THIRTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIRTEENTH
AMENDMENT TO
AMENDED
AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS
THIRTEENTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT
(the
“Thirteenth Amendment”) is made and entered into as of the 3rd day of May, 2005,
by and among (i) (a) UNITED
FINANCIAL MORTGAGE CORP., an
Illinois corporation with its principal place of business located at 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 (“United”), and (b)
XXXXXXXXXXX.XXX,
INC.,
a
California corporation with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (“PlusFunding”) (collectively,
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) extend the temporary increase in the maximum principal
amount of the Warehouse Line to One Hundred Forty Million Dollars
($140,000,000.00) to and until the close of business on August 28, 2005,
and
(ii) 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.
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:
“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 Forty Million Dollars
($140,000,000.00) to and until the close of business on August 28, 2005,
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 Forty Million
Dollars ($140,000,000.00) to and until the close of business on August 28,
2005,
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 3, 2005, made by United and PlusFunding, jointly and
severally, payable to the order of National City, and in the face principal
amount of Forty-Five Million Dollars ($45,000,000.00), 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 March 1, 2005, made by
United
and PlusFunding, jointly and severally, 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 3, 2005, made by United
and PlusFunding, jointly and severally, 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 3, 2005, made by United
and PlusFunding, jointly and severally, payable to the order of Comerica,
and in
the face principal amount of Twenty Million Dollars ($20,000,000.00), 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 March 1, 2005, made by
United
and PlusFunding, jointly and severally, payable to the order of Colonial,
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-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.”
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 Forty Million Dollars
($140,000,000.00) to and until the close of business on August 28, 2005,
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
Existing Credit Agreement is hereby amended by amending and restating
Xxxxxxxx
X-0, X-0, X-0, X and Schedule 2.1 thereof
to read in their entirety as set forth on Xxxxxxxx
X-0, X-0, X-0, X and Schedule 2.1 attached
to this Thirteenth Amendment and made a part hereof by this
reference.
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5.
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.
6.
This
Thirteenth 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.
7.
This
Thirteenth Amendment shall be effective as of the date of delivery to the
Agent
of each of the following: (i) this Thirteenth 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 related hereto, each duly executed and delivered by United
and
PlusFunding on a joint and several basis, (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
Thirteenth 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.
8.
This
Thirteenth 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.
9.
This
Thirteenth 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.
10.
This
Thirteenth 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
Thirteenth Amendment shall be enforceable unless in writing signed by the
party
against whom enforcement is sought.
11.
Each
of
United and PlusFunding 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, as each of the same apply
to
United and PlusFunding individually or collectively as the Company, as
applicable.
12.
Notwithstanding
anything to the contrary contained herein or in the Security Agreement or
other
Loan Documents, the term “Company” as used in the Security Agreement and each of
the other Loan Documents shall have the meaning given to it in this Thirteenth
Amendment and shall mean United and PlusFunding as joint and several
co-borrowers and co-debtors, as applicable. Without limiting the generality
of
the foregoing, United and PlusFunding expressly covenant and agree that pursuant
to the amendments provided for in this Thirteenth Amendment, (i) the pledge,
assignment, transfer and grant of security interest set forth in the Security
Agreement is made by both United and PlusFunding, and (ii) the Collateral
described in the Security Agreement shall include all of the right, title
and
interest of United and PlusFunding in the property described therein. Further,
United and PlusFunding do hereby authorize the Agent, on behalf of the Banks,
to, at any time and from time to time, file in any one or more jurisdictions
financing statements that describe the Collateral (as such term shall apply
to
United and PlusFunding as the collectively redefined “Company” herein), together
with continuation statements thereof and amendments thereto, without the
signature of either United or PlusFunding and which contain any information
required by the Kentucky Uniform Commercial Code or the Uniform Commercial
Code,
as revised, applicable to such jurisdiction for the sufficiency or filing
office
acceptance of any financing statements, continuation statements or
amendments.
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IN
WITNESS WHEREOF, the parties hereto have caused this Thirteenth 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/ | |
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Title: |
XXXXXXXXXXX.XXX, INC. | ||
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By: | /s/ | |
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Title: | |
(collectively, the “Company”)
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NATIONAL CITY BANK OF KENTUCKY | ||
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By: | /s/ | |
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Title: |
XX
XXXXXX XXXXX BANK, N.A. (successor by merger
to
BANK ONE, NA, main offices Chicago)
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By: | /s/ | |
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Title: |
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COMERICA BANK | ||
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By: | /s/ | |
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Title: |
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 | ||
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By: | /s/ | |
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Title: | ||
(the “Agent”) |
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