EXHIBIT 10.6
FIFTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND SECURITY
AGREEMENT (this "Amendment") dated as of March 15, 2004, between OAK STREET
MORTGAGE LLC, a Delaware limited liability company ("Oak Street LLC"), OAK
STREET MORTGAGE, INC., a Delaware corporation ("Oak Street Inc."), and OAK
STREET MORTGAGE OF TENNESSEE LLC, a Tennessee limited liability company ("Oak
Street TN") ("Oak Street LLC, Oak Street Inc. and Oak Street TN are collectively
referred to as "Borrower") and RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation ("Lender").
A. Borrower and Lender have entered into a revolving mortgage warehousing
facility with a present Warehousing Commitment Amount of $200,000,000,
which is evidenced by a First Amended and Restated Warehousing Promissory
Note dated August 31, 2002, a Sublimit Promissory Note dated August 31,
2002 (the "Notes"), and by a First Amended and Restated Warehousing Credit
and Security Agreement dated as of August 31, 2002 (as the same may have
been and may be amended or supplemented, the "Agreement").
B. Borrower has requested that Lender amend the Agreement to provide for a
Third Party Originated Loan Sublimit, and Lender has agreed to such
amendment, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Subject to Borrower's satisfaction of the conditions set forth in Section
4, the effective date of the Amendment is March 10, 2004 ("Effective
Date").
2. Unless otherwise defined in this Amendment, all capitalized terms have the
meanings given to those terms in the Agreement. Defined terms may be used
in the singular or the plural, as the context requires. The words
"include," "includes" and "including" are deemed to be followed by the
phrase "without limitation." Unless the context in which it is used
otherwise clearly requires, the word "or" has the inclusive meaning
represented by the phrase "and/or," References to Sections and Exhibits
are to Sections and Exhibits of this Amendment unless otherwise expressly
provided.
3. Exhibit A to the Agreement is amended and restated in its entirety as set
forth in Exhibit A to this Amendment. All references in the Agreement and
the other Loan Documents to Exhibit A are deemed to refer to the new
Exhibit A.
4. Exhibit E to the Agreement is amended and restated in its entirety as set
forth in Exhibit E to this Amendment. All references in the Agreement and
the other Loan Documents to Exhibit E are deemed to refer to the new
Exhibit E.
5. Exhibit H to the Agreement is amended and restated in its entirety as set
forth in Exhibit H to this Amendment. All references in the Agreement and
the other Loan Documents to Exhibit H are deemed to refer to the new
Exhibit H.
6. Borrower must deliver to Lender (a) two executed copies of this Amendment
and (b) a $350 document production fee.
Page 1
7. Borrower represents, warrants and agrees that (a) there exists no Default
or Event of Default under the Loan Documents, except as set forth in
Section 6 of this Fourth Amendment, (b) the Loan Documents continue to be
the legal, valid and binding agreements and obligations of Borrower,
enforceable in accordance with their terms, as modified by this Amendment,
(c) Lender is not in default under any of the Loan Documents and Borrower
has no offset or defense to its performance or obligations under any of
the Loan Documents, (d) except for changes permitted by the terms of the
Agreement, Borrower's representations and warranties contained in the Loan
Documents are true, accurate and complete in all respects as of the
Effective Date and (e) there has been no material adverse change in
Borrower's financial condition from the date of the Agreement to the
Effective Date.
8. Except as expressly modified, the Agreement is unchanged and remains in
full force and effect, and Borrower ratifies and reaffirms all of its
obligations under the Agreement and the other Loan Documents.
9. This Amendment may be executed in any number of counterparts, each of
which will be deemed an original, but all of which shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, Borrower and 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.
