EXHIBIT 10.36
SECOND AMENDMENT TO
CREDIT AGREEMENT
AND
SECOND AMENDMENT TO
PLEDGE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND SECOND AMENDMENT TO
PLEDGE AND SECURITY AGREEMENT (the "Amendment") dated as of August 10, 2001
between CH Mortgage Company I, Ltd., a Texas limited partnership ("Company"),
U.S. Bank National Association, as agent ("Agent") and Lenders referred to below
("Lenders").
WITNESSETH THAT:
WHEREAS, the Company, the Lenders and the Agent are parties to a Credit
Agreement dated as of August 13, 1999, as amended by a First Amendment to Credit
Agreement dated as of August 14, 2000 (as so amended, the "Credit Agreement"),
pursuant to which the Lenders provide the Company with a revolving mortgage
warehousing credit facility;
WHEREAS, to secure the Obligations, the Company and the Agent entered
into a Pledge and Security Agreement dated as of August 13, 1999, as amended by
a First Amendment to Pledge and Security Agreement dated as of April 5, 2000 (as
so amended, the "Pledge and Security Agreement"); and
WHEREAS, the Company and the Lenders have agreed to amend the Credit
Agreement and the Pledge and Security Agreement upon the terms and conditions
herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Lenders agree as follows:
1. Certain Defined Terms. Each capitalized term used herein without
being defined herein that is defined in the Credit Agreement shall have the
meaning given to it therein.
2. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) Except as otherwise provided in this Amendment, all
references in the Credit Agreement to "Borrower" shall mean and refer
to "the Company." All references to "the Borrower" in the definitions
of Commitment, Lenders, Loan Documents, Mortgage Collateral,
Obligations, Security Agreement, Security Instrument, Swingline
Commitment and Swingline Loan in Section 1.01 of the Credit Agreement,
and in Sections 2.01(a), 2.08, 3.02(b), 4.03, 4.04, 4.05, 4.17, 5.03,
5.04, 5.08, 5.11, 5.14, 6.06, 7.01(e), 9.01, 9.05. 9.10, 9.11, 10.09,
10.10 and 10.18 of the Credit Agreement, shall mean and refer to "the
Borrowers." All references to "the Borrower" in Sections 2.06, 4.18,
5.10, 7.01(a), 7.01(b), 7.01(c) and 7.01(d) of the Credit Agreement
shall mean and refer to "the Company and the applicable Co-Borrower."
(b) All references in the Credit Agreement to "Reference
Rate" shall mean and refer to "Prime Rate."
(c) The following definitions are hereby added to Section
1.01 in the appropriate alphabetical order:
"Borrowers" means the Company and the Co-Borrowers.
"Co-Borrower Sublimit" means $10,000,000.
"Co-Borrowers" means each Person who becomes a party
to this Agreement as a Co-Borrower pursuant to a Joinder
Agreement and Section 3.03.
"Company" means CH Mortgage Company I, Ltd., a Texas
limited partnership.
"Joinder Agreement" means an agreement in the form
attached hereto as Exhibit E.
(d) The definitions of "Drawdown Termination Date,"
"Eurodollar Rate," "Jumbo Mortgage Loan" and "Risk Rating" in Section
1.01 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"Drawdown Termination Date:" means the earlier of
August 13, 2002, or the day on which the Notes first become
due and payable in full.
"Eurodollar Rate:" on any date of determination, the
average offered rate for deposits in United States dollars
having a maturity of one month (rounded upward, if necessary,
to the nearest 1/16 of 1%) for delivery of such deposits on
such date of determination which appears on the Telerate Page
3750 or any successor thereto as of 11:00 a.m., London time
(or such other time as of which such rate appears) on such
date of determination, or the rate for such deposits
determined by the Agent at such time based on such other
published service of general application as shall be selected
by the Agent for such purpose; provided, that in lieu of
determining the rate in the foregoing manner, the Agent may
determine the rate based on rates at which United States
dollar deposits having a maturity of one month are offered to
the Agent in the interbank Eurodollar market at such time for
delivery in Immediately Available Funds on such date of
determination in an amount equal to $1,000,000 (round upward,
if necessary, to the nearest 1/16 of 1%).
"Jumbo Mortgage Loan" means a Mortgage Loan which
would in all respects be a Conforming Loan but for the fact
that the original unpaid principal amount of the underlying
Mortgage Note is greater than $240,000 (but does not exceed
$750,000).
"Risk Rating" means the risk rating of a Mortgage
Loan determined by the underwriting guidelines of the Company
or other applicable standards of an
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Investor to which such Mortgage Loan is to be sold by a
Borrower under a Take-Out Commitment, provided that such
underwriting guidelines or other applicable standards comply
with industry standards in the sole judgment of Agent.
(e) Section 2.01(b) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(b) Discretionary Swingline Commitment. Upon the terms and
subject to the conditions of this Agreement, until the
Drawdown Termination Date, U.S. Bank, in its sole discretion,
may lend to the Borrowers loans (each such loan, a "Swingline
Loan") at such times and in such amounts as the Company shall
request, up to an aggregate principal amount at any time
outstanding equal to the amount by which U.S. Bank's
Commitment Amount exceeds the principal amount outstanding
under U.S. Bank's Note; provided, that U.S. Bank will not make
a Swingline Loan if (i) after giving effect thereto, any of
the limitations set forth in Section 2.01(a) would be exceeded
or (ii) U.S. Bank has received written notice from the Company
or any Lender that one or more of the conditions precedent set
forth in Article III for the making of a Loan have not been
satisfied.
(f) Section 2.03(a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(a) Notice and Manner of Obtaining Loans. The Company
shall give Agent telephonic notice of each request for Loans
not later than 1:00 p.m. (Minneapolis, Minnesota time) on the
requested Borrowing Date and of each request for Swingline
Loans not later than 3:00 p.m. (Minneapolis, Minnesota time)
on the requested Borrowing Date. Each request for Loans or
Swingline Loans shall specify the aggregate amount of Loans or
Swingline Loans requested, whether each such Loan or Swingline
Loan is being made to permit a Co-Borrower to originate or
acquire one or more Mortgage Loans (and, if so, specifying the
Co-Borrower), and whether such Loans to be made by each Lender
are to be funded as Reference Rate Advances, Eurodollar Rate
Advances or Balance Funded Rate Advances; provided, that any
portion of a Loan not so designated shall be funded as a
Eurodollar Rate Advance. Agent shall notify each Lender via
facsimile and telephone by not later than 2:00 P.M.
