Exhibit 4(k)
AMENDMENT NO. 1 TO WAREHOUSE CREDIT AGREEMENT
THIS AGREEMENT is made as of this 16th day of Oct, 1993, by and between
MARKET STREET MORTGAGE CORPORATION (the "Borrower") and GE CAPITAL MORTGAGE
SERVICES, INC. (the "Lender").
BACKGROUND
The Borrower and the Lender entered into a Warehouse Credit Agreement,
dated as of July 30, 1993 (the "Warehouse Credit Agreement") pursuant to which
the Lender agreed to make advances (the "Advances") to the Borrower in the
maximum aggregate outstanding principal amount of $85,000,000 in accordance
with the provisions of the Warehouse Credit Agreement. All capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Warehouse Credit Agreement.
The Advances are evidenced by the Borrower's promissory note dated as of
July 30, 1993 (the "Note") in the stated principal amount of $85,000,000, and
secured by, among other things, a Warehouse Security Agreement dated as of
July 30, 1993 (the "Warehouse Security Agreement") between the Borrower and
the Lender granting the Lender a security interest in certain of the
Borrower's assets.
The Borrower and the Lender now desire to amend the Warehouse Credit
Agreement to provide for a new category of mortgage loan against which the
Borrower may request Advances.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Warehouse Credit Agreement. The Warehouse Credit Agreement is
hereby amended as follows:
a) The definition of "Mortgage Loan" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
"Mortgage Loan" shall mean a loan evidenced by a Mortgage Note and secured
by a Mortgage encumbering a completed one to four family residential
property (including, without limitation, condominium units and excluding
cooperative ownership interests); provided, however, that each loan listed
on Schedule X shall constitute a Mortgage Loan if such loan is evidenced
by a Mortgage Note and secured by a Mortgage encumbering a one to four
family residential property."
b) The definition of "Origination Date" contained in Section
1.01 of the Warehouse Credit Agreement is amended to read in full as follows:
"Origination Date" shall mean, with respect to any Mortgage Loan other
than a Mortgage Loan listed on Schedule X, the date such Mortgage Loan was
funded to the obliger thereon and shall mean, with respect to any Mortgage
Loan listed on Schedule X, the date on which the Lender shall make an Advance
to the Borrower against the pledge by the Borrower of such Mortgage Loan as
Collateral for such Advance."
c) Section 2.07(a) of the Warehouse Credit Agreement is
amended to read in full as follows:
"The Borrower agrees to pay interest in respect of the outstanding
principal amount of the Advances from the date the proceeds thereof are
made available to the Borrower until the maturity thereof (whether by
acceleration or otherwise) (i) with respect to Advances secured by
Mortgage Loans (other than Special Collateral or the Mortgage Loans listed
on Schedule X) or Mortgage-backed Securities, at a rate per annum equal to
the lower of (x) 2.25% in excess of the Commercial Paper Rate in effect
from time to time, and (y) 2.25% in excess of the LIBOR Rate in effect
from time to time (provided, however, that at all times that the
Commercial Paper is rated A-1 or better by S&P such rate shall in no event
be less than 1.75% in excess of the Commercial Paper Rate in effect from
time to time, (ii) with respect to Advances secured by Special Collateral,
at a rate per annum equal to .125% in excess of the Prime Lending Rate in
effect from time to time, and (iii) with respect to Advances secured by
the Mortgage Loans listed on Schedule X, at a rate per annum equal to
1.00% in excess of the Prime Lending Rate in effect from time to time".
d) Section 6.19(a), clause (vii) of the Warehouse Credit Agree-
ment is amended to read in full as follows:
"(vii) unless such Mortgage Loan is one of the Mortgage Loans listed on
Schedule X, be fully disbursed, the final disbursement to the
mortgagor in connection therewith having been made no more than 30
days prior to the date of pledge is such disbursement was made by
the Borrower (unless such Mortgage Loan is delivered as Collateral
securing the initial Advance made to the Borrower hereunder, is
delivered as Collateral securing an Advance made for the purpose of
enabling the Borrower to terminate or reduce its obligations under
each warehouse credit facility in existence on the date hereof or
is delivered as Special Collateral);"
e) There shall be added to the Warehouse Credit Agreement a
new Schedule X which shall read in full as set forth in Exhibit I attached
hereto.
2. Reference to Warehouse Credit Agreement. Except where the context
clearly requires otherwise, all references to the Warehouse Credit Agreement
in the Warehouse Credit Agreement, the Note, the Warehouse Security Agreement
and in any other document delivered to the Lender in connection therewith
shall be deemed to refer to the Warehouse Credit Agreement as amended by this
Amendment No. 1.
3. Ratification of Documents. The Borrower hereby ratifies and
confirms its obligations under the Warehouse Credit Agreement, the Note and
the Warehouse Security Agreement and agrees that the execution and delivery of
this Amendment No. 1 does not in any way diminish or invalidate any of its
obligations under the Warehouse Credit Agreement, the Note and the Warehouse
Security Agreement.
4. Representations and Warranties. The Borrower hereby certifies
that (i) the representations and warranties which it made in the Warehouse
Credit Agreement and the Warehouse Security Agreement are true and correct as
of the date hereof and (ii) no Event of Default and no event which could
become an Event of Default with the passage of time or the giving of notice,
or both, under the Note, the Warehouse Credit Agreement or the Warehouse
Security Agreement exists on the date hereof.
5. Miscellaneous.
(a) This Agreement shall be governed by the construed according
to the laws of the State of New Jersey and shall be binding upon the shall
inure to the benefit of the parties hereto, their successors and assigns.
(b) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
(CORPORATE SEAL:) MARKET STREET MORTGAGE
CORPORATION
ATTEST: By: /s/ Tracy S. Jackson
-------------------------- -------------------------
Secretary Senior Vice President
(CORPORATE SEAL:) GE CAPITAL MORTGAGE SERVICES,
INC.
