XXXXXX, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1995
EXHIBIT 4
SIXTH AND SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN
AND SECURITY AGREEMENT DATED MAY 31, 1995 AND
FEBRUARY 23, 1996, RESPECTIVELY
SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Sixth Amendment") is dated as of May
31, 1995 and entered into by and among Xxxxxx, Inc., a New Jersey
corporation ("Company"), Xxxxxx Funding, Inc., a New Jersey
corporation (together with Company, the "Borrowers"), the
subsidiaries of Company listed on the signature pages hereof as
guarantors (the "Guarantors"), the financial institutions listed
on the signature pages hereof ("Lenders") and Chemical Bank, as
agent for Lenders ("Agent") and as collateral agent for Lenders
("Collateral Agent") and is made with reference to that certain
Amended and Restated Loan and Security Agreement dated as of May
28, 1993 (such agreement, as amended through the date hereof and
as it may hereafter be amended from time to time, the "Amended
Loan Agreement"), by and among Borrowers, Guarantors, Lenders,
Agent and Collateral Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set
forth in the Amended Loan Agreement.
RECITALS
WHEREAS, the Amended Loan Agreement has heretofore been
amended by the First Amendment to Amended and Restated Loan and
Security Agreement dated as of September 27, 1993, the Second
Amendment to Amended and Restated Loan and Security Agreement
dated as of October 14, 1993, the Limited Waiver, Release and
Consent Regarding Sale of Lancot Mortgage Co., Inc., dated as of
October 14, 1993, the Third Amendment to Amended and Restated
Loan and Security Agreement dated as of January 19, 1994, the
Fourth Amendment to Amended and Restated Loan and Security
Agreement dated as of February 28, 1994, the Joinder Agreement
dated as of June 1, 1994 entered into by Pennway Joint Venture,
L.P. in favor of the Collateral Agent (for the benefit of the
Lenders), the Joinder Agreement, Amendment and Limited Waiver
(Xxxxxx Homes of Chicago, Inc.) dated as of September 12, 1994,
and the Amendment to Amended and Restated Loan and Security
Agreement dated as of February 23, 1995; and
WHEREAS, Credit Parties and Xxxxxxx now desire to amend the
Amended Loan Agreement to (i) modify certain financial covenants,
and (ii) make certain other amendments as set forth below, all in
accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE AMENDED LOAN AGREEMENT
1.1. Amendments to Section 1: Provisions Relating to
Defined Terms.
Subsection 1.1 of the Amended Loan Agreement is
hereby amended by adding the following definitions thereto in
alphabetical order:
"Consolidated Cash Interest Expense" means, for
any person, Consolidated Interest Expense but excluding, however,
amortization of discount, deferred financing costs and interest
expense not payable in cash.
"Sixth Amendment" means the Sixth Amendment to
Amended and Restated Loan and Security Agreement dated
as of June 30, 1995 by and among Borrowers, Guarantors,
Lenders, Agent and Collateral Agent.
"Sixth Amendment Effective Date" means the date on
which the Sixth Amendment has become effective in
accordance with its terms.
1.2. Amendments to Section 7; Negative Covenants.
A. Subsection 7.4 of the Amended Loan Agreement
is hereby amended by deleting clause (vii) of subsection 7.4 and
replacing it with the following:
"(vii) the Credit Parties may become liable with
respect to Contingent Obligations in respect of
performance and surety bonds incurred in the ordinary
course of business and customary indemnification
obligations to bonding companies incurred in connection
with the issuance of such bonds; provided that the
aggregate amount of such Contingent Obligations does
not at any time exceed $45,000,000."
B. Subsection 7.6A of the Amended Loan Agreement
is amended by deleting such subsection and replacing it with the
following:
"A. Minimum Consolidated Adjusted EBITDA. The
Credit Parties shall not permit Consolidated Adjusted
EBITDA for the four quarter periods ending on the dates
set forth below to be less than the correlative amount
indicated:
Minimum Consolidated
DATE Adjusted EBITDA
May 31, 1995 $9,000,000
August 31, 1995 $9,000,000
November 30, 1995 $8,500,000
February 28, 1996 $9,000,000
May 31, 1996 $9,500,000
August 31, 1996 $9,000,000
November 30, 1996 $9,500,000
C. Subsection 7.6B of the Amended Loan Agreement
is hereby amended by deleting such subsection and replacing it
with the following:
"B. Minimum Consolidated Adjusted Tangible Net
Worth. The Credit Parties shall not permit
Consolidated Adjusted Tangible Net Worth as of each of
the dates set forth below to be less than the
correlative amount indicated:
Minimum Consolidated
Date Adjusted Tangible Net Worth
May 31, 1995 $22,056,000
August 31, 1995 $22,657,000
November 30, 1995 $23,179,000
February 28, 1996 $23,206,000
May 31, 1996 $23,386,000
August 31, 1996 $23,800,000
November 30, 1996 $24,694,000
D. Subsection 7.6C of the Amended Loan Agreement
is hereby amended by deleting such subsection and replacing it
with the following:
"C. Minimum Consolidated Interest Expense
Coverage Ratio. The Credit Parties shall not permit
the ratio of (i) Consolidated Adjusted EBITDA to (ii)
Consolidated Cash Interest Expense for the four fiscal
quarter periods ending on the dates set forth below to
be less than the correlative amount indicated:
Period Minimum Interest Coverage
May 31, 1995 1.40
August 31, 1995 1.20
November 30, 1995 1.10
February 28, 1996 1.10
May 31, 1996 1.15
August 31, 1996 1.15
November 30, 1996 1.25
E. Subsection 7.8C of the Amended Loan Agreement
is hereby amended by deleting the table set forth therein and
substituting the following therefor:
Maximum Consolidated Land
"Fiscal Year Acquisition Costs
1995 $20,000,000
1996 $20,000,000
1997 (first quarter) $ 6,000,000
F. Subsection 7.8D of the Amended Loan Agreement
is hereby amended by deleting the table set forth therein and
substituting the following therefor:
Maximum Consolidated Land
"Fiscal Year Development Costs
1995 $22,000,000
1996 $12,000,000
1997 (first quarter) $ 4,000,000
1.3. Amendment to Schedule 2.1: Lender Commitments.
X. Xxxxxxxx 2.1 of the Amended Loan Agreement is
hereby amended by deleting "Altus Finance" from the list of
Tranche B Lenders and replacing it with "Artemis America
Partnership."
