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Exhibit 10.31
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (the "SECOND AMENDMENT") dated as of October 10, 2000 by and among
XXXXXX HOMES, INC. ("XXXXXX HOMES"), XXXXXX HOLDINGS, INC., HEARTHSIDE HOMES,
LLC, XXXXXX NATIONAL LAND HOLDING CORPORATION, XXXXXX NATIONAL HOMES HOLDING
CORPORATION, and XXXXXX LEASING, LLC, as Borrowers and Guarantors, XXXXXX
NATIONAL CORPORATION ("XXXXXX NATIONAL"), XXXXXX HOMES OF INDIANA, L.L.C. and
XXXXXX HOMES KENTUCKY, LLC ("XXXXXX HOMES KENTUCKY"), as Guarantors, the Banks
set forth below, BANK OF AMERICA, N.A. and BANK ONE, NA, as Co-Agents, and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as Agent for the Banks (the
"AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Banks, the
Co-Agents and the Agent are parties to that certain Third Amended and Restated
Credit Agreement dated as of April 13, 2000, as amended by First Amendment to
Third Amended and Restated Credit Agreement (the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers and the Guarantors have requested that
certain covenants of the Credit Agreement be amended as set forth herein;
WHEREAS, the Banks are willing to enter into such amendments
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. DEFINITIONS.
Defined terms used herein and not otherwise defined herein shall have
the meanings given to them in the Credit Agreement, as amended by this Second
Amendment.
2. AMENDMENT OF CREDIT AGREEMENT.
A. The first sentence of Section 2.4(a) [Mandatory Reductions]
of the Credit Agreement is hereby deleted and the following is inserted in lieu
thereof:
The Revolving Credit Commitment shall be permanently
reduced on July 1, 2000 to $67,500,000, on October 1, 2000 to
$62,500,000 and on the date of the closing of the Raleigh Purchase
Agreement (as defined herein) to
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$52,500,000, and each Bank's Revolving Credit Commitment shall be
reduced in accordance with its Ratable Share on such dates.
B. A new Section 8.1(n) [Certain Letters of Credit] of the
Credit Agreement is hereby inserted immediately following Section 8.1(m) as
follows:
(n) CERTAIN LETTERS OF CREDIT
On or before December 31, 2000, the Loan Parties
shall cause all Letters of Credit issued with respect to the assets
that have been sold pursuant to the Louisville Purchase Agreements and
the Raleigh Purchase Agreement to be cancelled, replaced or fully cash
collateralized.
C. Section 8.2(g) [Disposition of Assets or Subsidiaries] of
the Credit Agreement is hereby amended by deleting such section in its entirety
and inserting in lieu thereof the following:
(g) DISPOSITION OF ASSETS OR SUBSIDIARIES
Each of the Loan Parties shall not sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily
or involuntarily, any of its properties or assets, tangible or
intangible (including but not limited to sale, assignment, discount or
other disposition of accounts, contract rights, chattel paper,
equipment or general intangibles, with or without recourse, or of
capital stock, shares of beneficial interest or partnership interests
of a Subsidiary), except:
(i) transactions involving the sale of land and
building inventory in the ordinary course of business;
(ii) any sale, transfer, lease, abandonment or other
disposition of assets in the ordinary course of business which are no
longer necessary or required in the conduct of the Loan Party's
business;
(iii) any sale, transfer or lease of assets in the
ordinary course of business which are replaced by substitute assets
acquired;
(iv) the asset sales by Xxxxxx Homes Kentucky and
Xxxxxx Homes described in (a) the Asset Purchase Agreement and (b) that
certain Termination Agreement dated as of September 29, 2000 by and
among Xxxxxx Homes, Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx (the
"TERMINATION AGREEMENT" and, together with the Asset Purchase Agreement
dated as of September 29, 2000 by and among Xxxxxx Homes Kentucky, as
seller, Olympia Homes, LLC, as buyer, and Xxxxxx Homes, as indemnitor,
collectively the "LOUISVILLE PURCHASE AGREEMENTS"); and
(v) the asset sales by Xxxxxx Homes described in (a)
the Asset Purchase Agreement dated on or about October 10, 2000 by and
between Xxxxxx National and Xxxxxx Homes, as sellers, and the Xxxxx
Company, as purchaser
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(the "RALEIGH PURCHASE AGREEMENT") and (b) the Xxxx of Sale dated as of
September 30, 2000 by MacroDyne Power, LLC, as buyer, and Xxxxxx Homes,
Inc., as seller ("XXXX OF SALE").
