exv10w38



 






EXHIBIT 10.38




FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




          This FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), made and
entered into as of September 28, 2005, is by and between DHI Mortgage Company, Ltd., a Texas
limited partnership (the “Borrower”), and U.S. Bank National Association, a national banking
association (the “Agent” and a “Lender”) and the other Lenders party hereto (collectively, the
“Lenders”).




RECITALS




          1. The Lenders and the Borrower entered into an Amended and Restated Credit Agreement dated as
of April 9, 2004 as amended by a First Amendment to Amended and Restated Credit Agreement dated as
of September 22, 2004, by a Second Amendment to Amended and Restated Credit Agreement dated as of
April 8, 2005, by a Third Amendment to Amended and Restated Credit Agreement dated as of June 23,
2005 and by a Fourth Amendment to Amended and Restated Credit Agreement dated as of September 26,
2005 (as amended, the “Credit Agreement”); and




          2. The Borrower desires to increase the Aggregate Commitment Amount under the Credit Agreement
under the provisions of Section 10.11(d) and to make other changes to certain provisions of the
Credit Agreement and the Agent and the Lenders have agreed to make such amendments, subject to the
terms and conditions set forth in 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. The Credit Agreement is hereby amended as follows:




    2.1 The definitions of “Aggregate Commitment Amounts”, “Approval Amount” and “Uncovered
Mortgage Loans” are amended in their entireties to read as follows:



     “Aggregate Commitment Amounts”: means the total of the Commitment Amounts of the
Lenders, which is $300,000,000, subject to increase in accordance with Section 10.11(d), but not to
exceed $450,000,000 ($600,000,000 on September 26 and 27, 2005 and $675,000,000 from September 28,
2005 through October 27, 2005).



 









 





     “Approval Amount” means with respect to U.S. Bank, $125,000,000, increasing
temporarily to (i) $200,000,000 on September 26 and 27 2005, and (ii) $275,000,000 from September
28, 2005 through October 27, 2005, when it shall again mean $125,000,000.




    2.2 Section 10.11(d) of the Credit Agreement is amended by inserting the following
immediately after the dollar amount “$450,000,000”: “($600,000,000 on September 26 and 27,
2005, and $675,000,000 from September 28, 2005 through October 27, 2005)” and by deleting
the change to such Section 10.11(d) as added by the Fourth Amendment to the Credit
Agreement.




    2.3 Schedule 5 to the Credit Agreement is deleted and Schedule 5 attached hereto is
inserted in its place as Schedule 5 to the Credit Agreement.



          Section 3. Effectiveness of Amendments. The amendments contained in this Amendment
shall become effective on September 28, 2005 once executed by the Borrower and the Lenders and once
the Agent has received the following:




               (a) This Amendment and a Note in the principal amount of each Lender’s Commitment Amount for
the Lenders whose commitments are changing, from the Borrower to the each such Lender substantially
in the form of Exhibit A to the Credit Agreement (together with this Amendment, the “Amendment
Documents”);



               (b) A copy of the resolutions of the Board of Directors of the General Partner of the
Borrower authorizing the execution, delivery and performance of this Amendment and the Notes
certified as true and accurate by its Secretary or Assistant Secretary, along with a certification
by such Secretary or Assistant Secretary; and



               (c) 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
hereby 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 (b)
there will exist no Default or Event of Default under the Credit Agreement as amended by
this Amendment on such date which has not been waived by the Lenders.




    4.2 Authority, No Conflict, No Consent Required. The Borrower represents and
warrants that the Borrower has the power and legal right and authority to enter into this
Amendment and has duly authorized as appropriate the execution and delivery of this
Amendment and other agreements and documents executed and delivered by the



 









 







Borrower in connection herewith by proper partnership 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 provision of the Borrower’s partnership agreement or any other agreement or
requirement of law, or result in the imposition of any Lien on any of its property under any
agreement binding on or applicable to the Borrower or any of its property except, if any, in
favor of the Lenders. The Borrower represents and warrants that no consent, approval or
authorization of or registration or declaration with any Person, including but not limited
to any governmental authority, is required in connection with the execution and delivery by
the Borrower of the Amendment Documents or other agreements and documents executed and
delivered by the Borrower in connection therewith or the performance of obligations of the
Borrower therein described, except for those which the Borrower has obtained or provided and
as to which the Borrower has delivered certified copies of documents evidencing each such
action to the Lenders.




