EXHIBIT 10.1


 



 


 


7/06 AMENDMENT TO CREDIT AGREEMENT


effective as of July 31, 2006


 


amending the


8/05 AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT


dated as of August 1, 2005


 


by and among


 


HOMEBANC CORP.


and


HOMEBANC MORTGAGE CORPORATION


 


and


 


JPMORGAN CHASE BANK, N.A.


as Administrative Agent, Collateral Agent and a Lender,


and


the other Lender(s) parties thereto


 


KEYBANK NATIONAL ASSOCIATION


as Syndication Agent


 


COMMERZBANK, A.G., NEW YORK BRANCH and GRAND CAYMAN BRANCH,


U.S. BANK NATIONAL ASSOCIATION,


BNP PARIBAS


and


UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY


as Documentation Agents


 


J.P. MORGAN SECURITIES INC.


Sole Bookrunner


and Lead Arranger


 


$500,000,000 Senior Secured Revolving Credit


 



 


 








 


Index of Defined Terms


Page


 


 


 





	
            7/06 Amendment
 	
            1
 
	
            7/06 Amendment Effective Date
 	
            1
 
	
            8/05 Credit Agreement
 	
            1
 
	
            Agent
 	
            1
 
	
            Amendment
 	
            1
 
	
            Companies
 	
            1
 
	
            Company
 	
            1
 
	
            Current Credit Agreement
 	
            1
 
	
            HC
 	
            1
 
	
            HMC
 	
            1
 
	
            JPMorgan
 	
            1
 
	
            Lenders
 	
            1
 



 


 








Table of Contents


(continued)


Page


 


 


 



 



	
            1
 	
            DEFINITIONS
 	
            2
 
	
            7
 	
            COLLATERAL
 	
            2
 
	
            8
 	
            CONDITIONS PRECEDENT
 	
            2
 
	
            9
 	
            REPRESENTATIONS
 	
            3
 
	
            16
 	
            MISCELLANEOUS
 	
            3
 



 


 


 








 


 



7/06 AMENDMENT TO CREDIT AGREEMENT


 


Preamble


 


This 7/06 Amendment to Credit Agreement (the “7/06 Amendment” or, within itself only, this “Amendment”) effective as of July 31, 2006 (the “7/06 Amendment Effective Date”) amending (for the fourth time) the 8/05 Amended and Restated Senior Secured Credit Agreement (the “8/05 Credit Agreement” and as it may be supplemented, amended or restated, the “Current Credit Agreement”), executed as of August 1, 2005, among:


 


(i)  HOMEBANC CORP., a Georgia corporation (“HC”), its wholly-owned subsidiary, HOMEBANC MORTGAGE CORPORATION, a Delaware corporation (“HMC” HC and HMC being sometimes referred to individually as a “Company” and together as the “Companies”), each having its principal office at 2002 Summit Boulevard, Suite 100, Atlanta, Georgia  30319;


 


(ii)  JPMORGAN CHASE BANK, N.A. (“JPMorgan”), a national banking association, acting herein as a Lender and agent and representative of the other Lenders (in that capacity JPMorgan is called the “Agent”); and


 


(iii)  such other Lenders as may from time to time be party to this Agreement (together with JPMorgan as a lender, the “Lenders”).


 HOUSTON: 007002.04171: 1100766v4


 


Each of the parties hereto recites and provides as follows:


 


Recitals


 


The Companies have asked the Lenders and the Agent to extend the stated Maturity Date to October 31, 2006, and the Lenders and the Agent have agreed to do so on the terms and subject to the conditions of this Amendment.


 


All capitalized terms used in the 8/05 Credit Agreement and used but not defined differently in this Amendment have the same meanings here as there.


 


The Sections of this Amendment are numbered to correspond with the numbers of the Sections of the 8/05 Credit Agreement amended hereby and are accordingly often nonsequential.


 


If there is any conflict or inconsistency between (i) these recitals and the following agreements; (ii) any of the terms or provisions of any of the other Facilities Papers and this Amendment; or (iii) any provision of this Amendment and any later supplement, amendment, restatement or replacement of it then in each case the latter shall govern and control.


 


Agreements


 


In consideration of the premises, the mutual agreements stated below and other good and valuable consideration paid by each party to each other party to this Amendment, the receipt and sufficiency of which each hereby acknowledges, the parties hereby agree as follows:


 


 








 


 


1    DEFINITIONS



	
             
  	
            1.1.
 	
            Defined Terms.  
 



A.           The following new definitions are added to Section 1.2 of the Current Credit Agreement, in alphabetical order (except where otherwise specified).


 


“7/06 Amendment” means the 7/06 Amendment to Credit Agreement effective as of July 31, 2006, amending this Agreement.


 


“7/06 Amendment Effective Date” means July 31, 2006, the effective date of the 7/06 Amendment.


 


B.          Effective from and after the 7/06 Amendment Effective Date, the following definition is amended to read as follows:


“Maturity Date” means October 31, 2006, or the earlier date (the “Acceleration Date”), if any, to which maturity of the Senior Credit Notes is accelerated pursuant to this Agreement, by order of any Governmental Authority or by operation of law.


 


7    COLLATERAL


 


The provisions of Section 7.1 of the 8/05 Credit Agreement are not otherwise amended hereby.  Cumulative of such existing provisions, as security for the payment of the Loan and for the payment and performance of all of the Obligations, each Company hereby GRANTS to the Agent (as agent and representative of the Lenders) a first priority security interest in all of such Company’s present and future estate, right, title and interest in and to the Collateral, in addition to and cumulative of the security interests in the Collateral granted to the Agent in the 8/05 Credit Agreement and in prior amendments, and the parties hereby declare and confirm that all such security interests were and are granted to and held by the Agent (as agent and representative of the Lenders.)


