FIRST AMENDMENT TO
FIRST RESTATED REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO FIRST RESTATED REVOLVING CREDIT AGREEMENT
(this "Amendment") is dated as of July 31, 2003 and is among X. XXXXXXXXX
MORTGAGE, INC., a New Jersey corporation, and X. XXXXXXXXX AMERICAN
MORTGAGE, L.L.C., a New Jersey limited liability company (collectively, the
"Borrowers"), GUARANTY BANK, BANK OF AMERICA, N.A., BANK ONE, NA, COMERICA
BANK, NATIONAL CITY BANK OF KENTUCKY, a national banking association , and
U.S. BANK NATIONAL ASSOCIATION (together with any successors and assigns
thereof, hereinafter referred to individually as a "Lender" and
collectively as the "Existing Lenders"), COLONIAL BANK and WASHINGTON
MUTUAL BANK, FA (together with any successors and assigns thereof,
hereinafter referred to individually as a "Supplemental Lender" and
collectively as the "Supplemental Lenders") and GUARANTY BANK, a federal
savings bank, as Agent for the Lenders under the Credit Agreement (the
"Agent").
RECITALS
The Borrowers, the Agent and the Existing Lenders are parties to a
certain First Restated Revolving Credit Agreement dated as of March 7, 2003
(the "Credit Agreement"), pursuant to which the Existing Lenders have
agreed to provide a revolving credit facility to Borrowers on the terms and
conditions set forth in the Credit Agreement. Any capitalized term not
expressly defined herein shall have the meaning ascribed to such term in
the Credit Agreement.
The parties hereto desire to modify the Commitments and certain other
provisions of the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. The following definitions in Article I of the
Credit Agreement are hereby amended in their entirety to read as follows:
"`Aggregate Commitment' means, as of any date, the aggregate of
the Lenders' then current Commitments under this Agreement, as
reduced or increased from time to time, but in no event shall the
Aggregate Commitment exceed $200,000,000 without the approval of the
Borrowers, the Agent and all of the Lenders."
"`Swingline Amount' means $7,000,000."
"`Termination Date' means July 29, 2004 or any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof."
2. Maximum Loans Available to either Borrower. Section 2.1.1 of
the Credit Agreement is hereby amended by deleting the word "and" at the
end of subsection (2) thereof, deleting the period and adding the word
"and" at the end of subsection (3) thereof, and adding thereafter the
following new subsection (4) to read as follows:
"(4) the aggregate principal balance then outstanding of all
Loans made to either Borrower shall not exceed $198,999,999."
3. Borrowing Base Sublimits by Category. Section 2.1.2 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"2.1.2 Borrowing Base Sublimits by Category. The maximum
amount that can be credited toward the Borrowing Base from certain
categories of Eligible Collateral shall be limited so that the Borrowing
Base value determined under:
(1) clause (ii) of the definition thereof (Eligible Non-
Conforming Mortgage Loans) shall not exceed fifteen percent (15%)
of the Aggregate Commitment;
(2) clause (iii) of the definition thereof (Eligible
Jumbo Mortgage Loans) shall not exceed thirty percent (30%) of the
Aggregate Commitment; and
(3) clause (iv) of the definition thereof (Eligible
Oversize Jumbo Mortgage Loans) shall not exceed five percent (5%)
of the Aggregate Commitment."
4. Application of Proceeds. Section 8.8 of the Credit Agreement
is hereby amended by deleting clause FIFTH thereof and adding the following
new clauses FIFTH and SIXTH in place thereof:
"FIFTH, to the extent proceeds remain after application under
the preceding subparagraphs, to the payment of the Rate Management
Obligations secured by the Security Agreement, until such amounts are
paid in full; and
SIXTH, to the payment to the Borrowers, or to their successors
or assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining from such proceeds."
5. Commitment Increases. Section 12.4 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"12.4 Commitment Increases.
12.4.1 Increases to Aggregate Commitment. The
Borrowers shall have the right to increase the Aggregate
Commitment by obtaining additional Commitments, either from one
or more of the Lenders or another lending institution provided
that (A) the Agent has approved the identity of any such new
Lender, such approval not to be unreasonably withheld, (B) any
such new Lender assumes all of the rights and obligations of a
"Lender" hereunder, and (C) the procedure described in Section
12.4.2 has been complied with, provided further that the Aggregate
Commitment shall not at any time exceed $200,000,000 without the
approval of the Agent and all of the Lenders.