OAK STREET MORTGAGE LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Royal
-----------------------------
Its: Chief Financial Officer
OAK STREET MORTGAGE, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Royal
-----------------------------
Its: Chief Financial Officer
OAK STREET MORTGAGE OF TENNESSEE LLC, a
Tennessee limited liability company
By: /s/ Xxxxx X. Royal
-----------------------------
Its: Chief Financial Officer
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Director
----------------------------
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EXHIBIT A-SF
REQUEST FOR ADVANCE
OAK STREET MORTGAGE LLC [ ]
OAK STREET MORTGAGE OF TENNESSEE LLC [ ]
OAK STREET MORTGAGE, INC. [ ]
Loan Number : ____________________________ Reviewed
By: _______________________
Mortgagor : ____________________________ Warehouse
SSN: ____________________________ Date: _______________________
Address: ____________________________ Effective
____________________________ Date: _______________________
Zip Code: ____________________________
Loan-to-Value Ratio:________ FICO Score:________ Debt-to-income Ratio: _________
Status: [] Committed [] RFC Loan Type: [] prime [] FHA [] VA
[] Uncommitted [] Subprime/Grade_______
[] Wet Settlement [] Received [] High LTV [] First [] Second
[] Repurchased [] Nonperforming
[] MERS Term: [] Fixed__________ Term
[] Open-end Second [] ARM ______ Adjustment
[] Closed-end Second Period
[] 3rd Party Originated [] Balloon__________Term
Interest Rate: _________
Mortgage Note Date:____________________ Maturity Date:________________________
Mortgage Note Amount:__________________ Unpaid Principal Balance:_____________
Original Lender (if applicable):_______ Acquisition Cost: (if applicable):____
Requested Warehouse Advance Amount:____ Title Company:________________________
Investor:______________________________ Title Company Contact:________________
Investor Contact:______________________ Title Company Phone:__________________
Investor Phone:________________________ Expiration Date:______________________
Committed Purchase Price:______________ Purchase Commitment No.:______________
FUNDING INSTRUCTIONS
[] Wire Funding
Account to Debit:___________________ Date of Wire:_____________________
Credit Acct. Name:__________________ Amount of Wire:___________________
Bank Name:__________________________ Credit Acct. No.:_________________
City and State:_____________________ ABA No.:__________________________
Ref:________________________________ Advise:____________ Phone:________
[] Check Funding
Page A-1
Check No.:__________________________ Amount:______________________________
REQUIRED DOCUMENTATION
The following documents in connection with the above request are enclosed:
RIGHT
[] Original and 1 copy of Mortgage Note
[] Certified copy of Mortgage
[] Original or certified copy of recorded Mortgage (Repurchased Mortgage
Loans and Nonperforming Mortgage Loans)
[] Original ALTA Mortgage's Policy of Title Insurance or equivalent
(Repurchased Mortgage Loans and Nonperforming Mortgage Loans)
[] *Copy of Investor Purchase Commitment (or satisfactory evidence thereof)
[] *Copy of HUD-1 Settlement Statement or equivalent with evidence of initial
Advance amount (open-end Second Mortgage Loans)
[] *Copy of AssetWise Certificate (Required for High LTV Mortgage Loans)
[] *Copy of Borrower's closing instructions to escrow/title company (table
funded Mortgage Loans only)
[] *Copy of a letter (or other acceptable documentation) from the holder of
the Mortgage Loan to Borrower documenting the purchase price for the
Mortgage Loan, releasing the holder's ownership interest in the Mortgage
Loan against payment of that purchase price by Borrower and containing
wire transfer instructions for payment of that purchase price (Third Party
Originated Loans only)
LEFT
[] *Request for Advance (original and 1 copy)
[] Recordable assignment of Mortgage (not required for Mortgage Loans
registered on the MERS system after delivery of an Electronic Tracking
Agreement, if approved by Lender)
[] Certified copies of interim assignments of Mortgage (if applicable)
[] *Investor repurchase demand letter (Repurchased Mortgage Loans only)
[] *Summary of Mortgage Loan documentation or Investor problems, expected
cure period and current payment history (Repurchased Mortgage Loans only)
[] *Broker price opinion or Appraisal (Repurchased Mortgage Loans and
Nonperforming Mortgage Loans)
NOTE: Items designated with the "*" are required prior to a Wet Settlement
Advance.
For the new value this day received, Oak Street Mortgage LLC, Oak Street
Mortgage of Tennessee, LLC and Oak Street Mortgage, Inc. ("Borrowers"), grants a
security interest to Residential Funding Corporation ("Lender") in all of
Borrower's right, title and interest in and to the Mortgage Loan described
above, together with all related "Collateral," as more particularly described in
the First Amended and Restated Warehousing Credit and Security Agreement (as
amended, supplemented or otherwise modified) between Borrower and Lender.
OAK STREET MORTGAGE LLC
Authorized Signature:_________________________
OAK STREET MORTGAGE OF TENNESSEE LLC
Authorized Signature:_________________________
OAK STREET MORTGAGE, INC.
Authorized Signature:_________________________
Page A-2
EXHIBIT H
ELIGIBLE LOANS AND OTHER ASSETS
Oak Street Mortgage LLC
Oak Street Mortgage, Inc.
