EXHIBIT 10.33
NINTH AMENDMENT TO
AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
THIS NINTH AMENDMENT TO AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
(the "Ninth Amendment") is made and entered into as of the 21st day of October,
2004, by and among (i) (a) UNITED FINANCIAL MORTGAGE CORP., an Illinois
corporation with its principal place of business located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("United"), and (b) VISION MORTGAGE GROUP,
INC., a Wisconsin corporation with its principal place of business located at
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Vision") (collectively, 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"), (d) COLONIAL BANK, N.A., a national
banking association with a principal place of business located at ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Colonial"), and (e) HSBC BANK USA,
NATIONAL ASSOCIATION, a national banking association with its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("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) modify certain pricing provisions of the Existing Credit Agreement,
(iii) modify certain covenants contained in the Existing Credit Agreement, 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.
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 has been underwritten
using the underwriting criteria of (x) ▇▇▇▇▇▇ Mae's delegated underwriting, (y)
FHLMC's loan processor, or (z) a contract underwriter of a national private
mortgage insurer being eligible for sale to Approved Investors as 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.
"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, an 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 Repurchase
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
2
(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 ▇▇▇▇▇▇ 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 one hundred percent (100%), (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 October 21, 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 October 21, 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 and Restated
Warehouse Promissory Note dated as of October 21, 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 October 21, 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 October 21, 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 October 21, 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."
3
"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 ▇▇▇▇▇ 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 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")."
4
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
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:
5
"(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 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. The Existing Credit Agreement is hereby amended by amending and
restating Exhibits ▇, ▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇-▇ and J-2 and Schedule
6.1 thereof to read in their entirety as set forth on Exhibits ▇, ▇, ▇-▇, ▇-▇,
▇-▇, ▇-▇, ▇-▇, ▇, ▇-▇ and J-2 and Schedule 6.1 attached to this Ninth Amendment
and made a part hereof by this reference.
6
13. 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.
14. This Ninth 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.
15. This Ninth Amendment shall be effective as of the date of delivery to
the Agent of each of the following: (i) this Ninth 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.
16. This Ninth 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.
17. This Ninth 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.
18. This Ninth 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 Ninth Amendment shall be enforceable unless in writing
signed by the party against whom enforcement is sought.
19. 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.
20. 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 Ninth 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 Ninth Amendment, (i) the pledge,
assignment, transfer and grant of security interest set forth in the 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.
7
[The remainder of this page has been intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Ninth 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: __________________________________
VISION MORTGAGE GROUP, INC.
By: _____________________________________
Title: __________________________________
(collectively, the "Company")
NATIONAL CITY BANK OF KENTUCKY
By: _____________________________________
Title: __________________________________
BANK ONE, NA
By: _____________________________________
Title: __________________________________
COMERICA BANK
By: _____________________________________
Title: __________________________________
9
COLONIAL BANK, N.A.
By: _____________________________________
Title: __________________________________
HSBC BANK USA
By: _____________________________________
Title: __________________________________
(collectively, the "Banks")
NATIONAL CITY BANK OF KENTUCKY
By: _____________________________________
Title: __________________________________
(the "Agent")
10