ATTEST: By: /s/ William E. Mezger
-------------------------- -------------------------
Secretary Senior Vice President
AMENDMENT NO. 2 TO WAREHOUSE CREDIT AGREEMENT
AMENDMENT NO. 2 TO WAREHOUSE CREDIT AGREEMENT
("Amendment No. 2"), dated as of February 23, 1994, between MARKET STREET
MORTGAGE CORPORATION, a Michigan corporation (the "Borrower"), and GE
CAPITAL MORTGAGE SERVICES, INC., a New Jersey corporation (the "Lender")
WITNESSETH:
WHEREAS, the Borrower and the Lender entered into a Warehouse
Credit Agreement, dated as of July 30, 1993, which was amended by an
Amendment No. 1 thereto dated as of October 16, 1993 (as so amended, the
"Original Warehouse Credit Agreement"), pursuant to which the Lender has
agreed to make certain advances (the "Advances") to the Borrower in a
maximum aggregate principal amount of $85,000,000 (the Original Warehouse
Credit Agreement, as amended by this Amendment No. 2, is herein referred to
as the "Warehouse Credit Agreement"); and
WHEREAS, the Advances are evidenced by the Borrower's
promissory note dated as of July 30, 1993 (the "Note") in the stated
principal amount of $85,000,000, and are secured, among other things, by
the Warehouse Security Agreement, dated as of July 30, 1993, between the
Borrower and the Lender (as amended from time to time, the "Warehouse
Security Agreement"); and
WHEREAS, the Borrower and the Lender desire to further amend
and supplement the Original Warehouse Credit Agreement in order to provide
additional terms and conditions for the incurrence by the Borrower of
certain Advances thereunder;
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions.
(a) Definitions in Original Warehouse Credit
Agreement. All capitalized terms used in this Amendment No. 2 and not
otherwise defined herein shall have the same meanings assigned to such
terms in the Original Warehouse Credit Agreement.
(b) Amendments to Original Definitions and Exhibits.
(i) The definition of "Borrowing Base" contained
in Section 1.01 of the Original Warehouse Credit Agreement is hereby
amended in its entirety to read as follows:
"Borrowing Base" shall mean, as of any date, an amount
that is the sum of the following, with respect to all Eligible
Mortgage Loans, Special Collateral, Liquid Assets and REO
Collateral pledged to the Lender as of such date: (i) the sum for
all Conforming Loans that are Committed Mortgage Loans of the
product of (x) the Mortgage Loan Aging Percentage with respect to
such Mortgage Loan and (y) 99% of the Market Value of such
Mortgage Loan, (ii) the sum for all Conforming Loans that are
Uncommitted Mortgage Loans of the product of (x) the Mortgage
Loan Aging Percentage with respect to such Mortgage Loan and (y)
96% of the Market Value of such Mortgage Loan, (iii) the sum for
all Nonconforming Loans (each of which shall be a Committed
Mortgage Loan) of the product of (x) the Mortgage Loan Aging
Percentage with respect to such Mortgage Loan and (y) 99% of the
Market Value of such Mortgage Loan, (iv) the sum for all Mortgage
Loans that are FHA Loans, VA Loans or State Loans of the product
of (x) the Mortgage Loan Aging Percentage with respect to such
Mortgage Loan and (y) 98% of the Market Value of such Mortgage
Loan, (v) 99% of the Market Value of each Mortgage-backed
Security, (vi) the sum for all Mortgage Loans that are Special
Collateral of the product of (x) the Special Collateral Advance
Rate with respect to such Mortgage Loan and (y) the outstanding
principal amount of such Mortgage Loan, (vii) if any Liquid
Assets are so pledged, an amount equal to the lesser of (x) the
aggregate principal amount of the Liquid Assets and (y) $0, and
(viii) if any REO Collateral is so pledged, an amount equal to
100% of the Repurchase Price for all REO Loans which are included
in such REO Collateral, provided that the aggregate amount of REO
Advances outstanding at any time may not exceed $3.9 million.
(ii) The definition of "Request for Advance"
contained in Section 1.01 of the Original Warehouse Credit Agreement is
hereby amended in its entirety to read as follows:
"Request for Advance" shall mean (i) with respect to
all Advances other than REO Advances, a request for Advance
substantially in the form of Exhibit A to the Warehouse Credit
Agreement, and (ii) with respect to REO Advances, a request for
Advance substantially in the form of Exhibit A-1 to the Warehouse
Credit Agreement.
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(iii) The Original Warehouse Credit Agreement is
hereby amended to add a new Exhibit A-1, in the form attached hereto, which
shall be used by the Borrower to request REO Advances, and a new Exhibit
I-1, in the form attached hereto, which is an amendment to the Warehouse
Security Agreement.
(c) Additional Defined Terms. Section 1.01 of the
Original Warehouse Credit Agreement is hereby amended to add the following
new definitions, in the appropriate alphabetical order:
"Agency" shall mean, as the context requires, FHLMC,
FNMA or GNMA.
"Agency Agreement" shall mean the agreement or
agreements (including all exhibits and schedules attached thereto
or delivered pursuant thereto and all amendments and supplements
thereof) between the Borrower and an Agency relating to Mortgage
Loans owned by such Agency and the servicing thereof by the
Borrower or otherwise affecting the Servicing Rights associated
with such Mortgage Loans.
"Agency Requirements" shall mean the applicable rules,
regulations, directives and instructions of (i) an Agency,
including, without limitation, the applicable requirements of the
Guides and the Agency Agreements, and (ii) VA and FHA.
"Amendment No. 2" shall mean this Amendment No. 2 to
Warehouse Credit Agreement.
"Amendment No. 1 to Security Agreement" shall mean
Amendment No. 1 to Warehouse Security Agreement, dated as of
February 23, 1994, between the Borrower and the Lender.
"Custodial Agreement" shall mean, with respect to any
Mortgage Loan, the agreement or agreements governing the
retention of the originals of the Mortgage Note, the Mortgage,
any assignment of the Mortgage and any other Mortgage Loan
Documents as referred to and in accordance with the related
Agency Agreement.
