EXHIBIT 10.39
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
September 25, 2002, is by and among CH MORTGAGE COMPANY I, LTD., a Texas limited
partnership (the "Company"), the lenders (the "Lenders") party to the Credit
Agreement (defined below) and U.S. BANK NATIONAL ASSOCIATION, a national banking
association ("U.S. Bank"), as agent (in such capacity, the "Agent") for the
Lenders.
Recitals
A. The Company, the Agent and the Lenders 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, by a Second Amendment to Credit Agreement
and Second Amendment to Pledge Agreement dated as of August 10, 2001, by a Third
Amendment to Credit Agreement dated as of February 22, 2002, by a Fourth
Amendment to Credit Agreement dated as of August 12, 2002 and by an Agreement to
Increase Commitment Amounts (the "Increase Agreement") dated as of September 20,
2002 (as so amended, the "Credit Agreement"), pursuant to which the Lenders
provide the Company and certain Co-Borrowers with a revolving mortgage
warehousing credit facility.
B. The Company, U.S. Bank National Association ("U.S. Bank") and
JPMorgan Chase Bank ("Chase") desire to temporarily increase U.S. Bank's and
Chase's respective Commitment Amounts as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Article I
Definitions
Section 1.1 Incorporated Definitions. Capitalized terms used in this
Amendment, to the extent not otherwise defined herein, shall have the same
meanings as in the Credit Agreement.
Article II
Concerning the Increased Commitment Amounts
Section 2.1 Changes in Commitment Amount of Chase. Effective as of
September 25, 2002 (the "Increase Date"), the Commitment Amount of Chase is
hereby increased from $65,000,000 to $110,000,000. Effective as of October 25,
2002 (the "First Reduction Date"), the Commitment Amount of Chase is hereby
reduced from $110,000,000 to $65,000,000. Effective as of December 20, 2002 (the
"Second Reduction Date"), the Commitment Amount of Chase is
hereby reduced from $65,000,000 to $55,000,000. This Section 2.1 amends and
restates Section 2.1 of the Increase Agreement.
Section 2.2 Changes in Commitment Amount of U.S. Bank. Effective as of
the Increase Date, the Commitment Amount of U.S. Bank is hereby increased from
$80,000,000 to $135,000,000. Effective as of the First Reduction Date, the
Commitment Amount of U.S. Bank is hereby reduced from $135,000,000 to
$80,000,000.
Section 2.3 Loans by Chase and U.S. Bank on Increase Date. Upon the
Increase Date, Chase and U.S. Bank shall each make Loans as calculated by the
Agent so that its outstanding Loans are equal to its respective Percentage Share
of all Loans outstanding on such date and the Agent shall distribute the
proceeds of such Loans to the other Lenders in accordance with their Percentage
Share of all Loans outstanding on the Increase Date, in each case after giving
effect to this Amendment, but prior to any additional Loans requested by the
Company to be made on the Increase Date.
Section 2.4 Repayment of Loans on First Reduction Date. If the
outstanding principal balance of all Loans made by U.S. Bank or Chase as of the
First Reduction Date exceeds such Lender's Commitment Amounts applicable on such
dates, after giving effect to the reduction of such Lender's Commitment Amount
on such dates, the Company shall repay the Loans made by such Lender in the
amount of such excess. Without limiting the foregoing, provided there is no
Event of Default or Default or any other failure to satisfy the conditions
pursuant to Loans under the Credit Agreement on the First Reduction Date, the
Agent shall request that each of the Lenders (other than Chase and U.S. Bank
make on the First Reduction Date Loans in the amount, if any, required to
increase its outstanding Loans to its Percentage Share of the Loans amount
necessary to reduce U.S. Bank's and Chase's outstanding Loans to U.S. Bank's and
Chase's Percentage Share of all outstanding Loans after giving effect to the
reduction of its Commitment Amount on the First Reduction Date, and shall
deliver the proceeds of such Loans to the Agent; provided, that should any
Lender fail to make such Loans on the First Reduction Date, the Company shall
repay the Loans made by U.S. Bank and Chase in the amount that such Lender
failed to deliver to the Agent. The Agent shall distribute to U.S. Bank and
Chase on the First Reduction Date, out of any payments made by the Company as
set forth above and the proceeds of Loans made by the other Lenders as set forth
above, the amount required to reduce U.S. Bank's and Chase's outstanding Loans
to its Percentage Share of all outstanding Loans after giving effect to the
reduction of its Commitment Amount on the First Reduction Date.