    4.3 No Adverse Claim. The Borrower warrants, acknowledges and agrees that no
events have taken place and no circumstances exist at the date hereof which would give the
Borrower a basis to assert a defense, offset or counterclaim to any claim of the Lenders
with respect to the Obligations.



          Section 5. Affirmation of Credit Agreement, Further References, Affirmation of Security
Interest. The Agent on behalf of the Lenders and the Borrower each acknowledge and affirm that
the Credit Agreement, as hereby amended, is hereby ratified and confirmed in all respects and all
terms, conditions and provisions of the Credit Agreement, except as amended by this Amendment,
shall remain unmodified and in full force and effect. All references in any document or instrument
to the Credit Agreement are hereby amended and shall refer to the Credit Agreement as amended by
this Amendment. The Borrower confirms to the Lenders that the Obligations are and continue to be
secured by the security interest granted by the Borrower in favor of the Lenders under the Security
Agreement, and all of the terms, conditions, provisions, agreements, requirements, promises,
obligations, duties, covenants and representations of the Borrower under such documents and any and
all other documents and agreements entered into with respect to the obligations under the Credit
Agreement are incorporated herein by reference and are hereby ratified and affirmed in all respects
by the Borrower.




          Section 6. Merger and Integration, Superseding Effect. This Amendment, from and after
the date hereof, embodies the entire agreement and understanding between the parties hereto and
supersedes and has merged into this Amendment all prior oral and written agreements on the same
subjects by and between the parties hereto with the effect that this Amendment, shall control with
respect to the specific subjects hereof and thereof.




          Section 7. Severability. Whenever possible, each provision of this Amendment and the
other Amendment Documents and any other statement, instrument or transaction contemplated hereby or
thereby or relating hereto or thereto shall be interpreted in such manner as to be effective, valid
and enforceable under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto shall be





 









 







held to be prohibited, invalid or unenforceable under the applicable law, such provision shall
be ineffective in such jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable the remainder of such provision
or the remaining provisions of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto
in such jurisdiction, or affecting the effectiveness, validity or enforceability of such provision
in any other jurisdiction.




          Section 8. Successors. The Amendment Documents shall be binding upon the Borrower and
the Lenders and their respective successors and assigns, and shall inure to the benefit of the
Borrower and the Lenders and the successors and assigns of the Lenders.




          Section 9. Legal Expenses. The Borrower agrees to pay or reimburse the Agent, upon
execution of this Amendment, for all reasonable out-of-pocket expenses paid or incurred by the
Agent, including filing and recording costs and fees, charges and disbursements of outside counsel
to the Agent (determined on the basis of such counsel’s generally applicable rates, which may be
higher than the rates such counsel charges the Agent in certain matters) and/or the allocated costs
of in-house counsel incurred from time to time, in connection with the Credit Agreement, including
in connection with the negotiation, preparation, execution, collection and enforcement of the
Amendment Documents and all other documents negotiated, prepared and executed in connection with
the Amendment Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Agent harmless from all liability for, any stamp or other taxes
which may be payable with respect to the execution or delivery of the Amendment Documents, which
obligations of the Borrower shall survive any termination of the Credit Agreement.




          Section 10. Headings. The headings of various sections of this Amendment have been
inserted for reference only and shall not be deemed to be a part of this Amendment.




          Section 11. Counterparts. The Amendment Documents may be executed in several
counterparts as deemed necessary or convenient, each of which, when so executed, shall be deemed an
original, provided that all such counterparts shall be regarded as one and the same document, and
either party to the Amendment Documents may execute any such agreement by executing a counterpart
of such agreement.




          Section 12. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR
AFFILIATES.




 









 








          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.




BORROWER:




	 	 	 
	 

	 	DHI MORTGAGE COMPANY, LTD.
	 

	 	By: DHI Mortgage Company GP, Inc.
	 