12.4.2 Procedure for Increases and Addition of New
Lenders. This Agreement permits certain increases in a Lender's
Commitment and the admission of new Lenders providing new
Commitments, none of which require any consents or approvals from
the other Lenders. Any amendment hereto for such an increase or
addition shall be in the form attached hereto as Exhibit "K" and
shall only require the written signatures of the Agent, the
Borrowers and the Lender(s) being added or increasing their
Commitment, subject only to the approval of all Lenders if any
such increase would cause the Aggregate Commitment to exceed
$200,000,000. In addition, within a reasonable time after the
effective date of any increase, the Agent shall, and is hereby
authorized and directed to, revise Schedule "2" reflecting such
increase and shall distribute such revised Schedule to each of the
Lenders and the Borrowers, whereupon such revised Schedule shall
replace the old Schedule and become part of this Agreement. On
the Business Day following any such increase, all outstanding Fed
Funds Advances and Alternate Base Rate Advances shall be
reallocated among the Lenders (including any newly added Lenders)
in accordance with the Lenders' respective revised Primary
Commitment Percentages. Eurodollar Advances shall not be
reallocated among the Lenders prior to the expiration of the
applicable Interest Period in effect at the time of any such
increase."
6. Modifications to Commitments. Each of the Existing Lenders and
the Supplemental Lenders, hereby agrees that from and after the date hereof
it shall have a Commitment in the amount set forth opposite its name in
Column (A) of Schedule 2 attached hereto, resulting in a new Aggregate
Commitment of $200,000,000 as of the date hereof, and each of the
Supplemental Lenders hereby assumes all of the rights and obligations of a
Lender under the Credit Agreement. The Borrower shall execute and deliver
to each of the Supplemental Lenders as of the date hereof, a new Note in
the form attached to the Credit Agreement as Exhibit A to evidence the new
Commitment of such Supplemental Lender.
7. Corrections to Cross References.
(a) The reference in Section 2.15 to "Section 2.14" is hereby
amended to refer to "Section 2.12".
(b) The references in Section 7.2 to "Section 2.11.2" and
"Section 2.11.4" are hereby amended to refer to "Section 2.9.2" and
"Section 2.9.4, respectively.
8. Schedules. The Credit Agreement is hereby amended by
substituting Schedule 2, Commitments and Commitment Percentages, and
Schedule 3, List of Approved Investors, to this Amendment for Schedule 2
and Schedule 3, respectively, to the Credit Agreement.
9. Effective Date. This Amendment shall become effective as of
the date first above written when and only when Agent shall have received,
at Agent's office,
(a) a duly executed counterpart of this Amendment,
(b) Notes to the Supplemental Lenders described in Section 6
above,
(c) a duly executed Consent and Agreement in the form
attached hereto,
(d) a duly executed certificate of the secretary of each
Borrower in form acceptable to Agent, and
(e) an opinion of counsel to Borrowers and Parent in form
acceptable to Agent.
10. Miscellaneous.
(a) All references to the Credit Agreement in the Loan
Documents shall be deemed to refer to the Credit
Agreement as amended by this Amendment.
(b) Borrowers hereby represent and warrant to the Lenders
that on the date of execution hereof, both prior to and
after giving effect to this Amendment, (i) the
representations and warranties of Borrower contained in
the Loan Documents are accurate and complete in all
respects, and (ii) no Default or Unmatured Default has
occurred and is continuing.
(c) In all other respects, the Credit Agreement and the other
Loan Documents are and remain unmodified and in full
force and effect and are hereby ratified and confirmed.
This Amendment may be executed in any number of
counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto
may execute this Amendment by signing any such
counterpart.
(d) Borrowers agree to reimburse the Agent for all reasonable
out-of-pocket expenses (including legal fees and
expenses) incurred in connection with the preparation,
negotiation and consummation of this Amendment.
(e) This Amendment may be executed in counterparts which,
taken together, shall constitute a single document. This
Amendment may be duly executed by facsimile or other
electronic transmission
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
X. XXXXXXXXX MORTGAGE, INC.
By:
Name:
Title:
X. XXXXXXXXX AMERICAN
MORTGAGE, L.L.C.
