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EXHIBIT 10.23
THIRD AMENDMENT TO AMENDED AND RESTATED WAREHOUSING
CREDIT AND SECURITY AGREEMENT
This Third Amendment to the Amended and Restated Warehousing Credit and
Security Agreement (this "Amendment"), is entered into effective as of the 30th
day of April, 2001 by and among MORTGAGE PORTFOLIO SERVICES, INC., a Delaware
corporation ("Company"), NAB ASSET CORPORATION ("Guarantor"), WASHINGTON MUTUAL
BANK, FA, a federal association, successor by merger to BANK UNITED, in its
capacity as one of the Lenders and Administrative Agent and Collateral Agent for
the Lenders ("Agent"), the lenders party to the Warehouse Agreement, as defined
below ("Lenders"), CENTEX FINANCIAL SERVICES, INC., a Nevada corporation
("Centex"), and CENTEX CORPORATION, a Nevada corporation.
Section 1. Recitals. Company, Agent, and Lenders have entered into that
certain Amended and Restated Warehousing Credit and Security Agreement dated
August 28, 2000 (as amended on October 15, 2000 and November 13, 2000, the
"Warehouse Agreement") for the purposes and consideration therein expressed,
pursuant to which Lenders have agreed to make loans to Company as therein
provided. Company, Guarantor, Centex, Centex Corporation, Agent, and Lenders
desire to amend the Warehouse Agreement to extend the Termination Date of the
Commitment and make such other modifications as more particularly set forth
herein. Therefore, Company, Guarantor, Centex, Centex Corporation, 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
Warehouse Agreement shall have the same meanings whenever used in this
Amendment.
Section 3. Amendments. The Warehouse Agreement is hereby amended, as
follows:
(a) The following definitions are hereby added to Section 1.1 of the
Warehouse Agreement:
"'Centex' shall mean Centex Financial Services, Inc., a Nevada
corporation."
"'Defective Collateral' means any Collateral that is not or ceases
to be an Eligible Mortgage Loan, an Eligible Construction Mortgage Loan,
an Eligible Past Due Loan, an Eligible Delinquent Loan, an Eligible
Foreclosure Mortgage Loan, an Eligible Repurchased Mortgage Loan, or an
Eligible REO."
"'Stock Purchase Agreement' means the Stock Purchase Agreement dated
as of Xxxxx 00, 0000 xxxxxxx Xxxxxx, Xxxxxxxx Financial Services Corp.,
and NAB Asset Corporation, as amended."
(b) The following definition in Section 1.1 of the Warehouse Agreement is
hereby amended as follows:
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"'Termination Date' shall mean the earlier to occur of (i) August
31, 2001, or (ii) the date which is two (2) Business Days following the
Administrative Agent's receipt of Notice from Centex that the Stock
Purchase Agreement has terminated or will terminate or (iii) such earlier
date upon which Lenders' obligation to fund shall be terminated pursuant
to the terms of this Agreement."
(c) The following Section 2.5(a) of the Warehouse Agreement is hereby
restated as follows:
"The outstanding unpaid principal amount of all Advances shall be
payable in full on the date that is sixty (60) days following the
Termination Date."
(d) The following section is hereby added to the end of Article 6
Affirmative Covenants. of the Warehouse Agreement for all purposes:
"6.15 Mandatory Payment by Centex. If the Company fails to pay to
the Administrative Agent at any time and from time to time (i) all
outstanding Advances against any Defective Collateral plus any accrued and
unpaid interest thereon in accordance with this Agreement, (ii) the entire
outstanding principal amount of all Advances plus all accrued and unpaid
interest thereon in full on the date that is sixty (60) days following the
Termination Date and/or (iii) all accrued and unpaid fees due and payable
to the Administrative Agent or the Lenders pursuant to Section 2.8 of this
Agreement (all of the unpaid amounts described in (i), (ii), and (iii) are
hereinafter collectively called the "Past Due Amounts"), Centex shall,
absolutely and unconditionally, pay to Administrative Agent, for the
benefit of the Lenders, all such Past Due Amounts in immediately available
funds within five (5) Business Days after receiving Notice (which shall be
sent by facsimile and confirmed by mail) from Administrative Agent of such
failure; provided, however, that Centex shall not be liable for the
repayment of any Advances made by Administrative Agent or the Lenders to
Company after the Termination Date and all accrued and unpaid interest on
such Advances (without implying any obligation to make Advances after the
Termination Date) or any fees payable pursuant to Section 2.8 of this
Agreement accruing after the Termination Date. Administrative Agent shall
provide in its Notice to Centex a description in reasonable detail of the
Past Due Amounts together with a list of all Pledged Mortgages
specifically relating to such Past Due Amounts (including Pledged
Mortgages in respect of which Wet Advances have been made) and the Past
Due Amount owed against each Pledged Mortgage; such list shall be
substantially in the form of EXHIBIT "T" hereto. With respect to Past Due
Amounts relating to Defective Collateral, Administrative Agent's Notice
shall describe the defects that have resulted in such Collateral becoming
Defective Collateral."
