EXHIBIT 10.32
EIGHTH AMENDMENT TO
AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT (the "Eighth Amendment") is made and entered into as of the 30th day
of September, 2004, 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) VISION
MORTGAGE GROUP, INC., an Illinois corporation with its principal place of
business located at 0000 X. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Vision")
(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) BANK ONE, NA, a
national banking association with its principal place of business located in
Chicago, Illinois ("Bank One"), (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, a New York state banking corporation 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 maximum principal amount
of One Hundred Ten Million Dollars ($110,000,000.00) (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 Maturity Date to August 28,
2005, (ii) add Vision as a joint and several co-borrower under the Existing
Credit Agreement and each of the other Loan Documents described therein, (iii)
modify certain pricing provisions of the Existing Credit Agreement, (iv) modify
certain covenants contained in the Existing Credit Agreement, and (v) 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.
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:
"ALT A Loan" shall mean a Conforming Loan: (i) the entire
interest of which is owned by the Company and which is secured by a Conforming
Mortgage; (ii) which is not an FHA Loan or VA Loan; (iii) which meets the
underwriting criteria of any or all of the Xxxxxx Xxx, FHLMC or GNMA; (iv) which
conforms to the underwriting criteria of Approved Investors for loans which are
commonly referred to in the secondary market as "ALT A" loans, as defined by the
Agent; and (v) which has a FICO Score equal to or in excess of 620; provided:
(a) no default has occurred and is continuing on such Loan, and (b) such Loan is
not an Aged Loan.
"Alternative Lending Advance Sublimit" shall mean an amount
equal to fifteen percent (15%) of the Total Warehouse Line Commitment; subject,
however, to the further limitation that the aggregate outstanding principal
amount of all Subprime Loans shall not exceed ten percent (10%) of the Total
Warehouse Line Commitment.
"Alternative Lending Loan" shall mean a Loan the entire
interest of which is owned by the Company and which is one of the following: (i)
a HELOC Loan; (ii) a Subprime Loan; or (iii) a Second Mortgage Loan; provided,
however, (a) no default has occurred and is continuing on such Loan, (b) such
Loan is pledged as Collateral within thirty (30) calendar days of origination,
purchase or conversion, (c) such Loan has no more than one (1)
principal/interest payment past due, (d) such Loan shall be subject to a Firm
Commitment, and (e) such Loan shall have a FICO Score equal to or in excess of
580.
"Company" shall collectively mean United Financial Mortgage
Corp. ("United") and Vision Mortgage Group, Inc. ("Vision"), as joint and
several co-borrowers and co-debtors, as applicable, for all purposes under this
Credit Agreement, the Warehouse Notes and each of the other Loan Documents.
"Eligible Collateral" shall mean, collectively and as of any
date, the following:
(a) Each Loan (i) which is a Dry Loan, a Wet Loan, a Jumbo
Loan, a Super Jumbo Loan, an ALT A Loan, an Extended Period Shipped Loan, a
Repurchase Loan, and Alternative Lending Loan or an Aged Loan which has not been
pledged as Collateral for more than One Hundred Eighty (180) calendar days
(calculated from the date upon which the Advance relating to such Loan is made
hereunder), without duplication, (ii) which constitutes Collateral, (iii) which
has not been under Trust Receipt in accordance with the terms of the Security
Agreement for more than the maximum number of days allowed under the Security
Agreement, (iv) which has not been shipped to an Approved Investor for more than
the maximum number of days allowed by the Security Agreement and no purchase
proceeds have been received by the Agent, (v) in respect of which the
representations, warranties and agreements contained in this Credit Agreement
and the Security Agreement are true and correct, and (vi) which is subject to a
Firm Commitment or Standby Commitment;
(b) Repurchase Loan Receivables, provided that each Repurchase
Loan meets the following conditions: (i) payments are more than ninety (90) days
past due when repurchased by the Company; (ii) no notice or other indication has
been given by FHA or VA challenging the obligation of FHA or VA to pay the full
amount due on any insurance or guaranty certificate in connection with such
Repurchase Loans (and in the good-faith estimation of the Company, no such
challenge is forthcoming); (iii) the Repurchase Loan does not have any payments
more than seven hundred twenty (720) days past due (unless the Company of such
Repurchase Loan filed a voluntary bankruptcy petition or had an involuntary
bankruptcy petition filed against it while the payments on such mortgage loan
were past due, in which case such seven hundred twenty (720) day period shall be
extended to one thousand eighty (1080) days); (iv) each Repurchase Loan Advance
