Fifth Amendment To The Mortgage Warehouse Loan And Security Agreement

EXHIBIT 10.5


FIFTH AMENDMENT TO MORTGAGE WAREHOUSE LOAN AND SECURITY AGREEMENT

This Fifth Amendment to Mortgage Warehouse Loan and Security Agreement (this " Amendment" ), made by and between CRESCENT MORTGAGE SERVICES, INC., a Georgia corporation, as borrower (" Borrower" ), and COLONIAL BANK, N.A., a national banking association (f/k/a Colonial Bank), as lender (" Lender" ), is dated as of the 30 lh day of September, 2003.

R E C I T A L S :

Pursuant to that certain Mortgage Warehouse Loan and Security Agreement dated as of December 20,1999, as amended by that certain First Amendment to Mortgage Warehouse Loan and Security Agreement dated as of July 31, 2000, that certain Second Amendment to Mortgage Warehouse Loan and Security Agreement dated as of June 25, 2001, that certain Third Amendment to Mortgage Warehouse Loan and Security Agreement dated as of July 31, 2002, and that certain Fourth Amendment to Mortgage Warehouse Loan and Security Agreement dated as of January 31, 2003 (as heretofore amended, the " Agreement" ), Lender made available to Borrower, subject to the terms and conditions thereof, a revolving line of credit loan in the maximum aggregate principal amount not to exceed $40,000,000.00 (the " Line of Credit" ), secured by Borrower' s assignment and pledge to Lender of certain mortgage loans and related collateral, for the purpose of assisting Borrower in its business of originating and making such loans.

Borrower has requested that Lender agree to extend the scheduled maturity date of the Line of Credit to June 30, 2004 and to make certain other modifications to the Agreement, and Lender is willing to do so, but only on the express condition, among others, that Borrower enter into this Amendment, pursuant to which the Agreement shall be amended and modified.


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 do hereby agree, each with the other, as follows:


1. If not otherwise defined herein or the context shall not expressly indicate otherwise, all capitalized terms which are used herein shall have their respective meanings given to them in the Agreement.

2. Section 1.1 ( Defined Terms ) of the Agreement is hereby amended as follows:


(A) By amending and restating the definition of " Adjusted Tangible Net Worth" to read in its entirety as follows:


" Adjusted Tangible Net Worth" shall mean, as of the date of determination, GAAP Net Worth, minus loans and advances owing to Borrower from officers, directors, employees, stockholders and other Affiliates of Borrower (if any), minus Borrower' s off-balance sheet servicing rights, minus Borrower' s capitalized servicing rights, plus the lesser of (a) eighty percent (80%) of the most recent quarterly Appraised Value of Borrower' s Eligible Servicing Portfolio (if such an appraisal is obtained), or (b) Borrower' s capitalized servicing rights.

(B) By amending and restating the definition of " Advance Rate Amount" to read in its entirety as follows:

" Advance Rate Amount" shall mean (i) with respect to any Eligible Conforming Mortgage Loan, an amount equal to ninety-nine percent (99%) of the amount to be paid by the Approved Investor for the Mortgage Loan pursuant to a binding Investor Commitment ( i.e. , " commitment" ), not to exceed the current unpaid principal balance of such Mortgage Loan ( i.e., " par" ), (ii) with respect to any Eligible Non-Conforming Mortgage Loan, an amount equal to ninety-eight percent (98%) of the lesser of (a) par or (b) commitment, (iii) with respect to any Eligible Repurchased Mortgage Loan, an

amount equal to ninety percent (90%) of the least of (a) the repurchase price of such Mortgage Loan, (b) the market value of the Property securing such Mortgage Loan as established by the most recent appraisal or broker' s price opinion (subject to the provisos in subsection (g) of the definition of Eligible Repurchased Mortgage Loan) of the Property securing such Mortgage Loan, or (c) the face amount of the promissory note evidencing such Mortgage Loan, (iv) with respect to any Eligible Gestation Mortgage Loan, an amount equal to ninety-nine (99%) of commitment, not to exceed par, and (v) with respect to any Eligible Wet Mortgage Loan, an amount equal to the Advance Rate Amount applicable to the Type of Mortgage Loan supporting the Advance.