(e) Section 7.5 of the Warehouse Agreement is hereby restated as follows:
"7.5. Minimum Consolidated Tangible Net Worth Ratio. Permit the
ratio of Debt to Company's Consolidated Tangible Net Worth to exceed 15:1,
computed as of the end of each calendar month. For the purposes of this
calculation and the calculation required in Section 7.6 below, Debt and
Consolidated liabilities of the Company shall not include the Subordinated
Debt of the Company."
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(f) The following event is hereby added to the end of Section 8.1 Events
of Default. of the Warehouse Agreement for all purposes:
"(q) Centex fails to pay and perform its obligations pursuant to
Section 6.15 of this Agreement by the deadline specified in that Section."
(g) Article 9 of the Warehouse Agreement is hereby restated as follows:
"9. Notices. Any notice, request or other communication required or
permitted to be given under or in connection with this Agreement, the
Notes or the other Loan Documents ("Notices") (except as may otherwise be
expressly required therein) shall be in writing and shall be mailed by
first class or express mail, postage prepaid, or sent by facsimile,
confirmed by mailing (by first class or express mail, postage prepaid)
written confirmation at substantially the same time as such facsimile, or
personally delivered to an officer of the receiving party. All such
communications shall be mailed, sent, delivered, or faxed to the parties
hereto at their respective addresses or facsimile numbers as follows:
If to the Company: Mortgage Portfolio Services, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copies to Centex and Centex Corporation by facsimile (confirmed by
mail) at their respective addresses specified below.
If to the Guarantor: NAB Asset Corporation
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Centex: Centex Financial Services, Inc.
Attn: Xxx Xxxxxxxx
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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If to Centex Corporation: Centex Corporation
Attn: Xxxxx Xxxxxxxxx
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Washington Mutual as Administrative Agent, Collateral Agent or a
Lender:
Washington Mutual Bank, FA
Attn: Xxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Residential Funding Corporation:
Residential Funding Corporation
Attn: Xxx Xxxxx
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000 000-0000
Telephone: (000) 000-0000
or at such other addresses or to such individual's or department's
attention or at such other facsimile numbers as any party may have
furnished the other party in writing. Any Notice addressed and mailed
shall be deemed to be given when so mailed, except that Advance Requests,
and communications related thereto shall not be effective until actually
received by Administrative Agent or Company, as the case may be. Any
Notice sent by facsimile shall be deemed to be given when receipt of such
facsimile is acknowledged. Any Notice delivered in person shall be deemed
to be given when receipted for by, or actually received by, an authorized
officer of the receiving party."
(h) EXHIBIT "T" to this Amendment is hereby added as EXHIBIT "T" to the
Warehouse Agreement for all purposes.
Section 4. Representations and Other Agreements. (a) Company represents
and warrants that all of the representations and warranties contained in the
Warehouse 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. Agent represents and warrants to Centex that it has provided to
Centex accurate and complete copies of the Warehouse Agreement and the Notes in
effect as of the date hereof.
(b) Notwithstanding anything contained in the Warehouse Agreement, as
amended hereby, or in any other Loan Document to the contrary, Company agrees
that it shall not request or be entitled to receive any Advances on or after the
Termination Date.
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(c) The maturity date of each Lender's Note is hereby renewed and extended
to sixty (60) days following the Termination Date.
(d) The Loan Documents, as amended hereby, may not be amended or modified
by the Company, the Guarantor, the Agent, and the Lenders without the prior
written consent of Centex and Centex Corporation.
(e) If at any time and from time to time Centex or Centex Corporation pays
to the Agent all Past Due Amounts specified in any Notice given by Agent in
accordance with Section 6.15 of the Warehouse Agreement, as amended hereby,
Company hereby directs the Agent to assign, release, and deliver, and Agent
hereby agrees to assign, release, and deliver, free and clear of the Agent's and
Lenders' Liens, to Centex, within two (2) Business Days of Agent's receipt of
Centex's or Centex Corporation's payment of all such Past Due Amounts in
immediately available funds, (i) all original Mortgage Notes (duly endorsed in
blank) held by Agent evidencing the Pledged Mortgages specifically relating to
such Past Due Amounts ("Past Due Mortgages"), and (ii) any and all other
Collateral Documents specifically relating to such Past Due Mortgages, if any,
held by the Agent under the Loan Documents. If the Agent thereafter receives any
Mortgage Notes or other Collateral Documents specifically relating to such Past
Due Mortgages (including Past Due Mortgages in respect of which Wet Advances
were made or sent to Investors for purchase) or any cash or non-cash proceeds
relating to any of the Past Due Mortgages, or any overpayments of amounts
payable by Centex under Section 6.15 of the Warehouse Agreement, Company hereby
directs Agent to assign, release, and deliver, and Agent hereby agrees to
assign, release and deliver, free and clear of Agent's and Lenders' Liens, to
Centex, promptly but in any event within two (2) Business Days of Agent's
receipt, all such Mortgage Notes, Collateral Documents, proceeds and
overpayments.
Section 5. Severability. In the event any one or more provisions contained
in the Warehouse 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. Company agrees to pay all out-of-pocket costs and
expenses (including reasonable attorney's fees and expenses) of the Agent and
the Lenders in connection with the preparation, operation, administration and
enforcement of this Amendment.
