FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.37
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), made and
entered into as of September 26, 2005, is by and between DHI Mortgage Company, Ltd., a Texas
limited partnership (the “Borrower”), and U.S. Bank National Association, a national banking
association (the “Agent” and a “Lender”) and the other Lenders party hereto (collectively, the
“Lenders”).
RECITALS
1. The Lenders and the Borrower entered into an Amended and Restated Credit Agreement dated as
of April 9, 2004 as amended by a First Amendment to Amended and Restated Credit Agreement dated as
of September 22, 2004, by a Second Amendment to Amended and Restated Credit Agreement dated as of
April 8, 2005 and by a Third Amendment to Amended and Restated Credit Agreement dated as of June
23, 2005 (as amended, the “Credit Agreement”); and
2. The Borrower desires to increase the Aggregate Commitment Amount under the Credit Agreement
under the provisions of Section 10.11(d) and to make other changes to certain provisions of the
Credit Agreement and the Agent and the Lenders have agreed to make such amendments, subject to the
terms and conditions set forth in 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. The Credit Agreement is hereby amended as follows:
Section 2.1 The definitions of “Aggregate Commitment Amounts”, “Approval Amount” and
“Uncovered Mortgage Loans” are amended in their entireties to read as follows:
“Aggregate Commitment Amounts”: means the total of the Commitment Amounts of the
Lenders, which is $300,000,000, subject to increase in accordance with Section 10.11(d), but not to
exceed $450,000,000 ($600,000,000 from September 26, 2005 through October 26, 2005).
“Approval Amount” means with respect to U.S. Bank, $125,000,000, increasing temporarily to
$200,000,000 from September 26, 2005 through October 26, 2005, when it shall again mean
$125,000,000.
“Uncovered Mortgage Loans” means Eligible Mortgage Loans that are in the process of being
bundled for sale with other similar Mortgage Loans, that are secured by a second Mortgage on the
property covered thereby (including HELOC Mortgage Loans) or are either (i) Subprime Mortgage Loans
or (ii) other Mortgage Loans that the Agent has agreed in writing are not subject to significant
interest rate volatility, and that are in all cases not covered by a Take-Out Commitment.
Section 2.2 Section 10.11(d) of the Credit Agreement is amended by inserting the
following immediately after the dollar amount “$450,000,000”: “($600,000,000 from September
26, 2005 through October 26, 2005)”.
Section 2.3 Schedule 5 to the Credit Agreement is deleted and Schedule 5 attached
hereto is inserted in its place as Schedule 5 to the Credit Agreement.
Section 3. Effectiveness of Amendments. The amendments contained in this Amendment
shall become effective on September 26, 2005 once executed by the Borrower and the Lenders and once
the Agent has received the following:
(a) This Amendment and a Note in the principal amount of each Lender’s Commitment Amount for
the Lenders whose commitments are changing, from the Borrower to the each such Lender substantially
in the form of Exhibit A to the Credit Agreement (together with this Amendment, the “Amendment
Documents”);
(b) A copy of the resolutions of the Board of Directors of the General Partner of the
Borrower authorizing the execution, delivery and performance of this Amendment and the Notes
certified as true and accurate by its Secretary or Assistant Secretary, along with a certification
by such Secretary or Assistant Secretary; and
(c) 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.
Section 4.1 Reassertion of Representations and Warranties, No Default. The
Borrower hereby 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 Default or Event of Default under the Credit
EXHIBIT 10.37
Agreement as amended by this Amendment on such date which has not been waived by the
Lenders.
Section 4.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that the Borrower has the power and legal right and authority to
enter into this Amendment and has duly authorized as appropriate the execution and delivery
of this Amendment and other agreements and documents executed and delivered by the Borrower
in connection herewith by proper partnership 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 partnership agreement or any other agreement or requirement of
law, or result in the imposition of any Lien on any of its property under any agreement
binding on or applicable to the Borrower or any of its property except, if any, in favor of
the Lenders. 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 Lenders.
Section 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 which would
give the Borrower a basis to assert a defense, offset or counterclaim to any claim of the
Lenders with respect to the Obligations.
Section 5. Affirmation of Credit Agreement, Further References, Affirmation of Security
Interest. The Agent on behalf of the Lenders 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 Lenders that the Obligations are and continue to be
secured by the security interest granted by the Borrower in favor of the Lenders under the 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. Merger and Integration, Superseding Effect. This Amendment, from and after
the date hereof, embodies the entire agreement and understanding between the parties hereto and
supersedes and has merged into this Amendment all prior oral and written
agreements on the same subjects by and between the parties hereto with the effect that this
Amendment, shall control with respect to the specific subjects hereof and thereof.