(Minneapolis, Minnesota time) on the date it receives such
request of each request for Loans received from the Company,
of such Lenders's Percentage Share of the Loans requested and
whether such Lender's Loans are to funded as Reference Rate
Advances, Eurodollar Rate Advances or Balance Funded Rate
Advances. The Company shall, not later than the following
Business Day, confirm any such request by delivering to Agent
a Confirmation. Each request for Loans shall be irrevocable
and binding on the Company and any applicable Co-Borrower. If
all conditions precedent to such Loan have been met, each
Lender shall deposit into the Collateral Account in
immediately available dollars by not later than 4:00 P.M.
(Minneapolis, Minnesota time) on the Borrowing Date the amount
of such Lender's Loan and upon receipt of such funds, Agent
shall promptly make such funds available to the Company and
any applicable Co-Borrower by depositing
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such funds in the Good Funds Wire Clearing Account or the
Operating Account, as requested by the Company. On the
Borrowing Date of requested Swingline Loans, U.S. Bank may
deposit into the Collateral Account in Immediately Available
Funds by not later than 4:00 p.m. (Minneapolis, Minnesota
time) on the requested Borrowing Date the amount of the
requested Swingline Loans. Unless Agent shall have received
notice from a Lender prior to 3:00 P.M. (Minneapolis,
Minnesota time) on any Borrowing Date that such Lender will
not make available to Agent such Lender's Loan, Agent may in
its discretion assume that such Lender has made such Loan
available to Agent in accordance with this section and Agent
may if it chooses, in reliance upon such assumption make such
Loan available to the Company and any applicable Co-Borrower.
If and to the extent such Lender shall not so make its Loan
available to Agent, such Lender shall, on demand, pay to Agent
the amount of such Loan together with interest thereon, for
each day from the date such amount is made available to the
Company and any applicable Co-Borrower until the date such
amount is paid or repaid to Agent at the Federal Funds Rate.
If such Lender does not pay such amount promptly upon Agent's
demand therefor, Agent shall notify the Company and the
Company and each applicable Co-Borrower shall immediately
repay such amount to Agent together with accrued interest
thereon at the applicable rate or rates provided in Section
2.04. Agent shall use its best efforts to demand any such
amount from both such Lender and the Company, provided, that
any failure by Agent to make any such demand on both such
Lender and the Company shall not in any manner affect such
Lender's, the Company's or any applicable Co-Borrower's
obligation to pay or repay such amount, with interest, as set
forth herein. The failure of any Lender to make any Loan to be
made by it hereunder shall not relieve any other Lender of its
obligation hereunder, if any, to make its Loan, but no Lender
shall be responsible for the failure of any other Lender to
make any Loan to be made by such other Lender. Each request
for Loans or Swingline Loans shall be deemed to be a
representation by the Company that (i) no Event of Default or
Default has occurred or will exist upon the making of the
requested Loans or Swingline Loans and (ii) the
representations and warranties contained in Section 4 hereof
and in Section 5 of the Security Agreement are true and
correct with the same force and effect as if made on and as of
the date of such request.
(g) Section 2.03(b)(iii) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(iii) Lenders' Obligation to Fund Refinancings of
Swingline Loans. Upon the giving of notice by U.S. Bank under
Section 2.03(b)(i) or 2.03(b)(ii), each Lender (including U.S.
Bank) shall make a Loan in an amount equal to its Percentage
Share of the aggregate principal amount of Swingline Loans to
be refinanced, and provide proceeds of such Loans, in
immediately available funds, by not later than 3:00 P.M.
(Minneapolis time) on the date such notice was received;
provided, however, that a Lender shall not be obligated to
make any such Loan unless (A) U.S. Bank believed in good faith
that all conditions to making the subject Swingline Loan were
satisfied at the time such Swingline Loan was made, or (B) if
the conditions to such Swingline Loan were not
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satisfied, such Lender had actual knowledge, by receipt of the
statements furnished to it pursuant to Section 4.01 or
otherwise, that any such condition had not been satisfied and
failed to notify U.S. Bank in a writing received by U.S. Bank
prior to the time it made such Swingline Loan that U.S. Bank
was not authorized to make a Swingline Loan until such
condition had been satisfied, or U.S. Bank was obligated to
give notice of the occurrence of an Event of Default or a
Default to Lenders pursuant to Section 8.08 and failed to do
so, or (C) any conditions to the making of such Swingline Loan
that were not satisfied had been waived in writing by Majority
Lenders prior to or at the time such Swingline Loan was made.
The proceeds of Loans made pursuant to the preceding sentence
shall be paid to U.S. Bank (and not to any Borrower) and
applied to the payment of principal of the outstanding
Swingline Loans, and the Company authorizes Agent to charge
the Collateral Account or any other account (other than escrow
or custodial accounts) maintained by the Company with Agent
(up to the amount available therein) in order to immediately
pay U.S. Bank the principal amount of such Swingline Loans to
the extent Loans made by the Lenders are not sufficient to
repay in full the principal of the outstanding Swingline Loans
requested or required to be refinanced. Upon the making of a
Loan by a Lender pursuant to this Section 2.03(b)(iii), the
amount so funded shall become due under such Lender's Note and
the outstanding principal amount of the Swingline Loans shall
be correspondingly reduced. If any portion of any Loan made by
Lenders pursuant to this Section 2.03(b)(iii) should be
recovered by or on behalf of any Borrower from U.S. Bank in
bankruptcy or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner
contemplated by Section 9.11. Each Lender's obligation to make
Loans referred to in this Section 2.03(b) shall, subject to
the proviso to the first sentence of this Section
2.03(b)(iii), be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation,
(1) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against U.S. Bank, any
Borrower or anyone else for any reason whatsoever; (2) the
occurrence or continuance of a Default or an Event of Default;
(3) any adverse change in the condition (financial or
otherwise) of the Company or any Co-Borrower; (4) any breach
of this Agreement by any Borrower, the Agent or any Lender; or
(5) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided, that
in no event shall a Lender be obligated to make a Loan if,
after giving effect thereto, the outstanding principal balance
of such Lender's Note would exceed its Commitment Amount.