shall be due and payable no later than one hundred eighty (180) days after the
date of Advance, or earlier upon receipt of proceeds from the sale of the
property, sale of the mortgage or settlement of the claim with the investor,
insurer or guarantor; (v) not more than one hundred eighty (180) days have
passed since the foreclosure sale or transfer in lieu of foreclosure with
respect to the Repurchase Loan; (vi) not more than one hundred eighty (180) days
have passed since reinstatement of the Repurchase Loan; and (vii) the Xxxxxxxxxx
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Loan shall not be a mortgage loan which in the good faith estimation of the
Company is deemed to be a "no bid" candidate under the current VA practice,
provided that such estimation by the Company may take into account the amount of
any buy down of the principal balance of such Repurchase Loan which (i) has
actually been made by the Company, or (ii) is anticipated to be made by the
Company, provided that the amount of any such anticipated buy down shall be
deducted from the Collateral Value of such Repurchase Loan;
(c) Pledged Servicing Rights; and
(d) Each Loan (i) that is a Discretionary Loan (as defined in
SECTION 9.20 hereof) without duplication, (ii) that constitutes Collateral, and
(iii) that is not subject to any lien or security interest other than that
granted under the Credit Agreement and the Security Agreement.
"HELOC Loan" shall mean an Alternative Lending Loan secured by
a Home Equity Mortgage which either (a) has a face amount not in excess of Three
Hundred Fifty Thousand Dollars ($350,000.00) or (b) has a face amount in excess
of Three Hundred Fifty Thousand Dollars ($350,000.00) and is pre-approved by the
Agent in writing in its sole and absolute discretion, provided, however, the
aggregate amount of such pre-approved Loans over Three Hundred Fifty Thousand
Dollars ($350,000.00) shall in no event exceed Two Million Five Hundred Thousand
Dollars ($2,500,000.00), the entire interest of which is owned by the Company
and which is subject to a Firm Commitment, provided that (i) no default has
occurred and is continuing on such Loan, (ii) such Loan shall have a FICO score
equal to or in excess of the requirements of the applicable Approved Investor,
(iii) such Loan shall have a combined loan-to-value ratio at origination of not
more than ninety-five percent (95%), and (iv) such Loan is not an Aged Loan.
"Maturity Date" shall mean August 28, 2005; provided that the
Agent and the Banks shall have the option, in their sole, absolute discretion,
either one time or from time to time, to extend the Maturity Date for an
additional period not to exceed three hundred sixty four (364) days. If the
Maturity Date is extended, the term "Maturity Date" shall mean the date of
expiration of such extension.
"Subprime Loan" shall mean an Alternative Lending Loan: (i)
the entire interest of which is owned by the Company and which is secured by a
Subprime Mortgage; (ii) which is not an FHA or VA loan; (iii) which does not
meet the underwriting criteria of any or all the Xxxxxx Mae, FHLMC, or GNMA; and
(iv) which conforms to the underwriting criteria of Approved Investors for loans
which are "B" or "C" loans, as defined by Agent; provided: (a) no default has
occurred and is continuing on such Loan, (b) such Loan shall have a FICO score
equal to or in excess of the requirements of the applicable Approved Investor,
(c) such Loan shall have a combined loan-to-value ratio at origination of not
more than ninety percent (90%), (d) such Loan shall be subject to a Firm
Commitment, (e) such Loan is not an Aged Loan, and (f) such Loan does not have a
face amount in excess of Three Hundred Fifty Thousand Dollars ($350,000.00).
"Super Jumbo Advance Sublimit" shall mean an amount
equal to Five Million Dollars ($5,000,000.00).
"Swing Note" shall mean the Amended and Restated Swing
Promissory Note dated as of September 30, 2004, jointly and severally made by
United and Vision, 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.
"Warehouse Notes" shall mean, collectively, (i) that certain
Amended and Restated Warehouse Promissory Note dated as of September 30, 2004,
made by United and Vision, jointly and severally, payable to the order of
National City, in the current principal amount of Thirty-Five Million Dollars
($35,000,000.00), 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
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and Restated Warehouse Promissory Note dated as of September 30, 2004, made by
United and Vision, jointly and severally, payable to the order of Bank One, 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 September 30, 2004, made by United and
Vision, jointly and severally, payable to the order of HSBC Bank USA, and in the
face principal amount of Fifteen Million Dollars ($15,000,000.00), 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 September 30, 2004, made by United and
Vision, jointly and severally, payable to the order of Comerica, and in the face
principal amount of Ten Million Dollars ($10,000,000.00), 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 September 30, 2004, made by United and Vision, 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."