Section 7. Severability. Whenever possible, each provision of this Amendment and the
other Amendment Documents and any other statement, instrument or transaction contemplated hereby or
thereby or relating hereto or thereto shall be interpreted in such manner as to be effective, valid
and enforceable under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto shall be held to be prohibited,
invalid or unenforceable under the applicable law, such provision shall be ineffective in such
jurisdiction only to the extent of such prohibition, invalidity or unenforceability, without
invalidating or rendering unenforceable the remainder of such provision or the remaining provisions
of this Amendment, the other Amendment Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or affecting the
effectiveness, validity or enforceability of such provision in any other jurisdiction.
Section 8. Successors. The Amendment Documents shall be binding upon the Borrower and
the Lenders and their respective successors and assigns, and shall inure to the benefit of the
Borrower and the Lenders and the successors and assigns of the Lenders.
Section 9. Legal Expenses. The Borrower agrees to pay or reimburse the Agent, upon
execution of this Amendment, for all reasonable out-of-pocket expenses paid or incurred by the
Agent, 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, in connection with the Credit Agreement, including
in connection with the negotiation, preparation, execution, collection and enforcement 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 Agent 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 10. Headings. The headings of various sections of this Amendment have been
inserted for reference only and shall not be deemed to be a part of this Amendment.
Section 11. 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 12. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.
BORROWER:
DHI MORTGAGE COMPANY, LTD.
By: DHI Mortgage Company GP, Inc.
Its: General Partner
By: DHI Mortgage Company GP, Inc.
Its: General Partner
By: /s/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Title: EVP/CFO
Xxxx X. Xxxxxx
Title: EVP/CFO
STATE OF TEXAS
COUNTY OF XXXXXX
On this the 16th day of September, 2005, personally appeared Xxxx X. Xxxxxx, as
Executive Vice President of DHI Mortgage Company, GP, Inc., a Delaware corporation, as general
partner of DHI Mortgage Company , Ltd., a Texas limited partnership (the “Company”), and before me
executed this Second Amendment to Amended and Restated Credit Agreement, on behalf of the Company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
| /s/Xxxxxx X. Xxxxxx | ||||
| Signature of Notary Public, State of Texas | ||||
| (Print, Type or Stamp Commissioned Name of Notary Public) | ||||
| Personally known_____; OR Produced Identification _________ | ||||
| Type of ID produced _______________________________________________________ | ||||
| (NOTARIAL SEAL) | ||||
AGENT & LENDER:
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: /s/ Xxxxxxxx Xxxxxx | ||
| Xxxxxxxx Xxxxxx | ||
| Vice President |
(USB Signature Page Fourth Amendment)
| COMERICA BANK | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| Vice President | ||||
| NATIONAL CITY BANK OF KENTUCKY | ||
| By: /s/Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Executive Vice President |
| COLONIAL BANK, N.A. | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Xx. Vice President Assistant Treasurer | ||||
STATE OF Alabama
COUNTY OF Xxxxxxxxxx
On this the 22nd day of August, 2005, personally appeared Xxxx X. Xxxxxx, as Sr. Vice
President, Assistant Treasurer of Colonial Bank, N.A., an Alabama corporation (the “Bank”), and
before me executed this Fourth Amendment to Amended and Restated Credit Agreement, on behalf of the
Bank.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
| /s/ Xxxxxxx X. Xxxx | ||||||
| Signature of Notary Public, State of Alabama | ||||||
| (Print, Type or Stamp Commissioned Name of Notary Public) | ||||||
| Personally known x ; OR Produced Identification | ||||||
| Type of ID produced _______________________________________________________ | ||||||
(NOTARIAL SEAL)
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | |||
| Xxxxxxxxx Xxxxxxxx | ||||
| Senior Vice President | ||||
| BNP PARIBAS | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| Vice President | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Director | ||||
| WASHINGTON MUTUAL BANK, FA | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Vice President | ||||
| JPMORGAN CHASE BANK | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Senior Vice President | ||||
SCHEDULE 5
COMMITMENT AMOUNTS AND PERCENTAGE SHARES
From September 26, 2005 through October 26, 2005
| Commitment | ||||||||
| Amount | Percentage | |||||||
| $ | 600,000,000 | 100 | % | |||||
From October 27, 2005 through October 31, 2005
| Commitment | ||||||||
| Amount | Percentage | |||||||
| $ | 450,000,000 | 100 | % | |||||
SCHEDULE 5 (continued)
From and after October 31, 2005
| Commitment | ||||||||
| Amount | Percentage | |||||||
| $ | 300,000,000 | 100 | % | |||||