"Guides" shall mean, as applicable, (i) the FHLMC
Sellers' & Servicers' Guide, (ii) the FNMA Selling Guide and the
FNMA Servicing Guide, and (iii) the GNMA Mortgage-Backed
Securities Guide, and any amendments and additions to any thereof.
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"REO Advance" shall mean an Advance made to fund, or to
reimburse the Borrower for payments previously made by the
Borrower to fund, the Repurchase Price of one or more REO Loans.
"REO Claims" shall have the meaning provided in Section
1(c) of Amendment No. 1 to the Warehouse Security Agreement.
"REO Collateral" shall have the meaning provided in
Section 2 of Amendment No. 1 to the Warehouse Security Agreement.
"REO Loan" shall mean a Mortgage Loan in respect of
which monthly payments are delinquent, and which the Borrower is
required, on account of such delinquency, to repurchase from GNMA
in accordance with Agency Requirements.
"REO Obligation" shall have the meaning provided in
Section 1(c) of Amendment No. 1 to the Warehouse Security
Agreement.
"REO Property" shall mean the real property on which a
lien has been granted pursuant to a Mortgage to secure the
repayment of an REO Loan.
"Repurchase Price" shall mean, with respect to any REO
Loan, the aggregate amount which the Borrower is required to
remit to GNMA to repurchase such REO Loan in accordance with
Agency Requirements.
"Serviced Loan" shall have the meaning provided in
Section 1(c) of Amendment No. 1 to the Warehouse Security
Agreement.
"Servicing File" shall have the meaning provided in
Section 1(c) of Amendment No. 1 to the Warehouse Security
Agreement.
"Servicing Rights" shall have the meaning provided in
Section 1(c) of Amendment No. 1 to the Warehouse Security
Agreement.
2. Amendments to Original Warehouse Credit Agreement.
(a) Section 2.01 of the Original Warehouse Credit
Agreement is hereby amended in its entirety to read as follows:
"2.01 Commitment". Subject to and upon the terms and
conditions set forth herein, the Lender agrees, at any time and
from time to time prior to the Expiry Date (or such earlier date
as the Commitment shall have been terminated pursuant to the
terms hereof), to make an
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advance or advances (each an "Advance" and, collectively, the
"Advances") to the Borrower, which Advance: (i) shall be made at
any time and from time to time in accordance with the terms
hereof on and after the Effective Date and prior to the Expiry
Date; (ii) shall bear interest as provided in Section 2.07; (iii)
may be prepaid and reborrowed in accordance with the provisions
hereof; and (iv) shall be made against the pledge by the Borrower
of Eligible Mortgage Loans, Special Collateral, Liquid Assets or
REO Collateral as Collateral for such Advance as provided herein
and in the Warehouse Security Agreement; provided, however, that
(1) the aggregate principal amount of Advances outstanding at any
time shall not exceed the lesser of (x) the Commitment and (y)
the Borrowing Base, at such time, (2) the aggregate principal
amount of Advances outstanding at any time secured by Mortgage
Loans shall not exceed 100% of the Commitment, (3) the aggregate
principal amount of Advances outstanding at any time secured by
Mortgage-backed Securities shall not exceed 0% of the
Commitment, (4) the aggregate principal amount of Wet Advances
outstanding at any time shall not exceed 40% of the Commitment,
(5) the aggregate principal amount of Advances outstanding at any
time secured by Special Collateral shall not exceed 4.7% of the
Commitment, (6) the aggregate principal amount of Advances
outstanding at any time secured by Nonconforming Loans shall not
exceed 75% of the Commitment, (7) the aggregate principal amount
of Advances outstanding at any time secured by Uncommitted
Mortgage Loans shall not exceed 3% of the Commitment, (8) the
aggregate principal amounts of Advances outstanding at any time
secured by FHA Loans, VA Loans and State Loans shall not exceed
100% of the Commitment, and (9) the aggregate principal amount of
Advances outstanding at any time secured by REO Collateral shall
not exceed 4.6% of the Commitment."
(b) Section 2.04 of the Original Warehouse Credit
Agreement is hereby amended in its entirety to read as follows:
"Whenever the Borrower desires to incur an Advance
hereunder, it shall deliver to the Lender at its office a
Request for Advance substantially in the form of either Exhibit
A or Exhibit A-1, as applicable, not later than 12:30 p.m. (New
York City time) on the Business Day prior to the proposed date
of such Advance. Each Request for Advance in the form of Exhibit
A: (i) shall be appropriately completed to specify the aggregate
principal amount of the Advance or Wet Advance to be made and the
proposed date of such Advance (which shall be a Business Day);
(ii) shall have attached thereto each of the Collateral
Documents specified therein, including, without limitation, in
the case of each Advance or Wet Advance to be secured by a pledge
of a Mortgage Loan, an assignment by the Borrower to the Lender
of the related Mortgage fully completed and in
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recordable form, and a Borrowing Base certificate substantially
in the form of Exhibit C (a "Borrowing Base Certificate"); and
(iii) shall, in the case of a Wet Advance, include instructions
with respect to the disbursement of such Wet Advance. Each
Request for Advance in the form of Exhibit A-1: (i) shall be
appropriately completed to specify the aggregate principal amount
of the REO Advance to be made and the proposed date of such REO
Advance (which shall be a Business Day); and (ii) shall have
attached thereto a description of each REO Loan the Repurchase
Price of which is to be funded by such REO Advance, which
description shall be in substantially the form of Schedule I to
Exhibit A-1."
