Document

Exhibit 10.1

FIFTH AMENDMENT TO AMENDED AND RESTATED 
MASTER REPURCHASE AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT (this “Amendment”), dated as of September 24, 2020, is made and entered into between and among HomeAmerican Mortgage Corporation, a Colorado corporation (the “Seller”), and U.S. Bank National Association, as administrative agent and representative of itself as a Buyer and the other Buyers (in such capacity, the “Agent”) and as a Buyer (in such capacity, “U.S. Bank”).
RECITALS:
A.    The Seller, U.S. Bank, and the Agent are parties to an Amended and Restated Master Repurchase Agreement dated as of September 16, 2016 (as amended by that certain First Amendment to Amended and Restated Master Repurchase Agreement dated as of August 10, 2017, that certain Second Amendment to Amended and Restated Master Repurchase Agreement dated as of August 9, 2018, that certain Third Amendment to Amended and Restated Master Repurchase Agreement dated as of May 23, 2019, that certain Fourth Amendment to Amended and Restated Master Repurchase Agreement dated as of May 21, 2020, and as further amended, restated or otherwise modified from time to time, the “Repurchase Agreement”).  
B.    The Seller and the Agent now desire to amend certain provisions of the Repurchase Agreement as set forth herein.
AGREEMENT:
In consideration of the premises herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.    Definitions.  Capitalized terms used and not otherwise defined in this Amendment have the meanings specified in the Repurchase Agreement.
Section 2.    Amendments.  
2.1.    The Buyers’ Commitments to Purchase. Section 2.1 of the Repurchase Agreement is amended and restated in its entirety to read as follows: 
2.1    The Buyers’ Commitments to Purchase. Subject to the terms and conditions of this Agreement and provided no Default or Event of Default has occurred that the Agent has not declared in writing to have been cured or waived (or, if one has occurred and not been so declared cured or waived, if all of the Buyers, in their sole discretion and with or without waiving such Default or Event of Default, have elected in writing that Transactions under this Agreement shall continue nonetheless), the Buyers agree to make revolving purchases of Eligible Loans on a servicing released basis through and including the Termination Date, so long as the Aggregate Outstanding Purchase Price does not exceed the 










Maximum Aggregate Commitment and so long as each Buyer’s Committed Sum is not exceeded.  The Buyers’ respective Committed Sums and the Maximum Aggregate Commitment are set forth on Schedule BC in effect at the relevant time, as it may have been amended or restated pursuant to this Agreement. Upon any reduction of the Buyers’ respective Committed Sums and the Maximum Aggregate Commitment as set forth on Schedule BC, the Seller shall, to the extent required, reduce the Aggregate Outstanding Purchase Price to the amount of the Maximum Aggregate Commitment as then in effect, and the ownership interests in the Purchased Loans of each Buyer shall automatically be adjusted accordingly. Upon the joinder of additional Buyer(s), if any, the parties agree to approve in writing revised and updated versions of Schedule BC.  The fractions to be applied to determine the respective Funding Shares of the Buyers for any day are their respective Committed Sums divided by the Maximum Aggregate Commitment for that day.  Each Buyer shall be obligated to fund only that Buyer’s own Funding Share of any Transaction requested, and no Buyer shall be obligated to the Seller or any other Buyer to fund a greater share of any Transaction.  No Buyer shall be excused from funding its applicable Funding Share of any Transaction merely because any other Buyer has failed or refused to fund its relevant Funding Share of that or any other Transaction.  If any Buyer fails to fund its Funding Share of any Transaction, the Agent (in its sole and absolute discretion) may choose to fund the amount that such Nonfunding Buyer failed or refused to fund, or the Agent as a Buyer and the other Buyers who are willing to do so shall have the right (but no obligation) to do so in the proportion that the Committed Sum of each bears to the total Committed Sums of all Buyers that have funded (or are funding) their own Funding Shares of that Transaction and that are willing to fund part of the Funding Share of such Nonfunding Buyer.  Should the Agent and/or any other Buyer(s) fund any or all of the Nonfunding Buyer’s Funding Share of any Transaction, then the Nonfunding Buyer shall have the obligation to deliver such amount to the Agent (for distribution to the Buyer(s) who funded it) in immediately available funds on the next Business Day.  Regardless of whether the other Buyers fund the Funding Share of the Nonfunding Buyer, the respective ownership interests of the Buyers in the Transaction shall be adjusted as provided in Section 3.9.  The obligations of the Buyers hereunder are several and not joint.
2.2.    Adjusted Tangible Net Worth Ratio. Section 17.13 of the Repurchase Agreement is amended by deleting the reference to “8.0 to 1.0” therein and inserting in its place “10.0 to 1.0”. 
2.3.    Annex A to Officer’s Certificate. Annex A to Exhibit C of the Repurchase Agreement is amended by deleting the reference to “8.0:1.0” therein and inserting in its place “10.0:1.0”.
2.4.    Schedule BC. Schedule BC to the Repurchase Agreement is amended and restated in its entirety as set forth on Schedule BC hereto.  
2






