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EXHIBIT 10.1
SIXTH AMENDMENT
TO
FOURTH AMENDED AND RESTATED
LOAN AGREEMENT
This SIXTH AMENDMENT to FOURTH AMENDED AND RESTATED LOAN
AGREEMENT ("Amendment"), dated for reference purposes June 30, 1997, is entered
into by and among (i) XXXXXXX HOMES, formerly The Xxxxxxx Companies, a
California corporation, as the borrower (the "Borrower"), (ii) FOOTHILL CAPITAL
CORPORATION ("Foothill"), FIRST PLAZA GROUP TRUST (Mellon Bank, N.A., acting as
trustee as directed by General Motors Investment Management Corporation),
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, and WHIPPOORWILL/XXXXXXX
OBLIGATIONS TRUST - 1994 (Continental Stock Transfer & Trust Company, as trustee
under that certain trust agreement dated as of January 11, 1994), as the
lenders, and Foothill, as the Agent (in such capacity, the "Agent") for the
Lenders, the Issuing Banks (other than any Third Party Issuer) and the LC
Guarantor under the Loan Documents (in each case as defined in the Existing Loan
Agreement described below).
PRELIMINARY STATEMENTS
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A. The Borrower, the Lenders and the Agent are parties to a Fourth
Amended and Restated Loan Agreement dated as of March 25, 1994 (the "Original
Agreement"), which agreement was amended by that certain First Amendment to the
Fourth Amended and Restated Loan Agreement and Second Amendment to the Agreement
to Issue and Purchase Stock dated as of May 20, 1994, that certain Second
Amendment dated May 31, 1994, that certain Third Amendment dated June 30, 1994,
that certain modification letter agreement dated May 8, 1995 and that certain
Fifth Amendment dated June 30, 1995, all among the parties set forth above (the
Original Agreement, as so amended, herein referred to as the "Existing Loan
Agreement").
B. The Borrower and the Lenders desire to amend the Existing Loan
Agreement in certain respects.
C. Terms defined in the Existing Loan Agreement are used herein with the
same meaning unless expressly provided otherwise.
The Borrower and the Lenders hereby agree as follows:
1. Amendments and Acknowledgement.
1.1 Sections 6.16, 8.11, 8.12 and 8.13, and the defined term
"Solvent" in Section 1.1, of the Existing Loan Agreement as each hereby deleted
in their entirety and shall have no further force or effect.
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1.2 Lenders acknowledge that the Borrower may be recognizing a
substantial loss in reporting the results of its operations at June 30, 1997,
and that the amount of the loss may exceed Borrower's net worth. Lenders
acknowledge that for the purposes of the Existing Loan Agreement, as amended
hereby, such loss shall not constitute (i) a Default or Event of Default, or
(ii) the failure of any condition precedent for any future Advances under
Article 10.
2. Loan Documents. To the extent inconsistent with this Amendment, the
Loan Documents are amended hereby to be consistent with this Amendment,
effective as of the Effective Time.
3. Fee. Upon execution and delivery of this Amendment by all of the
Lenders, Agent and Borrower, Borrower shall pay to the Agent, for the benefit of
the Lenders, a fee of $100,000 in consideration of the execution and delivery by
the Lenders of this Amendment. Said fee shall be additional consideration to the
Lenders and shall not be an offset, credit or other reduction of any amount owed
by the Borrower under the Loan Documents.
4. Effectiveness. This Amendment shall become effective upon being
executed by Borrower and by the Agent and all of the Lenders (the "Effective
Time").
5. Counterparts. This Amendment may be executed in any number of
counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterpart shall be an original and all of which
taken together shall be an original and all of which taken together shall
constitute one and the same amendment.
6. Amendments. Except as expressly amended hereby, the Existing Loan
Agreement and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXXX HOMES,
a California corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President-Chief
Financial Officer
By: /s/ W. Xxxxxxxx Xxxxxx
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Name: W. Xxxxxxxx Xxxxxx
Title: Vice President-Controller
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FOOTHILL CAPITAL CORPORATION,
individually and as Agent
By: /s/ M. E. Xxxxxxx
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Title: Vice President
FIRST PLAZA GROUP TRUST (Mellon
Bank, N.A., acting as trustee
as directed by General Motors
Investment Management
Corporation)
By: /s/ Xxxxxxx Xxxxxxx
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Title:
Continental Stock Transfer &
Trust Company, solely in its
capacity as trustee for the
WHIPPOORWILL/ XXXXXXX
OBLIGATIONS TRUST - 1994 under
that certain trust agreement,
dated as of January 11, 1994,
and not in its individual
capacity
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
INTERNATIONAL NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
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Title:
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CONSENT OF THE GUARANTOR AND THE PLEDGOR
Dated as of June 30, 1997
The undersigned, The Xxxxxxx Companies, a Delaware corporation, as
Pledgor under the Amended and Restated Pledge Agreement dated as of May 20, 1994
(the "Pledge Agreement") in favor of the Agent for the Lender parties to the
Loan Agreement referred to in the foregoing Sixth Amendment and as Guarantor
under the Amended and Restated Guaranty dated as of May 20, 1994 (the
"Guaranty"), in favor of the Lender parties to the Loan Agreement and the Agent
for the Lenders, as each is referred to in the foregoing Sixth Amendment, hereby
consents to the said Sixth Amendment and hereby confirms and agrees that (i) the
Pledge Agreement and the Guaranty are, and shall continue to be, in full force
and effect and are hereby ratified and confirmed in all respects except that,
upon the effectiveness of, and on and after the date of, the said Sixth
Amendment, each reference in the Pledge Agreement or the Guaranty to the Loan
Documents or any "thereunder", "thereof" or words of like import shall mean and
be a reference to the Loan Documents or such Loan Document as amended by the
said Sixth Amendment and (ii) the Pledge Agreement, all of the Pledged
Collateral described therein, and the Guaranty do, and shall continue to, secure
the payment of all of the Obligations (as defined therein).
THE XXXXXXX COMPANIES,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President-Chief
Financial Officer
By: /s/ W. Xxxxxxxx Xxxxxx
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Name: W. Xxxxxxxx Xxxxxx
Title: Vice President-Controller
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