B. This Amendment to Schedule 2.1 shall become
effective on the later of (i) the effective date as determined by
Section 2 of this Sixth Amendment, below, or (ii) the date that
an assignment and assumption from Altus Finance to Artemis
America Partnership becomes effective, as provided by any
Assignment and Assumption Agreement substantially in the form of
Exhibit C of the Amended Loan Agreement, which is accepted by the
Agent as provided by Section 11.1 of the Amended Loan Agreement.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Sixth Amendment shall become
effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such conditions
being referred to herein as the "Sixth Amendment Effective
Date"):
A. On or before the Sixth Amendment Effective
Date, Credit Parties shall deliver to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) the following,
each, unless otherwise noted, dated the Sixth Amendment Effective
Date:
1. For each of the Borrowers, Xxxxxx Homes, Inc.,
Xxxxxx Homes of Florida, Inc., Xxxxxx Homes of
Pennsylvania, Inc. and Xxxxxx Homes of Chicago, Inc.,
(a) certified copies of its Certificate of
Incorporation, and (b) good standing certificates from
the state of its organization and each other state
where it owns assets or otherwise conducts business,
each dated a recent date prior to the Sixth Amendment
Effective Date;
2. For each of the Borrowers, Xxxxxx Homes, Inc.,
Xxxxxx Homes of Florida, Inc., Xxxxxx Homes of
Pennsylvania, Inc. and Xxxxxx Homes of Chicago, Inc.,
copies of its Bylaws, certified as of the Sixth
Amendment Effective Date by its corporate secretary or
an assistant secretary;
3. Resolutions of its Board of Directors or, in
the case of a Credit Party which is not a corporation,
resolutions of the Board of Directors of the general
partner or other Person authorized to act on its
behalf, approving and authorizing the execution,
delivery and performance of this Sixth Amendment,
certified as of the Sixth Amendment Effective Date by
its corporate secretary or an assistant secretary as
being in full force and effect without modification or
amendment; and
4. Signature and incumbency certificates of its
officers executing this Sixth Amendment, certified as
of the Sixth Amendment Effective Date by its corporate
secretary or assistant secretary;
5. Executed copies of this Sixth Amendment.
B. Borrowers shall have paid an amendment fee to
Agent (for the ratable benefit of the Lenders) in an amount equal
to $25,000, as compensation to the Lenders in connection with the
Sixth Amendment, and all other fees, costs and expenses of Agent
(including fees and expenses of counsel for Agent) and Lenders
accrued and unpaid as of the Sixth Amendment Effective Date.
C. On or before the Sixth Amendment Effective
Date, all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
Agent, acting on behalf of Xxxxxxx, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and
Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Agent may
reasonable request.
Section 3. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Xxxxxxx to enter into this Sixth
Amendment and to amend the Amended Loan Agreement in the manner
provided herein, each Credit Party represents and warrants to
each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Such Credit
Party has all requisite corporate or partnership power and
authority to enter into this Sixth Amendment and to carry out the
transactions contemplated by, and perform its obligations under,
the Amended Loan Agreement as amended by this Sixth Amendment
(the "Amended Agreement").
B. Authorization of Agreements. The execution
and delivery by such Credit Party of this Sixth Amendment and the
performance by such Credit Party of the Amended Agreement have
been duly authorized by all necessary corporate or partnership
action on the past of such Credit Party, as the case may be.
C. No Conflict. The execution and delivery by
such Credit Party of this Sixth Amendment and the performance by
such Credit Party of the Amended Agreement do not and will not
(i) violate any provision of any law or any governmental rule or
regulation applicable to such Credit Party or any of its
Subsidiaries, or any order, judgment or decree of any court or
other agency of government binding on such Credit Party or any of
its Subsidiaries, (ii) violate any provision of the Certificate
or Articles of Incorporation or Bylaws of such Credit Party if it
is a corporation or of its general partner or such other person
or persons authorized to act on its behalf if it is not a
corporation, (iii) violate any provision of its partnership,
joint venture or similar organizational agreement if it is not a
corporation, (iv) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of such Credit Party or any of
its Subsidiaries, (v) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
such Credit Party or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of
Collateral Agent on behalf of Lenders), or (vi) require any
approval of stockholders or partners or any approval or consent
of any Person under any Contractual Obligation of such Credit
Party or any of its Subsidiaries, except for such approvals or
consents which have been obtained on or before the Sixth
Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and
delivery by such Credit Party of this Sixth Amendment and the
performance by such Credit Party of the Amended Agreement do not
and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal,
state or other governmental authority or regulatory body.
E. Binding Obligation. This Sixth Amendment, the
Amended Agreement have been duly executed and delivered by each
of the Credit Parties party thereto and are the legally valid and
binding obligations of each such Credit Party, enforceable
against such Credit Party in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by equitable principles
relating to enforceability.
F. Incorporation of Representations and
Warranties From Amended Loan Agreement. The representations and
warranties contained in Section 5 of the Amended Loan Agreement
are and will be true, correct and complete in all material
respects on and as of the Sixth Amendment Effective Date to the
same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and
is continuing or will result from the consummation of the
transactions contemplated by this Sixth Amendment that would
constitute an Event of Default or a Potential Event of Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Borrowers are each party to the Borrower Security
Agreement, the Borrower Pledge Agreement, the Account Collateral
Security Agreement and certain other Security Documents, in each
case as amended through the Sixth Amendment Effective Date,
pursuant to which Borrowers have created Liens in favor of
Collateral Agent on certain Collateral to secure the Obligations
of the Borrowers. Each Guarantor is a party to the Amended
Guaranty Agreement and certain Guarantors are parties to the
Guarantor Security Agreement, the Guarantor Pledge Agreement, the
Account Collateral Security Agreement certain Mortgages, and/or
certain other Security Documents, in each case as amended through
the Sixth Amendment Effective Date, pursuant to which such
Guarantor has (i) guaranteed the Obligations of the Borrowers and
(ii) created Liens in favor of Collateral Agent on certain
Collateral to secure the Obligations of such Guarantor under the
Amended Guaranty Agreement. Borrowers and Guarantors are
collectively referred to herein as the "Credit Support Parties",
and the Amended Guaranty Agreement and the Security Documents are
collectively referred to herein as the "Credit Support
Documents".
Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of this Sixth Amendment and
consents to the amendments effected pursuant to this Sixth
Amendment. Each Credit Support Party hereby confirms that each
Credit Support Document to which it is a party or otherwise bound
and all Collateral encumbered thereby will continue to guaranty
or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in
each case as such terms are defined in the applicable Credit
Support Document), including without limitation the payment and
performance of all such "Obligations," "Guarantied Obligations"
or "Secured Obligations," as the case may be, in respect of the
Obligations of Borrowers now or hereafter existing under or in
respect of the Amended Agreement and the other Loan Documents.
Each Credit Support Party acknowledges and agrees that
each of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable
and shall not be impaired or limited by the execution or
effectiveness of this Sixth Amendment.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Amended Loan
Agreement and the Other Loan Documents.
(i) On and after the Sixth Amendment Effective
Date, each reference in the Amended Loan Agreement to
"this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Amended Loan
Agreement, and each reference in the other Loan
Documents to the "Amended Loan Agreement",
"thereunder", "thereof" or words of like import
referring to the Amended Loan Agreement shall mean and
be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Sixth
Amendment, the Amended Loan Agreement and the other
Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of
this Sixth Amendment shall not constitute a waiver of
any provision of, or operate as a waiver of any right,
power or remedy of Agent, Collateral Agent or any
Lender under, the Amended Loan Agreement or any of the
other Loan Documents.
B. Fees and Expenses. Borrowers acknowledge that all
costs, fees and expenses as described in subsection 11.2 of the
Amended Loan Agreement incurred by Agent, Collateral Agent,
Lenders and their counsel with respect to this Sixth Amendment
and the documents and transactions contemplated hereby shall be
for the account of Borrowers.
C. Headings. Section and subsection headings in this
Sixth Amendment are included herein for convenience of reference
only and shall not constitute a part of this Sixth Amendment for
any other purpose or be given any substantive effect.
D. Applicable Law. THIS SIXTH AMENDMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Sixth Amendment
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document. This Sixth Amendment shall become effective upon the
execution of a counterpart hereof by each Lender (or, in the case
of Tranche B Lenders, each such Lender which is not a Deemed
Voting Lender) and each of the other parties hereto, receipt by
Company and Agent of written or telephonic notification of such
execution and authorization of delivery thereof and satisfaction
or waiver by each Lender (or, in the case of Tranche B Lenders,
each such Lender which is not a Deemed Voting Lender) of the
conditions to effectiveness set forth in Section 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Sixth Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
BORROWERS:
XXXXXX, INC.
By:/s/Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXX FUNDING, INC.
By:/s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
GUARANTORS:
(2) Xxxxxx California Equity Corp.
Xxxxxx Capital, Inc.
Xxxxxx Capital II, Inc.
Xxxxxx General, Inc.
(1) Xxxxxx Homes, Inc.
Xxxxxx Homes of California, Inc.
(2) Xxxxxx Homes of Florida, Inc.
(1) Xxxxxx Homes of Pennsylvania, Inc.
(1) Xxxxxx Homes of Pennsylvania
at Pennway, Inc.
(2) Xxxxxx Homes of Tampa, Inc.
Xxxxxx Lindenwood Corporation
Xxxxxx Manzanita Corporation
Xxxxxx Tamarack Corporation
Calcap Commercial Management, Inc.
Calcap X, Inc.
Calcap XV, Inc.
Calcap XXXI, Inc.
Calcap XXXII, Inc.
Calcap XXXIII, Inc.
Calcap 36, Inc.
Calcap 42, Inc.
Calcap 48, Inc.
(1) Xxxxxx Homes of Chicago, Inc.
Each by:/s/ Xxxxxx X. Xxxxxxxxxx
Title:(1) Senior Vice President
(2) Vice President
President of all others
Xxxxxx Homes Finance, Inc.
Xxxxxx Homes Finance II, Inc.
Each by:/s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Talcon Title Agency, L.P.
By: Xxxxxx General, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 31, L.P.
By: Calcap XXXI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 32, L.P.
By: Calcap XXXII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 33, L.P.
By: Calcap XXXIII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 48, L.P.
By: Calcap 48, Inc.,
its General Partner
By:/s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 36, L.P.
By: Calcap 36, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
LENDERS:
CHEMICAL BANK, Individually and as
Agent and Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
KLEINWORT XXXXXX LIMITED,
as a Lender
By: /s/ Xxxx Xxxxx
Title: Senior Vice President
ALTUS FINANCE,
as a Lender
By: Lion Advisors, L.P.
Its: Attorney-in-Fact
By: Lion Capital Management, Inc.
Its: General Partner
By:/s/ Xxxxx Xxxxxx
Title:___________________
AIF II, L.P.,
as a Lender
By: Apollo Advisors, L.P.
Its: Managing General Partner
By: Apollo Capital Management, Inc.
Its: General Partner
By:/s/ Xxxxx Xxxxxx
Title:___________________
BELMONT FUND, L.P., as a Lender
By: Fidelity International Services
Limited
Its: Managing General Partner
By: Fidelity Management Trust
Company (acting pursuant to a
power of attorney)
By:/s/ Xxxxxx X. Xxxxxxx
Title: Senior Vice President
FIDELITY CAPITAL & INCOME FUND,
as a Lender
By:/s/ Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
By:______________________
Title:___________________
PEARL STREET, L.P., as a Lender
By:/s/Xxxxxx X'Xxxx
Title: Authorized Signer
By:______________________
Title:___________________
XXXXXX, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1995
EXHIBIT 4
SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN
AND SECURITY AGREEMENT
DATED FEBRUARY 23, 1996
SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Seventh Amendment")
is dated as of February 23, 1996 and entered into by and among
Xxxxxx, Inc., a New Jersey corporation ("Company"), Xxxxxx
Funding, Inc., a New Jersey corporation (together with Company,
the "Borrower"), the subsidiaries of Company listed on the
signature pages hereof as guarantors (the "Guarantors"), the
financial institutions listed on the signature pages hereof
("Lenders") and Chemical Bank, as agent for Lenders ("Agent") and
as collateral agent for Lenders ("Collateral Agent") and is made
with reference to that certain Xxxxxxx and Restated Loan and
Security Agreement dated as of May 18, 1993 (such agreement, as
amended through the date hereof and as it may hereafter be
amended from time to time, the "Amended Loan Agreement"), by and
among Borrowers, Guarantors, Lenders, Agent and Collateral Agent.
Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Amended Loan Agreement.
RECITALS
WHEREAS, the Amended Loan Agreement has heretofore been
amended by the First Amendment to Amended and Restated Loan and
Security Agreement dated as of September 27, 1993; the Second
Amendment to Amended and Restated Loan and Security Agreement
dated as of October 14, 1993; the Limited Waiver, Release and
Consent Regarding Sale of Lancot Mortgage Co., Inc., dated as of
October 14, 1993; the Third Amendment to Amended and Restated
Loan and Security Agreement dated as of January 19, 1994; the
Fourth Amendment to Amended and Restated Loan and Security
Agreement dated as of February 28, 1994; the Joinder Agreement
dated as of June 1, 1994 entered into by Pennway Joint Venture,
L.P. in favor of the Collateral Agent (for the benefit of the
Lenders); the Joinder Agreement, Amendment and Limited Waiver
(Xxxxxx Homes of Chicago, Inc.) dated as of September 12, 1994;
and the Fifth Amendment to Amended and Restated Loan and Security
Agreement dated as of February 23, 1995; and the Sixth Amendment
to Amended and Restated Loan and Security Agreement dated as of
May 31, 1995;
WHEREAS, Credit Parties and Xxxxxxx now desire to amend the
Amended Loan Agreement to (i) modify certain financial covenants,
and (ii) make certain other amendments as set forth below, all in
accordance with the terms hereof; and
WHEREAS, at the request of Credit Parties, the Lenders wish
to authorize the Collateral Agent to execute such documents as
are necessary to release any Liens on the property described on
Exhibit A hereto (the "Placer Property") created by the Mortgages
or otherwise;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE AMENDED LOAN AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined
Terms.
A. Subsection 1.1 of the Amended Loan Agreement is
hereby amended by adding the following definitions thereto in
alphabetical order:
"Seventh Amendment" means the Seventh Amendment to
Amended and Restated Loan and Security Agreement dated
as of February 23, 1996 by and among Borrowers,
Guarantors, Lenders, Agent and Collateral Agent.
"Seventh Amendment Effective Date"means the date
on which the Seventh Amendment has become effective in
accordance with its terms.
B. Subsection 1.1 of the Amended Loan Agreement is
hereby further amended by deleting the definitions of Base Rate
and Excluded Properties therefrom and replacing them with the
following:
"Base Rate" means, at any time, the Prime Rate plus 2%
per annum.
"Excluded Properties" means each of the properties
listed on Schedule 1 to the Seventh Amendment.
1.2 Amendment to Section 2
A. Tranche A Commitments. Subdivision (i) of
subsection 2.1A of the Amended Loan Agreement is hereby amended
by deleting the third sentence thereto and replacing it with the
following:
"The amount of each Tranche A Lender's Commitment as of
the Seventh Amendment Effective Date is set forth
opposite its name on Schedule 2.1 to the Seventh
Amendment and the aggregate Tranche A Commitments as of
the Seventh Amendment Effective Date are $42,625,000;
provided, that (i) the amount of the Tranche A
Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to
subsection 2.4 and (ii) as of November 1, 1996, the
aggregate Tranche A Commitments shall be reduced to
$38,750,000 to the extent such aggregate Tranche A
Commitments have not theretofore been reduced below
$38,750,000.
B. Tranche B. Commitments. Subdivision (ii) of
subsection 2.1A of the Amended Loan Agreement is hereby amended
by deleting the third sentence thereto and replacing it with the
following:
"The amount of each Tranche B Lender's Commitment as of
the Seventh Amendment Effective Date is set forth
opposite its name on Schedule 2.1 to the Seventh
Amendment and the aggregate Tranche B Commitments as of
the Seventh Amendment Effective Date are $12,375,000;
provided, that (i) the amount of the Tranche B
Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to
subsection 2.4 and (ii) as of November 1, 1996, the
aggregate Tranche B Commitments shall be reduced to
$11,250,000 to the extent such aggregate Tranche A
Commitments have not theretofore been reduced below
$11,250,000."
C. Elimination of Scheduled Reductions. Subdivision
(i) of subsection 2.4C of the Amended Loan Agreement is hereby
amended by deleting it in its entirety and replacing it with the
following:
"(i) [Intentionally Omitted]."
D. Modification of Commitment Reductions from Assets
Sales. Subdivision (i) of subsection 2.4C of the Amended Loan
Agreement is hereby amended by deleting such subdivision and
replacing it with the following:
"(ii) Reductions from Assets Sales. No later than the
Second Business Day following the date of receipt by Company
or any of its Subsidiaries of Cash Proceeds of any Asset
Sale, the Commitments shall be permanently reduced in an
amount equal to 75% of the Net Cash Proceeds of such Asset
Sale provided, however, that the reduction in the
Commitments set forth in this Section 2.4C(ii) shall not
apply with respect to the sale of (i) an Excluded Property
or (ii) any real property purchased by the Borrowers or any
of their Subsidiaries after the Seventh Amendment Effective
Date, if, prior to consummation of such purchase, (x) the
Borrower or Subsidiary, as the case may be, has entered into
one or more valid and binding written agreements to sell
such real property to one or more third party purchasers not
affiliated with the Borrowers or any of their Subsidiaries,
and (y) the sale to the third party of such real property
actually takes place within thirty (30) calendar days of the
closing of the purchase thereof by the Borrower or
Subsidiary, as the case may be. Concurrently, with any
reduction of the Commitments pursuant to this subsection
2.4C(ii), Borrowers shall deliver to Agent an Officers'
Certificate demonstrating the derivation of the Net Cash
Proceeds of the correlative Asset Sale from the gross sales
price thereof. In the event that Borrowers shall, at any
time after receipt of Cash Proceeds of any Asset Sale
requiring a reduction of the Commitments pursuant to this
subsection 2.4C(ii), determine that the reductions of the
Commitments previously made in respect of such Asset sale
were in an aggregate amount less than that made in respect
of such Asset sale were in an aggregate amount less than
that received by the terms of this subsection 2.4C(ii),
Borrowers shall promptly deliver to Agent an Officers'
Certificate demonstrating the derivation of the additional
Net Cash Proceeds resulting in such deficit and the
Commitments shall be permanently reduced on the date such
notice is delivered in an amount equal to the amount of any
such deficit."
