FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.1
FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is made
as of the 11th day of January, 2007, by and among XXXXXX XXXXX USA L.L.C. (the
“Borrower”), the LENDERS party hereto, WACHOVIA BANK, NATIONAL ASSOCIATION, as agent (the “Agent”),
and the GUARANTORS party hereto.
R E C I T A L S:
The Borrower, the Agent and the Lenders have entered into a certain First Amended and Restated
Credit Agreement dated as of December 16, 2005 (the “Credit Agreement”). Capitalized terms used in
this Amendment which are not otherwise defined in this Amendment shall have the respective meanings
assigned to them in the Credit Agreement.
The Guarantors consist of Owner Guarantors that have executed or otherwise become a party to
the Owner Guaranty Agreement and Subsidiary Guarantors that have executed or otherwise become a
party to the Subsidiary Guaranty Agreement.
The Borrower and the Guarantors have requested the Agent and the Lenders to amend the Credit
Agreement to extend the Maturity Date in accordance with Section 2.7 of the Credit Agreement and to
make other such changes as the parties hereunder deem appropriate upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Agent and the Lenders, intending to be legally bound hereby, agree
as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference and shall be
deemed to be a part of this Amendment.
SECTION 2. Amendment. Section 1.1 of the Credit Agreement is hereby amended as
follows:
2.1 The definition of “EBITDA” is hereby amended and restated in its entirety
to read as follows:
“EBITDA” means, for any period, the sum of (a) net income for such
period, less (b) franchise taxes payable in Texas, less (c) any non-cash or
extraordinary gains, to the extent included in calculating net income for such
period, plus (d) the following, to the extent deducted in calculating net income for
such period, (i) depreciation expense and amortization expense for such period, (ii)
interest expense in cost of goods sold for such period, (iii) interest expense from
operations for such period, and (iv) any non-cash or extraordinary losses or charges
in such period, all as determined for Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
2.2 The definition of “Maturity Date” is hereby amended and restated in its
entirety to read as follows:
“Maturity Date” shall mean January 19, 2011 or such later date as
determined in accordance with Section 2.7(b).
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment and the
obligations of the Lenders hereunder are subject to the following conditions:
(a) receipt by the Agent of a duly executed counterpart of this Amendment signed by the
Borrower, the Guarantors, and the Required Lenders;
(b) receipt by the Agent from the Borrower of any and all fees and expenses to be paid by the
Borrower to the Agent and the Lenders in connection with this Amendment; and
(c) the fact that the representations and warranties of the Borrower contained in Article 4 of
the Credit Agreement and in Section 5 of this Amendment shall be true in all material respects on
and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set forth above, the text of
the Credit Agreement shall remain unchanged and in full force and effect. This Amendment is not
intended to effect, nor shall it be construed as, a novation. The Credit Agreement and this
Amendment shall be construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained in the Credit
Agreement, except as herein amended, nor affect nor impair any rights, powers or remedies under the
Credit Agreement as hereby amended. The Lenders and the Agent do hereby reserve all of their
rights and remedies against all parties who may be or may hereafter become secondarily liable for
the repayment of the Obligations. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the Credit Agreement, as
heretofore and hereby amended. The Credit Agreement, as so amended, is hereby ratified and
affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as amended, is in full
force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby represents and
warrants to each of the Lenders as follows:
(a) No Default under the Credit Agreement has occurred and is continuing on the date hereof.
(b) The Borrower and Guarantors have the power and authority to enter into this Amendment and
to do all acts and things as are required or contemplated hereunder to be done, observed and
performed by them.
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(c) This Amendment has been duly authorized, validly executed and delivered by one or more
authorized officers of the Borrower and Guarantors and constitutes a legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against it in accordance with its terms,
subject to the effect, if any, of bankruptcy, insolvency, reorganization, arrangement or other
similar laws relating to or affecting the rights of creditors generally and the limitations, if
any, imposed by the general principles of equity and public policy.
(d) The execution and delivery of this Amendment and the performance of the Borrower
and Guarantors hereunder do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction over the
Borrower or any Guarantor, nor be in contravention of or in conflict with the articles of
incorporation or bylaws or other applicable organizational documents of the Borrower, or any
Guarantor, or the provision of any statute, or any judgment, order or indenture, instrument,
agreement or undertaking, to which the Borrower, or any Guarantor is party or by which the
assets or properties of the Borrower or Guarantors are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same agreement. Transmission by telecopy, facsimile, email or other
form of electronic transmission of an executed counterpart of this Amendment shall be deemed to
constitute due and sufficient delivery of such counterpart.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of North Carolina.
