Exhibit 10.6
THIRD AMENDMENT TO
FACILITY I CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO FACILITY I CREDIT AGREEMENT dated as of March 15,
1996 (this "Amendment") is made by and among CWM MORTGAGE HOLDINGS, INC., a
Delaware corporation ("CWM"), INDEPENDENT NATIONAL MORTGAGE CORPORATION, a
Delaware corporation ("INMC"), and 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
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("Credit Lyonnais"), DRESDNER BANK AG, LOS ANGELES AGENCY AND GRAND CAYMAN
BRANCH, a ("Dresdner"), THE FIRST NATIONAL BANK OF CHICAGO, a
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national banking association ("FNB Chicago"), GUARANTY FEDERAL BANK F.S.B., a
("Guaranty Federal"), HIBERNIA NATIONAL BANK, a national banking
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association ("Hibernia"), NATWEST BANK N.A., a national banking association
("NatWest"), and NATIONSBANK OF TEXAS, N.A., a national banking association
("NationsBank") (First Union in its individual capacity, BNY, Credit Lyonnais,
Dresdner, FNB Chicago, Guaranty Federal, Hibernia, NatWest and NationsBank, 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 is a party to a Facility I Credit
Agreement dated as of May 30, 1995, as amended by a First Amendment to Facility
I Credit Agreement dated as of September 25, 1995 and by a Second Amendment to
Facility I Credit Agreement dated as of January 4, 1996 (as so amended, the
"Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement to provide
for the modification of various terms and covenants thereof; 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. Paragraph 1(a) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"1(a) Lending Limit. Subject to the conditions set forth
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herein, the Lenders severally agree that they shall, from time to time up
to and including the Business Day immediately preceding the Maturity Date,
advance and readvance their respective Percentage Shares of loans (the
"Tranche A Loans" or a "Tranche A Loan") to the Companies in amounts not to
exceed, in the aggregate at any one time outstanding (determined after
giving effect to the other transactions contemplated by the Loan Request
pursuant to which the applicable Tranche A Loan was requested), the lesser
of:
(1) The Aggregate Tranche A Credit Limit; and
(2) The Collateral Value of the Tranche A Borrowing Base minus
the aggregate dollar amount of Swing Line Loans outstanding which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans (and which are not being repaid
by any Tranche A Loan requested).
Provided, however, that notwithstanding anything contained herein to the
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contrary, at no time may the sum of all Tranche A Loans outstanding, all
Tranche B Loans outstanding and all Swing Line Loans outstanding exceed the
Aggregate Facility Commitment at such time."
3. Paragraph 2(a) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"2(a) Lending Limit. Subject to the conditions set forth herein,
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the Lenders severally agree that they shall, from time to time up to and
including the Business Day immediately preceding the Maturity Date, advance
and readvance their respective Percentage Shares of loans (the "Tranche B
Loans" or a "Tranche B Loan") to the Companies in amounts not to exceed, in
the aggregate at any one time outstanding (determined after giving effect
to the other transactions contemplated by the Loan Request pursuant to
which the applicable Tranche B Loan was requested), the lesser of:
(1) The Aggregate Tranche B Credit Limit; and
(2) The Collateral Value of the Tranche B Borrowing Base minus
the aggregate dollar amount of Swing Line Loans outstanding which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche B Loans (and which are not being repaid
by any Tranche B Loan requested).
Provided, however, that notwithstanding anything contained herein to the
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contrary, at no time may the sum of all Tranche A Loans outstanding, all
Tranche B Loans outstanding and all Swing Line Loans outstanding exceed the
Aggregate Facility Commitment at such time."
4. The following provisions are hereby added as a new Paragraph 2A of the
Credit Agreement:
"2A. Swing Line Facility.