1.3 Amendment to Section 3; Acquisition of Real Property.
Subdivision (i)(b) of Subsection 3.2D of the Amended Loan
Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
"(b) In connection with any acquisition of real
property by a Credit Party after the Effective Date, such
Credit Party shall (x) at least thirty (30) days prior to
the closing of the acquisition deliver to the Collateral
Agent and the Lenders the following items, each in form and
substance satisfactory to the Collateral Agent (i) a
feasibility study for such real property, including
comparisons with other similar projects, (ii) a report
outlining the approval status of such real property
(indicating expiration dates of approvals), (iii) a legal
description of such real property sufficient for a mortgage
and establishing that the property constitutes a legal lot
or parcel under applicable subdivision laws, (iv) a report
by an independent consultant satisfactory to Agent regarding
investigation of such property for Hazardous Materials and
compliance with Environmental Laws, wish such report in form
and substance satisfactory to Agent, (v) a cash flow
schedule for such real property, (vi) a summary report
updating land acquisition activity year-to-date, including a
description of all future development commitments, and (vii)
such other documents, instruments and information with
respect to such real property as the Collateral Agent or any
Lender shall reasonably request, and (y) no more than thirty
(30) days after the closing of the acquisition deliver to
the Collateral Agent and the Lenders, in a form and
substance satisfactory to the Collateral Agent, a current
appraisal of such real property performed by an appraiser
satisfactory to Agent. Collateral Agent may from time to
time designate any real property of any Credit Party which
is not Mortgaged Property (including any real property
acquired after the Effective Date) as "Additional Mortgaged
Property," in which case such Credit Party shall as promptly
as possible (and in any event within thirty (30) days after
such designation) deliver to Collateral Agent a fully
executed Mortgage, in form and substance satisfactory to
Collateral Agent together with title insurance policies and
surveys as required by subsections 3.2D(i)(d) and 3.2D(i)(e)
and any other documents or instruments as Collateral Agent
shall reasonably request to perfect a valid and enforceable
first priority mortgage on the respective Additional
Mortgage Property, free and clear of all defects and
encumbrances except for validly perfected and enforceable
Permitted Encumbrances of record on the Effective Date
listed on Schedule 5.8 hereto."
1.4 Amendments to Section 7; Negative Covenants.
A. Subsection 7.1 of the Amended Loan Agreement is
hereby amended by deleting the table in clause (vi) thereof in
its entirety and substituting the following therefor:
Maximum Purchase Money
Period Mortgage Obligations
Seventh Amendment $5,000,000
Effective Date to
Commitment Termination
Date
B. Subsection 7.4 of the Amended Loan Agreement is
hereby amended by deleting it in its entirety and replacing it
with the following:
"(vii) the Credit Parties may become liable with respect to
Contingent Obligations in respect of performance and surety bonds
incurred in the ordinary course of business and customary
indemnification obligations to bonding companies incurred in
connection with the issuance of such bonds; provided that the
aggregate amount of such Contingent Obligations does not, at any
time, up through and including December 31, 1995, exceed
$40,000,000, and at any time after December 31, 1996, exceed
$45,000,000.
C. Subsection 7.6A of the Amended Loan Agreement is
amended by deleting such subsection and replacing it with the
following:
"A. Minimum Consolidated Adjusted EBITDA. The Credit
Parties shall not permit Consolidated Adjusted EBITDA for the
four quarter periods ending on the dates set forth below to be
less than the correlative amount indicated:
Minimum Consolidated
DATE Adjusted EBITDA
February 29, 1996 $ 7,000,000
May 31, 1996 $ 6,500,000
August 31, 1996 $ 4,750,000
November 30, 1996 $ 7,250,000
February 28, 1997 $ 8,500,000
D. Subsection 7.6B of the Amended Loan Agreement is
hereby amended by deleting such subsection and replacing it with
the following:
"B. Minimum Consolidated Adjusted Tangible Net Worth.
The Credit Parties shall not permit Consolidated Adjusted
Tangible Net Worth as of each of the dates set forth below to
be less than the correlative amount indicated:
Minimum Consolidated
DATE Adjusted Tangible Net Worth
February 29, 1996 $20,752,000
May 31, 1996 $20,000,000
August 31, 1996 $20,311,000
November 30, 1996 $21,343,000
February 28, 1997 $21,616,000
E. Subsection 7.6C of the Amended Loan Agreement is
hereby amended by deleting such subsection and replacing it with
the following:
"C. Minimum Consolidated Interest Expense
Coverage Ratio. The Credit Parties shall not permit
the ratio of (i) Consolidated Adjusted EBITDA to (ii)
Consolidated Cash Interest Expense for the four fiscal
quarter periods ending on the dates set forth below to
be less than the correlative amount indicated:
Period Minimum Interest Coverage
February 29, 1996 1.00
May 31, 1996 1.00
August 31, 1996 0.75
November 30, 1996 1.25
February 28, 1997 1.50
F. Subsection 7.8C of the Amended Loan Agreement is
hereby amended by deleting the table set forth therein and
substituting the following therefor:
Maximum Consolidated Land
"Fiscal Year Acquisition Costs
1995 $20,000,000
1996 $18,833,000
1997 (first quarter) $ 8,000,000
G. Subsection 7.8D of the Amended Loan Agreement is
hereby amended by deleting the table set forth therein and
substituting the following therefor:
Maximum Consolidated Land
Fiscal Year Development Costs
1996 $21,046,000
1997 (first quarter) $ 4,640,000
1.5 Amendment to Section 11: Deemed Voting Lenders
The last two sentences of subsection 11.6A are amended
by deleting them in their entirety and substituting the following
therefor:
"Notwithstanding any provision of this Subsection 11.6A
to the contrary, each Tranche B Lender other than any
Tranche B Lender which has given notice to Company and
Agent in accordance with the next sentence of this
Subsection 11.6A (each Tranche B Lender which has not
sent such written notice, a "Deemed Voting Lender")
agrees that such Deemed Voting Lender shall be deemed
to cast its vote on any request, or which it has prior
written notice, for amendment, modification,
termination or waiver of any provision of the Amended
Loan Agreement or any other Loan Document,
proportionately according to the votes cast on such
request by all Tranche B Lenders which are not Deemed
Voting Lenders and any amendment, modification,
termination, waiver or consent signed by an appropriate
percentage of Tranche B Lenders which are not Deemed
Voting Lenders shall be binding on Deemed Voting
Lenders, such that there remain no Tranche B Lenders
exercising voting rights, each Deemed Voting Lender
shall be deemed to cast its vote proportionately
according to such votes cast by Xxxxxxx A Lenders,
under the same terms and conditions and with the same
binding effect as if such votes had been cast by
Xxxxxxx X Xxxxxxx. Tranche B Lenders which are not
Deemed Voting Lenders and Tranche A Lenders shall have
no affirmative obligation to Deemed Voting Lenders to
vote, and in no event shall Deemed Voting Lenders have
any claim or recourse against such Tranche B Lenders
which are not Deemed Voting Lenders and Tranche A
Lenders shall have no affirmative obligation to Deemed
Voting Lenders to vote, and in no event shall Deemed
Voting Lenders have any claim or recourse against such
Tranche B Lenders which are not Deemed Voting Lenders
or Tranche A Lenders with respect to any vote cast or
not cast, or the consequences of any action taken or
omitted to be taken, by any such Tranche B Lender which
is not a Deemed Voting Lender or Tranche A Lender.