(c) Section 2.07(a) of the Original Warehouse Credit
Agreement is hereby amended in its entirety to read as follows:
"(a) The Borrower agrees to pay interest in
respect of the outstanding principal amount of the Advances from the
date the proceeds thereof are made available to the Borrower until the
maturity thereof (whether by acceleration or otherwise) (i) with
respect to Advances secured by Mortgage Loans (other than Special
Collateral or the Mortgage Loans listed on Schedule X) or
Mortgage-backed Securities, at a rate per annum equal to the lower of
(x) 2.25% in excess of the Commercial Paper Rate in effect from time
to time and (y) 2.25% in excess of the LIBOR Rate in effect from time
to time (provided, however, that at all times that the Commercial
Paper is rated A-1 or better by S&P such rate shall in no event be
less than 1.75% in excess of the Commercial Paper Rate in effect from
time to time), (ii) with respect to Advances secured by Special
Collateral, at a rate per annum equal to .125% in excess of the Prime
Lending Rate in effect from time to time, (iii) with respect to
Advances secured by the Mortgage Loans listed on Schedule X, at a rate
per annum equal to 1.00% in excess of the Prime Lending Rate in effect
from time to time, and (iv) with respect to Advances secured by REO
Collateral, at a rate per annum equal to 1.00% in excess of the Prime
Lending Rate in effect from time to time."
(d) The first sentence of Section 3.01(c) of the
Original Warehouse Credit Agreement is hereby amended in its entirety to
read as follows:
"(c) The Borrower shall pay the Lender an
administration fee (the "Administration Fee") with respect to each
calendar month during the term of this Agreement in an amount equal to
the sum of (i) $12.50 for each Mortgage Loan pledged as Collateral for
the first time during such calendar month, and (ii) $12.50 for each
REO Loan the Repurchase Price of which is funded by an REO Advance
during such calendar month."
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(e) There shall be added to Section 4.02 of the
Original Warehouse Credit Agreement a new paragraph (u), which shall read
in full as follows:
"(u) if on any date the aggregate principal amount
outstanding of REO Advances exceeds 4.6% of the Commitment, the
Borrower shall immediately prepay the principal of REO Advances
in an aggregate amount equal to such excess."
(f) There shall be added to Section 4.03 of the
Original Warehouse Credit Agreement a new paragraph (c), which shall read
in full as follows:
"(c) Anything to the contrary in paragraphs (a)
and (b) above notwithstanding, the Borrower shall be entitled to
have REO Collateral released from the Lien granted pursuant to
the Warehouse Security Agreement, upon the Borrower's written
request therefor to the Lender, without prepaying any Advances;
provided that (i) no Default or Event of Default has occurred and
is continuing at the time of making any such request, or would
result therefrom, (ii) the Borrower reimburses the Lender
promptly upon request for any fees, costs or expenses incurred by
the Lender in effecting such release of REO Collateral, and (iii)
the Borrower shall have demonstrated to the Lender's satisfaction
that immediately following such release the Borrower's Servicing
Portfolio will equal or exceed $600,000,000 and will continue to
comply with Section 7.14 of the Warehouse Credit Agreement."
(g) There shall be added to Section 5 of the Original
Warehouse Credit Agreement a new Section 5.18, which shall read in full as
follows:
"5.18 Conditions Precedent to REO Advances. The obligation of the
Lender to make each REO Advance to the Borrower under the
Warehouse Credit Agreement is subject, at the time of the making
of each such REO Advance, to the satisfaction of the following
conditions precedent, in addition to the satisfaction of all
other applicable conditions precedent described in this Section
5:
(a) Amendment to Warehouse Security Agreement: UCC's.
The Borrower shall have duly authorized, executed and delivered
an amendment to the Warehouse Security Agreement, substantially
in the form of Exhibit I-1 hereto, covering all of the Borrower's
present and future REO Collateral, together with:
(i) acknowledgement copies of proper financing
statements (Form UCC-1) (in form satisfactory to the Lender),
duly filed under the UCC of each jurisdiction as may be necessary
or, in the opinion
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of the Lender, desirable to perfect the security interest
purported to be created by the Warehouse Security Agreement in
the REO Collateral; and
(ii) copies of such other documents or reports, or
evidence of completion of such other recordings and filings as
the Lender may request comparable to those described in Section
5.09(b), (c) and (d) of this Agreement but with specific
reference to the REO Collateral.
(b) Diligence. Prior to the making of any REO Advance,
the Lender shall have satisfactorily completed any due diligence
review with respect to the Borrower's Servicing Portfolio or
other REO Collateral, as the Lender shall then require."
(h) There shall be added to Section 6 of the Original
Warehouse Credit Agreement a new Section 6.24, which shall read in full as
follows:
"6.24 Representations Relating to Servicing Portfolio, Etc.
(a) The Borrower has serviced all Serviced Loans in the
Borrower's Servicing Portfolio, and has kept and maintained
complete and accurate books and records in connection therewith,
in accordance with all Agency Requirements and all applicable
laws and regulations.
(b)(i) Except for any subservicing arrangements of the
Borrower with respect to some Serviced Loans, the Borrower is the
sole owner and holder of the Servicing Rights, has good and
marketable right, title and interest therein, and has the full
right and authority, subject to no interest or agreement with any
other party, to grant a security interest therein to the Lender;
(ii) except for any pledge or security interest granted in
connection with the Poughkeepsie Savings Bank Note Payable (due
November 30, 1995) described in Item 3 of Schedule V to the
Warehouse Credit Agreement, the Servicing Rights have not been
assigned or pledged to any other party, and the security interest
therein granted pursuant to the Warehouse Security Agreement is
the only outstanding and existing interest that the Borrower has
granted to the Lender or any other party in the Servicing
Rights."
(i) There shall be added to Section 7 of the Original
Warehouse Credit Agreement new Sections 7.13 and 7.14, which shall read in
full as follows:
"7.13 Covenants Respecting REO Loans and REO Claims.
(a) The Borrower will comply promptly and fully with
all Agency Requirements, and all applicable laws, rules and
regulations of any
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governmental authority or other Person relating to the repurchase
of REO Loans, the filing, processing and collection of all REO
Claims, and all foreclosure or other enforcement actions or
remedial proceedings with respect to all REO Loans and REO
Properties;
(b) The Borrower shall promptly file, and thereafter
shall diligently process to completion, all requests for
reimbursement or collection of all REO Claims, and shall promptly
institute, prosecute and enforce all foreclosure and other
enforcement actions or remedial proceedings with respect to all
REO Loans and REO Properties, which the Borrower is entitled to
institute and prosecute under applicable law;
(c) The Borrower shall promptly advise the Lender, by
facsimile transmission, of its receipt of any amounts collected
with respect to any REO Claim, identifying the mortgagor and
property address for each REO Loan which is the subject of any
such REO Claim."