(h) Sections 2.04(a) and (b) of the Credit Agreement are
hereby amended in their entirety to read as follows:
(a) Interest Rates; Balances Deficiency Fees. The
Borrowers will pay the Agent monthly in arrears, within two
Business Days after the Company's receipt of Agent's statement
therefor, interest on the unpaid principal balance of each
Advance of each Lender from time to time outstanding as
follows:
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(i) with respect to Balance Funded Rate
Advances, at the Balance Funded Rate; provided, that
if for any Balance Calculation Period the Balance
Funded Amount maintained by the Company with any
Lender is less than an amount equal to the average
daily aggregate unpaid principal balance of the
Balance Funded Rate Advances owed to such Lender
during such Balance Calculation Period (such
deficiency being herein referred to as the "Balances
Deficiency"), the Borrowers will pay such Lender a
fee (the "Balances Deficiency Fee") for said Balance
Calculation Period on the Balances Deficiency at a
per annum rate equal to the average daily Eurodollar
Rate plus Applicable Margin in effect during said
Balance Calculation Period; and provided further,
that if the Balance Funded Amount maintained by the
Company with any Lender for any Balance Calculation
Period exceeds the weighted average daily aggregate
unpaid principal balance of the Balance Funded Rate
Advances owed to such Lender during such Balance
Calculation Period (such excess being defined herein
as the "Balances Surplus"), then such Balances
Surplus, or, if the Company and such Lender shall so
agree, the charges reduction benefit for such
Balances Surplus (as determined by such Lender), may
be carried forward and applied to succeeding Balance
Calculation Periods (but not to any Balance
Calculation Period occurring in any subsequent
calendar year);
(ii) with respect to Reference Rate Advances,
the Reference Rate plus the Applicable Margin, as
adjusted automatically on and as of the effective
date of any change in the Reference Rate;
(iii) with respect to Eurodollar Rate Advance
the Adjusted Eurodollar Rate plus the Applicable
Margin, as adjusted automatically on and as of the
effective date of any change in the Adjusted
Eurodollar Rate; and
(iv) with respect to any Obligations not paid
when due (A) consisting of Balance Funded Rate
Advances, a rate per annum equal to the Balance
Funded Rate plus 4.0% per annum,(B) consisting of
Eurodollar Rate Advances, a rate per annum equal to
the Adjusted Eurodollar Rate plus 4.0% per annum, (C)
consisting of Reference Rate Advances, a rate per
annum equal to the Reference Rate plus 4.0% per
annum, and (D) consisting of other Obligations, a
rate per annum equal to the Reference Rate plus the
Applicable Margin plus 4.0% for the period from the
date such Obligations were due until the same are
paid.
(b) Payment of Interest and Fees. Agent shall use
its best efforts to provide the Company with a statement for
interest on the Notes, the facility fees with respect to the
Commitments and the collateral handling fees with respect to
Mortgage Loans pledged under the Pledge and Security
Agreement, in each case accrued through the last day of each
calendar month, on or before the third Business Day (and in
any case, no later than the tenth Business Day), of the next
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succeeding calendar month, but shall have no liability to any
Borrower for its failure to do so. Interest on the Notes,
facility fees and collateral handling fees accrued through the
last day of each calendar month shall be due and payable on
the second Business Day after the date the Company receives
such statement from Agent; provided, that interest payable at
the rates provided for in Section 2.04 (a)(iv) shall be
payable on demand. Any Balances Deficiency Fee payable
hereunder shall be due and payable quarterly after each
Balance Calculation Period within two Business Days after
receipt by the Company from any Lender of a statement therefor
(a copy of which shall be provided to Agent) containing the
calculations made to determine such Balances Deficiency Fee,
which statement shall be conclusive absent manifest error
unless approved by such Lender.
(i) Article III of the Credit Agreement is hereby amended
to add the following after Section 3.02:
Section 3.03 New Co-Borrowers. The Company may, at
any time, add any Person from which the Company regularly
purchases Mortgage Loans in the ordinary course of its
business as a Co-Borrower hereunder with the prior written
consent of the Majority Lenders by entering into a Joinder
Agreement with the Agent and such Person; provided, that the
effectiveness of any such Joinder Agreement, and of the
addition of any such Person as a Co-Borrower hereunder, shall
be subject to the following conditions precedent:
(a) The Agent shall have received the
following, all of which must be in form and content
satisfactory to the Agent, in its sole discretion:
(1) The Joinder Agreement.
(2) Certified copies of the new
Co-Borrower's articles of incorporation and
bylaws or other organizational documents, and
certificates of good standing dated no less
recently than thirty (30) days prior to the
date of the Joinder Agreement.
(3) A copy of resolutions of the board of
directors or other governing authority of the
new Co-Borrower, certified as of the date of
the Joinder Agreement by its corporate
secretary (or the equivalent), authorizing the
execution, delivery and performance of the
Joinder Agreement (and thereby the assumption
of the Obligations under the Loan Documents)
and all other instruments or documents to be
delivered by the new Co-Borrower pursuant to
this Agreement and the Joinder Agreement.
(4) A certificate of the corporate
secretary (or the equivalent) of the new
Co-Borrower, as to the incumbency and
authenticity of the signatures of the officers
of the new Co-
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Borrower executing the Joinder Agreement, and all other
instruments or documents to be delivered by such new
Co-Borrower pursuant to the Joinder Agreement and this
Agreement (the Agent being entitled to rely thereon until a
new such certificate has been furnished to the Agent).
(5) A tax, lien and judgment search of the appropriate
public records for the new Co-Borrower in the States where
its chief executive office is located, including a search of
Uniform Commercial Code financing statements, which search
shall not have disclosed the existence of any prior Lien on
the Collateral other than in favor of the Agent, for the
benefit of the Secured Parties, or as permitted hereunder.
(6) Executed financing statements in recordable form
naming the new Co-Borrower as debtor, covering the
Collateral and ready for filing in all jurisdictions
required by the Agent.
(7) Copies of the new Co-Borrower's errors and
omissions insurance policy or mortgage impairment insurance
policy and blanket bond coverage policy, all in form and
content satisfactory to the Agent, showing compliance of the
new Co-Borrower as of the date of the Joinder Agreement with
the related provisions of Section 5.06.
(b) The representations and warranties contained in Article
4 hereof applicable to the Co-Borrower shall be accurate and
complete in all material respects as if made on and as of the
date of, and after giving effect to, the Joinder Agreement.