Section 2.5 Repayment of Loans on Second Reduction Date. If the
outstanding principal balance of all Loans made by Chase as of the Second
Reduction Date exceeds Chase's Commitment Amount applicable on such dates, after
giving effect to the reduction of Chase's Commitment Amount on such dates, the
Company shall repay the Loans made by Chase in the amount of such excess.
Without limiting the foregoing, provided there is no Event of Default or Default
or any other failure to satisfy the conditions pursuant to Loans under the
Credit Agreement on the Second Reduction Date, the Agent shall request that each
of the Lenders (other than Chase) make on the Second Reduction Date Loans in the
amount, if any, required to increase its outstanding Loans to its Percentage
Share of the Loans amount necessary to reduce Chase's outstanding Loans to
Chase's Percentage Share of all outstanding Loans after giving effect to the
reduction of its Commitment Amount on the Second Reduction Date, and shall
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deliver the proceeds of such Loans to the Agent; provided, that should any
Lender fail to make such Loans on the Second Reduction Date, the Company shall
repay the Loans made by Chase in the amount that such Lender failed to deliver
to the Agent. The Agent shall distribute to Chase on the Second Reduction Date,
out of any payments made by the Company as set forth above and the proceeds of
Loans made by the other Lenders as set forth above, the amount required to
reduce Chase's outstanding Loans to its Percentage Share of all outstanding
Loans after giving effect to the reduction of its Commitment Amount on the
Second Reduction Date.
Section 2.6 Effect of Increase Agreement Sections 2.4 and 2.5 of this
Amendment collectively amend and restate Section 2.4 of the Increase Agreement.
Article III
Amendment to Credit Agreement
Section 3.1 Schedule 5. Schedule 5 of the Credit Agreement is hereby
amended and restated in its entirety to read as set forth in Exhibit A hereto.
Article IV
Conditions Precedent
Section 4.1 Delivery of Documents. This Amendment shall be effective as
of the date hereof upon the delivery to the Agent by the Company of the
following documents and the satisfaction of the following conditions:
(a) separate new Notes payable to Chase and U.S. Bank, in the
amount of such Lenders' increased Commitment Amounts after giving
effect to this Amendment (the "New Notes"), duly executed by the
Company;
(b) a certificate of the Secretary or Assistant Secretary of
the Company certifying the resolutions of its Board of Directors
authorizing the execution, delivery and performance of this Amendment
and the New Notes, and identifying the officers of the Company
authorized to sign such instruments;
(c) payment of the fees and expenses specified in Section 5.05
of the Credit Agreement to the parties entitled thereto.
(d) the payment to the Agent for the ratable benefit of the
U.S. Bank and Chase the increased commitment fees set forth in the fee
letter between the Company, U.S. Bank and Chase dated concurrently
herewith.
(e) such other documents as the Agent may reasonably request.
Article V
Miscellaneous
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Section 5.1 The Company, the Agent, and each Lender party hereto
acknowledge that, as amended hereby, the Credit Agreement and the other Loan
Documents remain in full force and effect with respect to the Company and the
Lenders, and that each reference to the Credit Agreement or the Loan Documents
shall refer to the Credit Agreement, 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 and the New Notes (the "Amendment Documents")
is within its organizational powers and has been duly authorized by all
necessary organizational action; (ii) the Amendment Documents have been duly
executed and delivered by the Company and constitute the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with their 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
Defaults exist.
Section 5.2 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 the
Amendment Documents 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
the Amendment Documents, which obligations of the Company shall survive any
termination of the Credit Agreement.