"7.14 Covenants Respecting Servicing Portfolio.
Except for the impact of transactions undertaken in the
ordinary course of business, the Borrower shall maintain at all
times in the Borrower's Servicing Portfolio a mix of Serviced
Loans having characteristics (including, without limitation,
geographic dispersion of mortgage properties, delinquency rates,
percentage of Conforming Loans, Nonconforming Loans, VA Loans,
FHA Loans, State Loans, balloon loans, variable rate loans,
buy-down loans, refinance loans and loans secured by
condominiums) substantially similar to those in the Borrower's
Servicing Portfolio on the date of Amendment No. 2."
3. Further Assurances. The Assignor shall execute and
deliver to the Lender from time to time all such other agreements,
instruments and documents (including without limitation, any consents,
approvals, acknowledgments or agreements of any Agency) and shall do all
other and further acts and things, as the Lender may request in order to
further evidence or carry out the intent of this Amendment No. 2.
4. Ratification of Original Agreement. This Amendment No. 2
is executed and delivered, and shall be considered as, an amendment and
supplement to the Original Warehouse Credit Agreement and shall form a part
thereof and, except as otherwise provided herein (or in Amendment No. 1 to
the Warehouse Credit Agreement), the provisions of the Original Warehouse
Credit Agreement, including without limitation, all representations,
covenants, agreements, obligations and rights contained therein, are
hereby ratified, confirmed and approved in all respects.
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5. Confirmation of Other Obligations. The Assignor hereby
confirms and agrees that the execution and delivery of this Amendment No. 2
does not in any way diminish or invalidate any of its obligations under the
Warehouse Security Agreement and the Note.
6. Representations and Warranties. The Borrower hereby
certifies that (i) the representations and warranties which it made in the
Original Warehouse Credit Agreement and the Warehouse Security Agreement
are true and correct as of the date hereof and (ii) no Default or Event of
Default under the Warehouse Credit Agreement, the Warehouse Security
Agreement or the Note has occurred and is continuing on the date hereof.
7. Governing Law. This Amendment No. 2 shall be governed by
and construed according to the laws of the State of New Jersey and shall be
binding upon and shall inure to the benefit of the parties hereto, and
their respective successors and assigns.
8. Counterparts. This Amendment No. 2 may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and the Lender.
9. Effectiveness. This Amendment No. 2 shall become
effective on the date on which the Borrower and the Lender shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Lender at its Office.
10. Headings Descriptive. The headings of the several
sections and subsections of this Amendment No. 2 are inserted for
convenience only and shall not in any way affect the meaning or
construction of any provision of this Amendment No. 2.
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IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute and deliver this Amendment No. 2 as of the
date first above written.
Address: MARKET STREET MORTGAGE
2650 McCormick Drive, Suite 200 CORPORATION
Clearwater, FL 34619
Attn: Tracy S. Jackson
Facsimile No.: (813) 791-4136 BY: /s/ Tracy S. Jackson
-----------------------------
Title: Senior Vice President
Three Executive Campus GE CAPITAL MORTGAGE
Cherry Hill, NJ 08002 SERVICES, INC.
Attn: William E. Mezger
Facsimile No.: (609) 486-2777
BY: /s/ William E. Mezger
-----------------------------
Title: Senior Vice President
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AMENDMENT NO. 3 TO WAREHOUSE CREDIT AGREEMENT
THIS AGREEMENT is made as of this 20th day of May, 1994, by and
between MARKET STREET MORTGAGE CORPORATION (the "Borrower") and GE CAPITAL
MORTGAGE SERVICES, INC. (the "Lender").
BACKGROUND
The Borrower and the Lender entered into a Warehouse Credit Agreement,
dated as of July 30, 1993, as amended (as so amended, the "Warehouse Credit
Agreement") pursuant to which the Lender agreed to make advances (the
"Advances") to the Borrower in accordance with the provisions of the Warehouse
Credit Agreement. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Warehouse Credit Agreement.
The Advances are evidenced by the Borrower's promissory note dated
July 30, 1993 (the "Note") in the stated principal amount of $85,000,000, and
secured by, among other things, a Warehouse Security Agreement dated as of
July 30, 1993, as amended (as so amended, the "Warehouse Security Agreement")
between the Borrower and the Lender granting the Lender a security interest in
certain of the Borrower's assets.
The Borrower and the Lender now desire to amend the Warehouse Credit
Agreement to extend the period for which the Lender's commitment under the
Warehouse Credit Agreement has been made and to reduce the amount of the
Lender's commitment.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Warehouse Credit Agreement. The Warehouse Credit Agreement is
hereby amended as follows:
a) Effective June 1, 1994, the definition of "Commitment"
contained in Section 1.01 of the Warehouse Credit Agreement is amended to read
in full as follows:
""Commitment" shall mean the obligation of the Lender to make Advances
in an aggregate principal amount outstanding at any time not to exceed
$40,000,000, as such amount may be reduced from time to time pursuant
to Section 2.03."
b) The definition of "Expiry Date" contained in Section 1.01 of
the Warehouse Credit Agreement is hereby amended to read in full as follows:
""Expiry Date" shall mean the earlier of (i) July 30, 1994, as such
date may be extended upon mutual agreement between the Borrower and
the Lender from time to time and (ii) the date on which the Cooper
River Warehouse Credit Agreement shall terminate."
