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EXHIBIT 10.2
FOURTH AMENDMENT TO
FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (this "Amendment") is entered into as of this 25th
day of June 1997, by and between U.S. HOME MORTGAGE CORPORATION, a Florida
corporation (the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation (the "Lender").
WHEREAS, the Company and the Lender have entered into a single family
revolving warehouse facility with a present Commitment Amount of Forty-Five
Million Dollars ($45,000,000), to finance the origination and acquisition
of Mortgage Loans as evidenced by a Second Amended and Restated Warehousing
Promissory Note in the principal sum of Fifty-Five Million Dollars
($55,000,000), dated as of January 2, 1997, a Second Amended and Restated
Sublimit Promissory Note in the principal sum of Fifty-Five Million Dollars
($55,000,000), dated as of January 2, 1997 (the "Notes"), and by a First
Amended and Restated Warehousing Credit and Security Agreement dated as of
August 31, 1995, as the same may have been amended or supplemented (the
"Agreement"); and
WHEREAS, the Company has requested the Lender to increase the
Commitment Amount, to amend certain terms of the Agreement,and the Lender
has agreed to such increase and amendment subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment shall be
6/27/97 the date on which the Company has complied with all the terms and
conditions of this Amendment.
3. Section 1.1 of the Agreement is hereby amended to delete the
definitions of "Commitment Amount" and "Warehousing Promissory Note" in
their entirety and to substitute the following in lieu thereof:
"Commitment Amount" means Sixty-Five Million Dollars
($65,000,000).
159
"Warehousing Promissory Note" means the promissory note
evidencing the Company's Obligations with respect to all Advances.
4. The definition of "Sublimit Promissory Note" in Section
1.1 of the Agreement shall be deleted in its entirety.
5. Section 2.3 of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
2.3 Note. The Company's Obligations shall be evidenced by the
Third Amended and Restated Warehousing Promissory Note (the "Note") of
the Company substantially in the form of Exhibit A-1. The terms
"Warehousing Promissory Note", "Note" or "Notes" shall include such
Note and all extensions, renewals and modifications of such Note and
all substitutions therefor. All terms and provisions of the Note are
hereby incorporated herein.
6. Exhibit A-1 to the Agreement is deleted in its entirety and Exhibit
A-1 attached to this Amendment is substituted in lieu thereof. The Second
Amended and Restated Warehousing Promissory Note is amended and restated in
its entirety as set forth in the Third Amended and Restated Warehousing
Promissory Note, in the form of Exhibit A-1 attached to this Amendment. All
references in this Amendment and in the Agreement to the Second Amended and
Restated Warehousing Promissory Note shall be deemed to refer to the Third
Amended and Restated Warehousing Promissory Note delivered in connection
with this Amendment.
7. Upon execution and delivery of this Amendment, all Obligations owed
by the Company under the Second Amended and Restated Sublimit Promissory
Note, dated as of January 2, 1997, (including, without limitation, the
unpaid principal thereunder, interest accrued thereon and fees accrued
under the Agreement, whether or not yet due and owing) as of the date
hereof, shall be owed under the Third Amended and Restated Warehousing
Promissory Note which shall be deemed to replace the Second Amended and
Restated Sublimit Promissory Note.
8. The Company shall deliver to the Lender (a) an executed original of
this Amendment; (b) an executed original of the Third Amended and Restated
Warehousing Promissory Note; (c) a Certificate of Secretary with Corporate
Resolutions; and (d) a Two Hundred
Fifty Dollar ($250) document production fee.
9. The Company represents, warrants and agrees that (a) there exists
no Default or Event of Default under the Loan Documents, (b) the Loan
Documents continue to be the legal, valid and binding agreements and
obligations of the Company enforceable in accordance with their terms, as
modified herein, (c) the Lender is not in default under any of the Loan
Documents and the Company has no offset or defense to its performance or
obligations under any of the Loan Documents, (d) the representations
contained in the Loan Documents remain true and accurate in all respects,
and (e) there has been no material adverse change in the financial
condition of the Company from the date of the Agreement to the date of this
Amendment.
