JOINDER AGREEMENT
Exhibit 10.1
This JOINDER AGREEMENT (this “Agreement”) is made as of June 28, 2018, by and among (i) CENTURY COMMUNITIES, INC., a Delaware corporation (“Borrower”), (ii) the undersigned Guarantors, (iii) BMO XXXXXX BANK N.A. (“BMO”), and (iv) TEXAS CAPITAL BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent (“Administrative Agent”).
W I T N E S S E T H :
WHEREAS, Administrative Agent, Borrower and Lenders are parties to that certain Amended and Restated Credit Agreement (as amended, the “Credit Agreement”), dated June 5, 2018, which established a revolving line of credit in the maximum principal sum of $540,000,000.00 (the “Credit Facility”); and
WHEREAS, Borrower desires to increase the Credit Facility Amount from $540,000,000.00 to $590,000,000.00, pursuant to Section 2.10 of the Credit Agreement; and
WHEREAS, Borrower asked BMO to become a Lender, and BMO is willing to become a Lender, and make a Commitment of up to $50,000,000.00, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Administrative Agent, Borrower, the undersigned Guarantors, and BMO hereby agree as follows:
1. Definitions. All terms used herein with initial capital letters, but not defined herein, shall have the meanings specified in the Credit Agreement.
2. Credit Facility Amount. Pursuant to Section 2.10 of the Credit Agreement (a) the Credit Facility Amount is hereby increased from $540,000,000.00 to $590,000,000.00, and (b) the aggregate amount of the Commitments is hereby increased from $540,000,000.00 to $590,000,000.00. The Increase Effective Date, as such term is used in Section 2.10(c) of the Credit Agreement, is the date of this Agreement.
3. Joinder of BMO. BMO agrees to assume, and does hereby assume, the obligations of a Lender under the Credit Agreement. BMO agrees to abide by and be bound by all of the terms of the Credit Agreement applicable to Lenders. Accordingly, the Credit Agreement is hereby amended such that any and all references to the “Lenders” shall be deemed to refer to BMO, as well as each of the parties that have previously been included within the meaning of such term.
4. Commitments and Applicable Percentages. As a result of (a) the increase in the Credit Facility Amount, and (b) the addition of BMO as a Lender, Schedule 2.1 of the Credit Agreement is hereby revised and replaced in its entirety with Schedule 2.1 attached hereto, and Lenders’ respective Commitments and Applicable Percentages are revised as set forth therein.
5. Additional Note. To evidence the increase in the Credit Facility Amount, contemporaneously with the execution and delivery of this Agreement, Borrower shall execute and deliver a promissory note in the principal sum of $50,000,000.00, payable to the order of BMO, which promissory note shall (i) be dated of even date with this Agreement, (ii) be substantially in the form of Exhibit E attached to the Credit Agreement, (iii) be considered a Note, as defined in the Credit Agreement, in addition to all other Notes previously executed by Borrower in connection with the Credit Agreement.
6. Increase Fee. As consideration for the increase in the Credit Facility Amount, contemporaneously with the execution and delivery of this Agreement, Borrower shall pay to Administrative Agent, a non-refundable fee as described in Section 2.10(d) of the Credit Agreement, which fee shall be distributed to BMO in accordance with the Credit Agreement.
7. Bond Indenture. Borrower represents and warrants to Administrative Agent and Lenders that (a) Borrower is not in default and no event has occurred which, with the passage of time, giving of notice, or both, would constitute a default by Borrower of its obligations under the terms and provisions of the Bond Indenture, and (b) the transactions contemplated by this Agreement will not violate the terms and conditions of the Bond Indenture.
8. Resolutions. Contemporaneously with the execution and delivery of this Agreement, Borrower shall deliver to Administrative Agent, a copy of resolutions duly adopted by Borrower, approving the transactions contemplated by this Agreement, and certified by an officer of Borrower to be a true and correct.
9. Acknowledgment by Borrower. Except as otherwise specified herein, the terms and provisions hereof shall in no manner impair, limit, restrict or otherwise affect the obligations of Borrower or any third party to Administrative Agent and Lenders, as evidenced by the Loan Documents. Borrower hereby acknowledges, agrees and represents that (i) Borrower is indebted to Lenders pursuant to the terms of the Notes; (ii) there are no claims or offsets against, or defenses or counterclaims to, the terms or provisions of the Loan Documents, and the other obligations created or evidenced by the Loan Documents; (iii) Borrower has no claims, offsets, defenses or counterclaims arising from any of Administrative Agent’s or Lenders’ acts or omissions with respect to the Loan Documents or Administrative Agent’s or Lenders’ performance under the Loan Documents; (iv) the representations and warranties of Borrower contained in the Loan Documents are true and correct as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date; (v) Borrower is not in default and no event has occurred which, with the passage of time, giving of notice, or both, would constitute a default by Borrower of its obligations under the terms and provisions of the Loan Documents, and (vi) neither Administrative Agent nor Lenders are in default and no event has occurred which, with the passage of time, giving of notice, or both, would constitute a default by Administrative Agent or Lenders of their respective obligations under the terms and provisions of the Loan Documents.