c) Effective June 1, 1994, Section 2.01 of the Warehouse Credit
Agreement is amended to read in full as follows:
"2.01 Commitment. Subject to and upon the terms and conditions set
forth herein, the Lender agrees, at any time and from time to time
prior to the Expiry Date (or such earlier date as the Commitment shall
have been terminated pursuant to the terms hereof), to make an advance
or advances (each an "Advance" and, collectively, the "Advances") to
the Borrower, which Advance: (i) shall be made at any time and from
time to time in accordance with the terms hereof on and after the
Effective Date and prior to the Expiry Date; (ii) shall bear interest
as provided in Section 2.07; (iii) may be prepaid and reborrowed in
accordance with the provisions hereof; and (iv) shall be made against
the pledge by the Borrower of Eligible Mortgage Loans, Special
Collateral, Liquid Assets or REO Collateral as Collateral for such
Advance as provided herein and in the Warehouse Security Agreement;
provided, however, that (1) the aggregate principal amount of Advances
outstanding at any time shall not exceed the lesser of (x) the
Commitment and (y) the Borrowing Base, at such time, (2) the aggregate
principal amount of Advances outstanding at any time secured by
Mortgage Loans shall not exceed 100% of the Commitment, (3) the
aggregate principal amount of Advances outstanding at any time secured
by Mortgage-backed Securities shall not exceed 0% of the Commitment,
(4) the aggregate principal amount of Wet Advances outstanding at any
time shall not exceed 40% of the Commitment, (5) the aggregate
principal amount of Advances outstanding at any time secured by
Special Collateral shall not exceed 6.75% of the Commitment, (6) the
aggregate principal amount of Advances outstanding at any time secured
by Nonconforming Loans shall not exceed 75% of the Commitment, (7) the
aggregate principal amount of Advances outstanding at any time secured
by Uncommitted Mortgage Loans shall not exceed 3% of the Commitment,
(8) the aggregate principal amount of Advances outstanding at any time
secured by FHA Loans, VA Loans and State Loans shall not exceed 100%
of the Commitment and (9) the aggregate principal amount of Advances
outstanding at any time secured by REO Collateral shall not exceed
9.75% of the Commitment."
d) Effective June 1, 1994, Section 2.03 of the Warehouse Credit
Agreement is amended to read in full as follows:
"2.03 Voluntary Reduction of Commitment. Upon at least ten Business
Days' prior written notice to the Lender, the Borrower shall have the
right
2
without premium or penalty to terminate or partially reduce the
unutilized Commitment at such time; provided that any partial
reduction pursuant to this Section 2.03 shall be in the amount of
$100,000 or an integral multiple thereof; provided further, that the
Commitment may not be reduced in part to an amount less than
$40,000,000."
e) Effective June 1, 1994, Section 4.02(e) of the Warehouse Credit
Agreement shall be amended to read in full as follows:
"(e) if on any date the aggregate principal amount outstanding of
Advances secured by Special Collateral exceeds 6.75% of the
Commitment, the Borrower shall immediately prepay the principal of
Advances secured by Special Collateral in an aggregate amount equal to
such excess;"
f) Effective June 1, 1994, Section 4.02(u) of the Warehouse Credit
Agreement shall be amended to read in full as follows:
"(u) if on any date the aggregate principal amount outstanding of REO
Advances exceeds 9.75% of the Commitment, the Borrower shall
immediately prepay the principal of REO Advances in an amount equal to
such excess."
2. References to Warehouse Credit Agreement. Except where the
context clearly requires otherwise, all references to the Warehouse Credit
Agreement in the Warehouse Credit Agreement, the Note, the Warehouse Security
Agreement and in any other document delivered to the Lender in
connection therewith shall be deemed to refer to the Warehouse Credit
Agreement as amended by this Amendment No. 3.
3. Ratification of Documents. The Borrower hereby ratifies and
confirms its obligations under the Warehouse Credit Agreement, the Note and
the Warehouse Security Agreement and agrees that the execution and delivery of
this Amendment No. 3 does not in any way diminish or invalidate any
of its obligations under the Warehouse Credit Agreement, the Note and the
Warehouse Security Agreement.
4. Representations and Warranties. The Borrower hereby certifies that
(i) the representations and warranties which it made in the Warehouse Credit
Agreement and the Warehouse Security Agreement are true and correct as of the
date hereof and (ii) no Event of Default and no event which could become an
Event of Default with the passage of time or the giving of notice, or both,
under the Note, the Warehouse Credit Agreement or the Warehouse Security
Agreement exists on the date hereof.
3
5. Miscellaneous.
(a) This Agreement shall be governed by and construed
according to the laws of the State of New Jersey and shall be binding upon
and shall inure to the benefit of the parties hereto, their successors and
assigns.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MARKET STREET MORTGAGE CORPORATION
By: /s/ Tracy S. Jackson
--------------------------------
Senior Vice President
GE CAPITAL MORTGAGE SERVICES, INC.
By: /s/ William E. Mezger
--------------------------------
Senior Vice President
4
AMENDMENT NO. 4 TO WAREHOUSE CREDIT AGREEMENT
THIS AGREEMENT is made as of the 30th day of July, 1994, by and
between MARKET STREET MORTGAGE CORPORATION (the "Borrower") and GE CAPITAL
MORTGAGE SERVICES, INC. (the "Lender").
BACKGROUND
The Borrower and the Lender entered into a Warehouse Credit Agreement,
dated as of July 30, 1993, as amended (as so amended, the "Warehouse Credit
Agreement") pursuant to which the Lender agreed to make advances (the
"Advances") to the Borrower in accordance with the provisions of the Warehouse
Credit Agreement. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Warehouse Credit Agreement.
The Advances are evidenced by the Borrower's promissory note dated
July 30, 1993 (the "Note") in the stated principal amount of $85,000,000, and
secured by, among other things, a Warehouse Security Agreement dated as of
July 30, 1993, as amended (as so amended, the "Warehouse Security Agreement")
between the Borrower and the Lender granting the Lender a security interest in
certain of the Borrower's assets.
The Borrower and the Lender now desire to amend the Warehouse Credit
Agreement to extend the period for which the Lender's commitment under the
Warehouse Credit Agreement has been made.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Warehouse Credit Agreement. The definition of "Expiry Date"
contained in Section 1.01 of the Warehouse Credit Agreement is hereby amended
to read in full as follows:
""Expiry Date" shall mean the earlier of (i) August 31, 1994, as such
date may be extended upon mutual agreement between the Borrower and
the Lender from time to time and (ii) the date on which the Cooper
River Warehouse Credit Agreement shall terminate."