"Working Capital Advance Sublimit" shall mean the least of:
(i) sixty-five percent (65%) of the appraised value of the Pledged Servicing
Rights as determined pursuant to the most recent Appraisal of Pledged Servicing
Rights prepared pursuant to SECTION 7.3(F) hereof, (ii) one percent (1.00%) of
the unpaid principal balance of the residential mortgages related to the Pledged
Servicing Rights, or (iii) an amount equal to Ten Million Dollars
($10,000,000.00).
3. ARTICLE 1 of the Existing Credit Agreement is further amended by
amending the definition of "Collateral Value" contained therein by deleting the
last paragraph thereof in its entirety.
4. ARTICLE 1 of the Existing Credit Agreement is further amended by
adding the following definition to read in its entirety as follows:
"FICO Score" shall mean the credit score obtained by using the
credit score methodology provided by Fair Xxxxx and Company.
5. SECTION 2.2(A) of the Existing Credit Agreement is hereby amended by
amending and restating the reference to "Fifteen Million Dollars
($15,000,000.00)" contained therein to read in its entirety as "Twenty Million
Dollars ($20,000,000.00)".
6. SECTION 2.8(A) of the Existing Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"(a) Applicable Rates of Interest. Effective October 1, 2004,
each Advance shall bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise). The
outstanding principal balance of the Swing Note and each Balance Funded Bank's
Warehouse Note shall bear interest as follows: (i) at the per annum rate equal
to one and one-quarter of one percent (1.25%) (the "Balance Funded Rate") for
that portion of the Average Monthly Aggregate Outstanding Warehouse Balance of a
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Balance Funded Bank's Warehouse Note which does not exceed the Average Monthly
Available Deposits maintained by the Company with such Balance Funded Bank, and
(ii) at the per annum rate equal to LIBOR plus one and one-quarter of one
percent (1.25%) for that portion of the Average Monthly Aggregate Outstanding
Warehouse Balance of a Balance Funded Bank's Warehouse Note which exceeds such
Average Monthly Available Deposits maintained by the Company with such Balance
Funded Bank. The outstanding principal balance of each Warehouse Note for each
Bank which is not a Balance Funded Bank shall bear interest at the per annum
rate equal to LIBOR plus one and one-quarter of one percent (1.25%) (the "Base
Rate")."
7. SECTION 2.14(B) of the Existing Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"(b) Usage Fee. Effective October 1, 2004, United and Vision
jointly and severally agree to pay to the Agent and the Banks the following
usage fees (the "Usage Fees"): (i) a usage fee computed at the rate of one and
one-quarter of one percent (1.25%) per annum times the average monthly aggregate
unpaid principal balance for all Repurchase Loan Advances and all Aged
Loan/Extended Period Shipped Loan Advances, (ii) a usage fee computed at the
rate of one-half of one percent (.50%) per annum times the average monthly
aggregate unpaid principal balance for all Subprime Loan Advances, (iii) a usage
fee computed at the rate of nine-tenths of one percent (.90%) per annum times
the average monthly aggregate unpaid principal balance for all Working Capital
Loan Advances, and (iv) a usage fee computed at the rate of fifteen-hundredths
of one percent (.15%) per annum times the average monthly aggregate unpaid
principal balance for all Alternative Lending Advances which are not Subprime
Loan Advances."
8. SECTIONS 5.2 AND 5.3 of the Existing Credit Agreement are hereby
amended and restated in their entirety to read as follows:
"5.2 Leverage Ratio. The ratio of Total Indebtedness
to Adjusted Tangible Net Worth shall not exceed 12.5 to 1.
5.3 Minimum Adjusted Tangible Net Worth. The Adjusted
Tangible Net Worth of the Company shall at all times be greater than Twenty
Million Dollars ($20,000,000.00).
