Exhibit 10.1
SECOND AMENDMENT
TO FOURTH AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
This
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED WAREHOUSING
CREDIT AGREEMENT (this “Amendment”), made and
entered into as of May 23, 2008 (the “Effective
Date”), by and among HOMEAMERICAN MORTGAGE CORPORATION, a
Colorado corporation (“Borrower”), the financial
institutions which are signatories hereto (each a
“Bank” and collectively, the “Banks”), and
U.S. BANK NATIONAL ASSOCIATION, as agent for the Banks (in such
capacity, together with any successor agents appointed hereunder,
the “Agent”).
RECITALS
1. The
Borrower, the Agent and the Banks entered into a Fourth Amended and
Restated Warehousing Credit Agreement dated as of September 5,
2006 as amended by a First Amendment dated as of November 2,
2007 (as amended, the “Credit Agreement”); and
2. The
Borrower, the Banks and the Agent have agreed to reduce the
Aggregate Commitment Amount and to allow the Exiting Bank
(hereinafter defined) to terminate its Commitment under the Credit
Agreement upon the terms and subject to the conditions of 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 to Credit
Agreement.
2.1 Warehousing Commitment
Amounts . Schedule 1.01(b) to the Credit Agreement is
hereby amended to read as set forth on Schedule 1.01(b)
attached to this Amendment, which is made a part of the Credit
Agreement as Schedule 1.01(b) thereto.
Section 3. Effectiveness of Amendments .
The amendment contained in this Amendment shall become effective
upon delivery by the Borrower to the Agent of, and compliance by
the Borrower with, the following:
3.1 This Amendment and a new Note in
favor of each Bank (except the Exiting Bank) reflecting each
Bank’s new Commitment Amount duly executed by the Borrower
and, as to the Amendment, the Banks.
3.2 A certificate of the Secretary or
Assistant Secretary of the Borrower (1)
certifying that
there has been no amendment to the Articles of Incorporation or
Bylaws of the Borrower since true and accurate copies of the same
were last delivered to the Agent with certificates of the Secretary
or Assistant Secretary of the Borrower, and (ii) confirming
that a resolution of the Board of Directors of the Borrower
authorizes the execution, delivery and performance of this
Amendment and any other documents executed in connection herewith
including the new Notes in favor of the Banks (the “Amendment
Documents”), and identifying the officers of the Borrower
authorized to sign the Amendment Documents.
3.3 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 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
assuming that references to financial statements are deemed
references to the most recent financial statements provided by the
Borrower under Section 4.01, and (b) there will exist no
Unmatured Event of Default or Event of Default under the Credit
Agreement as amended by this Amendment on such date.
4.2 Authority, No Conflict, No
Consent Required . The Borrower represents and warrants
that it has the power and legal right and authority to enter into
the Amendment Documents and has duly authorized as appropriate the
execution and delivery of the Amendment Documents and other
agreements and documents executed and delivered by it in connection
herewith or therewith by proper corporate 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 p