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2A(a) Swing Line Lending Limit. Subject to the conditions set forth
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herein, First Union agrees that it shall, from time to time up to and including
the Business Day immediately preceding the Maturity Date, advance and readvance
loans (the "Swing Line Loans" or a "Swing Line Loan") to the Companies in
amounts not to exceed, in the aggregate at any one time outstanding, the lesser
of:
(1) The Maximum Swing Line Commitment; and
(2) (i) The sum of (A) the Collateral Value of the Tranche A
Borrowing Base and (B) the Collateral Value of the Tranche B Borrowing
Base, minus (ii) the aggregate dollar amount of Regular Loans outstanding;
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Provided, however, that:
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i. In calculating the availability of Swing Line Loans under
this Paragraph 2A(a) at any date, the aggregate amount of Swing Line Loans
outstanding shall not include any Swing Line Loans which will be repaid
with Regular Loans to be advanced on such date in accordance with the terms
of this Agreement;
ii. Notwithstanding anything contained herein to the contrary,
at no time may the sum of all Tranche A Loans outstanding, all Tranche B
Loans outstanding and all Swing Line Loans outstanding exceed the Aggregate
Facility Commitment at such time; and
iii. Notwithstanding anything contained herein to the contrary,
at no time may (A) the sum of all Swing Line Loans outstanding which have
been identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans, plus all Tranche A Loans
outstanding, exceed the lesser of the Collateral Value of the Tranche A
Borrowing Base or the Aggregate Tranche A Credit Limit; or (B) the sum of
all Swing Line Loans outstanding which have been identified by the
Companies in the applicable Loan Request as being scheduled for repayment
by Tranche B Loans, plus all Tranche B Loans outstanding, exceed the lesser
of the
Collateral Value of the Tranche B Borrowing Base or the Aggregate Tranche B
Credit Limit.
2A(b) Interest Rate. Each Swing Line Loan shall bear interest at the
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Applicable Corporate Rate which corresponds to the type of Regular Loan
identified by the Companies in the applicable Loan Request as being scheduled to
repay such Swing Line Loan.
2A(c) Payment of Interest. The Companies shall pay to the
Administrative Agent for distribution to First Union interest on Swing Line
Loans outstanding hereunder from the date disbursed to but not including the day
of payment or refunding pursuant to Paragraph 2A(d) below. Interest on Swing
Line Loans shall be payable monthly, in arrears, as provided in Paragraph 3(l)
below.
2A(d) Refunding of Swing Line Loans. Upon demand by First Union,
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Swing Line Loans shall be refunded or participations therein acquired, as
applicable, in accordance with the following provisions. Such refunding or
acquisition will occur no later than 4:00 p.m. (Charlotte, North Carolina time)
on the day of such demand if made before 2:00 p.m. (Charlotte, North Carolina
time) and no later than 12:00 noon (Charlotte, North Carolina time) on the next
succeeding Business Day if demand therefor is made after 2:00 p.m. (Charlotte,
North Carolina time).
(1) Prior to the occurrence of an Event of Default or Potential
Default, Swing Line Loans shall be refunded by the Lenders. Such refundings
shall be made by the Lenders in accordance with their respective Percentage
Shares and shall, thereafter, be reflected as actual Regular Loans of the
Lenders on the books and records of the Administrative Agent. The type of
Regular Loan made by the Lenders in connection with the refunding of any
Swing Line Loan shall be the type of Loan identified by the Companies in
the Loan Request for such Swing Line Loan as being scheduled to repay such
Swing Line Loan.
(2) After the occurrence of any Event of Default or Potential
Default, each Lender (other than First Union) shall irrevocably and
unconditionally purchase from First Union, without recourse or warranty
(except that such outstanding Swing Line Loans in fact were made in
accordance with the provisions of this Agreement, and are not subject to
any Liens arising out of any act of First Union), an undivided interest and
participation in any Swing Line Loans then outstanding, by paying to First
Union, in dollars immediately available to First Union, an amount equal to
such Lender's Percentage Share of such Swing Line Loans, and thereafter,
except as otherwise provided in the second succeeding sentence, the
Lenders' respective interests in such Swing Line Loans, and the remaining
interest of First Union in such Swing Line Loans, shall in all respects be
treated as Regular Loans under this Agreement of the type identified by the
Companies in the Loan Request for such Swing Line Loan as being scheduled
to repay such Swing Line Loan, but such Swing Line
Loans shall continue to be evidenced by the Note which evidences the Swing
Line Loans. If any Lender does not pay any amount which it is required to
pay to First Union, First Union shall be entitled to recover such amount on
demand from such Lender, together with interest thereon, at the Applicable
Corporate Rate, for each day from the date of such demand, if made prior to
2:00 p.m. (Charlotte, North Carolina time) on any Business Day, or, if made
after 2:00 p.m. from the next Business Day following the date of such
demand, until the date such amount is paid to First Union by such Lender.
