247229.4 FIRST AMENDMENT TO GUARANTY
This First Amendment to Guaranty ("Amendment") is made by XXXXXXX
HOMES OF CALIFORNIA, INC., a California corporation, XXXXXXX HOMES OF OREGON,
INC., an Oregon corporation, XXXXXXX HOMES OF WASHINGTON, INC., a Washington
corporation, MELODY HOMES, INC., a Delaware corporation, XXXXXXX REALTY/MAUI,
INC., a Hawaii corporation, XXXXXXX REALTY/OAHU, INC., a Hawaii corporation,
LOKELANI CONSTRUCTION CORPORATION, a Delaware corporation, MELODY MORTGAGE
CO., a Colorado corporation, SHLR OF WASHINGTON, INC., a Washington
corporation, SHLR OF COLORADO, INC., a Colorado corporation, SHLR OF UTAH,
INC., a Utah corporation, SSHI LLC, a Delaware limited liability company,
SHLR OF NEVADA, INC., a Nevada corporation and SRHI LLC, a Delaware limited
liability company (collectively referred to as the "Guarantors", and
individually referred to a "Guarantor"), and XXXXXXX HOMES OF ARIZONA, LLC, a
Delaware limited liability company, SHLR OF CALIFORNIA, INC., a California
corporation, XXXXXXX MORTGAGE, INC., a Delaware corporation, and SHA
CONSTRUCTION LLC, a Delaware limited liability company (collectively referred
to as the "Additional Guarantors", and individually referred to as a
"Guarantor").
WHEREAS, (i) Xxxxxxx Homes, Inc., a Delaware corporation (the
"Borrower"), (ii) the banks from time to time party to the Credit Agreement,
as herein defined (collectively referred to as the "Banks", and individually
referred to as a "Bank"), (iii) FIRST HAWAIIAN BANK, a Hawaii corporation, as
administrative and syndication agent for the Banks (the "Administrative
Agent"), and (iv) BANK OF AMERICA, N.A., a national banking association, as
documentation agent for the Banks (the "Documentation Agent", the
Administrative Agent and the Documentation Agent are collectively referred to
as the "Agents"), entered into that certain Third Amended and Restated Credit
Agreement effective as of October 1, 1999 (the "Credit Agreement"), relating
to a revolving credit facility (the "Credit Facility") in the principal
amount of $170,000,000.00 made available to the Borrower by the Banks; and
WHEREAS, the Credit Facility is evidenced by that certain Third
Amended and Restated Promissory Note effective as of October 1, 1999 (the
"Note") executed by the Borrower and made payable to the Banks, and secured
and governed by certain "Loan Documents", as defined in the Credit Agreement;
and
WHEREAS, in connection therewith, the Guarantors executed that
certain Guaranty dated September 30, 1999 (the "Guaranty"); and
WHEREAS, the Credit Agreement was amended by that certain First
Amendment to Third Amended and Restated Credit Agreement dated December 5,
2000; and
WHEREAS, the Credit Agreement provides that each new subsidiary of
the Borrower or its Subsidiary (as defined in the Credit Agreement) shall be
added as a Guarantor under the Credit Agreement and the Guaranty; and
WHEREAS, XXXXXXX HOMES OF ARIZONA, LLC ("SHA") and SHA CONSTRUCTION
LLC ("SHAC"), are new subsidiaries of SRHI LLC, and SHLR OF CALIFORNIA, INC.
("SHLR/C"), and XXXXXXX MORTGAGE, INC. ("SMI") are new subsidiaries of the
Borrower; and
WHEREAS, the Additional Guarantors desire to be guarantors under the
Credit Agreement and to be added to the Guaranty, and the Additional
Guarantors have received, reviewed and approved the Credit Agreement and all
of the other Loan Documents;
NOW, THEREFORE, as an essential inducement to the Banks and the
Agents to continue to make the Credit Facility available to the Borrower
pursuant to the terms of the Credit Agreement, and as a consideration for so
doing, the Guarantors and the Additional Guarantors hereby agree with the
Banks and the Agents, and with each holder of the Note evidencing the Credit
Facility and each holder of any interest in the Note (each holder of the Note
and each holder of any interest therein being hereinafter collectively and
individually called the "Holder"), as follows:
1. REPRESENTATIONS AND WARRANTIES BY ADDITIONAL GUARANTORS. The
Additional Guarantors represent and warrant to the Lender that :
(a) SHA is a limited liability company duly registered,
validly existing and in good standing under the laws of the State of Delaware
is authorized to do business in the State of Arizona; has all requisite power
and authority to carry on the business and to own the properties that it now
carries on and owns; and has all requisite power and authority to execute and
deliver this Amendment and to observe and perform all of the provisions and
conditions hereof. The execution and delivery of this Amendment have been
duly authorized by the members of SHA and no other company action of SHA is
requisite to the execution and delivery of this Amendment.
(b) SHLR/C is a corporation duly registered, validly
existing and in good standing under the laws of the State of California; is
authorized to do business in the State of California; has all requisite power
and authority to carry on the business and to own the properties that it now
carries on and owns; and has all requisite power and authority to execute and
deliver this Amendment and to observe and perform all of the provisions and
conditions hereof. The execution and delivery of this Amendment have been
duly authorized by SHLR/C's Board of Directors and no other corporate action
of SHLR/C is requisite to the execution and delivery of this Amendment.
