part hereof by this reference, as the same may be amended, modified, renewed,
replaced and/or restated from time to time, and which shall evidence all
Swing
Advances.
“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 Ninety-Five Million Dollars
($195,000,000.00), 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 Ninety-Five
Million Dollars ($195,000,000.00), 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 May 18, 2005, made by
the
Company, payable to the order of XX Xxxxxx, and in the face principal amount
of
Twenty-Five Million Dollars ($25,000,000.00), 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 HSBC, and in the face principal amount of
Twenty-Five Million Dollars ($25,000,000.00), a form of which is attached
hereto
as Exhibit
C-3
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 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, (v) 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.”
2
“Wet
Loan”
shall
mean a Loan, other than a Repurchase Loan, the entire interest of which is
owned
by the Company covering a completed one-to-four family residential property
which is subject to a Firm Commitment or Standby Commitment for which the
Collateral Mortgage Documents relating to such Loan have not been delivered
to
the Agent and not more than twelve (12) calendar days have elapsed since
the day
the Advance relating to such Loan is made by the Banks.
2.
Article
1
of the
Existing Credit Agreement is hereby further amended by adding the following
definitions to read in their entirety as follows:
“AMPRO”
shall
mean AmPro Mortgage Corporation, a Texas corporation.
“Collateral
Assignment”
shall
mean that certain Collateral Assignment dated as of May 18, 2005, between
the
Company and the Agent, relating to the mortgage loan purchase and sale agreement
between the Company and AMPRO, substantially in the form of the Collateral
Assignment attached hereto as Exhibit
L,
as the
same may be amended, modified, renewed, replaced and/or restated from time
to
time.
“Triparty
Agreements”
shall
mean that certain Triparty Agreement dated as of May 18, 2005, among the
Company, the Agent and AMPRO, relating to the mortgage loan purchase and
sale
agreement between the Company and AMPRO, substantially in the form of the
Triparty Agreement annexed hereto as Exhibit
M,
as the
same may 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 Ninety-Five Million
Dollars ($195,000,000.00), 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
last
sentence in Section
2.4(a)
of the
Existing Credit Agreement and the third sentence in Section
2.4(b)
of the
Existing Credit Agreement are hereby amended and restated in their entirety
to
respectively read as follows:
3
“Requests
for Advance received by the Agent after 3:30 p.m. Prevailing Time will not
be
processed by the Agent as a Request for Warehouse Advance until the immediately
succeeding Business Day.”
“Each
Bank shall make its Warehouse Pro Rata Share of each Warehouse Advance (other
than a Swing Advance or an Excess Advance) to be made to the Company available
to the Agent, in same day funds, at the office of the Agent located at 000
Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx not later than 3:30 p.m. Prevailing Time
on
the date the Request for Advance from the Company is received by the
Agent.”
5.
Section
2.8(a)
of the
Existing Credit Agreement is hereby amended and restated in its entirety
to read
as follows:
“(a)
Applicable
Rates of Interest.
Effective June 1, 2005, each Advance shall bear inter-est on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise). The outstanding principal balance of the Swing
Note
and each Balance Funded Bank’s Warehouse Note shall bear interest as follows:
(i) at the per annum rate equal to one percent (1.00%) (the “Balance Funded
Rate”) for that portion of the Average Monthly Aggregate Outstanding Warehouse
Balance of a Balance Funded Bank’s Warehouse Note which does not exceed the
Average Monthly Available Deposits maintained by the Company with such Balance
Funded Bank, and (ii) at the per annum rate equal to LIBOR plus
one
percent (1.00%) for that portion of the Average Monthly Aggregate Outstanding
Warehouse Balance of a Balance Funded Bank’s Warehouse Note which exceeds such
Average Monthly Available Deposits maintained by the Company with such Balance
Funded Bank. The outstanding principal balance of each Warehouse Note for
each
Bank which is not a Balance Funded Bank shall bear interest at the per annum
rate equal to LIBOR plus
one
percent (1.00%) (the “Base Rate”).”
6.
Section
2.14(b)
of the
Existing Credit Agreement is hereby amended and restated in its entirety
to read
as follows:
“(b)
Usage
Fee.
Effective June 1, 2005, the Company agrees to pay to the Agent and the Banks
the
following usage fees (the “Usage Fees”): (i) a usage fee computed at the rate of
one and three-eighths of one percent (1.375%) per annum times the average
monthly aggregate unpaid principal balance for all Repurchase Loan Advances
and
all Aged Loan/Extended Period Shipped Loan Advances, (ii) a usage fee computed
at the rate of five-eighths of one percent (.625%) per annum times the average
monthly aggregate unpaid principal balance for all Subprime Loan Advances,
(iii)
a usage fee computed at the rate of one and twenty-five thousandths of one
percent (1.025%) per annum times the average monthly aggregate unpaid principal
balance for all Working Capital Loan Advances, and (iv) a usage fee computed
at
the rate of two hundred seventy-five thousandths of one percent (.275%) per
annum times the average monthly aggregate unpaid principal balance for all
Alternative Lending Advances which are not Subprime Loan Advances.”
