EXHIBIT 10.7
FIFTH AMENDMENT
TO THIRD AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
This FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED WAREHOUSING
CREDIT AGREEMENT (this "Amendment"), made and entered into as of February 1,
2006 (the "Effective Date"), by and among HOMEAMERICAN MORTGAGE CORPORATION, a
Colorado corporation ("Borrower"), the financial institutions which are
signatories to the Credit Agreement (as defined below) (each a "Bank" and
collectively, the "Banks"), and U.S. BANK NATIONAL ASSOCIATION, as agent for the
Banks (in such capacity, together with any successor agents appointed hereunder,
the "Agent").
RECITALS
1. The Borrower, the Agent and the Banks entered into a Third
Amended and Restated Warehousing Credit Agreement dated as of October 23, 2003,
as amended by a First Amendment to Third Amended and Restated Warehousing Credit
Agreement dated as of February 27, 2004, a Second Amendment to Third Amended and
Restated Warehousing Credit Agreement dated as of September 28, 2004, an
Agreement to Increase Commitment Amount dated as of December 22, 2004, a Second
Agreement to Increase Commitment Amount dated as of September 23, 2005, a Third
Amendment to Third Amended and Restated Warehousing Credit Agreement dated as of
September 28, 2005 and a Fourth Amendment to Third Amended and Restated
Warehousing Credit Agreement dated as of December 15, 2005 (as amended, the
"Credit Agreement"); and
2. The Borrower desires to amend certain provisions of the Credit
Agreement and the Banks and the Agent are willing to do so upon the terms and
subject to the conditions of this Amendment.
AGREEMENT
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 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. AMENDMENTS TO CREDIT AGREEMENT.
2.1 Leverage Ratio. Section 4.13 of the Credit Agreement is deleted
in its entirety and the following is substituted in lieu thereof:
4.13 Leverage Ratio. Not permit the Leverage Ratio to exceed 12
to 1 at any time.
2.2 Schedule of Warehousing Commitment Amounts. 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.
2.3 Borrowing Base/Compliance Certificate. Schedule 4.01(e) to the
Credit Agreement is hereby amended to read as set forth on Exhibit B
hereto.
SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendment contained in
this Amendment shall become effective upon delivery by the Borrower to the Agent
of, and compliance by the Borrower with, the following:
3.1 This Amendment duly executed by the Borrower and the Required
Banks.
3.2 A certificate of the Secretary or Assistant Secretary of the
Borrower (i) 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 last delivered to the Agent with certificates of the
Secretary of the Borrower, and (ii) confirming that a resolution of the
Board of Directors of the Borrower authorizes the execution, delivery and
performance of this Amendment, and any other documents executed in
connection herewith (the "Amendment Documents"), and identifying the
officers of the Borrower authorized to sign the Amendment Documents.
3.3 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 Amendment in
connection with the Credit Agreement and the Amendment Documents.
SECTION 4. REPRESENTATIONS, WARRANTIES, AUTHORITY, NO ADVERSE CLAIM.
4.1 Reassertion of Representations and Warranties, No Default. The
Borrower represents that on and as of the date hereof and after giving
effect to this Amendment (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 Amendment on such date.
4.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that it has the power and legal right and
authority to enter into the Amendment Documents and has duly authorized as
appropriate the execution and delivery of the Amendment Documents and
other agreements and documents executed
and delivered by it in connection herewith or therewith by proper
corporate action, and none of the Amendment 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 Amendment 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 the Borrower has
delivered certified copies of documents evidencing each such action to the
Agent.
4.3 No Adverse Claim. The Borrower warrants, acknowledges 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 Secured
Obligations.
SECTION 5. AFFIRMATION OF CREDIT AGREEMENT, FURTHER REFERENCES,
AFFIRMATION OF SECURITY INTEREST. The Agent, the Banks and the 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 Amendment, 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 Amendment. The Borrower confirms to the
Agent and the Banks that the Secured 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
obligations under the Credit Agreement are incorporated herein by reference and
are hereby ratified and affirmed in all respects by the Borrower.
SECTION 6. SUCCESSORS. The Amendment Documents shall be 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 7. LEGAL EXPENSES. As provided in Section 8.03 of the Credit
Agreement, the Borrower agrees to reimburse the Agent, upon execution of this
Amendment, for all reasonable out-of-pocket expenses, including filing and
recording costs and fees, charges and disbursements of outside counsel to the
Agent (determined on the basis of such counsel's generally applicable rates,
which may be higher than the rates such counsel charges the Agent in certain
matters) and/or the allocated costs of in-house counsel incurred from time to
time, incurred in connection with the Credit Agreement, including in connection
with the negotiation,
preparation and execution of the Amendment Documents and all other documents
negotiated, prepared and executed in connection with the Amendment Documents,
and in enforcing the obligations of the Borrower under the Amendment 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 Amendment Documents, which obligations of the Borrower shall survive any
termination of the Credit Agreement.
SECTION 8. COUNTERPARTS. The Amendment Documents may be 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 Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
SECTION 9. GOVERNING LAW. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO
CONFLICT OF LAW PRINCIPLES THEREOF, BUT 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 Amendment to
be executed as of the date and year first above written.
HOMEAMERICAN MORTGAGE CORPORATION
By: /s/ John J. Heaney
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Name: John J. Heaney
Title: Senior Vice President and Treasurer
(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - Borrower)
U.S. BANK NATIONAL ASSOCIATION, as
Agent and as a Bank
By: /s/ David R. Peterson
-------------------------------------------------
Name: David R. Peterson
Title: Senior Vice President
(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - U.S. Bank)
JPMORGAN CHASE BANK, successor
by merger to BANK ONE, N.A., as a Bank
By: /s/ R. Britt Langford
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Name: R. Britt Langford
-------------------------------------
Title: Senior Vice President
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(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - JPMorgan Chase Bank)
GUARANTY BANK, F.S.B. as a Bank
By: /s/ Doug Dixon
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Name: Doug Dixon
------------------------------------
Title: SVP
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(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - Guaranty Bank)
COMERICA BANK, as a Bank
By: /s/ Heather Slapak
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Name: Heather Slapak
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Title: Vice President
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(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - Comerica Bank)
WASHINGTON MUTUAL BANK, FA, as a Bank
By: /s/ Brad Johnson
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Name: Brad Johnson
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Title: Vice President
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(Signature Page to Fifth Amendment to Third Amended
and Restated Warehousing Credit Agreement - Washington Mutual Bank)