9. SECTION 7.1(U) of the Existing Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"(u) MERS. During any time during which the Company is using
the MERS System, the Company shall (a) at all times, maintain its status as a
MERS Member, (b) at all times, employ officers who have the authority, pursuant
to a corporate resolution from MERS, to execute assignments of mortgage in the
name of MERS in the event deregistration from the MERS System is necessary or
desirable, (c) at all times remain in full compliance all terms and conditions
of membership in MERS, including the MERSCORP, Inc. "Rules of Membership" most
recently promulgated by MERSCORP, Inc., the "MERS Procedures Manual" most
recently promulgated by MERS, and any and all other guidelines or requirements
set forth by MERS or MERSCORP, as each of the foregoing may be modified from
time to time, including, but in no way limited to compliance with guidelines and
procedures set forth with respect to technological capabilities, drafting and
recordation of mortgages, registration of mortgages on the MERS System,
including registration of the interest of the Agent and the Banks in such
mortgages and membership requirements, (d) promptly, upon the request of the
Agent, execute and deliver to the Agent an assignment of mortgage, in blank,
with respect to any MERS Mortgage that the Agent determines shall be removed
from the MERS System, (e) at all times maintain the Electronic Tracking
Agreement in full force and effect, and (f) immediately provide to Agent a copy
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of any notice received from MERS or MERSCORP pursuant to Section 4(a) of the
Electronic Tracking Agreement. The Company shall not de-register or attempt to
de-register any mortgage from the MERS System unless the Company has complied
with the requirements set forth in the Electronic Tracking Agreement and the
requirements hereof and the Security Agreement relating to a release of
Collateral."
10. SECTION 7.2 of the Existing Credit Agreement is hereby amended by
adding a new subsection (n) thereto to read in its entirety as follows:
"(n) Mortgage Loan Early Purchase and Sale/Repurchase
Facilities. The Company shall not enter into any agreement providing facilities
for the early purchase or the sale and repurchase of mortgage loans and/or
mortgage backed securities without the prior written consent of the Agent
thereto. Notwithstanding the foregoing, in the event the Agent consents to the
Company entering into agreements for such facilities, at the Agent's request,
the Company covenants and agrees to execute and deliver an Inter-Creditor
Agreement, fully executed by all of the Company's then current and proposed
mortgage warehouse lenders and parties to such early purchase and
sale/repurchase facilities, substantially in a form prescribed by the Agent, on
or before the date of implementation of such facilities."
11. SECTION 9.20 of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"9.20 Consent of Banks. Any amendment or modification of this
Credit Agreement or any other Loan Document, or waiver of any term or provision
hereof or thereof, shall require the affirmative written consent of the Agent
and the Requisite Banks; provided, notwithstanding anything herein to the
contrary, the following shall require the affirmative written consent of the
Agent and all of the Banks: (i) except as permitted under the terms of the
Security Agreement, the release of any part of the Collateral from the liens
respectively created by the Loan Documents, (ii) the termination, cancellation
or release of any Loan Documents, (iii) the decrease in the interest rate(s)
borne by the Advances, other than decreases in the interest rate(s) borne by the
Advances by virtue of any decreases or changes in the LIBOR as expressly
contemplated herein, (iv) any reduction in the amount of the installments of
principal due under this Credit Agreement or the Notes or in the aggregate
principal amount of principal due thereunder, (v) any extension of the
Termination Date or the due dates of any installments of principal of and/or
accrued interest on the Notes, (vi) any change in the definition of the term
Requisite Banks or any of the various advance sublimits, (vii) any change in the
amount or the calculation of the Usage Fees or Non-Usage Fee, (viii) any change
in the computation of (including any change in the definition of any term used
in) the Warehouse Borrowing Base, or (ix) any amendment to SECTIONS 2.7, 2.16,
9.15 AND 9.18 hereof or this SECTION 9.20 or any other section of this Credit
Agreement that expressly requires the consent of all of the Banks. In addition
to the foregoing, and notwithstanding anything in this Credit Agreement to the
contrary, no amendment, modification or waiver shall increase a Bank's Warehouse
Line Commitment without the prior written consent of the Company, the Agent and
such Bank; provided, however, the consent of the other Banks shall not be
required to implement an increase to the Total Warehouse Line Commitment whether
such increase shall be on a temporary or permanent basis. Further,
notwithstanding anything to the contrary in this SECTION 9.20 or elsewhere in
this Credit Agreement, (y) with the approval of the Requisite Banks, the Agent
may temporarily waive or suspend one or more of this Credit Agreement's
eligibility requirements or conditions for a particular grouping of Loans to
qualify as Eligible Collateral where their failure to so qualify is beyond the
Company's reasonable control and if the Agent and the Requisite Banks believe at
the time of such temporary waiver or suspension that the factors which
apparently caused such disqualification will be eliminated in a reasonably short
time, and (z) in addition to the provisions of the foregoing subclause (y) Agent
may, in its sole discretion, warehouse or continue to warehouse Loans
("Discretionary Loans") which would otherwise fail to qualify as Eligible
Collateral or waive or temporarily suspend or delay any obligation of the
Company hereunder in connection with such Discretionary Loans, including,
without limitation, suspension of any mandatory prepayment due in connection
with such Discretionary Loans, so long as the aggregate Advances outstanding at
any one time against such Discretionary Loans shall not exceed Five Million
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Dollars ($5,000,000.00). Each Loan which the Agent warehouses or continues to
warehouse as a particular type of Loan pursuant to subclause (y) or (z) above,
shall, for the entire time such Loan is warehoused pursuant to such subclause,
be treated as such particular type of Loan for all purposes under this Credit
Agreement and each of the other Loan Documents."