If such Lender does not pay such amount forthwith upon First Union's demand
therefor, and until such time as such Lender makes the required payment,
First Union shall be deemed to continue to have outstanding a Swing Line
Loan in the amount of such unpaid participation obligation for all purposes
of this Agreement other than those provisions requiring such other Lender
to purchase a participation therein. First Union shall upon the request of
such Lender, furnish to such Lender a participation certificate evidencing
the participation purchased by such Lender.
(3) [Intentionally Omitted].
(4) Notwithstanding anything contained in this Agreement to the
contrary, no Lender shall be obligated to refund or acquire a participation
interest in any Swing Line Loans made by First Union unless (i) First Union
believed in good faith that all conditions specified in Paragraph 2A(a)
above and Paragraph 5 below to the making of such Swing Line Loans were
satisfied at the time such Swing Line Loans were made, or (ii) such Lender
had actual knowledge that any such condition had not been satisfied and
failed to notify First Union in writing prior to the time First Union made
such Swing Line Loan that First Union was not authorized to make a Swing
Line Loan until such condition had been satisfied, or (iii) the
satisfaction of any such condition that was not satisfied had been waived
by the requisite Lenders in accordance with the provisions of this
Agreement, or the making of such Swing Line Loan in the face of such non-
satisfied condition or conditions had been consented to by the requisite
Lenders in accordance with the provisions of this Agreement."
5. Paragraph 3(j)(1) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
(1) (a) If the Companies desire to borrow a Swing Line Loan
hereunder, the Companies shall make a Loan Request to the
Administrative Agent no later than 4:45 p.m. (Charlotte, North
Carolina time) on the proposed funding date, which Loan Request shall
identify the type of Regular Loan which is scheduled to repay such
Swing Line Loan. First Union shall make available the amount of the
proposed Swing Line Loan by crediting the amount
thereof in immediately available same day funds to the Funding Account
on such date.
(b) If the Companies desire to borrow a Corporate Rate Loan
(other than a Swing Line Loan) hereunder, the Companies shall make a
Loan Request to the Administrative Agent no later than 2:00 p.m.
(Charlotte, North Carolina time) on the proposed funding date, which
Loan Request shall be forwarded promptly by the Administrative Agent
to the Lenders by facsimile transmission no later than 2:45 p.m.
(Charlotte, North Carolina time) on such date. The applicable Lenders
shall make available the amount of their respective Percentage Shares
of the proposed Corporate Rate Loan by crediting the amount thereof in
immediately available same day funds to the Funding Account no later
than 3:30 p.m. (Charlotte, North Carolina time) on such date."
6. Paragraph 3(j)(3) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"(3) Each Corporate Rate Loan (other than a Swing Line Loan) and
each Eurodollar Loan shall be allocated among and funded by the Lenders in
accordance with their applicable Percentage Shares. The failure of any
Lender to make its Percentage Share of any Regular Loan to be made by it as
part of any borrowing shall not relieve any other Lender of its obligation
hereunder to advance its applicable portion of the principal amount thereof
but no Lender shall be responsible for the failure of any other Lender to
make the advance required of it."
7. Paragraph 3(k) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"3(k) Notes. The joint and several obligations of the Companies to
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repay the Loans shall be evidenced by (i) notes payable to the order of
each Lender, as applicable, in the form set forth as Exhibit A-1 in the
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Addendum, and (ii) a Facility I Swing Line Promissory Note payable to the
order of First Union, in form and content acceptable to First Union
(collectively, the "Notes")."
8. Paragraph 3(n) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"3(n) Borrowing Base Conformity; Mandatory Prepayments.
