TWELFTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
EXHIBIT
10.34
TWELFTH
AMENDMENT TO
AMENDED
AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS
TWELFTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT (the
“Twelfth Amendment”) is made and entered into as of the 1st day of March, 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 Xxx Xxxx
Xxxxx, Xxxxx 000, 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 May 2, 2005, (ii) add
PlusFunding as a joint and several co-borrower under the Existing Credit
Agreement and each of the other Loan Documents described therein, (iii) remove
Vision Mortgage Group, Inc. (“Vision”) as a joint and several co-borrower under
the Existing Credit Agreement and each of the other Loan Documents, and (iv)
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.
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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:
“Company” shall
collectively mean United Financial Mortgage Corp. (“United”) and
XxxxXxxxxxx.xxx, Inc. (“PlusFunding”), as joint and several co-borrowers and
co-debtors, as applicable, for all purposes under this Credit Agreement, the
Notes and each of the other Loan Documents.
“Swing
Note” shall
mean the Amended and Restated Swing Promissory Note dated as of March 1, 2005,
jointly and severally made by United and PlusFunding, 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, as applicable, either (i) One Hundred Forty
Million Dollars ($140,000,000.00) to and until the close of business on May 2,
2005, or (ii) One Hundred Ten Million Dollars ($110,000,000.00) from May 3, 2005
to and until the Termination Date, subject in each case 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, as applicable, either (i)
One Hundred Forty Million Dollars ($140,000,000.00) to and until the close of
business on May 2, 2005, or (ii) One Hundred Ten Million Dollars
($110,000,000.00) from May 3, 2005 to and until the Termination Date, subject in
each case 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 March 1, 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 March 1, 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 March 1, 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.”
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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, as applicable, either (i) One
Hundred Forty Million Dollars ($140,000,000.00) to and until the close of
business on May 2, 2005, or (ii) One Hundred Ten Million Dollars
($110,000,000.00) from May 3, 2005 to and until the Termination Date, and as may
be increased in either case 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. Section
10.16 of the
Existing Credit Agreement is hereby amended and restated in its entirety to read
as follows:
10.16 Joint
and Several Liability of United and PlusFunding. Each of
United and PlusFunding (each an “obligor) shall be liable for all amounts due to
the Agent and to the Banks under this Credit Agreement and under each of the
other Loan Documents, regardless of which of United or PlusFunding (or any other
prior obligor hereunder, including without limitation, Portland Mortgage Company
and Vision Mortgage Group, Inc.) actually receives the Advances or other
extensions of credit hereunder or the manner in which the Agent or the Banks
account for such Advances on their books and records. The Secured Obligations
shall be primary obligations of each of United and PlusFunding hereunder and
under each of the other Loan Documents. The Secured Obligations arising as a
result of the joint and several liability of United and PlusFunding hereunder
shall, to the fullest extent permitted by law, be unconditional irrespective of
(i) the validity or enforceability, avoidance or subordination of the Secured
Obligations of the other obligor or of any promissory note or other document
evidencing all or any part of the Secured Obligations of the other obligor, (ii)
the absence of any attempt to collect the Secured Obligations from the other
obligor, any other guarantor or any other security therefore, or the absence of
any other action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by the Agent and/or the Banks with
respect to any provision of any instrument evidencing the Secured Obligations of
the other obligor, or any part thereof, or any other agreement now or hereafter
executed by the other obligor and delivered to the Agent and/or the Banks, (iv)
the failure by the Agent and the Banks to take any steps to perfect and maintain
their security interests in, or to preserve their rights to, any security or
collateral for the Secured Obligations of the other obligor, (v) the Agent’s or
the Banks’ election, in any preceding instituted under the Bankruptcy Code, of
the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing
or grant of a security interests by the other obligor, as debtor-in-possession
under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any
portion of the Agent’s or Banks’ claim(s) for the repayment of the Secured
Obligations of the other obligor under Section 502 of the Bankruptcy Code, or
(viii) any other circumstances which might constitute a legal or equitable
discharge or defense of any guarantor or of the other obligor. With respect to
the Secured Obligations arising as a result of the joint and several liability
of United and PlusFunding, each of United and PlusFunding waives, until the
Secured Obligations have been paid in full and this Credit Agreement shall have
been terminated, any right to enforce any right of subrogation or any remedy
which the Agent and the Banks now have or may have hereafter against either
obligor, any endorser or any guarantor of all or any part of the Secured
Obligations, in any benefit of, in any right to participate in, any security or
collateral given to the Agent or to the Banks to secure payment of the Secured
Obligations or any other liability of United or PlusFunding to the Agent and the
Banks. Upon any Event of Default, the Agent and the Banks may proceed directly
and at once, without notice, against either or both of United or PlusFunding to
collect and recover the full amount, or any portion of the Secured Obligations,
without first proceeding against the other obligor or any other Person, or
against any security or collateral for the Secured Obligations. Each of United
and PlusFunding consents and agrees that the Agent and the Banks shall be under
no obligation to marshaling any assets in favor of either or both of United or
PlusFunding or against or in payment of any or all of the Secured
Obligations.”
