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Exhibit 10.30
SECOND AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
This Second Amendment to Amended and Restated Credit Agreement (this
"Amendment"), is entered into as of the 13th day of November, 2000, by and
between MORTGAGE PORTFOLIO SERVICES, INC., a Delaware corporation ("Borrower"),
NAB ASSET CORPORATION, a Texas corporation ("Guarantor") and BANK UNITED, a
federal savings bank, as Agent ("Agent") and the Lenders party hereto, as
defined below. Capitalized terms used but not defined herein have the meanings
assigned to them in the Credit Agreement, as the same has been or may be amended
or supplemented from time to time.
Section 1. Recitals. Borrower, Guarantor, Agent, and Lenders entered
into that certain Amended and Restated Warehousing Credit and Security Agreement
dated as of August 28, 2000 (the "Credit Agreement") for the purposes and
consideration herein expressed, pursuant to which Lenders agreed to make loans
to Borrower as therein provided. Borrower, Guarantor, Agent, and Lenders desire
to amend the Credit Agreement, and therefore Borrower, Guarantor, Agent, and
Lenders hereby agree as follows, intending to be legally bound:
Section 2. Amendments. The Credit Agreement is hereby amended and
supplemented as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by the
addition or amendment of the following definitions:
"Termination Date" shall mean April 30, 2001, or such earlier
date upon which Lenders' obligation to fund shall be
terminated pursuant to the terms of this Agreement.
(b) Section 2.1(b)(4) of the Credit Agreement is deleted in its
entirety, and the following is substituted therefor:
"(4) The aggregate amount of Wet
Advances against Mortgage Loans outstanding
at any one time shall not exceed TWENTY-TWO
MILLION DOLLARS ($22,000,000.00)."
(c) Section 2.5(a) of the Credit Agreement is deleted in its entirety,
and the following is substituted therefor:
"(a) The outstanding principal amount of all Advances
shall be payable in full on April 30, 2001."
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(d) In connection with the execution of this Amendment, Borrower will
deliver to the Lenders new promissory notes (the "Credit Notes") dated
as of November 13, 2000, and payable to the Lenders, which Credit Notes
are given to Lenders in replacement of the promissory notes dated as of
October 15, 2000 (the "10/2000 Notes"), which 10/2000 Notes were given
in replacement of promissory notes dated August 28, 2000, executed by
Borrower and payable to the order of the Lenders (the "Original
Restated Notes"), as more fully set out in each such Replacement Note,
and not in novation or discharge thereof. The definition of the term
"Notes" in the Credit Agreement is hereby amended to mean the Credit
Notes and all renewals, extensions, modifications, increases,
rearrangements, and replacements thereof. In addition to the Credit
Notes, Borrower will deliver to the Agent a new swingline promissory
note (the "Swingline Note") dated as of November 13, 2000, and payable
to Agent, which Swingline Note is given to Agent in replacement of the
swingline promissory note dated as of October 15, 2000, and payable to
Agent (the 10/2000 Swingline Note"), which 10/2000 Swingline Note was
given to Agent in replacement of the swingline promissory note dated as
of August 28, 2000, executed by Borrower and payable to the order of
Agent (the "Original Swingline Note") as more fully set out in such
Swingline Note, and not in novation or discharge thereof. The
definition of the term "Swingline Note" in the Credit Agreement is
hereby amended to mean the Swingline Note and all renewals, extensions,
modifications, increases, rearrangements, and replacements thereof.
Section 3. Representations. Borrower represents and warrants that all
of the representations and warranties contained in the Credit Agreement and all
instruments and documents executed pursuant thereto or contemplated thereby are
true and correct in all material respects on and as of this date.