2. References to Warehouse Credit Agreement. Except where the
context clearly requires otherwise, all references to the Warehouse Credit
Agreement in the Warehouse Credit Agreement, the Note, the Warehouse Security
Agreement and in any other document delivered to the Lender in connection
therewith shall be deemed to refer to the Warehouse Credit Agreement as
amended by this Amendment No. 4.
3. Ratification of Documents. The Borrower hereby ratifies and
confirms its obligations under the Warehouse Credit Agreement, the Note and
the Warehouse Security Agreement and agrees that the execution and delivery of
this Amendment No. 4 does not in any way diminish or invalidate any of its
obligations under the Warehouse Credit Agreement, the Note and the Warehouse
Security Agreement.
4. Representations and Warranties. The Borrower hereby certifies that
(i) the representations and warranties which it made in the Warehouse Credit
Agreement and the Warehouse Security Agreement are true and correct as of the
date hereof and (ii) no Event of Default and no event which could become an
Event of Default with the passage of time or the giving of notice, or both,
under the Note, the Warehouse Credit Agreement or the Warehouse Security
Agreement exists on the date hereof.
5. Miscellaneous.
(a) This Agreement shall be governed by and construed
according to the laws of the State of New Jersey and shall be binding upon and
shall inure to the benefit of the parties hereto, their successors and
assigns.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MARKET STREET MORTGAGE CORPORATION
By: /s/ Tracy S. Jackson
-------------------------------
(Vice) President
GE CAPITAL MORTGAGE SERVICES, INC.
By: /s/ William E. Mezger
-------------------------------
Senior Vice President
2
AMENDMENT NO. 5 TO WAREHOUSE CREDIT AGREEMENT
THIS AGREEMENT is made as of this 31st day of August, 1994, by and
between MARKET STREET MORTGAGE CORPORATION (the "Borrower") and GE CAPITAL
MORTGAGE SERVICES, INC. (the "Lender").
BACKGROUND
The Borrower and the Lender entered into a Warehouse Credit Agreement,
dated as of July 30, 1993, as amended (as so amended, the "Warehouse Credit
Agreement") pursuant to which the Lender agreed to make advances (the
"Advances") to the Borrower in accordance with the provisions of the Warehouse
Credit Agreement. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Warehouse Credit Agreement.
The Advances are evidenced by the Borrower's promissory note dated
July 30, 1993 (the "Note") in the stated principal amount of $85,000,000, and
secured by, among other things, a Warehouse Security Agreement dated as of
July 30, 1993, as amended (as so amended, the "Warehouse Security Agreement")
between the Borrower and the Lender granting the Lender a security interest in
certain of the Borrower's assets.
The Borrower and the Lender now desire to amend the Warehouse Credit
Agreement to extend the period for which the Lender's commitment under the
Warehouse Credit Agreement has been made and to modify certain other terms and
conditions.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Warehouse Credit Agreement. The Warehouse Credit Agreement is
hereby amended as follows:
a) Effective August 1, 1994, the definition of "Commitment" contained
in Section 1.01 of the Warehouse Credit Agreement is amended to read in full
as follows:
""Commitment" shall mean the obligation of the Lender to make Advances
in an aggregate principal amount outstanding at any time not to exceed
$25,000,000, as such amount may be reduced from time to time pursuant
to Section 2.03."
b) The definition of "Expiry Date" contained in Section 1.01 of
the Warehouse Credit Agreement is hereby amended to read in full as follows:
""Expiry Date" shall mean the earlier of (i) August 31, 1995, as such
date may be extended upon mutual agreement between the Borrower and
the Lender from time to time and (ii) the date on which the Cooper
River Warehouse Credit Agreement shall terminate."
c) Effective September 1, 1994, Section 2.01 of the Warehouse
Credit Agreement is amended to read in full as follows:
"2.01 Commitment. Subject to and upon the terms and conditions set
forth herein, the Lender agrees, at any time and from time to time
prior to the Expiry Date (or such earlier date as the Commitment shall
have been terminated pursuant to the terms hereof), to make an advance
or advances (each an "Advance" and, collectively, the "Advances") to
the Borrower, which Advance: (i) shall be made at any time and from
time to time in accordance with the terms hereof on and after the
Effective Date and prior to the Expiry Date; (ii) shall bear interest
as provided in Section 2.07; (iii) may be prepaid and reborrowed in
accordance with the provisions hereof; and (iv) shall be made against
the pledge by the Borrower of Eligible Mortgage Loans, Special
Collateral, Liquid Assets or REO Collateral as Collateral for such
Advance as provided herein and in the Warehouse Security Agreement;
provided, however, that (1) the aggregate principal amount of Advances
outstanding at any time shall not exceed the lesser of (x) the
Commitment and (y) the Borrowing Base, at such time, (2) the aggregate
principal amount of Advances outstanding at any time secured by
Mortgage Loans shall not exceed 100% of the Commitment, (3) the
aggregate principal amount of Advances outstanding at any time secured
by Mortgage-backed Securities shall not exceed 0% of the Commitment,
(4) the aggregate principal amount of Wet Advances outstanding at any
time shall not exceed 40% of the Commitment, (5) the aggregate
principal amount of Advances outstanding at any time prior to May 14,
1995 secured by Special Collateral shall not exceed 16.0% of the
Commitment and the aggregate principal amount of Advances outstanding
at any time on or after May 14, 1995 secured by Special Collateral
shall not exceed 8% of the Commitment, (6) the aggregate principal
amount of Advances outstanding at any time secured by Nonconforming
Loans shall not exceed 75% of the Commitment, (7) the aggregate
principal amount of Advances outstanding at any time secured by
Uncommitted Mortgage Loans shall not exceed 3% of the Commitment, (8)
the aggregate principal amount of Advances outstanding at any time
secured by FHA Loans, VA Loans and State Loans shall not exceed 100%
of the Commitment and (9) the aggregate principal amount of Advances
outstanding at any time secured by REO Collateral shall not exceed
15.6% of the Commitment."