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5.
The
Existing Credit Agreement is hereby amended by amending and restating
Exhibits
X-0, X-0, X-0, X-0, X-0, X, X xxx X-0 and Schedules 2.1 and
6.1 thereof
to read in their entirety as set forth on Exhibits
C-1, X-0, X-0, X-0, X-0, X, X xxx X-0 and Schedules 2.1 and
6.1 attached
to this Twelfth Amendment and made a part hereof by this reference.
6.
The
Existing Credit Agreement and each of the other Loan Documents are hereby
amended to require that any notice to be provided thereunder to either
PlusFunding or the Company shall be sent to the following address (in addition
to all other addresses currently provided therein):
XxxxXxxxxxx.xxx,
Inc.
0000 Xxx
Xxxx Xxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attn:
_________________
_________________
Fax:
(____)
___________
Ph: (____)
___________
7. United
has informed the Agent and the Banks that Vision was dissolved as a Wisconsin
corporation effective as of December 29, 2004. The Existing Credit Agreement and
each of the other Loan Documents are hereby amended by removing Vision as a
co-borrower thereunder and deleting all notice requirements related to such
entity.
8. 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.
9. This
Twelfth 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.
10. This
Twelfth Amendment shall be effective as of the date of delivery to the Agent of
each of the following: (i) this Twelfth 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) the Amended and Restated Swing
Promissory Note related hereto, duly executed and delivered by United and
PlusFunding on a joint and several basis, (iv) an authorizing resolution from
the respective boards of directors from each of United and PlusFunding, (v) an
authorized signer letter and power of attorney from PlusFunding, (vi)
representation and warranty disclosures, insurance certificates and UCC search
results relating to PlusFunding, (vii) payment to each of the Banks of an
amendment fee equal to $375.00, and (viii) 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.
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11. This
Twelfth 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.
12. This
Twelfth 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.
13. This
Twelfth 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 Twelfth
Amendment shall be enforceable unless in writing signed by the party against
whom enforcement is sought.
14. 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. In addition, PlusFunding hereby represents and warrants that the
exact legal name of PlusFunding is as set forth in the initial paragraph of this
Twelfth Amendment, the State of California is the state of incorporation of
PlusFunding, PlusFunding’s tax identification number is ______________,
PlusFunding’s organizational number is ________________, and its chief executive
office is located at 0000 Xxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
PlusFunding will not move such offices without giving the Agent thirty (30)
calendar days prior written notice. PlusFunding does not currently operate, nor
has it operated in the past five (5) years, under any assumed names.
15. 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 Twelfth
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 Twelfth 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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remainder of this page has been intentionally left blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Twelfth Amendment to
Amended and Restated Warehousing Credit Agreement to be duly executed as of the
day and year first above written.
By:
_______________________________________
Title:
______________________________________
XXXXXXXXXXX.XXX,
INC.
By:
_______________________________________
Title:
______________________________________
(collectively,
the “Company”)
NATIONAL
CITY BANK OF KENTUCKY
By:
______________________________________
Title:
_____________________________________
Section
1. XX XXXXXX
XXXXX BANK, N.A. (successor by merger
Section
2. to BANK
ONE, NA, main offices Chicago)
By:
________________________________________
Title:
_______________________________________
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COMERICA
BANK
By:
________________________________________
Title:
_______________________________________
COLONIAL
BANK, N.A.
By:
________________________________________
Title:
_______________________________________
2.1 HSBC BANK
USA, NATIONAL ASSOCIATION
By:
______________________________________
Title:
_____________________________________
(collectively,
the “Banks”)
NATIONAL
CITY BANK OF KENTUCKY
By:
_____________________________________
Title:
____________________________________
(the
“Agent”)
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