(c) The Borrowers shall have performed all agreements to be
performed by them hereunder, and after giving effect to the
addition of the new Co-Borrower hereunder, there shall exist no
Default or Event of Default hereunder.
Each of the Co-Borrowers (including, without limitation, any
Co-Borrower that becomes a party hereto pursuant to a Joinder
Agreement) hereby authorizes the Company, on behalf of the Borrowers,
to execute and deliver Joinder Agreements and Notes on behalf of all
of the Borrowers.
(j) Section 4.11 of the Credit Agreement is hereby amended in its
entirety to read as follows:
Section 4.11 Principal Office, etc. The principal office, chief
executive office and principal place of business of the Company and
each Restricted Subsidiary is at the address set forth in Section
10.01. The principal office, chief executive office and principal
place of business of each Co-Borrower is at the address set forth in
the applicable Joinder Agreement.
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(k) Article IV of the Credit Agreement is hereby amended to add the
following after Section 4.20:
4.21 Co-Borrowers. Each Co-Borrower originates and sells to the
Company Mortgage Loans. The Company will receive benefit from each
Loan or Swingline Loan made hereunder to enable a Co-Borrower to
originate a Mortgage Loan, whether or not such Mortgage Loan is
thereafter sold to the Company, because of the continuing business
relationship between the Company and such Co-Borrower.
(l) Sections 5.05 and 5.06 of the Credit Agreement are hereby amended
in their entirety to read as follows:
Section 5.05 Reimbursement of Expenses. The Borrowers shall pay,
subject to the limitation in Section 10.19 hereof (in the case of each
Co-Borrower) (a) all reasonable legal fees (including, without
limitation, allocated costs for in-house legal service) incurred by
Agent in connection with the preparation, negotiation or execution of
this Agreement, the Notes and the other Loan Documents and any
amendments, consents or waivers executed in connection therewith, (b)
all fees, charges or taxes for the recording or filing of the Security
Instruments, (c) all out-of-pocket expenses of Agent in connection
with the legal administration of this Agreement, the Notes and the
other Loan Documents, including courier expenses incurred in
connection with the Mortgage Collateral, and (d) all amounts expended,
advanced or incurred by Agent to satisfy any obligation of any
Borrower under this Agreement or any of the other Loan Documents or to
collect the Notes, or to enforce the rights of Agent or any Lender
under this Agreement or any of the other Loan Documents or to collect
the Note, or to enforce the rights of Agent or any Lender under this
Agreement or any of the other Loan Documents, which amounts shall
include all underwriting expenses, collateral liquidation costs, court
costs, attorneys' fees (including, without limitation, for trial,
appeal or other proceedings), fees of auditors and accountants, and
investigation expenses reasonably incurred by Agent or any Lender in
connection with any such matters, together with interest at the
post-maturity rate specified in the Note on each item specified in
clause (a) through (d) from thirty (30) days after the date of written
demand or request for reimbursement until the date of reimbursement.
Section 5.06 Insurance. Each Borrower shall maintain with
financially sound and reputable insurers, insurance with respect to
its properties and business against such liabilities, casualties,
risks and contingencies and in such types and amounts as is customary
in the case of Persons engaged in the same or similar businesses and
similarly situated, including, without limitation, a fidelity bond or
bonds with financially sound and reputable insurers with such coverage
and in such amounts as is customary in the case of Persons engaged in
the same or similar business and similarly situated. The improvements
on the land covered by each Mortgage shall be kept continuously
insured at all times by responsible insurance companies against fire
and extended coverage hazard under policies,
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binders, letters, or certificates of insurance, with a standard
mortgagee clause in favor of the applicable Borrower and its assigns.
Each such policy must be in an amount equal to the lesser of the
maximum insurable value of the improvements or the original principal
amount of the Mortgage Note, without reduction by reason of any
co-insurance, reduced rate contribution, or similar clause of the
policies or binders. Upon request of Agent, each Borrower shall
furnish or cause to be furnished to Agent from time to time a summary
of the insurance coverage of such Borrower in form and satisfactory to
Agent and if requested shall furnish Agent copies of the applicable
policies.
(m) Section 6.13 is hereby amended in its entirety to read as
follows:
Section 6.13 Tangible Net Worth. As of the end of each calendar
month, Borrower's Consolidated Tangible Net Worth shall not be less
than $25,000,000.
(n) Section 7.02 of the Credit Agreement is hereby amended in its
entirety to read as follows:
Section 7.02 Default Remedies. Except as provided in the
following sentence, upon the occurrence of an Event of Default, Agent
may (and upon written instructions from Majority Lenders, Agent shall)
declare the Commitments to be terminated and/or declare the entire
principal and all interest accrued on the Notes to be, and the Notes,
together with all Obligations, shall thereupon become, forthwith due
and payable, without any presentment, demand, protest, notice of
protest and nonpayment, notice of acceleration or of intent to
accelerate or other notice of any kind, all of which hereby are
expressly waived. Notwithstanding the foregoing, (a) if an Event of
Default specified in Subsections 7.01(e)(i), (ii) or (iii) above
occurs with respect to the Company, the Commitments shall
automatically and immediately terminate and the Notes and all other
Obligations shall become automatically and immediately due and
payable, both as to principal and interest, without any action by
Agent or any Lender and without presentment, demand, protest, notice
of protest and nonpayment, notice of acceleration or of intent to
accelerate, or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in any Notes to the
contrary notwithstanding, and (b) if an Event of Default specified in
Sections 7.01(b), (c), (d), (e), (f) or (g) occurs with respect to a
Co-Borrower, the Agent and the Lenders shall not have the right to
declare the Commitments to be terminated, declare the entire principal
and all interest accrued on the Notes to be forthwith due and payable,
or exercise any of their other rights hereunder or under the Loan
Documents (except that the Lenders shall have no further obligation to
make Loans to enable such Co-Borrower to originate Mortgage Loans, and
the Agent and the Lenders may exercise their remedies with respect to
the Mortgage Loans pledged by such Co-Borrower to the Agent pursuant
to the Pledge and Security Agreement) for 10 Business Days after the
occurrence of such Event of Default, or thereafter if all Loans made
to enable
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such Co-Borrower to originate or acquire Mortgage Loans hereunder have
been repaid in full.