	 	Its: General Partner
	 
	 	 
	 

	 	By: /s/ Mark C. Winter
	 

	 	           Mark C. Winter
	 

	 	Title: CFO/EVP






STATE OF TEXAS




COUNTY OF TRAVIS



On this the 27th day of September, 2005, personally appeared Mark C. Winter, as EVP/CFO of DHI
Mortgage Company, GP, Inc., a Delaware corporation, as general partner of DHI Mortgage Company ,
Ltd., a Texas limited partnership (the “Company”), and before me executed this Fifth Amendment to
Amended and Restated Credit Agreement, on behalf of the Company.



IN WITNESS WHEREOF, I have hereunto set my hand and official seal.




	 	 	 	 	 
	 	 	/s/Melody A. Hansen
	 	 	 
	 	 	Signature of Notary Public, State of Texas
	 
	 	 	 	 
	 	 	 
	 	 	(Print, Type or Stamp Commissioned Name of Notary Public)
	 	 	Personally known_____; OR Produced Identification ________
	 

	 	Type of ID
produced _______________________________________________________	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	(NOTARIAL SEAL)






 









 






AGENT & LENDER:




	 	 	 
	 

	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 
	 

	 	By: /s/ Kathleen Connor
	 

	 	          Kathleen Connor

          Vice President






(USB Signature Page Fifth Amendment)




 









 








	 	 	 	 	 
	 	 	COMERICA BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Marr
	 

	 	 	 	Robert W. Marr
	 

	 	 	 	Vice President






 









 






	 	 	 
	 

	 	NATIONAL CITY BANK OF KENTUCKY
	 
	 	 
	 

	 	By: /s/ Charles Ezell
	 

	 	Name: Charles Ezell

Title: Vice President






 









 






	 	 	 	 	 
	 	 	COLONIAL BANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mary L. Bathen
	 

	 	 	 	Mary L. Bathen
	 

	 	 	 	Senior Vice President & Assistant Treasurer






STATE OF Alabama




COUNTY OF Montgomery



On this the 26th day of September, 2005, personally appeared Mary L. Bathen, as Senior
Vice President & Assistant Treasurer of Colonial Bank, N.A., an Alabama corporation (the “Bank”),
and before me executed this Fifth Amendment to Amended and Restated Credit Agreement, on behalf of
the Bank.



IN WITNESS WHEREOF, I have hereunto set my hand and official seal.




	 	 	 	 	 
	 	 	/s/ Valerie M. Bess
	 	 	 
	 	 	Signature of Notary Public, State of Alabama
	 
	 	 	 	 
	 	 	 
	 	 	(Print, Type or Stamp Commissioned Name of Notary Public)
	 
	 	 	 	 
	 	 	Personally known
x; OR Produced Identification ________
	 

	 	Type of ID produced _______________________________________________________	 	 
	 

	 	 	 	 





(NOTARIAL SEAL)




 









 









	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Lisa Webster
	 

	 	 	 	Lisa Webster
	 

	 	 	 	Vice President






 









 






	 	 	 	 	 
	 	 	BNP PARIBAS
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jeff Tebeaux
	 

	 	 	 	Jeff Tebeaux
	 

	 	 	 	Vice President
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Henry Setina
	 

	 	 	 	Henry Setina
	 

	 	 	 	Director






 









 






	 	 	 	 	 
	 	 	WASHINGTON MUTUAL BANK, FA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cyndi R. Lopez
	 

	 	 	 	Cyndi R. Lopez
	 

	 	 	 	Vice President






 









 






	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cynthia E. Crites
	 

	 	 	 	Cynthia E. Crites
	 

	 	 	 	Senior Vice President






 









 






SCHEDULE 5




COMMITMENT AMOUNTS AND PERCENTAGE SHARES




From September 26, 2005 through September 27, 2005




	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	 	 
	 	 	Amount	 	 	Percentage	 
	 
	 	$	600,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 





From September 28, 2005 through October 28, 2005




	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	 	 
	 	 	Amount	 	 	Percentage	 
	 
	 	$	675,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 





-Schedule 5-




 









 






SCHEDULE 5 (continued)




From October 29, 2005 through October 31, 2005




	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	 	 
	 	 	Amount	 	 	Percentage	 
	 
	 	$	450,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 





From and after October 31, 2005




	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	 	 
	 	 	Amount	 	 	Percentage	 
	 
	 	$	300,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 





-Schedule 5-