Exhibit 10.1
AGREEMENT TO
INCREASE COMMITMENT AMOUNT
THIS AGREEMENT TO INCREASE COMMITMENT AMOUNT (the
"Agreement"), dated as of June 27, 2003, is by and among HOMEAMERICAN MORTGAGE
CORPORATION, a Colorado corporation ("Borrower"), U.S. BANK NATIONAL
ASSOCIATION, as agent (the "Agent") for the Banks party to the Credit Agreement
described below, and U.S. BANK NATIONAL ASSOCIATION, as a Bank ("U.S. Bank").
RECITALS
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1. The Borrower, the Agent and the Banks entered into a Second
Amended and Restated Credit Agreement dated as of September 9, 2002, as amended
by an Agreement to Increase Commitment Amount dated as of December 5, 2002 and
as amended by an Agreement to Increase Commitment Amount dated as of December
20, 2002 (the "Credit Agreement"); and
2. Pursuant to Section 8.05(c) of the Credit Agreement, the
Borrower and U.S. Bank National Association ("U.S. Bank") desire to temporarily
increase U.S. Bank's Commitment Amount as herein set forth.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
covenant and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used
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herein and not otherwise defined herein shall have the meanings assigned to them
in the Credit Agreement, unless the context shall otherwise require.
Section 2. Temporary Commitment Amount Increase.
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2.1 Changes in Commitment Amount of U.S. Bank.
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Effective as of the date first above written (the "Increase Date"), the
Commitment Amount of U.S. Bank is hereby increased from $60,000,000 to
$85,000,000. Effective as of October 2, 2003 (the "Temporary Increase
Termination Date"), the Commitment Amount of U.S. Bank is hereby
reduced from $85,000,000 to $60,000,000.
Section 3. New Schedule of Commitments.
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3.1 Schedule of Warehousing Commitment Amounts.
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Schedule 1.01(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as set forth in Exhibit A hereto.
Section 4. Effectiveness of Agreement. This Agreement
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shall become effective upon delivery by the Borrower to the Agent of, and
compliance by the Borrower with, the following:
4.1 This Agreement duly executed by the Borrower and U.S.
Bank.
4.2 A certificate of the Secretary or Assistant Secretary
of the Borrower (1) certifying that there has been no amendment to the
Articles of Incorporation or Bylaws of the Borrower since true and
accurate copies of the same were delivered to the Agent with
certificate of the Secretary of the Borrower dated as of September 27,
2002, and (ii) confirming that a resolution of the Board of Directors
of the Borrower authorizes the execution, delivery and performance of
this Agreement and any other document or instrument to be executed by
the Borrower in connection with this Amendment (the "Increase
Documents"), and identifying the officers of the Borrower authorized to
sign the Increase Documents.
4.3 The Borrower shall have satisfied such other
conditions as specified by the Agent, including payment of all unpaid
legal fees and expenses incurred by the Agent through the date of this
Agreement in connection with the Credit Agreement and the Increase
Documents.
Section 5. Representations, Warranties, Authority, No
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Adverse Claim.
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5.1 Reassertion of Representations and Warranties, No
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Default.
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The Borrower represents that on and as of the date hereof and
after giving effect to this Agreement (a) all of the representations
and warranties contained in the Credit Agreement are true, correct and
complete in all respects as of the date hereof as though made on and as
of such date, except for changes permitted by the terms of the Credit
Agreement, and (b) there will exist no Unmatured Event of Default or
Event of Default under the Credit Agreement as amended by this
Agreement on such date.
5.2 Authority, No Conflict, No Consent Required. The
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Borrower represents and warrants that it has the power and legal right
and authority to enter into the Increase Documents and has duly
authorized as appropriate the execution and delivery of the Increase
Documents and other agreements and documents executed and delivered by
it in connection herewith or therewith by proper corporate action, and
none of the Increase Documents nor the agreements contained herein or
therein contravenes or constitutes a default under any agreement,
instrument or indenture to which the Borrower is a party or a signatory
or a provision of the Borrower's Articles of Incorporation, Bylaws or
any other agreement or requirement of law, or result in the imposition
of any Lien on any property of the Borrower under any agreement binding
on or applicable to the Borrower or any of its property except, if any,
in favor of the Banks. The Borrower represents and warrants that no
consent, approval or authorization of or registration or declaration
with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by
the Borrower of the Increase Documents or other agreements and
documents executed and delivered by the Borrower in connection
therewith or the performance of obligations of the Borrower therein
described, except for those which the Borrower has obtained or provided
and as to which
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the Borrower has delivered certified copies of documents evidencing
each such action to the Agent.