Each Tranche B Lender may, by written notice to Company
and Agent, revoke its election to have its vote deemed
cast in the manner described in the immediately
proceeding sentence, provided, that such revocation
shall not be effective with respect to any request for
amendment, modification, termination or waiver if
notice of such revocation is not received by Company
and Agent at least three Business Days prior to the
effective date of such amendment, waiver, modification
or termination. Following written notice in accordance
with the preceding sentence such Tranche B Lender shall
no longer be a Deemed Voting Lender hereunder."
1.6 Amendment to Schedules
Schedules 2.1 and 5.22 of the Amended Loan Agreement
are hereby amended and restated to read in their entirety as set
forth on Schedules 2.1 and 5.22 of this Seventh Amendment.
Section 2. ACKNOWLEDGEMENT AND LIMITED WAIVER REGARDING THE
PLACER PROPERTY
A. The Lenders, Agent, Collateral Agent and Credit
Parties hereby agree and acknowledge that:
(a) Any Lien created on the Placer Property by
the Mortgage executed in connection with the Amended Loan
Agreement may be terminated by the Collateral Agent, and after
such termination shall no longer be of any force or effect.
(b) The Lenders, Agent, Collateral Agent and
Credit Parties hereby waive any noncompliance with the Amended
Loan Agreement to the extent, and only to the extent, necessary
to permit the termination of the Mortgage on the Placer Property
described in part (a) of this Subsection 2A.
X. Xxxxxxx hereby authorize and direct Collateral
Agent and/or Agent to take such actions and to execute such
instruments and documents as may be necessary or desirable in the
sole discretion of the Collateral Agent and/or Agent, to
terminate and release all Liens on the Placer Property created
pursuant to the Mortgage on such property or any other Security
Documents executed in connection therewith. The provisions of
this Subsection 2B are solely for the benefit of Agent,
Collateral Agent and Lenders and neither Company nor any of its
Subsidiaries nor any other person shall have any rights as a
third party beneficiary hereunder.
Section 3. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS
A. Section 1 of this Seventh Amendment shall become
effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such conditions
being referred to herein a the "Seventh Amendment Effective
Date"):
1. On or before the Seventh Amendment Effective
Date, Credit Parties shall deliver to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) the following,
each, unless otherwise noted, dated the Seventh Amendment
Effective Date:
(a) For each of the Borrowers, Xxxxxx Homes,
Inc., Xxxxxx Homes of Florida, Inc., Xxxxxx Homes of
Pennsylvania, Inc. and Xxxxxx Homes of Chicago, Inc., (1)
certified copies of its Certificate of Incorporation, and
(ii) good standing certificates from the state of its
organization and each other state where it owns assets or
otherwise conducts business, each dated a recent date prior
to the Seventh Amendment Effective Date;
(b) For each of the Borrowers, Xxxxxx Homes,
Inc., Xxxxxx Homes of Florida, Inc., Xxxxxx Homes of
Pennsylvania, Inc. and Xxxxxx Homes of Chicago, Inc., copies
of its Bylaws, certified as of the Seventh Amendment
Effective Date by its corporate secretary or an assistant
secretary;
(c) Resolutions of its Board of Directors
or, in the case of a Credit Party which is not a
corporation, resolutions of the Board of Directors of the
general partner or other Person authorized to act on its
behalf approving and authorizing the execution, delivery and
performance of this Seventh Amendment, certified as of the
Seventh Amendment Effective Date by its corporate secretary
or an assistant secretary as being in full force and effect
without modification or amendment; and
(d) Signature and incumbency certificates of
its officers executing this Seventh Amendment, certified as
of the Seventh Amendment Effective Date by its corporate
secretary or assistant secretary;
(e) Executed copies of this Seventh
Amendment.
2. Borrowers shall have paid an amendment fee to
Agent (for the ratable benefit of the Lenders) in an amount equal
to $25,000, as compensation to the Lenders in connection with the
Seventh Amendment, and all other fees, costs and expenses of
Agent (including fees and expenses of counsel for Agent) and
Lenders accrued and unpaid as of the Seventh Amendment Effective
Date.
3. On or before the Seventh Amendment Effective Date,
all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
Agent, acting on behalf of Xxxxxxx, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and
Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Agent may
reasonably request.
4. Borrowers shall have paid to O'Melveny & Xxxxx,
Xxxxxxx & Xxxxxx and Xxxxxxx, Xxxxxx & Xxxxx all outstanding
amounts due for legal expenses, fees and other costs incurred on
behalf of Borrowers prior to January 1, 1996, such payment to be
made in a manner satisfactory to the Agent.
B. Section 2 of this Seventh Amendment shall become
effective as of the date hereof.
Section 4. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Xxxxxxx to enter into this Seventh
Amendment and to amend the Amended Loan Agreement in the manner
provided herein, each Credit Party represents and warrants to
each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Such Credit Party
has all requisite corporate or partnership power and authority to
enter into this Seventh Amendment and to carry out the
transactions contemplated by, and perform its obligations under,
the Amended Loan Agreement as amended by this Seventh Amendment
(the "Amended Agreement").