(C) By adding a definition of " Electronic Advance Request" thereto which reads in its entirety as follows:

" Electronic Advance Request" shall mean an electronic data transmission made in such manner and in accordance with such procedures as may be established by Lender from time to time and set forth in the Procedural Manual, containing the same information as Exhibit B-l (unless otherwise directed by Lender).


(D) By amending, the definition of " Eligible Repurchased Mortgage Loan" to amend and restate subparagraph (g) thereof to read in its entirety, as follows:

(g) (i) Borrower has delivered (or caused to be delivered) to Lender those items for such Mortgage Loan described on Exhibit C to this Agreement prior to the Advance supported by such Mortgage Loan, plus an appraisal of such Mortgage Loan of a type determined as follows: (A) if the Mortgage Loan being repurchased is 9 months old or less, a certified copy of the most recent appraisal of the property securing such Mortgage Loan, or (B) if the Mortgage Loan being repurchased is more than 9 months old, a broker' s price opinion (" BPO" ) which supports the most recent appraised value must be received within 30 days of the Advance Date and any adjustments in the prior Sublimit D Advance will be made at that time, if necessary; provided , however . Lender retains the right to request a current appraisal if the BPO does not support the original value; and provided, further, Borrower must provide to Lender current (within 45 days) full appraisals on all HUD foreclosures and certain other properties as mutually agreed upon by Lender and Borrower, and an original assignment of mortgage (or deed of trust) in favor of Lender (in recordable form and which will be recorded at Lender' s option); (ii) Borrower or a third party approved by Lender holds in trust for the Lender those items described in Exhibit D to this Agreement; and (iii) Borrower has delivered (or caused to be delivered) to Lender, if Lender has so requested in writing, the additional items described on Exhibit D to this Agreement.

(E) By adding a definition of " GAAP Net Worth" thereto which reads in its entirety as follows:


" GAAP Net Worth" shall mean all assets of Borrower, determined in accordance with GAAP, less Total Liabilities.

(F) By amending and restating the definition of " LIBOR Rate" to read in its entirety as follows:

" LIBOR Rate" shall mean the rate that appears on the display designated as page " 3750" of the Telerate Service (or such other page as may replace page 3750 of that service) as of 11:00 a.m., Orlando time, on each Banking Day or, if not so reported on such service, as otherwise quoted by Lender from time to time, as the 30-day LIBOR Rate, adjusted daily with each change in the 30-day LIBOR Rate; provided , however , in no event shall the LIBOR Rate be less than the floor rate per annum equal to 2.50% (which floor rate may be changed from time to time by Lender after consultation with the Treasury Department of Lender) or greater than the ceiling rate per annum equal to the Prime Rate.


2

(G) By amending and restating the definition of " Maturity Date" to read in its entirety as follows:


" Maturity Date" shall mean June 30, 2004; provided , that upon the written request of Borrower to Lender, Lender may elect to extend the Maturity Date on such terms and conditions as it deems appropriate in its sole discretion.

(H) By amending and restating the definition of " Prime Rate" to read in its entirety as follows:


" Prime Rate" shall mean the fluctuating interest rate per annum announced by Lender from time to time as its Prime Rate as such Prime Rate may change from time to time, adjusted daily with each change in such Prime Rate (which interest rate is only a benchmark, is purely discretionary and is not necessarily the best or lowest rate charged borrowing customers of Lender); provided , however , in no event shall the Prime Rate be less than the floor rate per annum equal to 5.50% (which floor rate may be changed from time to time by Lender after consultation with the Treasury Department of Lender).

(I) By adding a definition of " Procedural Manual" thereto which reads in its entirety as follows:

" Procedural Manual" shall mean the procedural manual given to Borrower by Lender relating to the Line of Credit and containing procedures, requirements and guidelines with respect thereto, as the same may be modified, amended or supplemented from time to time by Lender.


(J) By amending the definition of " Warehouse Period" to amend and restate clause (iii) thereof to read in its entirety as follows:

(iii) in the case of any Sublimit C Advance, forty-five (45) days after such Advance Date (provided that the total combined Warehouse Period under Sublimit A and Sublimit C shall not exceed 90 days and the total combined Warehouse Period under Sublimit E and Sublimit C shall not exceed 120 days);


3. Section 2.2 (Method of Borrowing ) of the Agreement is hereby amended to amend and restate subsections (a) and (b) thereof to read in their entireties as follows:


(a) Whenever Borrower desir ...