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To the extent Borrower now has any claims, offsets, defenses or counterclaims against Administrative Agent or Lenders or the repayment of all or a portion of the Credit Facility, whether known or unknown, fixed or contingent, same are hereby forever irrevocably waived and released in their entirety.
10. No Waiver of Remedies. Except as may be expressly set forth herein, nothing contained in this Agreement shall prejudice, act as, or be deemed to be a waiver of any right or remedy available to Administrative Agent or Lenders by reason of the occurrence or existence of any fact, circumstance or event constituting a default under the Loan Documents.
11. Joinder of Guarantor. By its execution hereof, each Guarantor hereby (i) acknowledges and consents to the terms and provisions hereof; (ii) ratifies and confirms the Guaranty, including all interest and costs of collection, to or for the benefit of Administrative Agent and Lenders; (iii) agrees that the Guaranty is and shall remain in full force and effect and that the terms and provisions of the Guaranty cover and pertain to the Credit Facility, Notes and other Loan Documents as modified hereby; (iv) acknowledges that there are no claims or offsets against, or defenses or counterclaims to, the terms and provisions of the Guaranty or the other obligations created and evidenced by the Guaranty; (v) certifies that the representations and warranties contained in the Guaranty remain true and correct representations and warranties of Guarantor as of the date hereof; and (vi) acknowledges that Administrative Agent and Lenders have satisfied and performed their covenants and obligations under the Guaranty and the other Loan Documents, and that no action or failure to act by or on behalf of, Administrative Agent or Lenders has or will give rise to any cause of action or other claim against Administrative Agent or Lenders for breach of the Guaranty or other Loan Documents or otherwise.
12. Costs and Expenses. Contemporaneously with the execution and delivery hereof, Borrower shall pay, or cause to be paid, all costs and expenses incident to the preparation, execution and recordation hereof and the consummation of the transaction contemplated hereby, including, but not limited to, reasonable fees and expenses of legal counsel to Administrative Agent.
13. Additional Documentation. From time to time, Borrower shall execute or procure and deliver to Administrative Agent such other and further documents and instruments evidencing, securing or pertaining to the Credit Facility or the Loan Documents as shall be reasonably requested by Administrative Agent so as to evidence or effect the terms and provisions hereof.
14. Effectiveness of the Loan Documents. Except as expressly modified by the terms and provisions hereof, each of the terms and provisions of the Loan Documents are hereby ratified and shall remain in full force and effect; provided, however, that any reference in any of the Loan Documents to the Credit Facility, the amount constituting the Credit Facility, any defined terms, or to any of the other Loan Documents shall be deemed, from and after the date hereof, to refer to the Credit Facility, the amount constituting the Credit Facility, defined terms and to such other Loan Documents, as modified hereby.
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15. Governing Law. THE TERMS AND PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
16. Time. Time is of the essence in the performance of the covenants contained herein and in the Loan Documents.
17. Binding Agreement. This Agreement shall be binding upon the successors and assigns of the parties hereto; provided, however, the foregoing shall not be deemed or construed to (i) permit, sanction, authorize or condone the assignment of any rights, titles or interests in and to Borrower, or (ii) confer any right, title, benefit, cause of action or remedy upon any person or entity not a party hereto, which such party would not or did not otherwise possess.
18. Headings. The section headings hereof are inserted for convenience of reference only and shall in no way alter, amend, define or be used in the construction or interpretation of the text of such section.
19. Construction. Whenever the context hereof so requires, reference to the singular shall include the plural and likewise, the plural shall include the singular; words denoting gender shall be construed to mean the masculine, feminine or neuter, as appropriate; and specific enumeration shall not exclude the general, but shall be construed as cumulative of the general recitation.
20. Severability. If any clause or provision of this Agreement is or should ever be held to be illegal, invalid or unenforceable under any present or future law applicable to the terms hereof, then and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and that in lieu of each such clause or provision of this Agreement that is illegal, invalid or unenforceable, such clause or provision shall be judicially construed and interpreted to be as similar in substance and content to such illegal, invalid or unenforceable clause or provision, as the context thereof would reasonably suggest, so as to thereafter be legal, valid and enforceable.
21. Counterparts. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages. Delivery of a photocopy of an executed counterpart of this Agreement by electronic mail shall be equally as effective as delivery of an executed original counterpart.