(o) Sections 10.01 and 10.02 of the Credit Agreement are hereby
amended in their entirety to read as follows:
Section 10.01 Notices. Any notice or request required or
permitted to be given under or in connection with this Agreement, the
Notes or the other Loan Documents (except as may otherwise be
expressly required therein) shall be in writing and shall be mailed by
first class or express mail, postage prepaid, or sent by telex,
telegram, telecopy or other similar form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid)
written confirmation at substantially the same time as such rapid
transmission, or personally delivered to an officer of the receiving
party. All such communications shall be mailed, sent or delivered to
the parties hereto at their respective addresses as follows:
Any Borrower: CH Mortgage Company I, Ltd.
12554 Riata Vista Circle
Austin, Texas 78757
Attn: Randall C. Present
FAX: (512) 345-7348
TEL: (512) 345-4663
With copies to: Sam Fuller
Ted I. Harbour
1901 Ascension Blvd., Suite 100
Arlington, Texas 76006
FAX: (817) 856-8249
TEL: (817) 856-8200
Agent: U.S. Bank National Association
U.S. Bank Place - MPFP0508
601 Second Avenue South
Minneapolis, Minnesota 55402
Attn: Kathleen M. Connor
FAX: (612) 973-0826
TEL: (612) 973- 0306
or at such other addresses or to such individual's or department's
attention as the Company or the Agent may have furnished the other
party in writing. Any communication so addressed and mailed shall be
deemed to be given when so mailed, except that requests for loans,
Confirmations and other communications related thereto shall not be
effective until actually received by Agent or the Company, as the case
may be; and any notice so sent by rapid transmission shall be deemed
to be given when receipt of such transmission is acknowledged, and any
communication so delivered in person shall be deemed to be given when
receipted for by, or actually received by, an authorized officer of
the Company or
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Agent, as the case may be. Each Co-Borrower hereby authorizes the
Agent and the Lenders to send all notices under this Agreement and the
Loan Documents to the Company, on behalf of such Co-Borrower, and the
Company undertakes to provide such notices to the applicable
Co-Borrower(s).
Section 10.02 Amendments, etc. No amendment or waiver of any
provision of this Agreement, the Security Instruments, the Notes, or
any other Loan Document, nor consent to any departure by any Borrower
or any Restricted Subsidiary from the terms thereof, shall in any
event be effective unless (a) the same shall be in writing and signed
by (i) if such party is a Borrower, by the Company, (ii) if such party
is Agent, by Agent and (iii) if such party is a Lender, by such Lender
or by Agent on behalf of Lenders with the written consent of Majority
Lenders (or without further consent than that already provided herein
in the circumstances provided in Section 10.16) and (b) in the case of
an amendment other than the first and second amendment and other than
annual renewals or temporary extensions related to annual renewals,
the Agent, on behalf of each Lender executing such amendment, shall
have received an amendment fee from the Company in the amount of one
thousand five hundred dollars ($1,500) for each Lender executing such
amendment. Notwithstanding the foregoing or anything to the contrary
herein, Agent shall not, without the prior consent of each individual
Lender, execute and deliver on behalf of such Lender any waiver or
amendment which would: (i) waive any of the conditions specified in
Article III (provided that Agent may in its discretions withdraw any
request it has made under Section 3.02(g)), (ii) increase the
Percentage Share of the Commitment of such Lender or subject such
Lender to any additional obligations, (iii) reduce any fees hereunder,
or the principal of, or interest on, such Lender's Note, (iv) amend
the definition herein of "Majority Lenders" or otherwise change the
aggregate amount of Percentage Shares which is required for Agent,
Lenders or any of them to take any particular action under the Loan
Documents, (v) release any Borrower from its obligation to pay such
Lender's Note, (vi) amend the definitions of "Collateral Value,"
"Drawdown Termination Date," and "Mortgage Collateral," (vii) release
any Collateral except in accordance with and pursuant to the Loan
Documents, or (viii) change the date on which any payments of
principal, interest or fees are due hereunder.
(p) Article X of the Credit Agreement is hereby amended to add the
following after Section 10.18:
Section 10.19 Relationship Among Borrowers.
(a) JOINT AND SEVERAL LIABILITY. THE COMPANY AGREES THAT IT
IS LIABLE FOR THE PAYMENT OF ALL OBLIGATIONS OF THE BORROWERS
UNDER THIS AGREEMENT, AND THAT THE LENDERS AND THE AGENT CAN
ENFORCE SUCH OBLIGATIONS AGAINST THE COMPANY, IN THE LENDERS' OR
THE AGENT'S SOLE AND UNLIMITED DISCRETION. EACH CO-BORROWER
AGREES THAT IT IS
-12-
LIABLE ONLY FOR THE PAYMENT OF LOANS AND SWINGLINE LOANS MADE TO
ENABLE IT TO ORIGINATE OR ACQUIRE MORTGAGE LOANS, INTEREST ON
SUCH LOANS AND SWINGLINE LOANS, AND FEES, COSTS AND EXPENSES
RELATED TO SUCH LOANS AND SWINGLINE LOANS AND SUCH CO-BORROWER'S
PERFORMANCE OR NON-PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. THE
COMPANY AGREES THAT IT IS JOINTLY AND SEVERALLY LIABLE WITH EACH
CO-BORROWER FOR SUCH CO-BORROWER'S OBLIGATIONS, AS DESCRIBED IN
THE PRECEDING SENTENCE.
(b) Waivers of Defenses. The obligations of the Borrowers
hereunder shall not be released, in whole or in part, by any
action or thing which might, but for this provision of this
Agreement, be deemed a legal or equitable discharge of a surety
or guarantor, other than irrevocable payment and performance in
full of the Obligations (except for contingent indemnity and
other contingent Obligations not yet due and payable) at a time
after any obligation of the Lenders hereunder to make Loans shall
have expired or been terminated. The purpose and intent of this
Agreement is that the Obligations constitute the direct and
primary obligations of the Company and, to the extent provided in
Section 10.19(a), each Co-Borrower, and that the covenants,
agreements and all obligations of each Borrower hereunder be
absolute, unconditional and irrevocable. Each Borrower shall be
and remain liable for any deficiency remaining after foreclosure
of any mortgage, deed of trust or security agreement securing all
or any part of the Obligations for which it is liable, whether or
not the liability of any other Person for such deficiency is
discharged pursuant to statute, judicial decision or otherwise.