Section 3.    Conditions Precedent and Effectiveness.  This Amendment shall be effective as of the date first above written, upon the occurrence of the following events:
3.1.    delivery to the Agent of this Amendment duly executed by the Seller in a quantity sufficient that the Agent and the Seller may each have a fully executed original; 
3.2.    delivery to the Agent of a certificate by the Secretary or Assistant Secretary of the Seller (i) certifying that the resolutions adopted by the Seller’s board of directors on September 12, 2016, remain in full force and effect, authorizing the Seller to enter into this Amendment, (ii) certifying that there has been no amendment to the Articles of Incorporation of the Seller since true and accurate copies of the same were delivered to the Agent as of November 12, 2008, (iii) certifying that there has been no amendment to the By-Laws of Seller since true and accurate copies of the same were delivered to the Agent as of November 12, 2008, and (iv) a certification as to the incumbency, names, titles, and signatures of the officers of the Seller authorized to execute this Amendment and the other instruments executed by the Seller in connection with this Amendment; and
3.3.    delivery to the Agent of such other documents as it may reasonably request.
Section 4.    Miscellaneous.
4.1.    Ratifications.  The terms and provisions of this Amendment shall modify and supersede all inconsistent terms and provisions of the Repurchase Agreement and the other Repurchase Documents, and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Repurchase Agreement and each other Repurchase Document are ratified and confirmed and shall continue in full force and effect.  
4.2.    Seller Representations and Warranties.  The Seller hereby represents and warrants that (a) the representations and warranties in Article 15 of the Repurchase Agreement and in the other Repurchase Documents 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, and (b) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
4.3.    Survival.  The representations and warranties made by the Seller in this Amendment shall survive the execution and delivery of this Amendment.
4.4.    Reference to Repurchase Agreement.  Each of the Repurchase Documents, including the Repurchase 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 Repurchase Agreement as amended hereby, is hereby amended so that any reference in such Repurchase Document to the Repurchase Agreement refers to the Repurchase Agreement as amended and modified hereby.
3






4.5.    Applicable Law.  This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
4.6.    Successors and Assigns.  This Amendment is binding upon and shall inure to the benefit of the Agent, the Buyers, the Seller, and their respective successors and assigns, except that the Seller may not assign or transfer any of its rights or obligations hereunder without the prior written consent of the Agent.
4.7.    Counterparts.  This Amendment 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.
4.8.    Headings.  The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
4.9.    ENTIRE AGREEMENT.  THIS AMENDMENT AND THE OTHER REPURCHASE DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND THERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO OR THERETO.  


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]










4







In witness whereof the parties have caused this Amendment to be executed as of the date first written above.


SELLER AND SERVICER:
HOMEAMERICAN MORTGAGE CORPORATION, as Seller and Servicer




By:      /s/ L. Ludwell Jones IV    
Name: L. Ludwell Jones IV
Title: Vice President and Treasurer






AGENT AND BUYER:
U.S. BANK NATIONAL ASSOCIATION,
as Agent and Buyer




By:     /s/ Edwin D. Jenkins        
Name: Edwin D. Jenkins
Title: Senior Vice President
Signature Page
Fifth Amendment







SCHEDULE BC TO
FIFTH AMENDMENT TO
AMENDED AND RESTATED
 MASTER REPURCHASE AGREEMENT
SCHEDULE BC
To Master Repurchase Agreement


The Buyers’ Committed Sums
(in dollars)


						
	Buyer	Except as provided in the below chart, Committed Sum for any period:
	U.S. Bank National Association	$75,000,000
	Maximum Aggregate Commitment	$75,000,000




												
	Buyer	Committed Sum for
September 24, 2020 through and including October 23, 2020
	Committed Sum for
December 22, 2020 through and including February 4, 2021 
	Committed Sum for
March 25, 2021 through and including April 23, 2021

	U.S. Bank National Association	$100,000,000	$200,000,000	$100,000,000
	Maximum Aggregate Commitment	$100,000,000	$200,000,000	$100,000,000


Schedule BC