22. Notice of Final Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
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PARTIES HERETO AND THERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO OR THERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO OR THERETO. THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE RESPECTIVE PARTIES TO SUCH DOCUMENTS.
[The remainder of this page is intentionally left blank. The signature pages follow.]
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EXECUTED to be effective as of the date first above written.
| ADMINISTRATIVE AGENT:
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxxxx | |
| Title: | Sr. Vice President | |
| LENDER:
BMO XXXXXX BANK N.A., | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Authorized Officer | |
| BORROWER:
a Delaware corporation | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Chief Financial Officer | |
| GUARANTOR:
BMC REALTY ADVISORS, INC., a California corporation | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| AUGUSTA POINTE, LLC, AVALON AT INVERNESS, LLC,AVR A, LLC, AVR B, LLC, AVR C, LLC, BEACON POINTE, LLC, BLACKSTONE HOMES, LLC, CC COMMUNITIES, LLC, CCC HOLDINGS, LLC, CCH HOMES, LLC, CENTURY AT ANTHOLOGY, LLC, CENTURY AT ASH XXXXXXX, LLC, CENTURY AT AUTUMN VALLEY RANCH, LLC, CENTURY AT BEACON POINTE, LLC, CENTURY AT BELLEVIEW PLACE, LLC, CENTURY AT XXXXX, LLC, CENTURY AT XXXXXXXX, LLC, CENTURY AT CAROUSEL FARMS, LLC, CENTURY AT CASTLE PINES TOWN CENTER, LLC, CENTURY AT CLAREMONT RANCH, LLC, CENTURY AT COLLIERS HILL, LLC, CENTURY AT COMPARK VILLAGE NORTH, LLC, CENTURY AT COMPARK VILLAGE SOUTH, LLC, CENTURY AT COYOTE CREEK, LLC, CENTURY AT FOREST XXXXXXX, LLC, CENTURY AT HARVEST XXXXXXX, LLC, CENTURY AT LANDMARK, LLC, CENTURY AT LITTLETON VILLAGE, LLC, CENTURY AT LITTLETON VILLAGE II, LLC, CENTURY AT LOR, LLC, CENTURY AT XXXXX, LLC, CENTURY AT XXXXXXXX, LLC, CENTURY AT XXXXXXXX, LLC, CENTURY AT MIDTOWN, LLC, CENTURY AT MILLENNIUM, LLC, CENTURY AT XXXXXX CREEK, LLC, CENTURY AT OAK STREET, LLC, | ||
| CENTURY AT OBSERVATORY HEIGHTS, LLC, CENTURY AT OUTLOOK, LLC, CENTURY AT XXXXXXX GROVE, LLC, CENTURY AT SALISBURY HEIGHTS, LLC, CENTURY AT SOUTHSHORE, LLC, CENTURY AT SPRING VALLEY RANCH, LLC, CENTURY AT TANGLEWOOD, LLC, CENTURY AT TERRAIN, LLC, CENTURY AT THE GROVE, LLC, CENTURY AT THE HEIGHTS, LLC, CENTURY AT THE XXXXXXX, LLC, CENTURY AT VISTA RIDGE, LLC, CENTURY AT WILDGRASS, LLC, CENTURY AT WOLF RANCH, LLC, CENTURY AT XXXXXXX XXXX, LLC, CENTURY CITY, LLC, CENTURY COMMUNITIES OF GEORGIA, LLC, CENTURY COMMUNITIES SOUTHEAST, LLC, CENTURY GROUP LLC, CENTURY LAND HOLDINGS, LLC, CENTURY LAND HOLDINGS II, LLC, CENTURY LAND HOLDINGS OF TEXAS, LLC, CENTURY TOWNHOMES AT XXXXXXXX, LLC, CHERRY HILL PARK, LLC, COTTAGES AT WILLOW PARK, LLC, CROWN HILL, LLC, ENCLAVE AT XXXX XXXXX, LLC, ENCLAVE AT CHERRY CREEK, LLC, ENCLAVE AT PINE GROVE, LLC, ESTATES AT XXXXXXXXX FARMS, LLC, HEARTH AT OAK XXXXXXX, LLC, HOMETOWN, LLC, HOMETOWN SOUTH, LLC, HORIZON BUILDING SERVICES, LLC, LAKEVIEW FORT XXXXXXX, LLC, MADISON ESTATES, LLC, MERIDIAN RANCH, LLC, MONTECITO AT RIDGEGATE, LLC, PARK 5TH AVENUE DEVELOPMENT CO., LLC, PRESERVE AT BRIARGATE, LLC, RESERVE AT HIGHPOINTE ESTATES, LLC, RESERVE AT THE XXXXXXX, LLC, SADDLEBACK HEIGHTS, LLC, SADDLE ROCK GOLF, LLC, STETSON RIDGE HOMES, LLC, THE RETREAT AT RIDGEGATE, LLC, THE VISTAS AT NOR’WOOD, LLC, VENUE AT ARISTA, LLC, VERONA ESTATES, LLC, VILLAS AT XXXXXX CREEK, LLC, | ||
