Exhibit 10.2
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
August 12, 2003, is by and among CH MORTGAGE COMPANY I, LTD., a Texas limited
partnership (the "Company"), U.S. BANK NATIONAL ASSOCIATION, a national banking
association ("U.S. Bank"), and as agent (the "Agent") for the Lenders ("the
Lenders") party to the Credit Agreement described below, and the Lenders party
to the Credit Agreement.
Recitals
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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, by a Fifth Amendment
to Credit Agreement dated as of September 25, 2002, by an Agreement to Increase
Commitment Amounts dated as of September 20, 2002, by a Sixth Amendment to
Credit Agreement dated as of October 18, 2002 and by a Seventh Amendment to
Credit Agreement dated as of February 28, 2003 (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 wishes to increase the Commitment Amount of JPMorgan Chase
Bank ("Chase") from $55,000,000 to $70,000,000.
C. This Amendment is executed and delivered by the Company, the Agent and
the Lenders for the purposes of, among other things (a) reflecting the increase
of the Commitment Amount of Chase, (b) reflecting that the maximum amount of
increases to the Aggregate Commitment Amounts that may be adopted under Section
10.11(d) without the further consent of all of the Lenders has been increased
from $200,000,000 to $300,000,000 and (c) reflecting certain other amendments to
the Credit Agreement, as set forth below.
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
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Definitions
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Section 1.01. Incorporated Definitions.
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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
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Amendments
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Section 2.01. Definitions.
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The definitions of "Drawdown Termination Date", "Jumbo Sublimit" and "Wet
Warehousing Sublimit" contained in Section 1.1 of the Credit Agreement are
amended in their entireties to read as follows:
"Drawdown Termination Date" means the earlier of February 12, 2004, or the
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day on which the Notes first become due and payable.
"Jumbo Sublimit" means twenty-five percent (25%) of the Aggregate
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Commitment Amounts.
"Wet Warehousing Sublimit" means fifty-five percent (55%) of the
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Aggregate Commitment Amounts during the last four (4) Business Days in any
calendar month and the first four (4) Business Days in the next succeeding
calendar month or thirty percent (30%) of the Aggregate Commitment Amounts at
any other time.
Section 2.02. Accordion Feature.
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Section 10.11(d) of the Credit Agreement is amended by deleting the clause
"$200,000,000" as it appears therein and by substituting in lieu thereof the
clause "$300,000,000".
Section 2.03. Schedule of Commitment Amounts.
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Schedule 5 of the Credit Agreement is hereby amended andrestated in its
entirety to read as set forth in Exhibit A hereto.
Article III
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Conditions Precedent
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Section 3.01. Delivery of Documents.
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This Amendment shall become effective on August 12, 2003 (the "Effective
Date"), provided the Agent shall have received at least nine (9) counterparts of
this Amendment, duly executed by the Company and the Lenders, and the following
conditions are satisfied:
(a) a certificate of the Secretary or Assistant Secretary of the
General Partner certifying as to (i) resolutions of its Board of Directors
authorizing the execution, delivery and performance of this Amendment and
any and all other documents to be executed and delivered by the Company in
connection with this Amendment (collectively, the "Amendment Documents"),
(ii) the officers of the General Partner authorized to sign the Amendment
Documents, and (iii) specimen signatures of the officers so authorized;
(b) pursuant to Section 10.02 of the Credi t Agreement, the Agent, on
behalf of each Lender executing this Amendment, shall have receivedan
amendment fee from the Company in the amount o f $1,500 for each Lender
executing this Amendment;
(c) A Lender Name Disclosure and Customer Acknowledgement in the
form prescribed by Colonial Bank, duly executed by the Company;
(d) such other documents as the Agent or Lender may reasonably
request; and
(e) payment of the fees specified in Section 2.07 to the parties
entitled thereto.
Upon the Effective Date, Chase shall 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 Effective 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 Effective Date.
The Borrower acknowledges that Colonial Bank, one of the Lenders, has converted
from an Alabama state banking corporation to a national banking association.
Accordingly, upon the Effective Date, all references in the Loan Documents to
Colonial Bank are hereby amended to be references to "Colonial Bank, N.A."
Article IV
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General
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Section 4.01. 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 is within its organizational powers and has
been duly authorized by all necessary organizational 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 Defaults exist. Section 4.02. 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 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.
Section 4.03. 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 4.04. 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 4.05. 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 4.06. 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/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: CFO.VP
STATE OF TEXAS
COUNTY OF XXXXXX
On this the 12th day of August, 2003, personally appeared Xxxx X. Xxxxxx, as
CFO/VPof CH Mortgage Company, GP, Inc., a Delaware corporation, as general
partner of CH Mortgage Company I, Ltd., a Texas limited partnership (the
"Borrower"), and before me executed this Eighth Amendment to Credit Agreement,
on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxxxx
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Signature of Notary Public, State of Texas
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known_____; OR Produced Identification
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Type of ID produced
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(NOTARIAL SEAL)
U.S. BANK NATIONAL ASSOCIATION,
as Agent and Lender
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxx X. Best
Name: Xxxx X. Best
Title: Senior Vice President
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
COLONIAL BANK, N.A.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
STATE OF ALABAMA
COUNTY OF JEFFERSON
On this the 7th day of August, 2003, personally appeared Xxx X. Xxxxxxxx, as
Senior Vice President of Colonial Bank, N.A., a national banking association
(the "Bank"), and before me executed this Eighth Amendment to Credit Agreement,
on behalf of the Bank.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxxxxx
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Signature of Notary Public, State of Alabama
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known X ; OR Produced Identification
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Type of ID produced
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(NOTARIAL SEAL)
EXHIBIT A TO
EIGHTH AMENDMENT TO CREDIT AGREEMENT
Schedule 5 to
Credit Agreement
COMMITMENT AMOUNTS AND PERCENTAGE SHARES
Commitment Percentage
Amount Share
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U.S. Bank National Association $ 80,000,000 34.79%
National City Bank of Kentucky $ 25,000,000 10.87%
Comerica Bank $ 30,000,000 13.04%
Colonial Bank, N.A. $ 25,000,000 10.87%
JPMorgan Chase Bank $ 70,000,000 30.43%
Total $230,000,000 100.00%