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(1) The Companies shall cause to be maintained with the
Collateral Agent a Tranche A Borrowing Base such that the Collateral Value
of the Tranche A Borrowing Base is not less than, at any date, the sum of
the aggregate dollar amount of outstanding Tranche A Loans plus the
aggregate dollar amount of outstanding Swing Line Loans which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans.
(2) The Companies shall cause to be maintained with the
Collateral Agent a Tranche B Borrowing Base such that the Collateral Value
of the Tranche B Borrowing Base is not less than, at any date, the sum of
the aggregate dollar amount of outstanding Tranche B Loans plus the
aggregate dollar amount of outstanding Swing Line Loans which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche B Loans.
(3) The Companies shall prepay Loans to the Administrative Agent
on behalf of the Lenders, upon telephonic or facsimile demand by the
Administrative Agent, on any day (A) in the amount by which the aggregate
principal amount of outstanding Tranche A Loans, plus the aggregate
principal amount of outstanding Swing Line Loans which have been identified
by the Companies in the applicable Loan Request as being scheduled for
repayment by Tranche A Loans, exceeds the Collateral Value of the Tranche A
Borrowing Base, (B) in the amount by which the aggregate principal amount
of outstanding Tranche B Loans, plus the aggregate principal amount of
outstanding Swing Line Loans which have been identified by the Companies in
the applicable Loan Request as being scheduled for repayment by Tranche B
Loans, exceeds the Collateral Value of the Tranche B Borrowing Base, or
(C) in the amount by which the sum of the aggregate principal amount of
outstanding Tranche A Loans, Tranche B Loans and Swing Line Loans exceeds
the Aggregate Facility Commitment; said prepayment to be made on the date
on which demand is made by the Administrative Agent if made prior to 12:00
p.m. (Charlotte, North Carolina time) or, if made later than 12:00 p.m.
(Charlotte, North Carolina time), before 12:00 p.m. (Charlotte, North
Carolina time) on the next Business Day.
(4) The Companies shall prepay Corporate Rate Loans to the
Administrative Agent on behalf of Lenders, upon telephonic or facsimile
demand by the Administrative Agent, on any day in the amount equal to the
lesser of (y) the aggregate principal amount of outstanding Loans or (z)
the amount by which 1. the maximum amount which may be outstanding at any
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time as Tranche A Loans and Tranche B Loans under the Facility
II Agreement exceeds 2. the aggregate principal amount of outstanding
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Tranche A Loans and Tranche B Loans under the Facility II Agreement;
provided, however, that in no event shall this Paragraph 3(n)(4) be
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construed to require the Companies to prepay Eurodollar Loans prior to the
expiration of the applicable Interest Period therefor.
(5) If at such time as the Companies shall be required to prepay
Loans under this Paragraph 3(n) there shall not have occurred and be
continuing an Event of Default, in lieu of prepaying the Loans as required,
the Companies may deliver to the Collateral Agent or the Administrative
Agent, as applicable, additional Collateral such that after giving effect
to the inclusion of such Collateral in the respective borrowing bases, the
Companies shall be in compliance with the requirements of subparagraphs
(1) and (2) above."