3. CONDITIONS OF EFFECTIVENESS OF THIS SECOND AMENDMENT.
The effectiveness of this Second Amendment is expressly conditioned
upon satisfaction of each of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. The representations
and warranties of the Loan Parties contained in Section 6 of the Credit
Agreement shall be true and accurate on the date hereof with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which relate solely to an earlier date or
time, which representations and warranties shall be true and correct on and as
of the specific dates or times referred to therein); the Loan Parties shall have
performed and complied with all covenants and conditions of the Credit
Agreement; and, except for the violation of Section 8.2(a) [Xxxxxx National Net
Worth] measured at September 30, 2000, resulting from Shareholder Subordinated
Debt not being included in the calculation of Xxxxxx National Net Worth for the
fiscal quarter ending September 30, 2000, no Event of Default or Potential
Default under the Credit Agreement shall have occurred and be continuing or
shall exist.
(b) COUNTERPARTS OF SECOND AMENDMENT. The Agent shall have received
counterparts of this Second Amendment duly executed by the Loan Parties and the
Banks. This Second Amendment may be executed by the parties hereto in any number
of separate counterparts, each of which when taken together and duly executed
and delivered shall together constitute one and the same instrument.
(c) SECRETARY'S CERTIFICATE. The Agent shall have received a
certificate signed by the Secretary or Assistant Secretary of Xxxxxx Homes to
authorize the execution, delivery and performance of the Raleigh Purchase
Agreement and the documents executed in connection therewith.
(d) CLOSING OF ASSET SALES. The Agent shall have received a fully
executed copy of the Raleigh Purchase Agreement and the Xxxx of Sale and the
asset sales contemplated by the Raleigh Purchase Agreement and the Xxxx of Sale
shall be consummated substantially on the terms set forth in the drafts of the
Raleigh Purchase Agreement and the Xxxx of Sale previously provided to the
Agent.
(e) CASH PROCEEDS. All cash proceeds received by Xxxxxx Homes and
Xxxxxx National pursuant to the Raleigh Purchase Agreement and the Xxxx of Sale
shall immediately upon receipt be applied to prepay the Revolving Credit Loans.
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4. FORCE AND EFFECT.
Except as expressly modified by this Amendment, the Credit Agreement
and the other Loan Documents are hereby ratified and confirmed and shall remain
in full force and effect on and after the date hereof.
5. GOVERNING LAW.
This Second Amendment shall be deemed to be a contract under the laws
of the State of Ohio and for all purposes shall be governed by and construed and
enforced in accordance with the internal laws of the State of Ohio without
regard to its conflict of laws principles.
6. FEES AND EXPENSES.
The Borrower hereby agrees to reimburse the Agent and the Banks on
demand for all fees, costs, expenses and disbursements (including without
limitation attorneys' fees) relating to this Second Amendment which are payable
by the Loan Parties as previously agreed to by the Borrower and as provided in
Sections 10 and 11 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
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[PAGE 1 OF 3 TO SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
BORROWERS AND GUARANTORS:
XXXXXX HOMES, INC.
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
XXXXXX HOLDINGS, INC.
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Treasurer
HEARTHSIDE HOMES, LLC
By: Xxxxxx National Corporation, as member
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL LAND HOLDING CORPORATION
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL HOMES HOLDING CORPORATION
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
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[SIGNATURE PAGE 2 OF 3 TO SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
XXXXXX LEASING, LLC
By: Xxxxxx National Corporation, as sole
member and manager
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL CORPORATION
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX HOMES OF INDIANA, L.L.C.
By: Xxxxxx Homes, Inc., as member
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
XXXXXX HOMES KENTUCKY, LLC,
By: Xxxxxx Holdings, Inc., as manager
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Treasurer
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[SIGNATURE PAGE 3 OF 3 TO SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
AGENT:
PNC BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank
By:_______________________________________________
Name: Xxxxxx X. XxXxxx
Title: Senior Vice President
CO-AGENTS:
BANK OF AMERICA, N.A., as a Co-Agent and as a Bank
By:_______________________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
BANK ONE, NA, as a Co-Agent and as a Bank
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: First Vice President
OTHER BANKS:
COMERICA BANK,
By:_______________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
THE FIFTH THIRD BANK
By:_______________________________________________
Name: Xxxxx X. Xxxx
Title: Vice President