(c) Other Transactions. The Lenders and the Agent are
expressly authorized to exchange, surrender or release with or
without consideration any or all collateral and security which
may at any time be placed with it by any Borrower or by any other
Person on behalf of the Borrowers, or to forward or deliver any
or all such collateral and security directly to the Company or
the applicable Co-Borrower for collection and remittance or for
credit. No invalidity, irregularity or unenforceability of any
security for the Obligations or other recourse with respect
thereto shall affect, impair or be a defense to the Borrowers'
obligations under this Agreement. The liabilities of each
Borrower hereunder shall not be affected or impaired by any
failure, delay, neglect or omission on the part of any Lender or
the Agent to realize upon any of the Obligations of any other
Borrower to the Lenders or the Agent, or upon any collateral or
security for any or all of the Obligations, nor by the taking by
any Lender or the Agent of (or the failure to take) any guaranty
or guaranties to secure the Obligations, nor by the taking by any
Lender or the Agent of (or the failure to take or the failure to
perfect its security interest in or other lien on) collateral or
security of any kind. No act or omission of any Lender or
-13-
the Agent, whether or not such action or failure to act varies or
increases the risk of, or affects the rights or remedies of a
Borrower, shall affect or impair the obligations of the Borrowers
hereunder.
(d) Actions Not Required. Each Borrower, to the extent
permitted by applicable law, hereby waives any and all right to
cause a marshaling of the assets of any other Borrower or any
other action by any court or other governmental body with respect
thereto or to cause any Lender or the Agent to proceed against
any security for the Obligations or any other recourse which any
Lender or the Agent may have with respect thereto and further
waives any and all requirements that any Lender or the Agent
institute any action or proceeding at law or in equity, or obtain
any judgment, against any other Borrower or any other Person, or
with respect to any collateral security for the Obligations, as a
condition precedent to making demand on or bringing an action or
obtaining and/or enforcing a judgment against, such Borrower
under this Agreement.
(e) Subrogation. Notwithstanding any payment or payments
made by any Borrower hereunder or any setoff or application of
funds of any Borrower by any Lender or the Agent, such Borrower
shall not be entitled to be subrogated to any of the rights of
any Lender or the Agent against any other Borrower or any other
guarantor or any collateral security or guaranty or right of
offset held by any Lender or the Agent for the payment of the
Obligations, nor shall such Borrower seek or be entitled to seek
any contribution or reimbursement from any other Borrower or any
other guarantor in respect of payments made by such Borrower
hereunder, until all amounts owing to the Lenders and the Agent
by the Borrowers on account of the Obligations are irrevocably
paid in full; provided, however, that the Company may seek
reimbursement from a Borrower for payments made by the Company on
behalf of such Borrower if (i) all Obligations owing to the
Lenders and the Agent by that Borrower are irrevocably paid in
full and (ii) the Lenders have no further obligation to make
Loans to enable such Borrower to originate Mortgage Loans. If any
amount shall be paid to a Borrower on account of such subrogation
rights at any time when all of the Obligations shall not have
been irrevocably paid in full, such amount shall be held by that
Borrower in trust for the Lenders and the Agent, segregated from
other funds of that Borrower, and shall, forthwith upon receipt
by the Borrower, be turned over to the Agent in the exact form
received by the Borrower (duly indorsed by the Borrower to the
Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Agent may
determine. From and after the irrevocable payment in full of all
amounts owing to the Lenders and the Agent by the Borrowers on
account of the Obligations, each Co-Borrower shall be liable to
the Company for any amount paid by the Company to the Agent or
the Lenders (and not previously paid to the Company by such
Co-Borrower) as principal of and interest on the Loans and
Swingline Loans made to enable such Co
-14-
Borrowers to originate or acquire Mortgage Loans, fees,
costs and expenses relating to such Loans and Swingline
Loans, and such Co-Borrower's performance or
non-performance of its Obligations hereunder.
(f) Application of Payments. Any and all payments
upon the Obligations made by any Borrower, and/or the
proceeds of any or all collateral or security for any of
the Obligations provided by any Borrower, may be applied by
the Lenders on such items of the Obligations for which such
Borrower is liable as the Lenders may elect.
(g) Recovery of Payment. If any payment received by
the Lenders or the Agent and applied to the Obligations is
subsequently set aside, recovered, rescinded or required to
be returned for any reason (including, without limitation,
the bankruptcy, insolvency or reorganization of a Borrower
or any other obligor), the Obligations to which such
payment was applied shall, to the extent permitted by
applicable law, be deemed to have continued in existence,
notwithstanding such application, and each Borrower liable
on such Obligations shall be jointly and severally liable
for such Obligations as fully as if such application had
never been made. References in this Agreement to amounts
"irrevocably paid" or to "irrevocable payment" refer to
payments that cannot be set aside, recovered, rescinded or
required to be returned for any reason.
(h) Borrowers' Financial Condition. The Company is
familiar with the financial condition of each Co-Borrower,
each Co-Borrower is familiar with the financial condition
of the Company and each Borrower has executed and delivered
this Agreement based on that Borrower's own judgment and
not in reliance upon any statement or representation of the
Agent or any Lender. The Lenders and the Agent shall have
no obligation to provide any Borrower with any advice
whatsoever or to inform any Borrower at any time of the
Lenders' actions, evaluations or conclusions on the
financial condition or any other matter concerning the
Borrowers.
(i) Bankruptcy of the Borrowers. Each Borrower
expressly agrees that, to the extent permitted by
applicable law, the liabilities and obligations of that
Borrower under this Agreement shall not in any way be
impaired or otherwise affected by the institution by or
against any other Borrower or any other Person of any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or any other similar proceedings
for relief under any bankruptcy law or similar law for the
relief of debtors and that any discharge of any of the
Obligations pursuant to any such bankruptcy or similar law
or other law shall not diminish, discharge or otherwise
affect in any way the obligations of that Borrower under
this Agreement, and that upon the institution of any of the
above actions, such obligations shall be enforceable
against that Borrower.
