EXHIBIT 10.5
SECOND AMENDMENT TO
FACILITY II CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO FACILITY II CREDIT AGREEMENT dated as of January
4, 1996 (this "Amendment") is made by and among CWM MORTGAGE HOLDINGS, INC., a
Delaware corporation ("CWM"), INDEPENDENT NATIONAL MORTGAGE CORPORATION, a
Delaware corporation ("INMC"), INDEPENDENT LENDING CORPORATION, a Delaware
corporation ("ILC" and, together with CWM and INMC, the "Companies"), FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association ("First
Union") in its individual capacity, THE BANK OF NEW YORK, a New York banking
corporation ("BNY"), CREDIT LYONNAIS, CAYMAN ISLANDS BRANCH, a ______________
("Credit Lyonnais"), THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association ("FNB Chicago"), GUARANTY FEDERAL BANK F.S.B., a _____________
("Guaranty Federal"), HIBERNIA NATIONAL BANK, a national banking association
("Hibernia"), NATWEST BANK N.A., a national banking association ("NatWest"),
NATIONSBANK OF TEXAS, N.A., a national banking association ("NationsBank") and
DRESDNER BANK AG, LOS ANGELES AGENCY & GRAND CAYMAN BRANCH, a __________
("Dresdner") (First Union in its individual capacity, BNY, Credit Lyonnais, FNB
Chicago, Guaranty Federal, Hibernia, NatWest, NationsBank and Dresdner, each
together with its permitted successors and assigns, a "Lender" and,
collectively, the "Lenders"), and First Union as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
STATEMENT OF PURPOSE
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WHEREAS, each of the parties hereto other than Dresdner are parties to a
Facility II Credit Agreement dated as of May 30, 1995, as amended by a First
Amendment to Facility II Credit Agreement dated as of September 25, 1995 (as so
amended, the "Credit Agreement"); and
WHEREAS, Dresdner has become a party to and a Lender under the Credit
Agreement and all other agreements and documents entered into in connection
therewith pursuant to the terms of Paragraph 15(i) of the Credit Agreement, as
evidenced by that certain Assignment Agreement of even date herewith between
Dresdner and First Union (the "Assignment"), such Assignment being in the form
attached as ANNEX I hereto; and
WHEREAS, the parties hereto wish to amend the Credit Agreement to provide
for the inclusion of Dresdner as a party thereto and a Lender thereunder; and
WHEREAS, subject to and upon the terms and conditions herein set forth, the
Lenders are willing to make available, and to continue to make available, to the
Companies the credit facilities provided for in the Credit Agreement, as amended
hereby;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, and for good and valuable consideration,
the receipt and sufficiency of which are acknowledged by the parties hereto, the
parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall have
the respective meanings provided to such terms in the Credit Agreement, as
amended hereby.
2. The Credit Agreement is hereby amended to include, as a party thereto,
Dresdner, and the term "Lenders" as defined in the preamble to and Paragraph 16
of the Credit Agreement is hereby amended to include Dresdner, and as of the
date hereof, Dresdner shall be deemed to be a "Lender" under the Credit
Agreement and under each agreement and document entered into in connection
therewith.
3. The Commitment Schedule (Facility II Credit Agreement) contained as
Schedule I-2 to the Addendum is hereby deleted and the Commitment Schedule
(Facility II Credit Agreement) attached as EXHIBIT A to this Amendment is
substituted therefor.
4. The Schedule of Addresses contained as Schedule II to the Addendum is
hereby deleted and the Schedule of Addresses attached as EXHIBIT B to this
Amendment is substituted therefor.
5. This Amendment shall become effective as of the date hereof, provided
that the Administrative Agent shall have received by such date the following
items:
(A) A copy of this Amendment executed by each of the Companies, each of
the Lenders, and the Administrative Agent (whether such parties shall have
signed the same or different copies);
(B) A Facility II Promissory Note of even date herewith, as duly executed
by the Companies, such note to be payable by the Companies to the order of
Dresdner and to be in the form of ANNEX II hereto (such note being
considered to be a Note for all purposes);
(C) A copy of the Assignment, as duly executed by First Union and
Dresdner and acknowledged by the Companies and the Administrative Agent;
and
(D) Certificates of even date herewith signed by the President or any Vice
President of each of CWM, INMC and ILC, and attested to by the Secretary or
any Assistant Secretary of each of CWM, INMC and ILC, certifying that (i)
the Articles, Bylaws and resolutions of each such party previously
delivered to the Administrative Agent remain in full force and effect
except as provided therein, (ii) such party remains in good standing, (iii)
all representations and warranties of such party previously made to the
Lenders remain true, complete and accurate, and (iv) no Event of Default or
Potential Default has occurred and is continuing under any of the Credit
Documents.
