CONSENT AND WAIVER
Exhibit 4(h)
THIS CONSENT AND WAIVER (“Consent”), dated as of the 4 day of December, 2006, by and among
AVATAR PROPERTIES INC., a Florida corporation (“Borrower”), joined by AVATAR HOLDINGS INC., a
Delaware corporation (“Guarantor”) and WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as
Lender and in its capacity as administrative agent (“Agent”), GUARANTY BANK, in its capacity as
Lender and FRANKLIN BANK, SSB, a Texas Savings Bank, in its capacity as Lender (each a “Lender” and
collectively, the “Lenders”). This Consent shall become effective as of the date hereof.
R E C I T A L S:
WHEREAS, on September 20, 2005, Borrower and Guarantor entered into a Credit Agreement with
the Lenders, the Arranger and the other lenders from time to time party thereto, evidencing a
senior unsecured revolving credit facility which, as of the date of execution thereof, had a
maximum outstanding principal balance of $100,000,000 (as amended by the First Amendment to Credit
Agreement dated as of May 25, 2006, and as further amended by the Second Amendment to Credit
Agreement dated as of September 1, 2006, the “Credit Agreement”), and which was increased to a
maximum outstanding principal balance of $125,000,000 pursuant to that certain Commitment and
Acceptance dated as of October 21, 2005; and
WHEREAS, in accordance with Section 10.02(b)(ii) of the Credit Agreement, Borrower has
requested a written consent from the Requisite Lenders approving a temporary waiver of the housing
inventory covenant set forth in Section 6.08 of the Credit Agreement;
WHEREAS, Borrower, Guarantor and Lenders intend to enter into this Consent in order to
temporarily waive the housing inventory covenant set forth in Section 6.08 of the Credit Agreement;
NOW THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, as well as the mutual
covenants herein contained, the parties hereto agree as follows:
1. RECITALS. The above recitals are true and correct and are incorporated herein by
this reference.
2. CAPITALIZED TERMS. Capitalized terms not defined herein shall have the meaning
ascribed to them in the Credit Agreement.
3. REPRESENTATIONS; REAFFIRMATION. Borrower and Guarantor each represent and warrant
that, as of the date hereof and after giving effect to this Consent: (a) no event or condition
shall have occurred and then be continuing which constitutes a Default or Event of Default; (b) the
representations and warranties contained in Article 4 of the Credit Agreement are true and correct
in all material respects (except to the extent any such representation or warranty is stated to
relate solely to an earlier date); and (c) Borrower has no offsets, defenses or counterclaims as to
the Facility extended by Lenders to Borrower, the Loan Documents or the indebtedness evidenced
thereby. After giving effect to this Consent, Borrower and Guarantor hereby reaffirm as of the date
hereof all affirmative covenants and negative covenants contained in the Credit Agreement as if
more fully set forth herein.
4. CONSENT. In accordance with Section 10.02(b)(ii) of the Credit Agreement, the
Requisite Lenders hereby temporarily waive the restriction set forth in Section 6.08 of the Credit
Agreement limiting the sum of the Speculative Units and the Model Units to an amount not to exceed
twenty-five percent (25%) of the aggregate number of unit sales, as measured during the last twelve
(12) month period at the end of each fiscal year. The Requisite Lenders hereby waive the
restriction contained in Section 6.08 of the Credit Agreement for
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the period commencing on October 1, 2006, extending through the last fiscal quarter of 2006 and the
fiscal year of 2007, and concluding on December 31, 2007. The twenty-five percent (25%)
restriction will be reinstated and become fully effective for the fiscal year commencing on January
1, 2008 and shall continue for each fiscal year thereafter until the end of the Term.
6. EFFECT OF CONSENT. Except as modified by this Consent, the Credit Agreement
remains in full force and effect. In the event of any conflict between this Consent and the Credit
Agreement, the provisions and intent of this Consent shall control.
6. COUNTERPARTS. This Consent may be executed and delivered by one or more of the
parties hereto on any number of separate counterparts and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
7. GOVERNING LAW. This Consent shall be governed by the laws of the State
of Florida.
8. WAIVER OF JURY TRIAL.
EACH OF BORROWER AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND
ALL RIGHT IT MAY HAVE TO A TRAIL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED
TO, ANY CLAIMS, CROSS-CLAIMS OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS CONSENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREIN. EACH OF BORROWER AND GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
LENDERS, NOR THE LENDERS’ COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS, OR
THE AGENT ON BEHALF OF THE LENDERS, WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF BORROWER AND GUARANTOR ACKNOWLEDGES THAT THE
LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have duly executed this Consent on the day and year first
above written.
BORROWER:
AVATAR PROPERTIES INC., a Florida corporation
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Executive Vice President | ||||
JOINED IN BY GUARANTOR:
AVATAR HOLDINGS INC., a Delaware corporation
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Executive Vice President | ||||
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION
| BY: | /s/ Xxxxx X. Xxxxx | |||
| NAME: | Xxxxx X. Xxxxx | |||
| TITLE: | Vice President | |||
GUARANTY BANK
| BY: | /s/ Xxxxx Xxx | |||
| NAME: | Xxxxx Xxx | |||
| TITLE: | Vice President | |||
FRANKLIN BANK, SSB, a Texas Savings Bank
| BY: | /s/ Xxxxxxxx Xxxxxxx | |||
| NAME: | Xxxxxxxx Xxxxxxx | |||
| TITLE: | Vice President | |||
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