(c) SMI is a corporation duly registered, validly existing
and in good standing under the laws of the State of Delaware; is authorized
to do business in the States of Oregon and Washington; has all requisite
power and authority to carry on the business and to own the properties that
it now carries on and owns; and has all requisite power and authority to
execute and deliver this Amendment and to observe and perform all of the
provisions and conditions hereof. The execution and delivery of this
Amendment have been duly authorized by SMI's Board of Directors and no other
corporate action of SMI is requisite to the execution and delivery of this
Amendment.
(d) SHC is a limited liability company duly registered,
validly existing and in good standing under the laws of the State of Delaware
is authorized to do business in the State of Arizona; has all requisite power
and authority to carry on the business and to own the properties that it now
carries on and owns; and has all requisite power and authority to execute and
deliver this Amendment and to observe and perform all of the provisions and
conditions hereof. The
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execution and delivery of this Amendment have been duly authorized by the
members of SHAC and no other company action of SHAC is requisite to the
execution and delivery of this Amendment.
(e) TAX RETURNS AND PAYMENTS. All material tax returns and
reports of each Additional Guarantor required by law to be filed have been
duly filed, and all taxes, assessments, contributions, fees and other
governmental charges the liability for which could exceed $100,000 (other
than those currently payable without penalty or interest and those currently
being contested in good faith) upon any Additional Guarantor or upon any
Additional Guarantor's properties, assets or income which are due and payable
have been paid.
(f) LITIGATION. There is, to the knowledge of the
Additional Guarantors, no action, suit, proceeding or investigation pending
at law or in equity or before any Governmental Authority (as defined in the
Credit Agreement), or threatened against or affecting any Additional
Guarantor, an adverse ruling in which would or might materially impair the
ability of the Additional Guarantors to observe and perform the Additional
Guarantors' obligations under the Guaranty or have a material adverse effect
upon the legality, validity, binding effect or enforceability of the Guaranty.
(g) COMPLIANCE WITH OTHER INSTRUMENTS; NONE BURDENSOME. To
the best of their knowledge, no Additional Guarantor is in violation of or in
default with respect to any provision of any mortgage, indenture, contract,
agreement or instrument applicable to such Additional Guarantor, or by which
such Additional Guarantor is bound, and there is no provision of any
mortgage, indenture, contract, agreement or instrument applicable to any
Additional Guarantor or by which any Additional Guarantor is bound which
materially adversely affects, or in the future (so far as the Additional
Guarantors can now foresee) will materially adversely affect, the business or
prospects or condition (financial or other) of any Additional Guarantor or of
any Additional Guarantor's properties or assets.
(h) FINANCIAL STATEMENTS. Any financial statements
heretofore delivered to the Banks and the Agents by the Additional Guarantors
are true and correct in all respects, and fairly represent the respective
financial conditions of the subjects thereof as of the respective dates
thereof; and no materially adverse change has occurred in the financial
conditions reflected therein since the respective dates thereof.
(i) The Additional Guarantors hereby acknowledge that they
have received, reviewed and approved the Credit Agreement, the Guaranty, and
all of the other Loan Documents.
2. ASSUMPTION. The Additional Guarantors hereby covenant to and with
the Banks and the Agents that the Additional Guarantors will assume, observe
and perform all of the obligations of the Guarantors under the Guaranty, to
all intents and purposes as if the Guarantors and the Additional Guarantors
had executed the Guaranty, jointly and severally. The Additional Guarantors
shall indemnify the Lender against all claims, demands, damages, loss, cost,
expense and attorneys' fees which the Lender may incur as a result of any
breach of this Amendment by the Additional Guarantors.
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3. ACKNOWLEDGMENT OF RETAINED LIABILITY. The Guarantors covenant to
and with the Banks and the Agents that notwithstanding such assumption by the
Additional Guarantors of the obligations of the Guarantors under the
Guaranty, the Guarantors shall remain fully and directly (and not merely
secondarily or contingently), jointly and severally liable for the full
observance and performance of all obligations under the Guaranty.
4. LIABILITY JOINT AND SEVERAL. The obligations of each Guarantor
and Additional Guarantor under the Guaranty shall be joint and several.
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IN WITNESS WHEREOF, the Guarantors have executed this instrument
as of December 5, 2000.
XXXXXXX HOMES OF CALIFORNIA, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX HOMES OF OREGON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX HOMES OF WASHINGTON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
MELODY HOMES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX REALTY/MAUI, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX REALTY/OAHU, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
LOKELANI CONSTRUCTION CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
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MELODY MORTGAGE CO.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHLR OF WASHINGTON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHLR OF COLORADO, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHLR OF UTAH, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SSHI LLC By SHLR
of Washington, Inc.
Its Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHLR OF NEVADA, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SRHI LLC By SHLR
of Nevada, Inc.
Its Managing Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX HOMES OF ARIZONA, LLC
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By SRHI LLC
Its Managing Member
By SHLR of Nevada, Inc.
Its Managing Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHLR OF CALIFORNIA, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
XXXXXXX MORTGAGE, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
SHA CONSTRUCTION LLC
By SRHI LLC
Its Managing Member
By SHLR of Nevada, Inc.
Its Managing Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
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