9. Paragraph 3(o) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"3(o) Nature and Place of Payments. All payments made on account of
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the Obligations shall be made to the Administrative Agent for distribution
to the Lenders, and the Administrative Agent is hereby irrevocably
authorized to debit the Settlement Account and distribute amounts held
therein as provided in Paragraph 3(s) below on account thereof. All
payments made on account of the Obligations shall be made without setoff or
counterclaim in lawful money of the United States of America in immediately
available same day funds, free and clear of and without deduction for any
taxes, fees or other charges of any nature whatsoever imposed by any taxing
authority. If such payments (other than principal payments made via wire
transfers under the Federal Reserve System on Swing Line Loans held solely
by First Union, i.e., the other Lenders have not purchased participations
therein pursuant to Paragraph 3A(d)(2) above) are received by the
Administrative Agent by 3:30 p.m. on any Business Day (Charlotte, North
Carolina time) such payment will be credited on such Business Day. If a
payment (other than principal payments made via wire transfers under the
Federal Reserve System on Swing Line Loans held solely by First Union) is
received after 3:30 p.m. (Charlotte, North Carolina time) by the
Administrative Agent, such payment will be credited on the next succeeding
Business Day and interest thereon shall be payable at the then applicable
rate until credited, provided, that the Administrative Agent shall use its
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best efforts to credit such payment on the Business Day received. Principal
payments via wire transfers under the Federal Reserve System on Swing Line
Loans held solely by First Union will be credited
as of the Business Day on which First Union receives credit for such funds
in its account with the Federal Reserve Bank. All amounts received by the
Administrative Agent on account of the Obligations shall be disbursed by
the Administrative Agent to the applicable Lenders by wire transfer on the
date of receipt if received by the Administrative Agent by the applicable
deadline for payment thereof as specified above, or if received later, on
the next succeeding Business Day. If any payment required to be made by the
Companies hereunder becomes due and payable on a day other than a Business
Day, the due date thereof shall be extended to the next succeeding Business
Day and interest thereon shall be payable at the then applicable rate
during such extension."
10. Paragraph 3(s) of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"3(s) Allocation of Payments Received.
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(1) Prior to the occurrence of an Event of Default and
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, principal amounts
received by the Administrative Agent with respect to Loans shall be
allocated (i) first, to First Union in payment of any Swing Line Loans
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which have not been refunded with Regular Loans, then (ii) next, among the
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Lenders on account of the Obligations pro rata in accordance with their
respective Percentage Shares.
(2) Following the occurrence of an Event of Default and
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, all amounts received
by the Administrative Agent on account of the Obligations shall be
disbursed by the Administrative Agent as follows:
(i) First, to the payment of reasonable costs and
expenses incurred by the Administrative Agent and Collateral Agent in the
performance of their duties and enforcement of their rights under the
Credit Documents, including, without limitation, all reasonable costs and
expenses of collection, reasonable attorneys' fees, court costs and
foreclosure expenses;
(ii) Second, to First Union in payment of any
Swing Line Loans outstanding (A) in which the Lenders are obligated to
purchase participations pursuant to the terms and provisions of Paragraph
2(A)(d)(2) above, (B) which have not been refunded with Regular Loans, and
(C) in which participations have not
been purchased by the Lenders pursuant to the terms and provisions of
Paragraph 2A(d)(2) above;
(iii) Third, to the Lenders, pro rata in
accordance with their respective Repayment Shares, until the outstanding
Loans and other Obligations shall have been paid in full, provided that all
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such amounts described herein shall be applied first to interest and then
to principal, as applicable, provided further that for the sole purpose of
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this Paragraph 3(s)(2)(iii), the Lenders' respective Repayment Shares shall
be adjusted to take into account interest which may be owing to any Lender
at a rate determined pursuant to the provisions of Paragraph 3(u) below,
and provided further that for the sole purpose of this Paragraph
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3(s)(2)(iii), First Union's Repayment Share shall be adjusted to exclude
Swing Line Loans outstanding which, by application of Paragraph 2A(d)(4)
above, the Lenders are not obligated to refund;
(iv) Fourth, to First Union in payment of any
Swing Line Loans outstanding which, by application of Paragraph 2A(d)(4)
above, the Lenders are not obligated to refund; and
(v) Fifth, to such Persons as may be legally
entitled thereto."
11. Paragraph 8(g) of the Credit Agreement is hereby amended by deleting
the ratio "XX.X:1.0" contained therein and substituting the ratio "XX.X:1.0" in
lieu thereof.
12. Paragraph 9 of the Credit Agreement is hereby amended by adding the
following sentence to the end of the last paragraph thereof:
"Provided, however, that no Lender will be required to purchase a
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participation in a Swing Line Loan which, by application of Paragraph
2A(d)(4) above, it would not have been obligated to refund."
13. The definition of the term "Aggregate Facility Commitment" contained
in Paragraph 12 of the Credit Agreement is hereby deleted in its entirety and
the following definition is hereby substituted in lieu thereof:
"'Aggregate Facility Commitment' shall mean, at any time, the sum of the
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Lenders' Maximum Commitments at such time; provided that such sum shall not
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exceed $XXX,XXX,XXX at any time."