Section 4. Continued Force and Effect. Except as specifically amended
herein or heretofor, all of the terms and conditions of the Credit Agreement and
all other Loan Documents are and remain in full force and effect in accordance
with their respective terms. All of the terms used herein have the same meanings
as set out in the Credit Agreement, unless amended hereby or unless the context
clearly requires otherwise. References in the Credit Agreement to the
"Agreement," the "Loan Agreement," "hereof," "herein," and words of similar
import shall be deemed to be references to the Credit Agreement as amended
hereby. Any reference in the other Loan Documents to the "Agreement," the "Line
of Credit Agreement," "Warehouse Agreement," or the "Loan Agreement" shall be
deemed to be references to the Credit Agreement as amended through the date
hereof. Any references in the Credit Agreement or any of the Loan Documents to
the Notes, or the Credit Notes shall be deemed to be references to the Credit
Notes and all renewals, extensions, modifications, increases, rearrangements,
and replacements thereof.
Section 5. Consent and Ratification by Guarantor. Guarantor joins in
the execution of this Amendment for, among other things, the purpose of
ratifying its Guaranty dated as of August 28, 2000 (the "Guaranty"), which
guarantees the payment of the indebtedness evidenced by the Credit Agreement and
the Credit Notes. GUARANTOR (i) CONSENTS TO THE TERMS OF THIS AMENDMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN, (ii) RATIFIES AND CONFIRMS THE GUARANTY, WHICH
IS IN FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS, AND (iii) ACKNOWLEDGES
THAT THE GUARANTY IS NOT SUBJECT TO ANY CLAIMS, OFFSETS, DEFENSES, OR
COUNTERCLAIMS OF ANY NATURE WHATSOEVER.
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Section 6. Representations and Release of Claims. Except as otherwise
specified herein, the terms and provisions hereof shall in no manner impair,
limit, restrict or otherwise affect the obligations of Borrower or any third
party to Lender, as evidenced by the Loan Documents. Borrower and Guarantor
hereby acknowledge, agree, and represent that (i) Borrower is indebted to
Lenders pursuant to the terms of the Credit Notes; (ii) the liens, security
interests and assignments created and evidenced by the Loan Documents are,
respectively, first, prior, valid and subsisting liens, security interests and
assignments against the Collateral and secure all indebtedness and obligations
of Borrower to Lenders under the Credit Notes, the Credit Agreement, all other
Loan Documents, as modified herein; (iii) there are no claims or offsets
against, or defenses or counterclaims to, the terms or provisions of the Loan
Documents, and the other obligations created or evidenced by the Loan Documents;
(iv) neither Borrower nor Guarantor has any claims, offsets, defenses or
counterclaims arising from the Agent's or any of the Lenders' acts or omissions
with respect to the Loan Documents, or the Agent's or Lenders' performance under
the Loan Documents; (v) the representations and warranties contained in the Loan
Documents are true and correct representations and warranties of Borrower and
Guarantor, as of the date hereof; (vi) Borrower promises to pay to the order of
Lenders the indebtedness evidenced by the Credit Notes according to the terms
thereof; and (vii) Borrower is not in default and no event has occurred which,
with the passage of time, giving of notice, or both, would constitute a default
by Borrower of Borrower's obligations under the terms and provisions of the Loan
Documents. In consideration of the modification of certain provisions of the
Loan Documents, all as herein provided, and the other benefits received by
Borrower and Guarantor hereunder, Borrower and Guarantor hereby RELEASE,
RELINQUISH and forever DISCHARGE Agent and Lenders, and each of their respective
predecessors, successors, assigns, shareholders, principals, parents,
subsidiaries, agents, officers, directors, employees, attorneys and
representatives (collectively, the "Lender Released Parties"), of and from any
and all claims, demands, actions and causes of action of any and every kind or
character, whether known or unknown, present or future, which Borrower or
Guarantor have, or may have against Lender Released Parties, arising out of or
with respect to any and all transactions relating to the Credit Agreement, the
Original Replacement Notes, the Credit Notes, the Original Swingline Note, the
Swingline Note, the Guaranty, and the other Loan Documents occurring prior to
the date hereof, including any other loss, expense and/or detriment, of any kind
or character, growing out of or in any way connected with or in any way
resulting from the acts, actions or omissions of the Lender Released Parties,
and including any loss, cost or damage in connection with any breach of
fiduciary duty, breach of any duty of fair dealing, breach of competence, breach
of funding commitment, undue influence, duress, economic coercion, conflict of
interest, negligence, bad faith, malpractice, violations of the Racketeer
Influence and Corrupt Organizations Act, intentional or negligent infliction of
emotional or mental distress, tortious interference with corporate governments
or prospective business advantage, tortious interference with contractual
relations, breach of contract, deceptive trade practices, libel, slander,
conspiracy, the charging, contracting for, taking, reserving, collecting or
receiving of interest in excess of the highest lawful rate applicable to the
Loan Documents (i.e., usury), any violations of federal or state law, any
violations of federal or state banking rules, laws or regulations, including,
but not limited to, any violations of Regulation B, Equal Credit Opportunity,
bank tying act claims, any violation of the Texas Free Enterprise Antitrust Act
or any violation of federal antitrust acts.