Section 7. Ratification of Agreements. (a) Except as amended hereby,
Company ratifies and confirms that the Warehouse Agreement 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
Company under the Notes, the Warehouse Agreement, and all other Loan Documents,
as modified hereby.
(b) Each of the undersigned officers of Company, Guarantor, Centex, and
Centex Corporation executing this Amendment represents and warrants that he has
full power and authority to execute and deliver this Amendment on behalf of the
party for whom he is executing this Amendment, that such execution and delivery
has been duly authorized by all necessary corporate action of such party, and
with respect to the Company and Guarantor, each of its respective officers
represents and warrants that the resolutions and affidavits previously delivered
to Agent, in connection
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with the execution and delivery of the Warehouse Agreement, are and remain in
full force and effect and have not been altered, amended or repealed in anywise.
(c) Any reference to the Warehouse Agreement in any Loan Document shall be
deemed to be references to the Warehouse Agreement as amended hereby.
(d) Except as amended hereby, each of the Agent and the Lenders ratifies
and confirms that the Warehouse Agreement and all other Loan Documents are and
remain in full force and effect in accordance with their respective terms.
(e) Each of the undersigned officers of the Agent and the Lenders
represents and warrants that he has full power and authority to execute and
deliver this Amendment on behalf of the party for whom he is executing this
Amendment and that such execution and delivery has been duly authorized.
Section 8. No Waiver. Company agrees that no Event of Default and no
Default has been waived or remedied by the execution of this Amendment by Agent
and Lenders, and any such Default or Event of Default heretofore arising and
currently continuing shall continue after the execution and delivery hereof.
Agent and Lenders represent and warrant to Centex that they are not aware of any
Default or Event of Default that is existing as of the date hereof.
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. Joinder of Centex and Centex Corporation. (a) Centex is joined
herein to evidence its agreement to the terms, conditions and agreements
contained in this Amendment and to observe, pay and perform the obligations set
forth in Section 6.15 of the Warehouse Agreement, as amended hereby. Centex
hereby acknowledges that but for such agreements, Agent and Lenders would not
enter into this Amendment.
(b) Centex Corporation hereby, unconditionally and absolutely, guarantees
to the Agent, on behalf of the Lenders, the prompt and punctual payment and
performance when due (whether at its maturity, by lapse of time, by
acceleration, or otherwise) of all indebtedness, liabilities, and obligations
("Guaranteed Obligations") of Centex under this Amendment and Section 6.15 of
the Warehouse Agreement, as amended hereby. The foregoing guaranty is an
absolute guaranty of payment and not a guaranty of collection. Centex
Corporation agrees to pay Agent the Guaranteed Obligations upon demand and all
of its out-of-pocket collection costs relating to the enforcement of Centex
Corporation's obligations hereunder, including any additional amount for
reasonable attorney's fees, if the Guaranteed Obligations are not paid by Centex
Corporation upon demand or if the obligations of Centex Corporation hereunder
are enforced by suit, or through probate or bankruptcy court or through any
judicial proceedings whatsoever. Centex Corporation hereby expressly waives each
and every right to which it may be entitled by virtue of the suretyship laws of
the State of Texas including, without limitation, any rights it may have
pursuant to Rule 31, Texas Rules of Civil Procedure, V.T.C.A. Civil Practice and
Remedies Code Section 17.00 and Chapter 34 of the Texas Business and Commerce
Code.
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Centex Corporation acknowledges that but for its guaranty the Agent and the
Lenders would not enter into this Amendment.
Section 12. Further Assurances. Company agrees to do such further acts and
things and execute and deliver to Centex such additional assignments, powers and
instruments as are reasonably required by Centex to carry into effect the
release and delivery to Centex of the Mortgage Loans and other Collateral
required to be released and delivered to it under Section 4(e) hereof.
SECTION 13. 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.
[Signature Pages Follow]
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EXECUTED this 30th day of April, 2001.
COMPANY:
MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By: s/s Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, President
NOTICE ADDRESS:
Mortgage Portfolio Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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GUARANTOR:
NAB ASSET CORPORATION,
a Texas corporation
By: s/s Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: SVP
NOTICE ADDRESS:
NAB Asset Corporation
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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WASHINGTON MUTUAL BANK, F.A., successor by merger
to BANK UNITED, as Administrative Agent and a
Lender
By: s/s Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx, AVP
Mortgage Banker Finance
NOTICE ADDRESS:
Washington Mutual Bank, F.A.,
successor by merger to Bank United
Attn: Xxxxx Xxxxxxxx, Director
Mortgage Banker Finance
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation, as a Lender
By: s/s Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Director
NOTICE ADDRESS:
Residential Funding Corporation
Attn: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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CENTEX FINANCIAL SERVICES, INC.,
a Nevada corporation
By: s/s Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
NOTICE ADDRESS:
Attn: Xxx Xxxxxxxx
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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CENTEX CORPORATION,
a Nevada corporation
By: s/s Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
NOTICE ADDRESS:
Attn: Xxxxx Xxxxxxxxx
0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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