B. Authorization of Agreements. The execution and
delivery by such Credit Party of this Seventh Amendment and the
performance by such Credit Party of the Amended Agreement have
been duly authorized by all necessary corporate or partnership
action on the part of such Credit Party, as the case may be.
C. No Conflict. The execution and delivery by such
Credit Party of this Seventh Amendment and the performance by
such Credit Party of the Amended Agreement do not and will not
(i) violate any provision of any law or any governmental rule or
regulation applicable to such Credit Party or any of its
Subsidiaries, or any order, judgment or decree of any court or
other agency of government binding on such Credit Party or any of
its Subsidiaries, (ii) violate any provision of the Certificate
or Articles of Incorporation or Bylaws of such Credit Party if it
is a corporation or of its general partner or such other person
or persons authorized to act on its behalf if it is not a
corporation, (iii) violate any provision of its partnership,
joint venture or similar organizational agreement if it is not a
corporation, (iv) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of such Credit Party or any of
its Subsidiaries, (v) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
such Credit Party or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of
Collateral Agent on behalf of Lenders), or (vi) require any
approval of stockholders or partners or any approval or consent
of any Person under any Contractual Obligation of such Credit
Party or any of its Subsidiaries, except for such approvals or
consents which have been obtained on or before the Seventh
Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery
by such Credit Party of this Seventh Amendment and the
performance by such Credit Party of the Amended Agreement do not
and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal,
state or other governmental authority or regulatory body.
E. Binding Obligation. This Seventh Amendment, the
Amended Agreement have been duly executed and delivered by each
of the Credit Parties party thereto and are the legally valid and
binding obligations of each such Credit Party, enforceable
against such Credit Party in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency
reorganization, moratorium or similar laws relating too xxxxxx
creditors' rights generally or by equitable principles relating
to enforceability.
F. Incorporation of Representations and Warranties
From Amended Loan Agreement. The representations and warranties
contained in Section 5 of the Amended Loan Agreement are and will
be true, correct and complete in all material respects on and as
of the Seventh Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is
continuing or will result from the consummation of the
transactions contemplated by this Seventh Amendment that would
constitute an Event of Default or a Potential Event of Default.
H. Subsidiaries of Borrowers. Other than the
Guarantors listed on the signature pages hereof, no Subsidiary of
the Borrowers owns assets with any material value.
I. Value of Placer Property. In order to induce
Agent, the Collateral Agent and Lender to make the acknowledgment
and waiver set forth in Subsection 2A of this Seventh Amendment,
each Credit Party hereby represents and warrants that the
Borrowers' certification that the Placer Property is of
immaterial or no value, in the form attached as Exhibit B hereto,
is true and correct as of the date hereof.
Section 5. ACKNOWLEDGEMENT AND CONSENT
Borrowers are each party to the Borrower Security
Agreement, the Borrower Pledge Agreement, the Account Collateral
Security Agreement and certain other Security Documents, in each
case as amended through the Seventh Amendment Effective Date,
pursuant to which Borrowers have created Liens in favor of
Collateral Agent on certain Collateral to secure the Obligations
of the Borrowers. Each Guarantor is a party to the Amended
Guaranty Agreement and certain Guarantors are parties to the
Guarantor Security Agreement, the Guarantor Pledge Agreement, the
Account Collateral Security Agreement certain Mortgages, and/or
certain other Security Documents, in each case as amended through
the Seventh Amendment Effective Date, pursuant to which such
Guarantor has (i) guarantied the Obligations of the Borrowers and
(ii) created Liens in favor of Collateral Agent on certain
Collateral to secure the Obligations of such Guarantor under the
Amended Guaranty Agreement. Borrowers and Guarantors are
collectively referred to herein as the "Credit Support Parties",
and the Amended Guaranty Agreement and the Security Documents are
collectively referred to herein as the "Credit Support
Documents".
Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of this Seventh Amendment
and consents to the amendments and limited waiver effected
pursuant to this Seventh Amendment. Each Credit Support Party
hereby confirms that each Credit Support Document to which it is
a party or otherwise bound and all Collateral encumbered thereby
will continue to guaranty or secure, as the case may be, to the
fullest extent possible the payment and performance of all
"Obligations," "Guarantied Obligations" and "Secured
Obligations," as the case may be (in each case as such terms are
defined in the applicable Credit Support Document), including
without limitation the payment and performance of all such
"Obligations," "Guarantied Obligations" or "Secured Obligations,"
as the case may be, in respect of the Obligations of Borrowers
now or hereafter existing under or in respect of the Amended
Agreement and the other Loan Documents.
Each Credit Support Party acknowledges and agrees that
each of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable
and shall not be impaired or limited by the execution or
effectiveness of this Seventh Amendment.
Section 6. MISCELLANEOUS
A. Reference to and Effect on the Amended Loan
Agreement and the Other Loan Documents.
(i) On and after the Seventh Amendment Effective Date,
each reference in the Amended Loan Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of
like import referring to the Amended Loan Agreement, and
each reference in the other Loan Documents to the "Amended
Loan Agreement", "thereunder", "thereof" or words of like
import referring to the Amended Loan Agreement shall mean
and be a reference to the Amended Agreement.
(ii) Except as specifically amended by Section 1 of
this Seventh Amendment or expressly set forth in Section 2
of this Seventh Amendment, the Amended Loan Agreement and
the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) Except for the limited waiver set forth in
Subsection 2A of this Seventh Amendment, the execution,
delivery and performance of this Seventh Amendment shall not
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of Agent, Collateral
Agent or any Lender under, the Amended Loan Agreement or any
of the other Loan Documents.
(iv) Nothing herein shall constitute a waiver or
forbearance with respect to any Events of Default and/or
Potential Events of Default existing on the date hereof.
(v) The limited waiver set forth in Subsection 2A of
this Seventh Amendment shall be limited precisely as written
and relates solely to the termination of the Mortgage on the
Placer Property.
B. Fees and Expenses. Borrowers acknowledge that all
costs, fees and expenses as described in subsection 11.2 of the
Amended Loan Agreement incurred by Agent, Collateral Agent,
Lenders and their counsel with respect to this Seventh Amendment
and the documents and transactions contemplated hereby shall be
for the account of Borrowers.