Oak Street Mortgage of Tennessee LLC
LIMITATIONS ON WAREHOUSING ADVANCES AGAINST MORTGAGE LOANS
Lender's obligation to make Warehousing Advances under the Agreement is
subject to the following limitations:
1. No Warehousing Advance will be made against any Mortgage Loan
that has been previously sold or pledged to obtain financing
(whether or not such financing constitutes Debt) under another
warehousing financing arrangement or a gestation agreement.
2. No Warehousing Advance will be made against any Mortgage Loan
that Lender believes may be based on untrue, incomplete or
inaccurate or fraudulent information or may otherwise be
subject to fraud.
3. No Warehousing Advance will be made against a Mortgage Loan if
any of the limitations set forth in this Exhibit H would be
exceeded after giving effect to the Warehousing Advance.
4. No Warehousing Advance will be made against a Mortgage Loan
with an original principal balance in excess of $2,000,000.
5. No Warehousing Advance will be made against a Third Party
Originated Loan that was closed more than 45 days prior to the
date on which the requested Warehousing Advance is to be made.
SUBLIMITS
These general limitations apply to all Warehousing Advances against
Eligible Loans:
1. Wet Settlement Advances: 40% of the Warehousing
Commitment Amount.
2. Third Party Originated Loans: $10,000,000 (Wet Settlement
Advances not permitted)
ELIGIBLE LOANS AND TERMS OF WAREHOUSING ADVANCES
Subject to compliance with the terms and limitations set forth below and
the terms, representations and warranties and the covenants in the
Agreement, each of the following Mortgage Loans is an Eligible Loan for
purposes of the Agreement:
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1. PRIME MORTGAGE LOAN
(a) Definition: A First Mortgage Loan or a Second Mortgage Loan with the
following characteristics:
(i) For a First Mortgage Loan:
A. Underwritten substantially in accordance with Xxxxxx Xxx
or Xxxxxxx Mac underwriting standards (except as to maximum
amount); and
B. Loan-to-Value Ratio not to exceed 80% or, if the
Loan-to-Value Ratio exceeds 80%, the Prime Mortgage Loan is
insured by or subject to a commitment for mortgage insurance
in an amount and on terms and conditions that satisfy the
underwriting standards of Xxxxxx Xxx or Xxxxxxx Mac; or
C. A Government Mortgage Loan.
(ii) For a Second Mortgage Loan:
A. The credit of the obligor has been underwritten
substantially in accordance with Xxxxxx Mae or Xxxxxxx Mac
underwriting standards; and
B. Loan-to-Value Ratio not more than 100%.
(b) Interest Rate:
(i) Other Mortgage Loans: 1.00% over LIBOR
(ii) Aged Mortgage Loans: 1.50% over LIBOR
(c) Prime Sublimit: $24,000,000
(i) First Mortgage Loan: $24,000,000
(ii) Second Mortgage Loan: $12,000,000
(iii) Aged Mortgage Loans: $600,000
(d) Committed/Uncommitted:
(i) First Mortgage Loans: Purchase Commitment required
(ii) Second Mortgage Loans: Purchase Commitment NOT required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Permitted for First Mortgage Loans only
(g) Committed Advance Rate:
(i) First Mortgage Loan: 100% of the lesser of (i) the Mortgage
Note Amount or (ii) the Committed
Purchase Price
(ii) RFC Mortgage Loan: 100% of the lesser of (i) of the
Mortgage Note Amount or (ii) the
Committed Purchase Price
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(h) Uncommitted Advance Rate: 100% of the Mortgage Note Amount
(i) Standard Warehouse Period: 90 days
(j) Aged Warehouse Period: 120 days
(k) Required Prepayments: All Mortgage Loans in warehouse 45 days
will be reduced by 2% of the Mortgage
Note Amount.
On the day a Pledged Loan becomes an
Aged Mortgage Loan, the Warehousing
Advance against such Pledged Loan must
be (a) repaid in full, to the extent
the Aged Mortgage Loan Sublimit would
be exceeded, or (b) otherwise, reduced
by 5% of the Mortgage Note Amount.
2. SUBPRIME MORTGAGE LOAN
(a) Definition: A First Mortgage Loan or Second Mortgage Loan that has a
risk rating of "A-," "B" or "C" (determined using underwriting standards
that comply with industry standards in the sole judgment of Lender), and
that is acceptable for purchase by at least two investors.