-15-
(j) Limitation; Insolvency Laws. As used in this
Section 10.17(j): (a) the term "Applicable Insolvency Laws"
means the laws of the United States of America or of any
State, province, nation or other governmental unit relating
to bankruptcy, reorganization, arrangement, adjustment of
debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws
(including, without limitation, 11 U. S. C. 547, 548, 550
and other "avoidance" provisions of Title 11 of the United
Stated Code) as applicable in any proceeding in which the
validity and/or enforceability of this Agreement against
any Borrower, or any Specified Lien is in issue; and (b)
"Specified Lien" means any security interest, mortgage,
lien or encumbrance granted by any Borrower securing the
Obligations, in whole or in part. Notwithstanding any other
provision of this Agreement, if, in any proceeding, a court
of competent jurisdiction determines that with respect to
any Borrower, this Agreement or any Specified Lien would,
but for the operation of this Section, be subject to
avoidance and/or recovery or be unenforceable by reason of
Applicable Insolvency Laws, this Agreement and each such
Specified Lien shall be valid and enforceable against such
Borrower, only to the maximum extent that would not cause
this Agreement or such Specified Lien to be subject to
avoidance, recovery or unenforceability. To the extent that
any payment to, or realization by, the Lenders or the Agent
on the Obligations exceeds the limitations of this Section
and is otherwise subject to avoidance and recovery in any
such proceeding, the amount subject to avoidance shall in
all events be limited to the amount by which such actual
payment or realization exceeds such limitation, and this
Agreement as limited shall in all events remain in full
force and effect and be fully enforceable against such
Borrower. This Section is intended solely to reserve the
rights of the Lenders and the Agent hereunder against each
Borrower, in such proceeding to the maximum extent
permitted by Applicable Insolvency Laws and neither the
Borrowers, any guarantor of the Obligations nor any other
Person shall have any right, claim or defense under this
Section that would not otherwise be available under
Applicable Insolvency Laws in such proceeding.
(q) Schedule 1 to the Credit Agreement is hereby amended in its
entirety to read as set forth on Schedule 1 hereto.
(r) Exhibits A, B and D to the Credit Agreement are hereby
amended in their entirety to read as set forth on Exhibits A, B and D
hereto.
(s) A new Exhibit E, in the form set forth on Exhibit E hereto,
is added to the Credit Agreement.
-16-
3. Amendments to Pledge and Security Agreement. The Pledge and Security
Agreement is hereby amended as follows:
(a) Except as otherwise provided in this Amendment, all references
in the Pledge and Security Agreement to "the Borrower" shall mean and
refer to "the Borrowers," "each Borrower," or "the applicable Borrower,"
as the context may require. All references in Sections 5(n) and 10.04(a)
of the Pledge and Security Agreement to "the Borrower" shall mean and
refer to "the Company."
(b) Section 3 of the Pledge and Security Agreement is hereby
amended in its entirety to read as follows:
Section 3. REPORTS CONCERNING EXISTING COLLATERAL AND
HEREAFTER ACQUIRED COLLATERAL. From time to time hereafter as
reasonably requested by the Agent, the Company will promptly give
a written report to the Agent describing and listing each
document, instrument or other paper which evidences, secures,
guarantees, insures or pertains to any item of the Collateral
whether now or hereafter owned, acquired or held by the Borrowers.
Such written report shall contain sufficient information to enable
the Agent to identify each such document, instrument or other
paper. The Company (a) upon the request of the Agent, shall
promptly provide additional information concerning, or a more
complete description of, each such document, instrument or other
paper and (b) at the request of the Agent, shall promptly deliver
the same to the Agent. The Co-Borrowers shall, at the request of
the Company, cooperate with the Company in complying with the
requirements of this Section 3.
(c) Section 16 of the Pledge and Security Agreement is hereby
amended in its entirety to read as follows:
Section 16. NOTICES. Reasonable notification of the time and
place of any public sale of any Collateral, or reasonable
notification of the time after which any private sale or other
intended disposition of any of the Collateral is to be made shall
be sent to the Company (with a copy to any applicable Co-Borrower)
and to any other person entitled under the Code to notice;
provided, that if any of the Collateral threatens to decline
speedily in value, or is of a type customarily sold on a
recognized market, the Agent may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of
any kind. The Borrowers acknowledge and agree that Mortgage Loans
are property of a type subject to widely distributed standard
price quotations and Mortgage-backed Securities are property of a
type ordinarily sold on a recognized market, and agrees that the
Agent may purchase Mortgage Loans and Mortgage-backed Securities
at a private sale thereof and may sell Mortgage-backed Securities
without providing prior notice thereof to the Borrower. It is
agreed that notice sent or given not less than ten (10) calendar
days prior to the taking of the action to which the notice relates
is reasonable notification and notice of the purposes of this
Section 16. All notices and other communications provided for in
this Agreement shall be given to the parties at their respective
addresses set forth in
-17-
the Credit Agreement or, as to each such party, at such other
address as shall be designated by such party in a written notice to
the other parties in accordance with the Credit Agreement. All such
notices and other communications shall be given by one or more of
the means specified in Section 10.01 of the Credit Agreement and,
upon being so given, shall be deemed to have been given as of the
earliest time specified in said Section 10.01 for the means so used.
Each Co-Borrower hereby authorizes the Agent to send all notices of
sale of any Collateral to the Company, on behalf of such
Co-Borrower, and the Company undertakes to provide such notices to
the applicable Co-Borrower(s).
(d) Clause FIFTH of Section 17 of the Pledge and Security
Agreement is hereby amended in its entirety to read as follows:
Fifth: the balance (if any) of such proceeds shall be paid to
the Borrowers, their successors or assigns, or as a court of
competent jurisdiction may direct, provided, that if such proceeds
are not sufficient to satisfy the Obligations in full, the Company
and, to the extent provided in Section 10.19 of the Credit
Agreement, each Co-Borrower, shall remain liable to the Agent and
the Lenders for any deficiency.
(e) Attachments 1, 2, 3, 5 and 6 to the Pledge and Security
Agreement are hereby amended in their entirety to read as set forth on
Attachments 1, 2, 3, 5 and 6 hereto.