SECTION 8. Consent by Guarantors. The Guarantors consent to the foregoing amendments.
Each Guarantor promises and agrees to perform all of the requirements, conditions, agreements and
obligations under the terms of the Guaranty Agreement to which it is a party, said Guaranty
Agreement being hereby ratified and affirmed. Each Guarantor hereby expressly agrees that the
Guaranty Agreement to which it is a party is in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have caused their
respective duly authorized officers or representatives to execute and deliver, under seal, this
Amendment as of the day and year first above written.
| BORROWER: | ||||||
| XXXXXX XXXXX USA L.L.C., | ||||||
| a Nevada limited liability company | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chief Financial Officer, Treasurer and Secretary | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and a Lender | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: | Sr. Vice President | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| BANK OF AMERICA, N.A., as a Lender | ||||||
| By: Name: |
/s/ Xxxx Xxxxxx
|
|||||
| Title: | Sr. Vice President | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| CITIBANK , N.A., as a Lender | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxx
|
|||||
| Title: | V.P. Citibank, N.A. | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| REGIONS BANK (successor by merger to AmSouth Bank), as a Lender | ||||||
| By: Name: |
/s/ Xxxxxx XxXxxxxxx
|
|||||
| Title: | Assistant Vice President | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| GUARANTY BANK, as a Lender | ||||
| By: | /s/ Xxx X. Xxxxxxx | |||
| Name: | Xxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| COMERICA BANK, as a Lender | ||||||
| By: Name: |
/s/ Xxxxxxx Xxxxxx
|
|||||
| Title: | Vice President | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| KEY BANK, as a Lender | ||||||
| By: Name: |
/s/ Xxxxxx XxXxxx
|
|||||
| Title: | Vice President | |||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| OWNER GUARANTORS: | ||||||
| ELLY NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President and Secretary | ||||||
| XXXXXX NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President and Secretary | ||||||
| XXXXX NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President and Secretary | ||||||
| XXXXX NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President and Secretary | ||||||
| XXXXX NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: President and Secretary | ||||||
| SEYMOUR NEVADA, INC., a Nevada corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President and Secretary | ||||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| LITTLE SHOTS NEVADA L.L.C., a Nevada limited liability company | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Manager | ||||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| SUBSIDIARY GUARANTORS: | ||||||
| ASHTON ATLANTA RESIDENTIAL, L.L.C., | ||||||
| a Georgia limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| ASHTON DALLAS RESIDENTIAL L.L.C., | ||||||
| a Texas limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXXXX RESIDENTIAL L.L.C., | ||||||
| a Texas limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXX ARIZONA L.L.C., | ||||||
| a Nevada limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXXXX RESIDENTIAL L.L.C., | ||||||
| a Nevada limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| XXXXXX XXXXXX, LLC, | ||||||
| a Florida limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| ASHTON TAMPA RESIDENTIAL LLC, | ||||||
| a Nevada limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| ASHTON DENVER RESIDENTIAL, LLC, | ||||||
| a Nevada limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| PINERY JOINT VENTURE, a Colorado joint venture | ||||||
| By: | Xxxxxx Xxxxx USA L.L.C., a Nevada limited liability company, the member authorized to act on its behalf | |||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXX FINANCE CO., a Delaware corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Chief Financial Officer, Treasurer and Secretary | ||||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
| XXXXXX XXXXX ORLANDO LIMITED PARTNERSHIP, a Florida limited partnership | ||||||
| By: | Xxxxxx Xxxxx Lakeside L.L.C., a Nevada limited liability company, its general partner | |||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXX CORPORATE, LLC, | ||||||
| a Nevada limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXX TRANSPORTATION, LLC, | ||||||
| a Georgia limited liability company | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
| XXXXXX XXXXX CONSTRUCTION LLC, | ||||||
| an Arizona limited liability company | ||||||
| By: | Xxxxxx Xxxxx Arizona L.L.C., a Nevada limited liability company | |||||
| By: | /s/ Xxxxxx Xxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Manager | ||||||
Signature Page of
First Amendment to First Amended and Restated Credit Agreement
First Amendment to First Amended and Restated Credit Agreement