12. 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 Vision. Each
of United and Vision (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 Vision 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 Vision
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 Vision
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 Vision, each of United
and Vision waives, until the Secured Obligations have been paid in full and the
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 Vision 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 Vision 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 Vision 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 Vision or against or in payment of any or all of the Secured
Obligations."
13. The Existing Credit Agreement is hereby amended by amending and
restating EXHIBITS X, X, X-0, X-0, X-0, X-0, X-0, X, X-0 AND J-2 AND SCHEDULE
6.1 thereof to read in their entirety as set forth on EXHIBITS X, X, X-0, X-0,
X-0, X-0, X-0, X, X-0 AND J-2 AND SCHEDULE 6.1 attached to this Eighth Amendment
and made a part hereof by this reference.
14. 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 Vision or the Company shall be sent to the following address (in addition
to all other addresses currently provided therein):
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Vision Mortgage Group, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: _________________
Fax: (____) ___________
Ph: (____) ___________
15. 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.
16. This Eighth 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.
17. This Eighth Amendment shall be effective as of the date of delivery
to the Agent of each of the following: (i) this Eighth 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 Warehouse Notes and Swing
Note, each as redefined herein, each duly executed by United and Vision, (iii)
an Amended and Restated Intercreditor Agreement duly signed by the Company, the
Agent, Credit Suisse First Boston Mortgage Capital, LLC and Austin Bank of
Chicago, (iv) an amended and restated fee letter, an updated covenant compliance
certificate, updated disclosures, updated insurance certificates, updated UCC
search results and authorizing resolution, and updated authorized signer letters
from each of United and Vision, and (v) 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.
18. This Eighth 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.
19. This Eighth 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.
20. This Eighth 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 Eighth Amendment shall be enforceable unless in writing
signed by the party against whom enforcement is sought.
21. Each of United and Vision 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 Vision individually or collectively as the Company (as
redefined herein), as applicable.
22. 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 Seventeenth Amendment and shall mean United and Vision as
joint and several co-borrowers and co-debtors, as applicable. Without limiting
the generality of the foregoing, United and Vision expressly covenant and agree
that pursuant to the amendments provided for in this Seventeenth Amendment, (i)
the pledge, assignment, transfer and grant of security interest set forth in the
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Security Agreement is made by both United and Vision and (ii) the Collateral
described in the Security Agreement shall include all of the right, title and
interest of United and Vision in the property described therein. Further, United
and Vision 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
Vision as the collectively redefined "Company" herein), together with
continuation statements thereof and amendments thereto, without the signature of
either United or Vision 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 Eighth
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.
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Title: President
---------------------------
VISION MORTGAGE GROUP, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Title: Chairman
---------------------------
(collectively, the "Company")
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxx Xxxxxxxxx
Title: Senior Vice President
---------------------------
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BANK ONE, NA
By: /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------
Title: Commercial Banking Officer
---------------------------
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
---------------------------
Title: Vice President
---------------------------
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COLONIAL BANK, N.A.
By: /s/_Amy X. Xxxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
HSBC BANK USA, NA
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
---------------------------
(collectively, the "Banks")
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxx Xxxxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
(the "Agent")
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