FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT ("Amendment"), dated December 5, 2000, and effective as
of September 30, 2000, is made by and among XXXXXXX HOMES, INC., a Delaware
corporation (the "Borrower"), the banks from time to time party to this
Agreement (collectively referred to as the "Banks", and individually referred to
as a "Bank"), FIRST HAWAIIAN BANK, a Hawaii corporation, as administrative and
syndication agent for the Banks (the "Administrative Agent"), and BANK OF
AMERICA, N.A., a national banking association, as documentation agent for the
Banks (the "Documentation Agent", the Administrative Agent and the Documentation
Agent are collectively referred to as the "Agents").
W I T N E S S E T H T H A T:
WHEREAS, the Borrower, the Banks and the Agents entered into that
certain Third Amended and Restated Credit Agreement dated September 30, 1999,
effective October 1, 1999 (the "Credit Agreement") relating to a revolving
credit facility (the "Credit Facility") in the principal amount of
US$170,000,000.00 (the "Commitment") made available to the Borrower by the
Banks; and
WHEREAS, in connection therewith, the Borrower, the Banks and the
Agents executed certain Loan Documents (as defined in the Credit Agreement); and
WHEREAS, the Borrower has requested that the Banks and the Agents amend
the terms of the Credit Agreement to increase the level of a certain type of
Permitted Investment (as defined in the Credit Agreement) from $10,000,000 to
$25,000,000 and to include the new subsidiaries of the Borrower as Guarantors;
and
WHEREAS, the Banks and the Agents are willing to comply with such
request, upon and subject to the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein, unless otherwise defined
herein, shall have the same meanings as those ascribed to them in the Credit
Agreement.
2. REPRESENTATIONS AND WARRANTIES. As an essential inducement to the Banks and
the Agents to execute this Amendment, the Borrower hereby repeats, reaffirms and
incorporates herein by reference all of the representations and warranties
contained in Article 5 of the Credit Agreement.
3. AMENDMENT OF LOAN DOCUMENTS. The Loan Documents are hereby amended as
follows:
(a) Section (f) of the definition of "Permitted Investment" shall
be amended in its entirety as follows:
(f) the investment (including advances and
guaranties) in unconsolidated Subsidiaries of the Borrower or
joint ventures (in which the Borrower or its Subsidiaries is a
joint venture partner) which are involved in home building in
the principal markets of the Borrower or its Subsidiaries,
provided such investment shall not exceed $25,000,000 in the
aggregate subsequent to December 31, 1997, which shall include
the acquisition of a 49% interest in Xxxxxx Homes Madison,
LLC, a Delaware limited liability company, a 49% interest in
Xxxxxx Carlsbad, LLC, a Delaware limited liability company, a
24.5% interest in Venturanza Del Verde, LLC, a Delaware
limited liability company, a 50% interest in Fairway Farms,
LLC, a Delaware limited liability company and a 50% interest
in PH-Xxxxxx Orange Xxxxxx, LLC, a Delaware limited liability
company.
(b) The definition of "Guarantor" in the Credit Agreement shall
be amended to include Xxxxxxx Homes of Arizona, LLC, SHLR of California, Inc.,
Xxxxxxx Mortgage, Inc., and SHA Construction LLC.
4. DELIVERY OF RELATED DOCUMENTS. The Borrower shall deliver to the
Administrative Agent on or before 1/31/01 the following documents, all of which
shall be in form and substance satisfactory to the Banks and the Agents:
(a) An amendment to the Guaranty, in form and substance
satisfactory to the Lender, to include Xxxxxxx Homes of Arizona, LLC, SHLR of
California, Inc., Xxxxxxx Mortgage, Inc., and SHA Construction LLC as guarantors
of the Credit Facility.
(b) Properly certified resolutions of the respective Boards of
Directors or other governing body, as applicable, of the Borrower, the
Guarantors, Xxxxxxx Homes of Arizona, LLC, SHLR of California, Inc., Xxxxxxx
Mortgage, Inc., and SHA Construction LLC, duly authorizing the execution and
delivery of this Amendment and the amendment to the Guaranty by such applicable
party.
(c) An opinion from counsel to the Borrower and the Guarantors
stating that after the execution and delivery of this Amendment and the
amendment to the Guaranty by the parties, the Loan Documents will continue to be
enforceable in accordance with their terms and will continue to constitute the
valid and legally binding obligations of the Borrower and the Guarantors, as
applicable.
5. CONFORMANCE. The Loan Documents are hereby amended to conform with this
Amendment, but in all other respects such provisions are to be and continue in
full force and effect.
6. CONTINUANCE OF SECURITY. The performance of the obligations of the Borrower
under the Loan Documents, as herein amended, shall be fully secured by and
entitled to the benefits of the Guaranty and the other Loan Documents, and any
modifications, extensions, renewals or replacements thereof.
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7. NO OFFSETS. As of the date hereof, the Borrower has no claims, defenses or
offsets against the Banks or the Agents, or against the Borrower's obligations
under the "Loan Documents", as herein amended, whether in connection with the
negotiations for or closing of the Credit Facility, of any prior amendments, of
this Amendment, or otherwise, and if any such claims, defenses or offsets exist,
they are hereby irrevocably waived and released.