Section 5.3 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.
Section 5.4 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.
Section 5.5 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.
Section 5.6 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.
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the date first above written.
CH MORTGAGE COMPANY I, LTD.
By: CH Mortgage Company GP, Inc.,
its General Partner
By: /s/ Randall C. Present
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Randall C. Present
President
U.S. BANK NATIONAL ASSOCIATION,
as Agent and Lender
By: /s/ Kathleen M. Connor
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Kathleen M. Connor
Vice President
[Signature Page to Fifth Amendment to Credit Agreement]
S-1
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Michael A. Johnson
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Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Fifth Amendment to Credit Agreement]
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JPMORGAN CHASE BANK
By: /s/ Michael W. Nicholson
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Name:
---------------------------------
Title:
--------------------------------
[Signature Page to Fifth Amendment to Credit Agreement]
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COMERICA BANK
By: /s/ Robert W. Marr
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Signature Page to Fifth Amendment to Credit Agreement]
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EXHIBIT A TO FIFTH AMENDMENT
TO CREDIT AGREEMENT
Schedule 5 to
Credit Agreement
COMMITMENT AMOUNTS AND PERCENTAGE SHARES
Before the reduction of U.S. Bank National Association's and JPMorgan Chase
Bank's Commitment Amounts to $80,000,000 and $65,000,000, respectively, on
October 25, 2002:
Commitment Percentage
Amount Share
------ -----
U.S. Bank National Association $135,000,000 45.00%
National City Bank of Kentucky $ 25,000,000 8.33%
Comerica Bank $ 30,000,000 10.00%
JPMorgan Chase Bank $110,000,000 36.67%
------------ -------
Total $300,000,000 100.00%
On and after the reduction of U.S. Bank National Association's and JPMorgan
Chase Bank's Commitment Amounts to $80,000,000 and $65,000,000, respectively, on
October 25, 2002, but prior to the reduction of JP Morgan Chase Bank's
Commitment Amount to $55,000,000 on December 20, 2002:
Commitment Percentage
Amount Share
------ -----
U.S. Bank National Association $ 80,000,000 40.00%
National City Bank of Kentucky $ 25,000,000 12.50%
Comerica Bank $ 30,000,000 15.00%
JPMorgan Chase Bank $ 65,000,000 32.50%
------------ -------
Total $200,000,000 100.00%
On and after the reduction of JPMorgan Chase Bank's Commitment Amount to
$55,000,000 on December 20, 2002:
Commitment Percentage
Amount Share
------ -----
U.S. Bank National Association $ 80,000,000 42.10%
National City Bank of Kentucky $ 25,000,000 13.16%
Comerica Bank $ 30,000,000 15.79%
JPMorgan Chase Bank $ 55,000,000 28.95%
------------ -------
Total $190,000,000 100.00%
PROMISSORY NOTE
$110,000,000 Minneapolis, Minnesota
September 25, 2002
FOR VALUE RECEIVED, CH MORTGAGE COMPANY I, LTD., a Texas limited
partnership (the "Company"), and each "Co-Borrower" from time to time party to
the Credit Agreement described below (to the extent provided therein), hereby
promise to pay to the order of JPMORGAN CHASE BANK (the "Lender") at the main
office of the Agent (as such term and each other capitalized term used herein
are defined in the Credit Agreement hereinafter referred to) in Minneapolis,
Minnesota, in lawful money of the United States of America in immediately
available funds, the principal sum of ONE HUNDRED TEN MILLION AND NO/100 DOLLARS
($110,000,000) or the aggregate unpaid principal amount of all Loans and
Swingline Loans made by the Lender pursuant to the Credit Agreement described
below, whichever is less, and to pay interest in like funds from the date hereof
on the unpaid balance thereof at the rates per annum and at such times as are
specified in the Credit Agreement. Interest (computed on the basis of actual
days elapsed and a year of 360 days) shall be payable at said office at the
times specified in the Credit Agreement.