5.3 No Adverse Claim. The Borrower warrants, acknowledges
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and agrees that no events have taken place and no circumstances exist
at the date hereof that would give the Borrower a basis to assert a
defense, offset or counterclaim to any claim of the Banks with respect
to the Borrower's obligations under the Loan Documents.
Section 6. Affirmation of Credit Agreement, Further
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References, Affirmation of Security Interest. The Agent and the
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Borrower each acknowledge and affirm that the Credit Agreement, as
hereby amended, is hereby ratified and confirmed in all respects and
all terms, conditions and provisions of the Credit Agreement, except as
amended by this Agreement, shall remain unmodified and in full force
and effect. All references in any document or instrument to the Credit
Agreement are hereby amended and shall refer to the Credit Agreement as
amended by this Agreement. The Borrower confirms to the Agent and the
Banks that the Obligations are and continue to be secured by the
security interest granted by the Borrower in favor of the Agent for the
benefit of the Banks under the Pledge and Security Agreement, and all
of the terms, conditions, provisions, agreements, requirements,
promises, obligations, duties, covenants and representations of the
Borrower under such documents and any and all other documents and
agreements entered into with respect to the Borrower's obligations
under the Loan Documents are incorporated herein by reference and are
hereby ratified and affirmed in all respects by the Borrower.
Section 7. Successors. The Increase Documents shall be
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binding upon the Borrower, the Banks and the Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower,
the Banks and the Agent and the successors and assigns of the Banks and
the Agent.
Section 8. Legal Expenses. As provided in Section 8.03
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of the Credit Agreement, the Borrower agrees to reimburse the Agent,
upon execution of this Agreement, for all reasonable out-of-pocket
expenses (including attorney fees and legal expenses of Dorsey &
Whitney LLP, counsel for the Bank) incurred in connection with the
Credit Agreement, including in connection with the negotiation,
preparation and execution of the Increase Documents and all other
documents negotiated, prepared and executed in connection with the
Increase Documents, and in enforcing the obligations of the Borrower
under the Increase Documents, and to pay and save the Banks harmless
from all liability for, any stamp or other taxes which may be payable
with respect to the execution or delivery of the Increase Documents,
which obligations of the Borrower shall survive any termination of the
Credit Agreement.
Section 9. Counterparts. The Increase Documents may be
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executed in several counterparts as deemed necessary or convenient,
each of which, when so executed, shall be deemed an original, provided
that all such counterparts shall be regarded as one and the same
document, and either party to the Increase Documents may execute any
such agreement by executing a counterpart of such agreement.
Section 10. Governing Law. THE INCREASE DOCUMENTS SHALL
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BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT
GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT
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GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS, THEIR
HOLDING COMPANIES AND THEIR AFFILIATES.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above written.
HOME AMERICAN MORTGAGE CORPORATION
By: /s/ John J. Heaney
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Title: Senior Vice President
& Treasurer
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U.S. BANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Edwin D. Jenkins
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Title: Senior Vice President
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EXHIBIT A
AGREEMENT TO INCREASE
COMMITMENT AMOUNT
Schedule 1.01(b) to Second Amended
and Restated Credit Agreement
WAREHOUSING COMMITMENT AMOUNTS
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During the period from the date of this Agreement until but excluding
October 2, 2003:
Bank Warehousing Commitment Amount
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U.S. Bank National Association $85,000,000
Bank One, N.A. $25,000,000
Guaranty Bank, F.S.B. $25,000,000
Comerica Bank $15,000,000
During the period on and
after October 2, 2003:
Bank Warehousing Commitment Amount
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U.S. Bank National Association $60,000,000
Bank One, N.A. $25,000,000
Guaranty Bank, F.S.B. $25,000,000
Comerica Bank $15,000,000