14. The definitions of the terms "Corporate Rate Loan" and "Corporate Rate
Loans" contained in Paragraph 12 of the Credit agreement are hereby deleted in
their entireties and the following definitions are hereby substituted in lieu
thereof:
"'Corporate Rate Loan' shall mean a Tranche A Corporate Rate Loan, a
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Tranche B Corporate Rate Loan or a Swing Line Loan, as applicable."
"'Corporate Rate Loans' shall mean, collectively, Tranche A Corporate Rate
--------------------
Loans, Tranche B Corporate Rate Loans and Swing Line Loans."
15. The definition of the term "Eurodollar Rate" contained in Paragraph 12
of the Credit Agreement is hereby deleted in its entirety and the following
definition is hereby substituted in lieu thereof:
"'Eurodollar Rate' shall mean, with respect to any Eurodollar Loan for the
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Interest Period applicable to such Eurodollar Loan, the arithmetic average
of the rates at which deposits in immediately available U.S. dollars in an
amount equal to the aggregate amount of Eurodollar Loans proposed to be
subject to such rates having a maturity approximately equal to such
Interest Period are offered to or by reference banks in the London
interbank market, as determined by the Administrative Agent by reference to
page 3750 or 4833, as applicable, of the Telerate Systems Incorporated
screen service as of 11:00 a.m. (London time) two Eurodollar Business Days
prior to the first day of such Interest Period."
16. The definitions of the terms "Loan" and "Loans" contained in Paragraph
12 of the Credit Agreement are hereby deleted in their entireties and the
following definitions are hereby substituted in lieu thereof:
"'Loan' shall mean a Tranche A Loan, a Tranche B Loan or a Swing Line Loan,
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as applicable."
"'Loans' shall mean, collectively, Tranche A Loans, Tranche B Loans and
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Swing Line Loans."
17. The following definitions of the terms "Maximum Swing Line
Commitment", "Regular Loan", "Regular Loans", "Swing Line Loan" and "Swing Line
Loans" are hereby added to Paragraph 12 in correct alphabetical order as
follows:
"'Maximum Swing Line Commitment' shall mean with respect to First Union the
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lesser of (i) the excess of its Maximum Commitment over its Percentage
Share of all Regular Loans outstanding, or (ii) the excess of $XX,XXX,XXX
over the aggregate principal amount of outstanding Swing Line Loans under
the Facility II Agreement."
"'Regular Loan' shall mean a Tranche A Loan or a Tranche B Loan, as
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applicable."
"'Regular Loans' shall mean, collectively, Tranche A Loans and Tranche B
-------------
Loans."
"'Swing Line Loan' and 'Swing Line Loans' shall have the meanings given
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such terms in Paragraph 2A(a) above."
18. The Commitment Schedule (Facility I Credit Agreement) contained as
Schedule I-1 to the Addendum is hereby deleted and the Commitment Schedule
(Facility I Credit Agreement) attached as EXHIBIT A to this Amendment is
substituted therefor.
19. 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 I Swing Line Promissory Note of even date herewith, as duly
executed by the Companies, such note to be payable by the Companies to the
order of First Union and to be in the form of ANNEX I hereto; and
(C) 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
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 AND
GRAND CAYMAN BRANCH
By: /s/ Sidney S. Jordan
Name: Sidney S. Jordan
Title: Vice President
By: /s/ Vitol Wiacek
Name: Vitol Wiacek
Title: Asst. Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Ann H. Chudacoff
Name: Ann H. Chudacoff
Title: Vice President
GUARANTY FEDERAL BANK F.S.B.
By: /s/ Abbie Y. Tidmore
Name: Abbie Y. Tidmore
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Edward K. Santos
Name: Edward K. Santos
Title: Vice President
NATWEST BANK N.A.
By: /s/ Robert L. Klein
Name: Robert L. Klein
Title: Assistant Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Mary Pat Riggins
Name: Mary Pat Riggins
Title: Vice President