7.
Section
4.1(o)
of the
Existing Credit Agreement is hereby amended and restated in its entirety
to read
as follows:
“(o) Authorized
Signer Letter.
The
Company shall have delivered to the Agent a letter designating the individuals
authorized to sign various documents or
initiate, authorize and/or confirm electronic communications
related
to the transactions contemplated hereby, including without limitation, specimen
signatures and
electronic mail addresses
for all
such individuals, such letter to be substantially in the form of Exhibit
J
attached
hereto and made a part hereof by this reference.”
8.
Section
5.2
of the
Existing Credit Agreement is hereby amended and restated in its entirety
to read
as follows:
“5.2 Leverage
Ratio.
The
ratio of Total Indebtedness to Adjusted Tangible Net Worth shall not exceed
15
to 1.”
4
9.
Section
7.3(f)
of the
Existing Credit Agreement is hereby amended and restated in its entirety
to read
as follows:
“(f)
Servicing
Portfolio Appraisal.
As soon
as available every calendar quarter, and in any event by February 15, May
15,
August 15 and November 15 of each year, the Company shall furnish to the
Agent,
at the Company’s sole cost and expense, an Appraisal of Pledged Servicing Rights
calculated as of the prior November 30, March 31, June 30, and September
30,
respectively. Notwithstanding the foregoing, the Requisite Banks or the Agent
in
their or its sole discretion reserve the right to require, at any time and
from
time to time but not more often than once every fiscal quarter, the Company
to
deliver or cause to be delivered to the Agent within sixty (60) days of such
request, at the Company’s sole expense, an Appraisal of Pledged Servicing
Rights.”
10.
The
Existing Credit Agreement is hereby amended by amending and restating
Xxxxxxxx
X, X-0, X-0, X-0, X-0, X-0, E, H and J and Schedule 2.1 thereof
to read in their entirety as set forth on Xxxxxxxx
X, X-0, X-0, X-0, X-0, X-0, E, H and J and Schedule 2.1 attached
to this Fourteenth Amendment and made a part hereof by this
reference.
11.
The
Company has informed the Agent and the Banks that PlusFunding is currently
in
the process of being dissolved as a California corporation. The Company has
further advised the Agent and the Banks that it is no longer making Loans
in the
name of XxxxXxxxxxx.xxx, Inc. The Existing Credit Agreement and each of the
other Loan Documents are hereby amended by removing PlusFunding as a co-borrower
thereunder and deleting all notice requirements related to such entity;
provided, however, the co-obligor provisions and obligations set forth in
Section
10.18
of the
Existing Credit Agreement shall continue in full force an defect with respect
to
PlusFunding and each of the other prior co-borrowers on the Warehouse
Line.
12.
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.
13.
This
Fourteenth 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.
14.
This
Fourteenth Amendment shall be effective as of the date of delivery to the
Agent
of each of the following: (i) this Fourteenth 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 Notes and the Amended and Restated Swing Promissory Note related
hereto, each duly executed and delivered by the Company, (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
Fourteenth 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.
15.
This
Fourteenth 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.
5
16.
This
Fourteenth 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.
17.
This
Fourteenth 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
Fourteenth Amendment shall be enforceable unless in writing signed by the
party
against whom enforcement is sought.
18.
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.
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remainder of this page has been intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Fourteenth 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/ | |
|
|
||
| Title: | ||
| (the “Company”) | ||
| NATIONAL CITY BANK OF KENTUCKY | ||
| |
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| By: | /s/ | |
|
|
||
| Title: | ||
|
XX
XXXXXX CHASE BANK, N.A. (successor by merger
to BANK ONE, NA, main offices
Chicago)
|
||
| |
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| By: | /s/ | |
|
|
||
| Title: | ||
| COMERICA BANK | ||
| |
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| By: | /s/ | |
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||
| Title: | ||
7
| COLONIAL BANK, N.A. | ||
| |
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| By: | /s/ | |
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||
| Title: | ||
| HSBC BANK USA, NATIONAL ASSOCIATION | ||
| |
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| By: | /s/ | |
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||
| Title: | ||
| (collectively, the “Banks”) | ||
| NATIONAL CITY BANK OF KENTUCKY | ||
| |
|
|
| By: | /s/ | |
|
|
||
| Title: | ||
| (the “Agent”) | ||
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