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Section 7. Severability. In the event any one or more provisions
contained in the Credit Agreement, this Amendment, or any of the Loan Documents
should be held to be invalid, illegal or unenforceable in any respect, the
validity, enforceability and legality of the remaining provisions contained
herein and therein shall not be affected in any way or impaired thereby and
shall be enforceable in accordance with their respective terms.
Section 8. Expenses. Borrower agrees to pay all out-of-pocket costs and
expenses (including reasonable fees and expenses of legal counsel) of Agent in
connection with the preparation, operation, administration and enforcement of
this Amendment.
Section 9. Ratification of Agreements. Except as amended hereby,
Borrower ratifies and confirms that Credit Agreement, the Credit Notes, and all
other Loan Documents are and remain in full force and effect in accordance with
their respective terms and that all Collateral is unimpaired by this Amendment
and secures the payment and performance of all indebtedness and obligations of
Borrower under the Credit Notes, the Credit Agreement, and all other Loan
Documents, as modified hereby. Each of the undersigned officers of Borrower and
Guarantor executing this Amendment represent and warrant that he has full power
and authority to execute and deliver this Amendment on behalf of Borrower and
Guarantor, respectively, that such execution and delivery has been duly
authorized, and that the resolutions and affidavits previously delivered to
Agent, in connection with the execution and delivery of the Credit Agreement,
are and remain in full force and effect and have not been altered, amended or
repealed in anywise.
Section 10. No Waiver. Borrower and Guarantor agree that no Event of
Default and no Default has been waived or remedied by the execution of this
Amendment by Agent and Lenders, and any such Default or Event of Default
heretofore arising and currently continuing shall continue after the execution
and delivery hereof.
Section 11. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and, to the extent
applicable, by federal law.
Section 12. Counterparts. This Amendment may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 13. NO ORAL AGREEMENTS. THIS WRITTEN AMENDMENT, THE CREDIT
AGREEMENT, THE CREDIT NOTES, THE GUARANTY, AND THE OTHER LOAN DOCUMENTS, ALL AS
MODIFIED HEREBY, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and effective as of the dates first written above.
BORROWER: LENDERS
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<TABLE>
<CAPTION>
<S> <C>
MORTGAGE PORTFOLIO SERVICES,
INC., a Delaware corporation BANK UNITED, A FEDERAL SAVINGS BANK
By: /s/ Alan Ferree By: /s/ Patrick C. Freeman
GUARANTOR Percentage Share: 66.7273%
NAB ASSET CORPORATION, a Texas corporation
RESIDENTIAL FUNDING
By: /s/ Alan Ferree CORPORATION
Alan K. Ferree, Senior Vice President
AGENT By: /s/ Thomas M. Clement
Percentage Share: 33.2727%
BANK UNITED, A FEDERAL SAVINGS BANK
By: /s/ Patrick C. Freeman
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