By:
Name:
Title:
THE STATE OF NEW JERSEY )
)
COUNTY OF MONMOUTH )
This instrument was acknowledged before me on , 2003, by
Xxxxx X. Xxxx, Vice President-Finance and Treasurer of X. Xxxxxxxxx
Mortgage, Inc., a New Jersey corporation, on behalf of said corporation.
Notary Public, State of New Jersey
(printed name)
My Commission Expires:
THE STATE OF NEW JERSEY )
)
COUNTY OF MONMOUTH )
This instrument was acknowledged before me on , 2003 by
Xxxxx X. Xxxx, Vice President-Finance and Treasurer of X. Xxxxxxxxx
American Mortgage, L.L.C., a New Jersey limited liability company, on
behalf of said company.
Notary Public, State of New Jersey
(printed name)
My Commission Expires:
GUARANTY BANK, individually and
as Agent
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
BANK ONE, NA
By:
Name:
Title:
COLONIAL BANK
By:
Name:
Title:
COMERICA BANK
By:
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
WASHINGTON MUTUAL BANK, FA
By:
Name:
Title:
CONSENT AND AGREEMENT
Hovnanian Enterprises, Inc. hereby consents to the provisions of this
Amendment as of the date thereof and the transactions contemplated herein,
and hereby ratifies and confirms the Keep-Well Agreement dated as of June
7, 2002 made by it for the benefit of Lender and the Subordination
Agreement dated as of June 7, 2002 made by it for the benefit of Lender,
and agrees that its obligations and covenants thereunder are unimpaired
hereby and shall remain in full force and effect.
HOVNANIAN ENTERPRISES, INC.
By:
Name:
Title:
SCHEDULE 2
COMMITMENTS AND COMMITMENT PERCENTAGES
LENDER
(A)
COMMITMENT (B)
COMMITMENT
PERCENTAGE
(A Aggregate
Commitment) (C)
SWINGLINE
AMOUNT
Guaranty Bank $35,000,000 17.500000% $7,000,000
Bank of America
$30,000,000 15.000000%
Washington Mutual
$29,000,000 14.500000%
Bank One
$25,000,000 12.500000%
US Bank
$25,000,000 12.500000%
Colonial Bank
$24,000,000 12.000000%
Comerica
$17,000,000 8.500000%
National City Bank
$15,000,000 7.500000%
SCHEDULE "3"
LIST OF APPROVED INVESTORS
CHASE MANHATTAN MORTGAGE CORPORATION
COUNTRYWIDE HOME LOAN, INC.
FLAGSTAR BANCORP
FEDERAL HOME LOAN MORTGAGE CORPORATION
FEDERAL NATIONAL MORTGAGE ASSOCIATION
FIRST HORIZON BANCORP
FIRST NATIONWIDE MORTGAGE
GREENPOINT MORTGAGE CORPORATION
GUARANTY RESIDENTIAL LENDING
IMPAC FUNDING CORPORATION
INDYMAC BANK
NATIONAL CITY BANK
OHIO SAVINGS BANK
RESIDENTIAL FUNDING CORPORATION
VALLEY NATIONAL BANK
WASHINGTON MUTUAL
XXXXX FARGO
CHASE MANHATTAN FUNDINg
COUNTRYWIDE HOME LOAN, INC.
IMPAC FUNDING CORPORATION
RBNG, INC.
RESIDENTIAL FUNDING CORPORATION
US BANK CORPORATE TRUST SERVICES
033544 000195 DALLAS 1612922_5.DOC 2 FIRST AMENDMENT TO FIRST RESTATED
REVOLVING CREDIT AGREEMENT [X. Xxxxxxxxx
033544 000195 DALLAS 1612922_5.DOC
FIRST AMENDMENT TO FIRST RESTATED
REVOLVING CREDIT AGREEMENT [X. Xxxxxxxxx
FIRST AMENDMENT TO FIRST RESTATED
REVOLVING CREDIT AGREEMENT [X. Xxxxxxxxx]
033544 000195 DALLAS 1612922_5.DOC
FIRST AMENDMENT TO FIRST RESTATED
REVOLVING CREDIT AGREEMENT [X. Xxxxxxxxx]