160
10. Except as hereby expressly modified, the Agreement shall otherwise
be unchanged and shall remain in full force and effect, and the Company
ratifies and reaffirms all of its obligations thereunder.
11. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the 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.
U.S. HOME MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
STATE OF Texas )
) ss
COUNTY OF ▇▇▇▇▇▇)
On June 26 , 1997, before me, a Notary Public, personally appeared
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ , the Vice President of U.S. HOME MORTGAGE CORPORATION,
a Florida corporation, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity, and that by his/her signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
(SEAL) My Commission Expires: 7-1-97
161
STATE OF Florida )
) ss
COUNTY OF Broward )
On June 26, 1997, before me, a Notary Public, personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇, the Director of RESIDENTIAL FUNDING CORPORATION, a
Delaware corporation, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
(SEAL) My Commission Expires: 9-15-98
162
EXHIBIT A-1
THIRD AMENDED AND RESTATED WAREHOUSING PROMISSORY NOTE
$65,000,000 Date: June 25, 1997
FOR VALUE RECEIVED, the undersigned, U.S. HOME MORTGAGE CORPORATION, a
Florida corporation, (herein called the "Company"), hereby promises to pay
to the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the "Lender" or, together with its successors and assigns, the "Holder")
whose principal place of business is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the Holder may
designate from time to time, the principal sum of Sixty-Five Million
Dollars ($65,000,000) or so much thereof as may be outstanding from time to
time pursuant to the First Amended and Restated Warehousing Credit and
Security Agreement described below, and to pay interest on said principal
sum or such part thereof as shall remain unpaid from time to time, from the
date of each Advance until repaid in full, and all other fees and charges
due under the Agreement, at the rate and at the times set forth in the
Agreement. All payments hereunder shall be made in lawful money of the
United States and in immediately available funds.
This Note is given to evidence an actual warehouse facility in the
above amount and is the Warehousing Promissory Note referred to in that
certain First Amended and Restated Warehousing Credit and Security
Agreement (the "Agreement") dated August 31, 1995, between the Company and
the Lender, as the same may be amended or supplemented from time to time,
and is entitled to the benefits thereof. Reference is hereby made to the
Agreement (which is incorporated herein by reference as fully and with the
same effect as if set forth herein at length) for a description of the
Collateral, a statement of the covenants and agreements, a statement of the
rights and remedies and securities afforded thereby and other matters
contained therein. Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings given them in the Agreement.
This Note is given in replacement for, and not in satisfaction of,
that certain Second Amended and Restated Warehousing Promissory Note dated
January 2, 1997, and the Second Amended and Restated Sublimit Promissory
Note dated January 2, 1997, and issued by the Company to evidence its
Obligations under the Agreement (the "Existing Note"). All amounts owed by
the Company under the Existing Note (including, without limitation, the
unpaid principal thereunder, interest accrued thereon and fees accrued
under the Agreement, whether or not yet due and owing) as of the date
hereof, shall be owed hereunder.
This Note may be prepaid in whole or in part at any time without
premium or penalty.
163
Should this Note be placed in the hands of attorneys for collection,
the Company agrees to pay, in addition to principal and interest, fees and
charges due under the Agreement, any and all costs of collecting this Note,
including reasonable attorneys' fees and expenses.
The Company hereby waives demand, notice, protest and presentment.
This Note shall be construed and enforced in accordance with the laws
of the State of Minnesota, without reference to its principles of conflicts
of law.
IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year first above written.
U.S. HOME MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
STATE OF Texas )
) ss
COUNTY OF ▇▇▇▇▇▇ )
On June 26, 1997, before me, a Notary Public, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
personally appeared, the Vice Presient of U.S. HOME MORTGAGE CORPORATION,
a Florida corporation, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name subscribed
to the within instrument and acknowledged to me that he/she executed
the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
(SEAL) My Commission Expires: 07-01-97