6. The parties hereto agree and acknowledge that on the date hereof, to the
extent necessary, the Administrative Agent shall reallocate the Loans made by
First Union and outstanding on such date among all the Lenders so that as of
such date the ratios of (i) the aggregate principal amount of Tranche A Loans
outstanding from any Lender to the aggregate principal amount of Tranche A Loans
outstanding from all the Lenders, (ii) the aggregate principal amount of Tranche
B Loans outstanding from any Lender to the aggregate principal amount of Tranche
B Loans outstanding from all the Lenders, (iii) the aggregate principal amount
of Tranche C Loans outstanding from any Lender to the aggregate principal amount
of Tranche C Loans outstanding from all the Lenders, (iv) the aggregate
principal amount of Tranche D Loans outstanding from any Lender to the aggregate
principal amount of Tranche D Loans outstanding from all the Lenders, (v) the
aggregate principal amount of Tranche E Loans outstanding from any Lender to the
aggregate principal amount of Tranche E Loans outstanding from all the Lenders,
and (vi) the aggregate principal amount of Tranche F Loans outstanding from any
Lender to the aggregate principal amounts of all Tranche F Loans outstanding
from all the Lenders, shall be equal to the ratio of such Lender's Maximum
Commitment to the Aggregate Facility Commitment after giving effect to this
Amendment, and the Lenders shall make such payments among themselves as may be
necessary to effect such transactions.
7. This Amendment is limited and, except as set forth herein, shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement, or any other document or instrument entered into in connection
therewith.
8. This Amendment may be executed in any number of counterparts by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which together
shall constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Companies and the Administrative Agent.
9. This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the State of
North Carolina.
10. From and after the date hereof, all references in the Credit Agreement,
and any other document or instrument entered into in connection therewith, to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby. Dresdner hereby assumes, and agrees to be bound under and by,
the terms of the Credit Agreement and all agreements and documents entered into
in connection therewith from and after the date hereof. Dresdner shall be
considered to be a "Lender" for all purposes under the Security Agreement, the
Uniform Commercial Code financing statements filed pursuant thereto, the
Custodial Agreement and the other Credit Documents.
11. THE LENDERS, THE ADMINISTRATIVE AGENT, AND THE COMPANIES EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AMENDMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE ADMINISTRATIVE
AGENT TO ENTER INTO THIS AMENDMENT.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
CWM MORTGAGE HOLDINGS, INC.
By: /s/ Michael W. Perry
Name: Michael W. Perry
Title: Exec. Vice President &
Chief Operating Officer
INDEPENDENT NATIONAL MORTGAGE CORPORATION
By: /s/ Michael W. Perry
Name: Michael W. Perry
Title: President & Chief Executive
Officer
INDEPENDENT LENDING CORPORATION
By: /s/ Michael W. Perry
Name: Michael W. Perry
Title: President & Chief Executive
Officer
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
as Administrative Agent and as a Lender
By: /s/ Carolyn Eskridge
Name: Carolyn Eskridge
Title: SVP
THE BANK OF NEW YORK
By: /s/ Cynthia E. Crites
Name: Cynthia E. Crites
Title: AVP
CREDIT LYONNAIS, CAYMAN ISLANDS BRANCH
By: /s/ William J. Fischer
Name: William J. Fischer
Title: Authorized Signatory
DRESDNER BANK AG, LOS ANGELES
AGENCY & GRAND CAYMAN BRANCH
By: /s/ Vitol Wiacek
Name: Vitol Wiacek
Title: Assistant Vice President
By: /s/ Dennis G. Blank
Name: Dennis G. Blank
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ J.S. Winn, Jr.
Name: J.S. Winn, Jr.
Title: SVP
GUARANTY FEDERAL BANK F.S.B.
By: /s/ Abbie Y. Tidmore
Name: Abbie Y. Tidmore
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Colleen Lacy
Name: Colleen Lacy
Title: Vice President
NATWEST BANK N.A.
By: /s/ Robert L. Klein
Name: Robert L. Klein
Title: AVP
NATIONSBANK OF TEXAS, N.A.
By: /s/ Mary Pat Riggins
Name: Mary Pat Riggins
Title: Vice President