THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
(SYNDICATED AGREEMENT)
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (SYNDICATED AGREEMENT) ("Amendment") is entered into as
of this 9th day of May 2000, by and among MORTGAGE.COM, INC., a Florida
corporation, (the "Company"), RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation ("RFC"), and BANK UNITED, a federal savings bank ("Bank United")
(RFC, Bank United and any Additional Lender that may from time to time hereafter
become party hereto are hereafter referred to as the "Lenders"), and RFC, as
credit agent for the Lenders (in such capacity, the "Credit Agent")
WHEREAS, the Company, the Lenders and the Credit Agent have entered
into a revolving warehouse facility with a present Credit Limit of $110,000,000
(the "Commitment"), as evidenced by a Second Amended and Restated Warehousing
Credit and Security Agreement (Syndicated Agreement) dated November 12, 1999, as
the same may have been amended or supplemented (the "Agreement")
WHEREAS, the Company has requested that the Lenders amend certain
terms of the Agreement, and the Lenders have agreed to such amendment subject to
the terms and conditions of this Amendment;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment shall be
May 17, 2000, the date on which the Company has complied with all the terms and
conditions of this Amendment.
3. Section 1.1 of the Agreement is amended by adding the following
definition in the appropriate alphabetical order:
"Weighted Average Purchase Commitment Price" shall mean the
weighted average of the Committed Purchase Prices of the unfilled Purchase
Commitments (expressed as a percentage) for Mortgage Loans or
Mortgage-backed Securities of the same type, interest rate and term.
<PAGE>
4. Section 2.7(c) of the Agreement is amended to add the following
section immediately after Section 2.7(c) (6):
(7) If the outstanding Advances against Pledged Mortgages of a
specific Mortgage Loan type exceed the aggregate Purchase Commitments for
such Mortgage Loan type.
5. The Lenders hereby agree to waive their default rights with
respect to the failure of the Company to comply with the "Loss Limitation"
requirement set forth in Section 7.9 of the Agreement for the fiscal quarter
ended March 31, 2000. The foregoing waiver applies only to the specific instance
described herein. It is not a waiver of any subsequent breach of the same
provision of the Agreement, or of any breach of any other provisions of the
Agreement. The Lenders reserve all of the rights, powers and remedies presently
available to the Lenders under the Agreement including the right to cease making
Advances to the Company and the right to accelerate any of the indebtedness
owing under the Agreement, if any other Default or Event of Default occurs under
the Agreement.
6. The Exhibit M attached to the Agreement is hereby deleted in its
entirety and replaced with the new Exhibit M attached to this Amendment. All
references in the Agreement to Exhibit M shall be deemed to refer to the new
Exhibit M.
7. The Exhibit O attached to the Agreement is hereby deleted in its
entirety and replaced with the new Exhibit O attached to this Amendment. All
references in the Agreement to Exhibit O shall be deemed to refer to the new
Exhibit O.
8. The Company shall deliver to the Credit Agent (a) an original of
this Amendment, executed by the Company, the Lenders and the Credit Agent, (b)
modification fees in the amount of $500, each payable to Bank United and RFC;
and (c) a documentation fee in the amount of $350 payable to the Credit Agent.
9. The Company represents, warrants and agrees that (a) the Loan
Documents continue to be the legal, valid and binding agreements and obligations
of the Company enforceable in accordance with their terms, as modified herein,
(b) except as stated above in Section 5, the Lenders are not in default under
any of the Loan Documents and the Company has no offset or defense to their
performance or obligations under any of the Loan Documents, (c) the
representations contained in the Loan Documents remain true and accurate in all
respects, and (d) there have been no material adverse change in the financial
condition of the Company from the date of the Agreement to the date of this
Amendment.
10. Except as hereby expressly modified, the Agreement shall otherwise
be unchanged and shall remain in full force and effect, and the Company ratifies
and reaffirms all of its obligations thereunder.
11. This Amendment 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.
<PAGE>
IN WITNESS WHEREOF, the Company and the Lenders have caused this
Amendment to be duly executed on their behalf by their duly authorized officers
as of the day and year above written.
COMPANY:
MORTGAGE.COM, INC.
a Florida corporation,
By: /s/ Seth S. Werner
Its: Chairman/CEO
Notice Address:
Mortgage.Com, Inc.
1643 North Harrison Parkway
Harrison, FL 33323
Attention: Edwin Johnson
Telecopier No.: (877) 224-9071
STATE OF FLORIDA )
) SS
COUNTY OF BROWARD )
On May 15, 2000 before me, a Notary Public, personally appeared Seth
Werner, the Chairman/CEO of MORTGAGE.COM, INC., a Florida corporation,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Patricia B Rudnick
Notary Public
My Commission Expires: 9/22/03
<PAGE>
CREDIT AGENT:
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ Jim Clapp
Its: Director
Notice Address:
4800 Montgomery Lane
Suite 300
Bethesda, Maryland 20814
Attention: Jim Clapp
Director
Telecopier No.: (301) 215-6288
LENDERS:
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ Jim Clapp
Its: Director
Notice Address:
4800 Montgomery Lane
Suite 300
Bethesda, Maryland 20814
Attention: Jim Clapp
Director
Telecopier No.: (301) 215-6288
STATE OF MARYLAND )
) SS
COUNTY OF MONTGOMERY )
On May 18th, 2000 before me, a Notary Public, personally appeared Jim
Clapp, the Director of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
<PAGE>
WITNESS my hand and official seal.
S. van dem HAGEN
Notary Public
My Commission Expires: 9/22/03
BANK UNITED,
a federal savings bank
By: /s/ Melanie H. Carrington
Its: Regional Director
Notice Address:
1629 Indian River Drive
Cocoa, FL 32922
Attention: Melanie H. Carrington
Telecopier No.: (407) 638-3399
STATE OF FLORIDA )
) SS
COUNTY OF BREVARD )
On May 18, 2000 before me, a Notary Public, personally appeared
Melanie H. Carrington, the Regional Director of BANK UNITED, a federal savings
bank, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Damita A. Maiolo
Notary Public
My Commission Expires:June 14, 2003