C. Headings. Section and subsection headings in this
Seventh Amendment are included herein for convenience of
reference only and shall not constitute a part of this Seventh
Amendment for any other purpose or be given any substantive
effect.
D. Applicable Law. THIS SEVENTH AMENDMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Seventh
Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document. This Seventh Amendment shall become effective upon the
execution of a counterpart hereof by each Lender (or, in the case
of Tranche B Lenders, each such Lender which is not a Deemed
Voting Lender) and each of the other parties hereto, receipt by
Company and Agent of written or telephonic notification of such
execution and authorization of delivery thereof and satisfaction
or waiver by each Lender (or, in the case of Tranche B Lenders,
each such Lender which is not a Deemed Voting Lender) of the
conditions to effectiveness set forth in Section 3 hereof.
IN WITNESS WHEREOF, the parties hereto have cause this
Seventh Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
BORROWERS:
XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President of Finance
XXXXXX FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President of Finance
GUARANTORS:
Xxxxxx California Equity Corp.
Xxxxxx Capital, Inc.
Xxxxxx Capital II, Inc.
Xxxxxx General, Inc.
Xxxxxx Homes, Inc.
Xxxxxx Homes of California, Inc.
Xxxxxx Homes of Florida, Inc.
Xxxxxx Homes of Pennsylvania, Inc.
Xxxxxx Homes of Pennsylvania at
Pennway, Inc.
Xxxxxx Homes of Tampa, Inc.
Xxxxxx Lindenwood Corporation
Xxxxxx Manzanita Corporation
Xxxxxx Tamarack Corporation
Calcap Commercial Management, Inc.
Calcap X, Inc.
Calcap XV, Inc.
Calcap XXI, Inc.
Calcap XXXII, Inc.
Calcap XXXIII, Inc.
Calcap 36, Inc.
Calcap 42, Inc.
Calcap 48, Inc.
Xxxxxx Homes of Chicago, Inc.
Each by: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Xxxxxx Homes Finance, Inc.
Xxxxxx Homes Finance II, Inc.
Each by: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talcon Title Agency, L.P.
By: Xxxxxx General, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talpro 31, L.P.
By: Calcap XXXI, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talpro 32, L.P.
By: Calcap XXXII, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talpro 33, L.P.
By: Calcap XXXIII, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talpro 48, L.P.
By: Calcap 48, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Talpro 36, L.P.
By: Calcap 36, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LENDERS:
CHEMICAL BANK, Individually and as Agent
and Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
KLEINWORT XXXXXX LIMITED,
as a Lender
By: /s/ Xxxx Xxxxx
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxx Xxxxxxx
Title: Vice President
PEARL STREET, L.P., as a Lender
By: /s/ Xxxx X. Xxxxx
Title: Authorized Signer
By: ________________________________
Title: ______________________________
EXHIBIT A
DESCRIPTION OF THE PLACER PROPERTY
PREMISES LOCATED IN PLACER COUNTY:
PREMISES OWNED BY XXXXXX HOMES OF CALIFORNIA, INC.:
Roseville:
Description of Premises:
Lots 27 and 77 as shown and designated on that map entitled
"Plat of Northwest Roseville Specific Plan Unit #1," filed
October 5, 1989, in office of the County Recorder of Placer
County, California in Book "Q" of Maps, page 54.
Description of Mortgage:
Mortgagor: Xxxxxx Homes of California, Inc.
Mortgagee: Midlantic National Bank,
as collateral agent,
assigned to Chemical Bank,
as collateral agent
Date of Mortgage: As of May 1, 1990
Date of Recordation: July 9, 1990
Recording Office: Placer County Recorder's Office
Recorded in Book: N/A
Page: N/A
Series: 90-043606
EXHIBIT B
CERTIFICATION AS TO VALUE OF PLACER PROPERTY
[to be provided by Xxxxxxxxx]
Schedule 1 to Seventh Amendment to Amended
and Restated Loan and Security Agreement
SCHEDULE 1
EXCLUDED PROPERTIES
Chicago Division Lots (Braeburn and Delaware Crossing)
Highpoint - XX
Xxxxxxx (Steeplechase)
SCHEDULE 2.1
LENDER COMMITMENTS; PRO RATA SHARES AND EXISTING LOANS
(RESTATED AS OF SEVENTH AMENDMENT EFFECTIVE DATE)
LENDER TRANCHE A TRANCHE B PRO RATA EXISTING AVAILABLE
COMMITMENT COMMITMENT SHARE OF LOANS AND COMMITMENT
AGGREGATE S/L/C'S
COMMITMENTS
1.Tranche A Lenders
Chemical Bank $11,000,000 0 20.0% $9,697,140.55 $1,302,859.45
Kleinwort Xxxxxx
Limited $11,000,000 0 20.0% $9,697,140.55 $1,302,859.45
Foothill
Capital
Corporation $20,625,000 0 37.5% $18,182,138.54 $2,442,861.46
2.Tranche B Lenders
Pearl Street,
L.P. 0 $12,375,000 22.5% $10,909,283.12 $1,465,716.88
Total $42,625,000 $12,375,000 100.0% $48,485,702.76 $6,514,297.24
SCHEDULE 5.22
Mortgage, Owned, and Leased Properties
1. PROPERTIES OWNED/MORTGAGED TO THE LENDERS
All properties shown on Exhibit A annexed hereto.
2. PROPERTIES OWNED/NOT MORTGAGED TO THE LENDERS
a. Polar Communications Building (Talpro 48, L.P.)
Lot 26.01 in Block 25 on the Tax Map of Manalapan
Township, Monmouth County, New Jersey.
b. Roseville
Lots 27 and 77 as shown and designated on that map
entitled "Plat of Northwest Roseville Specific
Plan Unit #1," filed October 5, 1989, in office of
the County Recorder of Placer County, California
in Book "Q" of Maps, page 54 (following release of
the Mortgage covering such property by Collateral
Agent as contemplated by section 2 of the Seventh
Amendment.)
3. LEASED PROPERTIES:
a. New Jersey - 000 Xxxxx Xxxx, Xxxxxxxxx, XX 00000
- Office
b. Chicago - 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000.
Hoffman Estates, IL 60195
c. Florida - 000 Xxxxx Xxxxx Xxxx Xxxxxxxxx, Xxxxx
0000, Xxxxxxxxx Xxxxxxx, XX