| WATERSIDE AT HIGHLAND PARK, LLC, WESTOWN CONDOMINIUMS, LLC, WESTOWN TOWNHOMES, LLC, and WILDGRASS, LLC, all Colorado limited liability companies | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| BENCHMARK BUILDERS NORTH CAROLINA, LLC, BENCHMARK COMMUNITIES, LLC, BMC EAST XXXXXXXX, LLC, BMC EG BLUFFS, LLC, BMC EG BUNGALOW, LLC, BMC EG COURTYARDS, LLC, BMC EG GARDEN, LLC, BMC EG GROVE, LLC, BMC EG TOWNS, LLC, BMC EG VILLAGE, LLC, BMC MEADOWOOD II, LLC, BMC PINE RIDGE, LLC, BMC PROMISE WAY, LLC, BMC RANCHO ETIWANDA, LLC, BMC RED HAWK, LLC, BMC ROSEMEAD, LLC, BMC SAGEWOOD, LLC, BMC XXXXXXX LOCAN, LLC, BMC TOUCHSTONE, LLC, BMCH CALIFORNIA, LLC, BMCH NORTH CAROLINA, LLC, BMCH TENNESSEE, LLC, BMCH WASHINGTON, LLC, CENTURY COMMUNITIES OF CALIFORNIA, LLC, CENTURY COMMUNITIES OF NEVADA, LLC, CENTURY COMMUNITIES OF NORTH CAROLINA, LLC, CENTURY COMMUNITIES OF SOUTH CAROLINA, LLC, CENTURY COMMUNITIES OF TENNESSEE, LLC, CENTURY COMMUNITIES OF WASHINGTON, LLC, CENTURY XXXXXX RANCH GC, LLC, CENTURY TUSCANY GC, LLC, NEIGHBORHOOD ASSOCIATIONS GROUP, LLC, UCP, LLC, UCP XXXXXXX III, LLC, UCP EAST XXXXXXXX, LLC, | ||
| UCP HILLCREST HOLLISTER, LLC, UCP KERMAN, LLC, UCP MEADOWOOD III, LLC, UCP SAGEWOOD, LLC, UCP SANTA XXX XXXXXXXXX, LLC, UCP XXXXXXX, LLC, UCP TAPESTRY, LLC, and UCP QUAIL RUN, LLC, all Delaware limited liability companies | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| CASA ACQUISITION CORP., a Delaware corporation | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| CCG CONSTRUCTORS LLC, and CCG REALTY GROUP LLC, all Georgia limited liability companies | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| CENTURY COMMUNITIES OF NEVADA REALTY, LLC, a Nevada limited liability company | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| CENTURY COMMUNITIES OF UTAH, LLC, and CENTURY LAND HOLDINGS OF UTAH, LLC, all Utah limited liability companies | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Authorized Signatory | |
| SWMJ CONSTRUCTION, INC., a Texas corporation | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Vice President | |
SCHEDULE 2.1
Commitments and Applicable Percentages
| Lender |
Commitment |
Applicable |
||||||
| Texas Capital Bank, National Association |
$ | 75,000,000.00 | 12.711864406780 | % | ||||
| Bank of America, N.A. |
$ | 75,000.000.00 | 12.711864406780 | % | ||||
| Fifth Third Bank |
$ | 75,000.000.00 | 12.711864406780 | % | ||||
| U.S. Bank National Association |
$ | 75,000.000.00 | 12.711864406780 | % | ||||
| JPMorgan Chase Bank, N.A. |
$ | 55,000.000.00 | 9.322033898305 | % | ||||
| BMO Xxxxxx Bank N.A. |
$ | 50,000.000.00 | 8.474576271186 | % | ||||
| Compass Bank |
$ | 50,000.000.00 | 8.474576271186 | % | ||||
| Citibank, N.A. |
$ | 40,000.000.00 | 6.779661016949 | % | ||||
| ZB, N.A. dba Vectra Bank Colorado |
$ | 40,000.000.00 | 6.779661016949 | % | ||||
| CIBC Bank USA |
$ | 35,000.000.00 | 5.932203389831 | % | ||||
| Flagstar Bank, FSB |
$ | 20,000.000.00 | 3.389830508474 | % | ||||
| Total: |
$ | 590,000,000.00 | 100.000000000000 | % | ||||