Principal hereof shall be payable in the amounts and at the times set
forth in the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of August 13, 1999, between the Company, the "Co-Borrowers" (as defined
therein), if any, party thereto, the Lender, the other lenders party thereto and
U.S. Bank National Association, as Agent (as the same has been and may hereafter
be amended, modified or restated from time to time, the "Credit Agreement").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings given to such terms in the Credit Agreement. This note is subject to
certain mandatory and voluntary prepayments and its maturity is subject to
acceleration, in each case upon the terms provided in the Credit Agreement. This
Note amends and restates, but does not constitute payment upon or a novation of,
that certain Promissory Note dated as of September 20, 2002 given by the Company
in favor of the Lender in the amount of $65,000,000.
The Borrowers hereby waive diligence, presentment, demand, protest, and
notice (except such notice as is required under the Loan Documents) of any kind
whatsoever. The nonexercise by the Lender of any of its rights hereunder or
under the other Loan Documents in any particular instance shall not constitute a
waiver thereof in any subsequent instance.
The Borrowers reserve the right to prepay the outstanding principal
balance of this Note, in whole or in part at any time and from time to time
without premium or penalty in accordance with the terms of the Credit Agreement.
This note is entitled to the benefit of the Pledge and Security
Agreement and the other Loan Documents.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. In the event of
default hereunder, the undersigned agrees to pay all costs and expenses of
collection, including but not limited to reasonable attorneys' fees.
CH MORTGAGE COMPANY I, LTD.
By ________________________________
Its ____________________________
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PROMISSORY NOTE
$135,000,000 Minneapolis, Minnesota
September 25, 2002
FOR VALUE RECEIVED, CH MORTGAGE COMPANY I, LTD., a Texas limited
partnership (the "Company"), and each "Co-Borrower" from time to time party to
the Credit Agreement described below (to the extent provided therein), hereby
promise to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Lender") at
the main office of the Agent (as such term and each other capitalized term used
herein are defined in the Credit Agreement hereinafter referred to) in
Minneapolis, Minnesota, in lawful money of the United States of America in
immediately available funds, the principal sum of ONE HUNDRED THIRTY-FIVE
MILLION AND NO/100 DOLLARS ($135,000,000) or the aggregate unpaid principal
amount of all Loans and Swingline Loans made by the Lender pursuant to the
Credit Agreement described below, whichever is less, and to pay interest in like
funds from the date hereof on the unpaid balance thereof at the rates per annum
and at such times as are specified in the Credit Agreement. Interest (computed
on the basis of actual days elapsed and a year of 360 days) shall be payable at
said office at the times specified in the Credit Agreement.
Principal hereof shall be payable in the amounts and at the times set
forth in the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of August 13, 1999, between the Company, the "Co-Borrowers" (as defined
therein), if any, party thereto, the Lender, the other lenders party thereto and
U.S. Bank National Association, as Agent (as the same has been and may hereafter
be amended, modified or restated from time to time, the "Credit Agreement").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings given to such terms in the Credit Agreement. This note is subject to
certain mandatory and voluntary prepayments and its maturity is subject to
acceleration, in each case upon the terms provided in the Credit Agreement. This
Note amends and restates, but does not constitute payment upon or a novation of,
that certain Promissory Note made by the Company in favor of the Lender dated as
of in the amount of $80,000,000
The Borrowers hereby waive diligence, presentment, demand, protest, and
notice (except such notice as is required under the Loan Documents) of any kind
whatsoever. The nonexercise by the Lender of any of its rights hereunder or
under the other Loan Documents in any particular instance shall not constitute a
waiver thereof in any subsequent instance.
The Borrowers reserve the right to prepay the outstanding principal
balance of this Note, in whole or in part at any time and from time to time
without premium or penalty in accordance with the terms of the Credit Agreement.
This note is entitled to the benefit of the Pledge and Security
Agreement and the other Loan Documents.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. In the event of
default hereunder, the undersigned agrees to pay all costs and expenses of
collection, including but not limited to reasonable attorneys' fees.
CH MORTGAGE COMPANY I, LTD.
By ________________________
Its ___________________
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