EXHIBIT 10.25
FIFTH AMENDMENT TO
AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
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THIS FIFTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT (the "Fifth Amendment") is made and entered into as of the 15th
day of April, 2004, by and among (i)UNITED FINANCIAL MORTGAGE CORP., an
Illinois corporation with its principal place of business located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("United" or the
"Company"), (ii) (a) NATIONAL CITY BANK OF KENTUCKY, a national banking
association with a place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇:
3256, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Comerica"), and (d) COLONIAL BANK, N.A., a
national banking association with a principal place of business located at
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Colonial")
(National City, Bank One, Comerica and Colonial 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 Bank (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 (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 Ninety-Five Million Dollars ($95,000,000.00) (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 to temporarily increase the maximum principal
amount of the Warehouse Line to One Hundred Ten Million Dollars
($110,000,000.00) to and until the close of business on June 14, 2004.
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:
"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
Ten Million Dollars ($110,000,000.00) to and until the close of business on
June 14, 2004, or (ii) Ninety-Five Million Dollars ($95,000,000.00) from
June 15, 2004 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 Ten Million Dollars ($110,000,000.00) to and until the close of
business on June 14, 2004, or (ii) Ninety-Five Million Dollars
($95,000,000.00) from June 15, 2004 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 April 15, 2004,
made by the Company, payable to the order of National City, in the current
principal amount of Fifty Million Dollars ($50,000,000.00), 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 Warehouse Promissory Note
dated as of August 1, 2003, jointly and severally made by United and
Portland Mortgage Company ("Portland"), 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 Warehouse Promissory Note dated as of August 1, 2003, jointly and
severally made by United and Portland, 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, (iv) that certain Warehouse Promissory
Note dated as of August 1, 2003, jointly and severally made by United and
Portland, 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 (v) 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, as applicable,
either (i) One Hundred Ten Million Dollars ($110,000,000.00) to and until
the close of business on June 14, 2004, or (ii) Ninety-Five Million Dollars
($95,000,000.00) from June 15, 2004 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. The Existing Credit Agreement is hereby amended by amending and
restating Exhibit C-1 and Schedule 2.1 thereof to read in their entirety as
set forth on Exhibit C-1 and Schedule 2.1 attached to this Fifth Amendment
and made a part hereof by this reference.
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 Fifth 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 Fifth Amendment shall be effective as of the date of delivery
to the Agent of each of the following: (i) this Fifth 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 related Amended
and Restated Warehouse Promissory Note, duly executed by the Company,
payable to National City, (iii) payment to each of the Banks of an amendment
fee equal to Three Hundred Seventy Five Dollars ($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. The Agent and the Banks may in their sole discretion
permit this Fifth Amendment to become effective prior to the actual delivery
of the aforementioned amendment fee to each Bank; provided, however, in such
event, the Company agrees and covenants to pay such fee to the Agent for the
benefit of the Banks promptly upon receipt of an invoice with respect
thereto.
8. This Fifth 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 Fifth 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 Fifth 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 Fifth Amendment shall be enforceable unless in writing
signed by the party against whom enforcement is sought.
11. The Company 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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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: _______________________________________
Title: ______________________________________
(the "Company")
NATIONAL CITY BANK OF KENTUCKY
By: ______________________________________
Title: _____________________________________
BANK ONE, NA
By: ________________________________________
Title: _______________________________________
COMERICA BANK
By: ________________________________________
Title: _______________________________________
COLONIAL BANK, N.A.
By: ________________________________________
Title: _______________________________________
(collectively, the "Banks")
NATIONAL CITY BANK OF KENTUCKY
By: _____________________________________
Title: ____________________________________
(the "Agent")
AMENDED AND RESTATED WAREHOUSE PROMISSORY NOTE
$50,000,000.00 Louisville, Kentucky
April 15, 2004
For value received, UNITED FINANCIAL MORTGAGE CORP., an Illinois
corporation with its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Maker"), hereby promises
and agrees to pay to the order of NATIONAL CITY BANK OF KENTUCKY, a national
banking association with its principal office and place of business in
Louisville, Kentucky (the "Payee"), on or before the Termination Date (as
defined in the Credit Agreement defined below), the principal sum of Fifty
Million Dollars ($50,000,000.00), or so much thereof as may be advanced to
the Maker by the Payee as "Warehouse Advances" or "Excess Advances" under
the Credit Agreement; provided, however, not more than Thirty-Five Million
Dollars ($35,000,000.00) may be advanced to the Maker by the Payee as
"Warehouse Advances" or "Excess Advances" under the Credit Agreement from
and after the close of business on June 14, 2004.
This Note is one of the Maker's "Warehouse Notes" referred to in and is
issued pursuant to and is entitled to the benefits of that certain Amended
and Restated Warehousing Credit Agreement dated August 1, 2003 entered into
by and among the Maker, the Bank or Banks party thereto (including the
Payee) and National City Bank of Kentucky, as agent for the Banks (the
"Agent") (as amended, restated, supplemented or otherwise modified from time
to time, collectively, the "Credit Agreement"; capitalized terms used herein
without definition shall have the meanings assigned those terms in the
Credit Agreement).
