LENDER ADDITION AGREEMENT
EXHIBIT 10.1
THIS LENDER ADDITION AGREEMENT (the “Agreement"), dated as of April 22, 2008 is made and
entered into among NVR MORTGAGE FINANCE, INC., a Virginia corporation (“Borrower"), U.S. BANK
NATIONAL ASSOCIATION, as agent (“Agent"), and BANK OF AMERICA, N.A. (“Additional Lender").
RECITALS:
A. Borrower, Agent and the Lenders that are parties thereto (the “Existing Lenders”) are
parties to that certain Loan Agreement dated as of September 7, 1999 (as modified and amended to
date, the “Loan Agreement").
B. Borrower, Agent, the Existing Lenders and the Additional Lender now desire to amend the
Loan Agreement to add the Additional Lender as a Lender party thereto.
AGREEMENT:
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:
Section 1. Definitions
1.1 Incorporated Definitions. Capitalized terms used and not otherwise defined in
this agreement have the meanings specified in the Loan Agreement.
1.2 Other Defined Terms. As used in this agreement, the following terms have the
meanings specified:
“Additional Lender” has the meaning specified in the preamble of this agreement.
“Adjustment Factor” means the fraction the numerator of which is equal to the number
of days from the Execution Date to the Termination Date and the denominator of which is
equal to 360.
“Execution Date” means the date on which this agreement is actually executed and
delivered by Borrower, Agent, the Existing Lenders and the Additional Lender, as set forth
on the counterpart signature page of Agent.
“Existing Advances” means, with respect to any Existing Lender, Advances by such
Lender outstanding as of the beginning of business on the Execution Date.
“Existing Lenders” has the meaning specified in Recital A of this agreement.
“Loan Agreement” has the meaning specified in Recital A of this agreement.
Section 2 Fees and Getting to Pro-rata
2.1 Payments to the Additional Lender. Borrower agrees to pay Agent for the account
of the Additional Lender a facility fee on the Commitment Amount of the Additional Lender in an
aggregate amount equal to the product of the Adjustment Factor and 0.125% of such Commitment
Amount. Said fee shall be payable as set forth in Section 2.4(a) of the Loan Agreement. Borrower
also agrees to pay to Agent for the account of the Additional Lender the monthly Non-usage Fee
described in Section 2.4(f) of the Loan Agreement (i) in the amount of 0.185% per annum on the
average unused amount of the aggregate Commitments during such month when usage is less than 35% of
the aggregate Commitments and (ii) in the amount of 0.125% per annum on the average unused amount
of the aggregate Commitments during such month when usage equals or is greater than 35% but not
exceeding 50% of the aggregate Commitments. The Non-usage Fee shall be payable as described in
such Section 2.4(f) of the Loan Agreement.
2.2 Getting to Pro-rata. Notwithstanding the provisions of Sections 2.1, 2.7 and 2.9
of the Loan Agreement or any other provision of the Loan Documents to the contrary, until such time
as the Additional Lender and the Existing Lenders have Advances outstanding in amounts
proportionate to their respective Commitments, (a) all repayments of outstanding Advances shall be
applied pro-rata to the outstanding Advances of the Existing Lenders in accordance with the amounts
thereof and (b) all new Advances shall be funded solely by the Additional Lender.
Section 3 Concerning the Additional Lender
3.1 Commitment. The Commitment of the Additional Lender shall be THIRTY MILLION AND
NO/100 DOLLARS ($30,000,000.00) (including the amount assigned by U.S. Bank to the Additional
Lender). Schedule 1.1(a) of the Loan Agreement is hereby amended to read as set forth on Schedule
1.1(a) attached hereto which is substituted as Schedule 1.1(a) to the Loan Agreement.
3.2 Status as a Lender. Effective upon the Execution Date, the Additional Lender
shall be a Lender under the Loan Agreement and shall have all of the rights, privileges and
benefits of a Lender under the Loan Agreement and the Loan Documents and shall have all of the
duties of a Lender thereunder, in each case as if the Additional Lender had been a Lender initially
a party of the Loan Agreement.