(b) Interest Rate:
(ii) Other Mortgage Loans: 1.00% over LIBOR
(ii) Aged Mortgage Loans: 1.50% over LIBOR
(c) Subprime Sublimit: $200,000,000
(i) First Mortgage Loan: $200,000,000
(ii) Second Mortgage Loan: $40,000,000
(iii) Aged Mortgage Loans: $10,000,000
(d) Committed/Uncommitted: Purchase Commitment NOT required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Permitted for First Mortgage Loans only
(g) Committed Advance Rate:
(i) RFC Mortgage Loan: 100% of the lesser of (i) of the
Mortgage Note Amount or (ii) the
Committed Purchase Price
(h) Uncommitted Advance Rate:
(i) First Mortgage Loan: 100% of the Mortgage Note Amount
(ii) Second Mortgage Loan: 100% of the Mortgage Note Amount
3
(i) Standard Warehouse Period: 90 days
(j) Aged Warehouse Period: 180 days
(k) Required Prepayments: All Mortgage Loans in warehouse 45 days
will be reduced by 2% of the Mortgage
Note Amount.
On the day a Pledged Loan becomes an
Aged Mortgage Loan, the Warehousing
Advance against such Pledged Loan must
be (a) repaid in full, to the extent
the Aged Mortgage Loan Sublimit would
be exceeded, or (b) otherwise, reduced
by 5% of the Mortgage Note Amount.
Thereafter, the Warehousing Advance
must be reduced by 5% of the Mortgage
Note Amount.
3. HIGH LTV MORTGAGE LOAN
(a) Definition: A Second Mortgage Loan that meets the 125 Loan Program
eligibility criteria set forth in the GMAC-RFC Client Guide and for which
an AssetWise Certificate has been issued, and a First Mortgage Loan that
meets the Home Solution Program eligibility criteria set forth in the
GMAC-RFC Client Guide and for which an AssetWise Certificate has been
issued.
(b) Interest Rate: 2.00% over LIBOR
(c) High LTV Sublimit: $1,000,000
(d) Committed/Uncommitted: Purchase Commitment from Lender
required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Not Permitted
(g) Committed Advance Rate:
(i) First Mortgage Loan: 98% of the lesser of (i) of the
Mortgage Note Amount or (ii) the
Committed Purchase Price
(ii) Second Mortgage Loan: 95% of the lesser of (i) of the
Mortgage Note Amount or (ii) the
Committed Purchase Price
(h) Standard Warehouse Period: 45 days
4. REPURCHASED MORTGAGE LOAN/NONPERFORMING MORTGAGE LOAN/REO PROPERTY
(a) Definitions:
4
Repurchased Mortgage Loan: A Mortgage Loan that has been
repurchased from an Investor or a Mortgage Pool pursuant to a
Servicing Contract.
Nonperforming Mortgage Loan: A First Mortgage Loan or a Second
Mortgage Loan that is not a High LTV Mortgage Loan and (i) is in
the process of foreclosure, (ii) is 60 days or more delinquent or
(iii) with respect to which the Warehousing Period has expired.
REO Property: An improved real property containing a 1- to
4-family residence, which property is owned by Borrower as the
result of a foreclosure proceeding or the acceptance of a deed in
lieu of foreclosure, or has been purchased from an Investor to
satisfy a repurchase obligation of Borrower to the Investor.
(b) Interest Rate: 3.25% over LIBOR
(c) Sublimit: $2,400,000
(d) Committed/Uncommitted: Purchase Commitment NOT required
(e) Wet Settlement Advances: Not Permitted
(f) Aged Mortgage Loans: Not Permitted
(g) Advance Rate for Repurchased
and Nonperforming Mortgage
Loans: 90% of the lesser of (i) Lender's
initial Warehousing Advance, (ii) the
unpaid principal balance, (iii) the
repurchase price, or (iv) the Appraised
Property Value or BPO Value
(h) Advance Rate for REO Property: The lesser of (i) 60% Lender's initial
Warehousing Advance or (ii) 60% of the
Appraised Property Value or BPO Value
(i) Standard Warehouse Period: 365 days
(j) Required Prepayments for
Repurchased and Nonperforming
Mortgage Loans: 5% of the Mortgage Note Amount, paid
each month occurring more than 90 days
after the date of the Warehousing
Advance
(k) Required Prepayments for REO
Property: 5% of the initial Warehousing Advance
against an REO Property paid each month
occurring more than 90 days after the
date of the Warehousing Advance
5
