Exhibit 10.5
JOINDER AND ASSUMPTION
AGREEMENT
for
HOMEBANC CORP. and
HOMEBANC MORTGAGE
CORPORATION
6/04 AMENDED AND
RESTATED
SENIOR SECURED CREDIT
AGREEMENT
Reference is made to the 6/04 Senior
Secured Credit Agreement dated as of June 7, 2004 (as it may be
supplemented, amended or restated from time to time, the “
Current Credit Agreement ”), among HOMEBANC
CORP. (“ HC ”) , HOMEBANC MORTGAGE
CORPORATION (“ HMC ” and together with HC, the
“ Companies ”), JPMORGAN CHASE BANK and
the other lenders party thereto (the “ Lenders
”) and JPMORGAN CHASE BANK, as agent and representative of
the Lenders (the “ Agent ”). Terms
defined in the Current Credit Agreement and used but not defined
differently herein have the same meanings here as there.
Effective as of the Joinder Date, as
defined below, CALYON NEW YORK BRANCH (“
Assumptor ”), a French banking corporation,
hereby joins in the Current Credit Agreement as a Lender. Assumptor
hereby adopts and ratifies the Current Credit Agreement. Assumptor
hereby accepts and assumes, to the extent of its Commitment and
Advances, the rights and obligations of a Lender under the Current
Credit Agreement arising on or after the Joinder Date. The Agent
has furnished the Assumptor, and the Assumptor hereby acknowledges
receipt of, true and complete copies of the Current Credit
Agreement, the Custody Agreement and such other Facilities Papers
as the Assumptor has requested.
From and after the Joinder Date the
Assumptor shall be a party to and be bound by the provisions of the
Current Credit Agreement and, to the extent of its Commitment and
Advances, shall have the rights and obligations of a Lender
thereunder to the extent arising on or after the Joinder
Date.
Assumptor hereby confirms to and
agrees with the other parties to the Current Credit Agreement as
follows: (i) neither the Agent nor any other Lender has made or is
making any representation or warranty or has assumed or is assuming
any responsibility with respect to any statements, warranties or
representations made in or in connection with the Current Credit
Agreement or any other Facilities Papers or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Current Credit Agreement or any other Facilities
Paper; (ii) neither the Agent nor any other Lender has made or is
making any representation or warranty or has assumed or is assuming
any responsibility with respect to the financial condition of the
Company or any of its Affiliates or the performance or observance
by the Company of any of its obligations under the Current Credit
Agreement or any other Facilities Paper; (iii) Assumptor confirms
that it has received a copy of the Current Credit Agreement and the
6/23/04 Amendment to Credit Agreement and a copy of the 6/04
Custody Agreement, together with copies of the financial statements
of HMC dated December 31, 2003, pro forma post-IPO financial
projections of HC, and such other documents and information as
Assumptor has deemed appropriate to make its own credit analysis
and decision to enter into this Joinder and Assumption Agreement;
(iv) independently and without reliance upon the Agent or any other
Lender and based on such documents and information as Assumptor
shall deem appropriate at
the time, Assumptor will continue to make its
own decisions in taking or not taking action under the Current
Credit Agreement and the other Facilities Papers; (v) Assumptor
appoints and authorizes the Agent to take such action as agent on
its behalf and as its representative and to exercise such powers
under the Current Credit Agreement and all related documents as are
reserved or delegated to the Agent by the terms thereof, together
with all such powers as are reasonably incidental thereto and (vi)
Assumptor agrees that it will perform in accordance with their
terms all obligations that by the terms of the Current Credit
Agreement or any other Facilities Paper are required to be
performed by it as a Lender.
This Joinder and Assumption
Agreement shall be governed by and construed in accordance with the
laws of the State of Texas without giving effect to any conflicts
of laws principles that would require the application of the laws
of another jurisdiction.
“ Joinder Date ”:
August 4, 2004
Legal Name of Assumptor: CALYON NEW YORK
BRANCH
Assumptor’s Address for
Notices:
1301 Avenue of the Americas
New York, New York 10019
Attention: Jay Buckley
Phone: (212) 261-7340
Fax: (212) 261-3438
email: jay.buckly@us.calyon.com
Commitment assumed: Fifty Million Dollars
($50,000,000)
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CALYON NEW YORK
BRANCH,
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as Assumptor
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By:
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/s/ William Denton
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Name:
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William Den
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