8. NO WAIVER. This Amendment is made on the express condition that nothing
herein contained shall in any way be construed as affecting, impairing or
waiving any rights of the Banks or the Agents under any of the Loan Documents,
as herein amended.
9. ENTIRE AGREEMENT. This Amendment incorporates all of the agreements between
the parties relating to the amendment of the Loan Documents and supersedes all
other prior or concurrent oral or written letters, agreements or understandings
relating to such amendment.
10. HEADINGS. The headings of paragraphs and subparagraphs herein are inserted
only for convenience and reference, and shall in no way define, limit or
describe the scope or intent of any provisions of this Amendment.
11. GOVERNING LAW; SEVERABILITY. This Amendment is executed and delivered, and
shall be construed and enforced, in accordance with and governed by the laws of
the State of Hawaii. If any provision of this Amendment is held to be invalid or
unenforceable, the validity or enforceability of the other provisions of this
Amendment shall remain unaffected.
12. SUBMISSION TO JURISDICTION. The Borrower and the Guarantors hereby
irrevocably and unconditionally submit, but only for the purposes of any action
or proceeding which the Banks and/or the Agents may bring to enforce any of the
Loan Documents, as amended herein, to the jurisdiction of the courts of the
State of Hawaii and the United States District Court for the District of Hawaii.
Such submission to such jurisdiction shall not prevent the Banks and the Agents
from commencing any such action or proceeding in any other court having
jurisdiction.
13. COUNTERPARTS. This Amendment may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument, and in making proof of this Amendment,
it shall not be necessary to produce or account for more than one such
counterpart.
14. EXPENSES. The Borrower shall pay all reasonable expenses incurred by the
Administrative Agent in negotiations for and documentation of this Amendment and
the satisfaction of the conditions thereof, including, but not limited to, fees
and expenses of legal counsel for the Administrative Agent, and any other costs
incurred by the Administrative Agent in connection with any of the matters
described in this Amendment.
15. BINDING EFFECT. This Amendment shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that the Borrower shall not assign this Amendment or any of the rights, duties
or obligations of the Borrower hereunder without the prior written consent of
the Banks and the Agents.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
day and year first above written.
XXXXXXX HOMES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
"Borrower"
FIRST HAWAIIAN BANK, as Administrative
Agent and Syndication Agent
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President
BANK OF AMERICA, N.A, as Documentation Agent
By /s/ XX Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
FIRST HAWAIIAN BANK, as a Bank
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President
BANK OF AMERICA N.A, as a Bank
By /s/ XX Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
BANK ONE, ARIZONA, NA
By /s/ R Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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FLEET NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF HAWAII
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Vice President
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AND XXXXXXX HOMES OF CALIFORNIA, INC., a California corporation,
XXXXXXX HOMES OF OREGON, INC., an Oregon corporation, XXXXXXX HOMES OF
WASHINGTON, INC., a Washington corporation, MELODY HOMES, INC., a Delaware
corporation, XXXXXXX REALTY/MAUI, INC., a Hawaii corporation, XXXXXXX
REALTY/OAHU, INC., a Hawaii corporation, LOKELANI CONSTRUCTION CORPORATION, a
Delaware corporation, MELODY MORTGAGE CO., a Colorado corporation, SHLR OF
WASHINGTON, INC., a Washington corporation, SHLR OF COLORADO, INC., a
Colorado corporation, SHLR OF UTAH, INC., a Utah corporation, SSHI LLC, a
Delaware limited liability company, SHLR OF NEVADA, INC., a Nevada
corporation and SRHI LLC, a Delaware limited liability company (collectively
referred to as the "Guarantors", and individually referred to as a
"Guarantor"), the "Guarantors" under that certain Guaranty dated as of
September 30, 1999, executed by the Guarantors in connection with the Credit
Agreement (the "Guaranty"), do hereby (a) consent to the amendments to the
Loan Documents, as described above; (b) agree that the amendments to the Loan
Documents described above shall not in any way affect, impair, or diminish
any of their obligations under the Guaranty, all of which are hereby
reaffirmed; (c) agree that their obligations under the Guaranty shall be
joint and several with the obligations of Xxxxxxx Homes of Arizona, LLC, SHLR
of California, Inc., Xxxxxxx Mortgage, Inc., and SHA Construction LLC under
the amendment to the Guaranty executed by said entities concurrently
herewith; and (d) acknowledge that they have no claims, demands, defenses or
offsets against the Banks or the Agents or against their obligations under
the Guaranty, and if any such claims, demands, defenses or offsets do exist,
they are hereby irrevocably waived and released.
XXXXXXX HOMES OF CALIFORNIA, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
XXXXXXX HOMES OF OREGON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
XXXXXXX HOMES OF WASHINGTON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
MELODY HOMES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
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XXXXXXX REALTY/MAUI, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
XXXXXXX REALTY/OAHU, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
LOKELANI CONSTRUCTION CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
MELODY MORTGAGE CO.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
SHLR OF WASHINGTON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
SHLR OF UTAH, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
SHLR OF COLORADO, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
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SSHI LLC
By SHLR of Washington, Inc.
Its Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
SHLR OF NEVADA, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
SRHI LLC By SHLR of Nevada, Inc.
Its Managing Member
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
"Guarantors"
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