SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.40
SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), made and
entered into as of November 30, 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, by a Third Amendment to Amended and Restated Credit Agreement dated as of June 23,
2005, by a Fourth Amendment to Amended and Restated Credit Agreement dated as of September 26,
2005, by a Fifth Amendment to Amended and Restated Credit Agreement dated as of September 28, 2005,
and Sixth Amendment to Amended and Restated Credit Agreement dated as of October 28, 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:
2.1 The definition of “Aggregate Commitment Amounts” is amended in its entirety 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 on September 26 and 27, 2005, $675,000,000 from September 28,
2005 through October 27, 2005 and $450,000,000 from October 28, 2005 through January 15, 2006).
2.2 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 November 30, 2005 once executed by the Borrower and the Lenders and once
the Agent has received the following:
(a) This Amendment and any other documents reasonably required hereunder (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.
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 Agreement as amended by
this Amendment on such date which has not been waived by the Lenders.
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.
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: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Title: | EVP/CFO |
STATE OF TEXAS
COUNTY OF XXXXXX
On this the 30th day of November, 2005, personally appeared Xxxx X. Xxxxxx, as CFO/EVP 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 Seventh 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 | ||
| (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/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Senior Vice President | ||||
(USB Signature Page Seventh Amendment)
| COMERICA BANK | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| Vice President | ||||
| NATIONAL CITY BANK OF KENTUCKY | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
| COLONIAL BANK, N.A. | ||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Xxx X. Xxxxxxxx | ||||
| Senior Vice President | ||||
STATE OF Alabama
COUNTY OF Jefferson
On this the 28 day of November, 2005, personally appeared Xxx X. Xxxxxxxx,
as Senior Vice President of Colonial Bank, N.A., an Alabama corporation (the “Bank”), and
before me executed this Seventh 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/ Xxxxxx X. XxXxx | ||
| Signature of Notary Public, State of Alabama | ||
| Xxxxxx X. XxXxx | ||
| (Print, Type or Stamp Commissioned Name of Notary Public) | ||
| Personally known ____; 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/ Xxxxx Xxxxxxxxx | |||
| Xxxxx Xxxxxxxxx | ||||
| Managing Director | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx XxXxxxxx | |||
| Xxxxxx Vinocour | ||||
| Vice President | ||||
| 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 October 28, 2005 through January 15, 2006
| Commitment | ||||||||
| Amount | Percentage | |||||||
| $ | 450,000,000 | 100 | % | |||||
On and after January 16, 2006
| Commitment | Percentage | |||||||
| Amount | Share | |||||||
| $ | 300,000,000 | 100 | % | |||||