3.3 Condition Precedent. The inclusion of the Additional Lender as a Lender and the
obligation of the Additional Lender to make its initial Advance shall be subject to the following
conditions precedent:
(a) Delivery to Agent of the following documents in a quantity sufficient that Agent,
Borrower, each Existing Lender and the Additional Lender may each have a fully executed
original of each of such documents other than the Additional Lender’s Note:
| i. | this agreement duly executed by Borrower, Agent and the Additional Lender; | ||
| ii. | the Additional Lender’s Note in the principal amount of its Commitment Amount duly executed by Borrower; | ||
| iii. | a certificate of the Secretary or Assistant Secretary of Borrower setting forth (i) resolutions of Borrower’s board of directors authorizing the execution, delivery and performance of this agreement and the Additional Lender’s Note and identifying the officers of Borrower authorized to sign such instruments, and (ii) specimen signatures of the officers so authorized; and | ||
| iv. | such other documents, including opinions of counsel, as Agent or the Additional Lender may reasonably request; |
(b) payment by Borrower to Agent of any fee then due Agent in connection with the
Additional Lender under Section 2.4(b) of the Loan Agreement.
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3.4 Additional Lender Credit Decision. The Additional Lender acknowledges that it
has, independently and without reliance upon Agent or any Existing Lender and based on the
financial statements referred to in Sections 5.7 and 6.1 of the Loan Agreement and such other
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this agreement. The Additional Lender also agrees that it will, independently and
without reliance upon Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Loan Agreement.
Section 4 Miscellaneous
4.1 Ratifications. The terms and provisions set forth in this agreement shall modify
and supersede all inconsistent terms and provisions set forth in the Loan Agreement and the other
Loan Documents and except as expressly modified and superseded by this agreement, the terms and
provisions of the Loan Agreement and each other Loan Document are ratified and confirmed and shall
continue in full force and effect.
4.2 Borrower Representations and Warranties. Borrower hereby represents and warrants
that the representations and warranties set forth in Section 5 of the Loan Agreement are true and
correct in all material respects with the same force and effect on and as of the date hereof as
though made as of the date hereof except to the extent such representations and warranties by their
terms are made as of a specific date and except for changes that are permitted by the terms of the
Loan Agreement.
4.3 Additional Lender Representations and Warranties. The Additional Lender hereby
represents and warrants that the representations and warranties set forth in Section 11.12 of the
Loan Agreement are true and correct as applied to the Additional Lender.
4.4 Survival. The representations and warranties made by Borrower in this agreement
shall survive the execution and delivery of this agreement, and the funding of the Additional
Lender’s initial Advance.
4.5 Reference to Loan Agreement. Each of the Loan Documents, including the Loan
Agreement and any and all other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Loan Agreement as amended
hereby, are hereby amended so that any reference in such Loan Documents to the Loan Agreement shall
mean a reference to the Loan Agreement as modified hereby.
4.6 Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.
4.7 Successors and Assigns. This Agreement is binding upon and shall inure to the
benefit of Agent, the Existing Lenders, the Additional Lender, Borrower and their respective
successors and assigns, except that Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of each of the Lenders.
4.8 Counterparts. This Agreement may be executed in one or more counterparts, each of
which when so executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
4.9 Headings. The headings, captions, and arrangements used in this agreement are for
convenience only and shall not affect the interpretation of this agreement.
4.10 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES HERETO AND THERETO, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.
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| BORROWER: | ||
EXECUTION DATE: |
||
April 22, 2008
|
NVR MORTGAGE FINANCE, INC. |
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | President, NVR Mortgage Finance, Inc. | |||
| ADDITIONAL LENDER: BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Vice President | |||
| AGENT and an EXISTING LENDER : U.S. BANK NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
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Schedule 1.1(a)
Commitment Schedule as of the April 22, 2008
| Commitment | ||||
| Lender | Amount | |||
U.S. Bank National Association Mortgage Banking Services U.S. Bank Place 800 Nicollet Mall Mail Station BC-MN-H03B Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
$ | 50,000,000 | ||
Comerica Bank Comerica Tower at Detroit Center 000 Xxxxxxxx Xxxxxx Xxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
$ | 30,000,000 | ||
National City Bank 000 Xxxxx 0xx Xxxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxx Xx Xxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
$ | 25,000,000 | ||
Washington Mutual Bank FA 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx Xxxxx Telecopy: 000-000-0000 |
$ | 14,250,000 | ||
Bank of America, N.A. 000 Xxxx Xxxxxx XX0-000-00-00 Xxxxxx, XX 00000 Attention: Xxxxx Xxxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
$ | 30,000,000 | ||
TOTAL
|
$ | 149,250,000 | ||
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