4. Exiting Lender. Effective as of December 12, 2001 (the "Exit Payoff
Date"), the Commitment Amount of First Union National Bank ("First Union") shall
terminate. If the outstanding principal balance of all Loans on the Exit Payoff
Date exceeds the sum of the Commitment Amounts, after giving effect to such
termination, the Company shall repay the Loans in the amount of such excess,
together with all interest, fees and other amounts payable to First Union, if
any, under the Credit Agreement as of the Exit Date. Provided there is no
Default or Event of Default or any other failure to satisfy the conditions
pursuant to Loans under the Credit Agreement on the Exit Date, the Agent shall
request that each of the Lenders (other than First Union) make Loans on the Exit
Date in the amount, if any, required to increase its outstanding Loans to its
Percentage Share of all outstanding Loans, and shall deliver the proceeds of
such Loans to the Agent; provided, however, that should any Lender fail to make
such Loans on the Exit Date, the Company shall repay the Loans in the amount
that such Lender failed to deliver to the Agent. The aggregate unpaid principal
amount of the Loans made by First Union under the Credit Agreement, together
with all interest, fees and other amounts, if any, payable to First Union under
the Credit Agreement as of the Exit Date (the "Payoff Amount"), shall be repaid
in full from the funds provided by the Company and the proceeds of Loans made by
the other Lenders. The Agent shall distribute to First Union by not later than
3:00 P.M. (Minneapolis time) on the Exit Date out of the proceeds of the funds
provided by the Company and the Loans made by the other Lenders for such
purpose, the amount required to pay First Union's Payoff Amount in full,
whereupon: (a) First Union shall no longer be a party to the Credit Agreement;
and (b) First Union shall not be deemed to be a "Lender" for any purpose under
the Credit Agreement.
-18-
5. Conditions to Effectiveness of this Amendment. This Amendment shall
become effective on August 14, 2001 (the "Effective Date"), provided the Agent
shall have received at least eight (8) counterparts of this Amendment, duly
executed by the Company and all of the Lenders, and the following conditions are
satisfied:
(a) Before and after giving effect to this Amendment, the
representations and warranties of the Company in Article IV of the Credit
Agreement and Section 5 of the Pledge and Security Agreement shall be
true and correct as though made on the date hereof, except for changes
that are permitted by the terms of the Credit Agreement.
(b) Before and after giving effect to this Amendment, no Event of
Default and no Default shall have occurred and be continuing.
(c) No material adverse change in the business, assets, financial
condition or prospects of the Company shall have occurred since May 31,
2000.
(d) The Agent shall have received the following, each duly
executed or certified, as the case may be, and dated as of the date of
delivery thereof:
(i) a new Note payable to each Lender, substantially in the
form of Exhibit A hereto, in the amount of such Lender's
respective Commitment Amount (each, a "New Note"), duly executed
by the Company;
(ii) copy of resolutions of the Board of Directors of the
Company, certified by its respective Secretary or Assistant
Secretary, authorizing or ratifying the execution, delivery and
performance of this Amendment;
(iii) a certified copy of any amendment or restatement of
the Articles of Incorporation or the By-laws of the Company made
or entered following the date of the most recent certified copies
thereof furnished to the Lenders;
(iv) certified copies of all documents evidencing any
necessary corporate action, consent or governmental or regulatory
approval (if any) with respect to this Amendment;
(v) a certificate of good standing for the Company in the
jurisdiction of its incorporation, certified by the appropriate
governmental official as of a date not more than 10 days prior to
the Effective Date; and
(vi) such other documents, instruments, opinions and
approvals as the Agent may reasonably request.
(e) Each of the Lenders shall have received an upfront fee in the
amount set forth on Schedule 6 to this Amendment.
(f) The Agent shall have received the amendment fee required by
Section 10.02 of the Credit Agreement.
-19-
6. Acknowledgments. The Company and each Lender acknowledge that, as
amended hereby, the Credit Agreement and the Pledge and Security Agreement
remain in full force and effect with respect to the Company and the Lenders, and
that each reference to the Credit Agreement or the Pledge and Security Agreement
in the Loan Documents shall refer to the Credit Agreement or the Pledge and
Security Agreement as applicable, amended hereby. The Company confirms and
acknowledges that it will continue to comply with the covenants set out in the
Credit Agreement and the other Loan Documents, as amended hereby, and that its
representations and warranties set out in the Credit Agreement and the other
Loan Documents, as amended hereby, are true and correct as of the date of this
Amendment. The Company represents and warrants that (i) the execution, delivery
and performance of this Amendment is within its corporate powers and has been
duly authorized by all necessary corporate action; (ii) this Amendment has been
duly executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms (subject to limitations as to enforceability which might result
from bankruptcy, insolvency, or other similar laws affecting creditors' rights
generally and general principles of equity) and (iii) no Events of Default or
Unmatured Events of Default exist.
7. General.
(a) The Company agrees to reimburse the Agent upon demand for all
reasonable expenses (including reasonable attorneys fees and legal
expenses) incurred by the Agent in the preparation, negotiation and
execution of this Amendment and any other document required to be
furnished herewith, and to pay and save the Lenders harmless from all
liability for any stamp or other taxes which may be payable with respect
to the execution or delivery of this Amendment, which obligations of the
Company shall survive any termination of the Credit Agreement.
(b) This Amendment may be executed in as many counterparts as may
be deemed necessary or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed
an original but all such counterparts shall constitute but one and the
same instrument.
(c) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
(d) This Amendment shall be governed by, and construed in
accordance with, the internal law, and not the law of conflicts, of the
State of Minnesota, but giving effect to federal laws applicable to
national banks.
(e) This Amendment shall be binding upon the Company, the Lenders,
the Agent and their respective successors and assigns, and shall inure to
the benefit of the Company, the Lenders, the Agent and the successors and
assigns of the Lenders and the Agent.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as of the day and year first above written.
CH MORTGAGE COMPANY I, LTD.
By: CH Mortgage Company GP, Inc.,
its General Partner
By: /s/ Randall C. Present
------------------------------
Randall C. Present
President
U.S. BANK NATIONAL ASSOCIATION,
as Agent and Lender
By: /s/ Kathleen M. Connor
------------------------------
Kathleen M. Connor
Vice President
RESIDENTIAL FUNDING CORPORATION
By: /s/ Brian Hilberth
------------------------------
Brian Hilberth
Director
FIRST UNION NATIONAL BANK
By: /s/ Anthony Alfieri
------------------------------
Anthony Alfieri
Senior Credit Officer
[Signature Pages to Second Amendment to Credit Agreement
and Second Amendment to Pledge and Security Agreement]
S-1
NATIONAL CITY BANK OF KENTUCKY
By:_______________________________
Gary W. Sieveking
Vice President
[Signature Pages to Second Amendment to Credit Agreement
and Second Amendment to Pledge and Security Agreement]
S-2