The unpaid principal balance of this Note, as the same shall exist from
time to time, shall bear interest at the rates and in the manner set forth
in the Credit Agreement. All payments of principal on this Note that are
not paid when due and, to the extent permitted by applicable law, any
interest payments on this Note or any fees or other amounts owed hereunder
or under the Credit Agreement not paid when due, in each case whether at
stated maturity, by notice of prepayment, by acceleration or otherwise,
shall thereafter bear additional interest at the Default Rate until paid in
full. Interest on delinquent principal and interest shall be payable on
demand. In no event shall such rate exceed the maximum rate allowed by law.
All interest shall be computed based upon the actual number of days elapsed
over an assumed year of three hundred sixty (360) days.
The Maker covenants and agrees, jointly and severally, to pay interest
on the unpaid principal amount of this Note until paid in full at the rates,
at the times and from the dates which shall be determined in accordance with
the provisions of Article 2 of the Credit Agreement.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at
the office of the Agent, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, or at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement. Until
notified in writing of the transfer of this Note, the Maker and the Agent
shall be entitled to deem the Payee or such person who has been so
identified by the transferor in writing to the Maker and the Agent as the
holder of this Note, as the owner and holder of this Note. Each of the
Payee and any subsequent holder of this Note agrees that before disposing of
this Note or any part thereof it will make a notation hereon or in its
records of all principal payments previously made hereunder and of the date
to which interest hereon has been paid; provided, however, that failure to
make a notation of any payment made on this Note shall not limit or
otherwise affect the obligation of the Maker hereunder with respect to
payments of principal or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the
option of the Maker as provided in Article 2 of the Credit Agreement.
This Note is subject to restrictions on transfer and assignment as
provided in the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
COMMONWEALTH OF KENTUCKY, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of the
Maker, which is absolute and unconditional, joint and several, to pay the
principal of and interest on this Note at the place, at the respective
times, and in the currency herein prescribed.
All payments made upon this Note shall be applied first to delinquent
accrued interest, if any, then to the outstanding principal balance hereof
and then to nondelinquent accrued interest hereon.
This Note is secured by the Security Agreement and each of the other
Collateral Documents.
Upon the occurrence of any Event of Default under the Credit Agreement,
or at any time thereafter, the entire unpaid principal balance of, and all
accrued interest on, this Note may become, or may be declared to be,
immediately due and payable in the manner, upon the conditions and with the
effect provided in the Credit Agreement. If this Note is placed in the
hands of an attorney for collection, or if this Note is collected through
any court, the Maker promises and agrees, jointly and severally, to pay to
the Agent and the Payee all reasonable costs and expenses of collection
permitted by law, including, but not limited to, attorneys' fees and court
costs as provided in the Credit Agreement.
Failure of the Agent or the Payee to exercise any of its rights and
remedies hereunder, or under the Credit Agreement, the Security Agreement or
the other Loan Documents, shall not constitute a waiver of the right to
exercise the same at that or any other time. All remedies of the Agent and
the Payee in the event of a breach or default hereunder or under any of the
instruments referred to herein shall be cumulative to the fullest extent
permitted by law. Time shall be of the essence with respect to all of the
Maker's obligations hereunder.
The Maker hereby waives presentment, demand, notice of dishonor,
protest, notice of protest, and nonpayment and all exemptions to which it
may be entitled under the laws of the Commonwealth of Kentucky, the State of
Illinois or any other state of the United States, or of the United States,
and further agrees that the holder hereof shall have the right, subject to
the provisions of the Credit Agreement, to grant the Maker any extension of
time for payment of this Note, to modify the terms of any of the instruments
referred to herein with the consent of all other parties thereto, or to
release any party liable hereon without in any way affecting the liability
of the Maker or any other parties liable for payment of this Note.
This Note is an amendment, restatement and renewal of that certain
Warehouse Promissory Note dated March 16, 2001, made by the Maker payable to
the order of the Payee, as heretofore amended, restated, modified, renewed,
replaced and supplemented from time to time (collectively, the "Existing
Note"), and the execution, delivery and performance of this Note is not and
shall not be deemed to be a novation of the Existing Note or the
indebtedness evidenced thereby. The Maker hereby acknowledges and agrees
that it has knowingly and voluntarily entered into this Note as an amendment
and restatement of the Existing Note.
THE MAKER AND THE PAYEE HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE
OR THE OTHER LOAN DOCUMENTS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. THE MAKER AND THE PAYEE ACKNOWLEDGE
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH SUCH PARTY TO ENTER INTO
A BUSINESS RELATIONSHIP, AND THAT EACH OF THE MAKER AND THE PAYEE HAS
ALREADY RELIED ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS WITH THE OTHER.
THE MAKER AND THE PAYEE FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE OR THE OTHER
LOAN DOCUMENTS. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF, the Maker has caused this Note to be executed and
delivered by its duly authorized officer as of the day and year first
written above.
UNITED FINANCIAL MORTGAGE CORP.
By: _______________________________
Title: ______________________________
(the "Maker")