d) Effective August 1, 1994, Section 2.03 of the Warehouse Credit
Agreement is amended to read in full as follows:
2
"2.03 Voluntary Reduction of Commitment. Upon at least ten Business
Days' prior written notice to the Lender, the Borrower shall have the
right without premium or penalty to terminate or partially reduce the
unutilized Commitment at such time; provided that any partial
reduction pursuant to this Section 2.03 shall be in the amount of
$100,000 or an integral multiple thereof; provided further, that the
Commitment may not be reduced in part to an amount less than
$25,000,000."
e) Effective November 14, 1994, Section 2.07(a) of the Warehouse
Credit Agreement is amended to read in full as follows:
"(a) The Borrower agrees to pay interest in respect of the outstanding
principal amount of the Advances from the date the proceeds thereof
are made available to the Borrower until the maturity thereof (whether
by acceleration or otherwise) (i) with respect to Advances secured by
Mortgage Loans (other than Special Collateral or the Mortgage Loans
listed on Schedule X) or Mortgage-backed Securities, at a rate per
annum equal to the lower of (x) 2.00% in excess of the Commercial
Paper Rate in effect from time to time and (y) 2.00% in excess of the
LIBOR Rate in effect from time to time (provided, however, that at all
times that the Commercial Paper is rated A-1 or better by S&P such
rate shall in no event be less than 1.75% in excess of the Commercial
Paper Rate in effect from time to time), (ii) with respect to Advances
secured by Special Collateral, at a rate per annum equal to 2.50% in
excess of the Commercial Paper Rate in effect from time to time, (iii)
with respect to Advances secured by the Mortgage Loans listed on
Schedule X, at a rate per annum equal to 3.00% in excess of the
Commercial Paper Rate in effect from time to time, and (iv) with
respect to Advances secured by REO Collateral, at a rate per annum
equal to 3.00% in excess of the Commercial Paper Rate in effect from
time to time."
f) Effective September 1, 1994, Section 4.02(e) of the Warehouse
Credit Agreement is amended to read in full as follows:
"(e) if on any date prior to May 14, 1995, the aggregate principal
amount outstanding of Advances secured by Special Collateral exceeds
16% of the Commitment or if on any date on or after May 14, 1995, the
aggregate principal amount outstanding of Advances secured by Special
Collateral exceeds 8% of the Commitment, the Borrower shall
immediately prepay the principal of Advances secured by Special
Collateral in an aggregate amount equal to such excess;"
g) Effective September 1, 1994, Section 4.02(u) of the Warehouse
Credit Agreement is amended to read in full as follows:
3
"(u) if on any date the aggregate principal amount outstanding of REO
Advances exceeds 15.6% of the Commitment, the Borrower shall
immediately prepay the principal of REO Advances in an amount equal to
such excess."
h) Section 8.03(c) of the Warehouse Credit Agreement is hereby
amended to read in full as follows:
"(c) The Borrower will not at any time declare or pay any dividends,
or return any capital, to its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise
acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any
options or warrants issued by the Borrower with respect to its capital
stock), or set aside any funds for any of the foregoing purposes, or
permit any of its Subsidiaries to purchase or otherwise acquire for a
consideration any shares of any class of the capital stock of the
Borrower now or hereafter outstanding (or any options or warrants
issued by the Borrower with respect to its capital stock), or pay any
special distributions or bonuses not in the ordinary course of
business to any officer or employee that owns capital stock of the
Borrower, if after giving effect thereto the Consolidated Tangible Net
Worth of the Borrower would be less than $5,000,000."
i) Section 8.08 of the Warehouse Credit Agreement is hereby
amended to read in full as follows:
"8.08 Maximum Consolidated Tangible Leverage Ratio. The Borrower will
not permit its Consolidated Tangible Leverage Ratio at any time during
any fiscal year to be greater than 18 to 1."
j) Section 8.09 of the Warehouse Credit Agreement is hereby
amended to read in full as follows:
"8.09 Minimum Consolidated Tangible Net Worth. The Borrower will not
permit its Consolidated Tangible Net Worth at any time during any
fiscal year to be less than $5,000,000."
k) Section 8.17 of the Warehouse Credit Agreement is hereby
amended to read in full as follows:
"8.17 Minimum Consolidated Net Worth. The Borrower will not permit its
Consolidated Net Worth at any time during any fiscal year to be less
than $10,000,000."
4
2. References to Warehouse Credit Agreement. Except where the
context clearly requires otherwise, all references to the Warehouse Credit
Agreement in the Warehouse Credit Agreement, the Note, the Warehouse Security
Agreement and in any other document delivered to the Lender in connection
therewith shall be deemed to refer to the Warehouse Credit Agreement as
amended by this Amendment No. 5.
3. Ratification of Documents. The Borrower hereby ratifies and
confirms its obligations under the Warehouse Credit Agreement, the Note and
the Warehouse Security Agreement and agrees that the execution and delivery of
this Amendment No. 5 does not in any way diminish or invalidate any of its
obligations under the Warehouse Credit Agreement, the Note and the Warehouse
Security Agreement.
4. Representations and Warranties. The Borrower hereby certifies
that (i) the representations and warranties which it made in the Warehouse
Credit Agreement and the Warehouse Security Agreement are true and correct as
of the date hereof and (ii) no Event of Default and no event which could become
an Event of Default with the passage of time or the giving of notice, or both,
under the Note, the Warehouse Credit Agreement or the Warehouse Security
Agreement exists on the date hereof.
5. Miscellaneous.
(a) This Agreement shall be governed by and construed
according to the laws of the State of New Jersey and shall be binding upon and
shall inure to the benefit of the parties hereto, their successors and
assigns.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MARKET STREET MORTGAGE CORPORATION
By: /s/ Tracy S. Jackson
--------------------------------
Senior Vice President
GE CAPITAL MORTGAGE SERVICES, INC.
By: /s/ William E. Mezger
--------------------------------
Senior Vice President
5