EXHIBIT 10.5.2
THIRD AMENDMENT TO AMENDED AND RESTATED
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SERVICING SECURED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED SERVICING SECURED CREDIT
AGREEMENT (the "Amendment") is made and dated as of the 16/th/ day of January,
1998, by and among THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association ("FNBC"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, THE BANK OF NEW YORK, a banking corporation
organized under the laws of the State of New York (all of the above individually
a "Lender" and, collectively, the "Lenders"), FNBC, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), and HEADLANDS
MORTGAGE COMPANY, a California corporation (the "Company").
RECITALS
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A. Pursuant to that certain Amended and Restated Servicing Secured
Credit Agreement dated as of August 29, 1997 among the Administrative Agent, the
Lenders and the Company (as amended to date, the "Agreement"), the Lenders
agreed to extend credit to the Company on the terms and subject to the
conditions set forth therein. All capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Agreement.
B. The Company has requested certain temporary waivers and
temporary amendments to the Agreement and the Lenders have agreed thereto on
certain conditions, all as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
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1. Temporary Waivers. The Company has requested a waiver of
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compliance with certain financial covenants during the period from and including
the Effective Date (as defined in Paragraph 5 below) to but excluding February
13, 1998 (the "Waiver Termination Date"). The Lenders hereby waive, on a
temporary basis, compliance by the Company with the financial covenants set
forth in Paragraphs 8(j) (Total Liabilities to Effective Net Worth; Total
Liabilities to Adjusted Tangible Net Worth), 8(l)(2) (maximum repurchase
obligations), and 8(m) (Current Ratio) during the period from and including the
Effective Date to but excluding the Waiver Termination Date. On the Waiver
Termination Date, the Company shall be required to be back in compliance with
all such financial covenants.
2. Temporary Amendment. The Company has requested a temporary
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modification of its covenant for maximum Total Liabilities during the period
from and including the Effective
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Date to but excluding the Waiver Termination Date. The parties hereto hereby
agree that, during the period from and including the Effective Date to but
excluding the Waiver Termination Date, Paragraph 8(n) of the Agreement shall be
amended to replace the percentage "ninety-eight percent (98%)" in clause (2)
thereof with the percentage "ninety-nine percent (99%)" and to replace the
percentage "ninety-five percent (95%)" in clause (3) thereof with the percentage
"ninety-eight percent (98%)". On the Waiver Termination Date, such amendments
shall no longer be in effect and Paragraph 8(n) shall read as it did immediately
prior to such amendments.
3. Reaffirmation of Other Loan Documents. The Company hereby affirms
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and agrees that (a) the execution and delivery by the Company of and the
performance of its obligations under this Amendment shall not in any way amend,
impair, invalidate or otherwise affect any of the obligations of the Company or
the rights of the Secured Parties under the Security Agreement or any other Loan
Document, (b) the term "Obligations" as defined in Paragraph 12 of the Agreement
includes, without limitation, the Obligations of the Company under the Agreement
as amended by this Amendment, (c) the Security Agreement remains in full force
and effect and such agreement constitutes a continuing first priority security
interest in and lien upon the Collateral, and (d) for any and all purposes, any
reference to the Agreement following the effective date of this Amendment shall
constitute a reference to the Agreement as amended to date, including, without
limitation, by this Amendment.
4. Modification of Related Documents. All reports and other forms
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utilized in connection with the day-to-day operations of the credit facility
evidenced by the Agreement shall be deemed modified consistent with the
provisions of this Amendment.
5. Effective Date. This Amendment shall be effective on the
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earliest date (the "Effective Date") upon which the Administrative Agent has
received duly executed copies of this Amendment from each of the Lenders, the
Administrative Agent and the Company.
6. Representations and Warranties. The Company hereby represents and
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warrants to the Administrative Agent and the Lenders as follows:
(a) The Company has the corporate power and authority and the legal
right to execute, deliver and perform this Amendment and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Amendment. This Amendment has been duly executed and delivered on behalf of the
Company and constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms. The execution,
delivery and performance of this Amendment will not violate any Requirement of
Law or Contractual Obligation or require any consent, approval or authorization
of, or registration, declaration or filing with, any Governmental Authority.
(b) At and as of the date of execution hereof and at and as of the
effective date of this Amendment and both prior to and after giving effect
hereto: (1) the representations and warranties of the Company contained in the
Loan Documents are accurate and complete in all respects, and (2) there has not
occurred an Event of Default or Potential Default.
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7. No Other Amendment. Except as expressly amended herein, the Loan
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Documents shall remain in full force and effect as currently written.
8. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
HEADLANDS MORTGAGE COMPANY,
a California corporation
By:
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Name:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association, as
Administrative Agent and a Lender
By:
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Name:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
a national banking association, as
a Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK,
a banking corporation organized under
the laws of the State of New York,
as a Lender
By:
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Name:
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Title:
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