 


8    CONDITIONS PRECEDENT


 


Section 8 of the 8/05 Credit Agreement is further amended by adding the following new Section 8.6 to the end of Section 8, viz.:


 


8.5          Borrowings After the 7/06 Amendment Effective Date.  In addition to the conditions precedent stated in Sections 8.1, 8.2, 8.3, 8.4 and 8.5 above, the obligations of the Lenders to fund and the Agent to disburse any Advances under this Agreement after the 7/06 Amendment Effective Date are subject to the condition precedent that the Agent shall have received:


 


(a)          the 7/06 Amendment, duly executed by each Company, the Agent and all Lenders; 


 


2


 








 


 


(b)          a certificate of each Company’s corporate secretary or assistant secretary (i) as to the incumbency of the officers of such Company executing the 7/06 Amendment and all other Facilities Papers executed or to be executed by or on behalf of such Company in connection with the 7/06 Amendment, (ii) as to the authenticity of their signatures (specimens of their signatures shall be included in such certificate or set forth on an exhibit attached to it, and the Agent and the Lenders shall be entitled to rely on that certificate until such Company has furnished a new certificate to the Agent) and (iii) that there have been no amendments to the Company’s certificate of incorporation or bylaws since March 31, 2006; 


 



	
             
 	
            (c)
 	
            a fee of $1,500 for the account of each Lender; and
 



 



	
             
  	
            (d)
 	
            such other documents, if any, as shall be specified by the Agent.
 



9    REPRESENTATIONS


 


Each Company hereby republishes its warranties and representations made in the 8/05 Credit Agreement effective (except as to those specified to relate only to a specific date) as of the 7/06 Amendment Effective Date.


 


16  MISCELLANEOUS


 


A.          This Amendment will become effective if and when it shall have been executed (in one or more counterparts) by the Companies, the Agent and Required Lenders (even if not all Lenders execute it.)


 



	
             
 	
            B.
 	
            Section 16.11 is amended to read as follows:
 



 


16.11     Notice Pursuant to Tex. Bus. & Comm. Code §26.02.  THE 8/05 CREDIT AGREEMENT, AS AMENDED BY THE 9/05 AMENDMENT, THE 12/05 AMENDMENT, THE 5/06 AMENDMENT AND THE 7/06 AMENDMENT, AND THE OTHER FACILITIES PAPERS TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


(The remainder of this page is intentionally blank; signature pages follow.)


 


3


 








 


 



EXECUTED as of the 7/06 Amendment Effective Date.


 


HOMEBANC CORP.


 


By:  /s/ JAMES L. KRAKAU                                      


Name:  James L. Krakau                                          
    


Title:    Senior Vice President                                      


 


HOMEBANC MORTGAGE CORPORATION


 


By:  /s/ JAMES L. KRAKAU                                      


Name:  James L. Krakau                                          
    


Title:    Senior Vice President                                      


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



JPMORGAN CHASE BANK, N.A.


as the Agent and as a Lender


 


 


By:  /s/ MICHAEL W. NICHOLSON                        


Name:  Michael W. Nicholson                                    


Title:    Senior Vice President                                      


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



COMMERZBANK AKTIENGESELLSCHAFT


NEW YORK AND GRAND CAYMAN BRANCHES



	
             
 	
            as a Lender
 



 


 


By:  /s/ ARNDT E. BRUNS                                        


Name:  ARNDT E. BRUNS                                        


Title:    Vice President                                          
      


 


 


By:  /s/ GERARD A. ARAW                                      


Name:  Gerard A. Araw                                          
    


Title:    Assistant Treasurer                                          



 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



KEYBANK NATIONAL ASSOCIATION, 


as a Lender


 


 


By:  /s/ PAUL HENSON                                          
  


Name:  Paul Henson                                          
          


Title:    Executive Vice President                                


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



U.S. BANK NATIONAL ASSOCIATION, 


as a Lender


 


 


By:  /s/ WILLIAM J. UMSCHEID                              


Name:  WILLIAM J. UMSCHEID                              


Title:    Vice President                                          
      


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



BNP PARIBAS, 


as a Lender


 


 


By:  /s/ LAURENT VANDERWIPE                          


Name:  LAURENT VANDERWYPE                        


Title:    Managing Director                                          



 


By:  /s/ MARGUERITE L. LEBON                            


Name:  MARGUERITE L. LEBON                            


Title:    Vice President                                          
      


 


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



UNITED OVERSEAS BANK LIMITED


NEW YORK AGENCY, 


as a Lender


 


 


By:  /s/ GEORGE LIM                                          
      


Name:  George Lim                                          
          


Title:    FVP & General Manager                                


 


 


By:  /s/ MARIO SHENG                                          
  


Name:  Mario Sheng                                          
          


Title:    AVP                                          
                      


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



FIRST COMMERCIAL BANK, 


NEW YORK AGENCY,


as a Lender


 


 


By:  /s/ BRUCE JU                                          
            


Name:  Bruce Ju                                          
                


Title:    V.P. & General Manager                                


 


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.


 








 


 



BANK HAPOALIM B.M.,


as a Lender


 


 


By:  /s/ JAMES P. SURLESS                                      


Name:  JAMES P. SURLESS                                      


Title:    VICE PRESIDENT                                        


 


 


By:  /s/ CHARLES MCLAUGHLIN                          


Name:  CHARLES McLAUGHLIN                            


Title:    SENIOR VICE PRESIDENT                          


 


 


 


Unnumbered counterpart signature page to 7/06 Amendment to Credit Agreement among


HomeBanc Corp., HomeBanc Mortgage Corporation, JPMorgan Chase Bank, N.A., et al.