FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment") made as of the 19th day of January, 2001, by and
among each of the BORROWERS which are a party hereto (collectively, the
"Borrowers"), WESTERN PACIFIC HOUSING DEVELOPMENT LIMITED PARTNERSHIP, a
California limited partnership ("WPHD"), WESTERN PACIFIC HOUSING DEVELOPMENT II
LIMITED PARTNERSHIP, a California limited partnership ("WPHD II"), and
WPH-XXXXXX, LLC, a Delaware limited liability company ("Xxxxxx"; WPHD, WPHD II
and Xxxxxx being hereinafter referred to individually as a "Guarantor" and
collectively as the "Guarantors"), FLEET NATIONAL BANK, BANK UNITED, U.S. BANK,
CALIFORNIA BANK & TRUST, KEYBANK NATIONAL ASSOCIATION, BANK ONE ARIZONA,
NATIONAL ASSOCIATION, XXXXXX FINANCIAL, INC., CENTRAL PACIFIC BANK and GUARANTY
BANK (collectively, the "Banks"), and FLEET NATIONAL BANK, as Administrative
Agent for the Banks (the "Administrative Agent"), BANK UNITED, as Documentation
Agent for the Banks, BANK ONE ARIZONA, NATIONAL ASSOCIATION, as Syndication
Agent for the Banks, and FLEETBOSTON XXXXXXXXX XXXXXXXX, INC., as Sole Arranger.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, Agent and the Banks (excluding
Guaranty Bank) entered into that certain Third Amended and Restated Revolving
Credit Agreement dated as of November 21, 2000, but intended to be effective
November 29, 2000, as modified by that certain letter agreement between the
Agent, the Borrowers and the Guarantors dated December 15, 2000 (the "Credit
Agreement"); and
WHEREAS, the Guarantors executed and delivered to Agent and the Banks
that certain Unconditional Guaranty of Payment and Performance dated as of
November 21, 2000, but intended to be effective November 29, 2000 (the
"Guaranty"); and
WHEREAS, as a condition to becoming a Bank under Credit Agreement,
Guaranty Bank has requested that Agent, the Banks, the Borrowers and the
Guarantors modify certain provisions of the Credit Agreement; and
WHEREAS, the parties are all willing to execute and deliver this
Amendment to modify such provisions;
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. DEFINITIONS. All the terms used herein which are not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
2. MODIFICATION OF THE CREDIT AGREEMENT. The Borrowers, the
Guarantors, the Banks and Agent do hereby modify and amend the Credit
Agreement as follows:
(a) By adding the following provision to the end of the definition
of "Borrowing Base" in Section 1.1 of the Credit Agreement, appearing on page
6 thereof:
"With respect to all Projects that become Borrowing Base
Assets after December 31, 2000 only, the limitations contained in
subparagraphs (c) and (d) above shall be superceded by the following
limitations on the amount which can be included in the Borrowing Base:
(c) the lesser of (i) eighty percent (80%) of the undepreciated
cost of the Unsold Work in Progress, or (ii) eighty percent (80%) of
the Market Value (as hereinafter defined) of the Unsold Work in
Progress; and
(d) the lesser of (i) ninety percent (90%) of the undepreciated
cost of the Sold Homes Under Construction, or (ii) eighty percent
(80%) of the Market Value of the Sold Homes Under Construction.
For the purposes of this subparagraph (c), the "Market Value" of the
Unsold Work in Progress in question shall mean the greater of (i) the
fair market value once completed (based on sales of comparable homes in
the applicable community) less the development costs necessary to
complete same, or (ii) the Appraised Value once completed less the
development costs necessary to complete same. For the purposes of this
subparagraph (d), the "Market Value" of the Sold Homes Under
Construction in question shall mean the greater of (i) the sales
contract price less the development costs necessary to complete same or
(ii) the Appraised Value once completed less the development costs
necessary to complete same."
(b) By deleting SCHEDULE 1.3 attached to the Credit Agreement in its
entirety and by inserting in lieu thereof SCHEDULE 1.3 attached hereto and by
this reference incorporated herein.
3. REFERENCES TO CREDIT AGREEMENT. All references in the Loan Documents
to the Credit Agreement shall be deemed a reference to the Credit Agreement,
as modified and amended herein.
4. CONSENT OF THE GUARANTORS. By execution of this Amendment, the
Guarantors hereby expressly consent to the modifications and amendments to
the Credit Agreement as set forth herein, and the Borrowers and the
Guarantors hereby acknowledge, represent and agree that the Loan Documents
(including without limitation the Guaranty) remain in full force and effect
and constitute the valid and legally binding obligation of the Borrowers and
the Guarantors enforceable against such Persons in accordance with their
respective terms, and that the execution and delivery of this Amendment does
not constitute, and shall not be deemed to constitute, a release, waiver or
satisfaction of the Borrowers' or the Guarantors' obligations under the Loan
Documents (including without limitation the Guaranty).
5. REPRESENTATIONS. Each Borrower and Guarantor represents and warrants
to Agent and the Banks as follows:
2
(a) AUTHORIZATION. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby (i) are within the power
and authority of such Borrower and Guarantor, (ii) have been duly authorized
by all necessary proceedings on the part of such Persons, (iii) do not and
will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which any of such Persons is
subject or any judgment, order, writ, injunction, license or permit
applicable to such Persons, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of
notice, or both) under any provision of the partnership agreement or
certificate, certificate of formation, operating agreement, articles of
incorporation or other charter documents or bylaws of, or any mortgage,
indenture, agreement, contract or other instrument binding upon, any of such
Persons or any of its properties or to which any of such Persons is subject,
and (v) do not and will not result in or require the imposition of any lien
or other encumbrance on any of the properties, assets or rights of such
Persons, other than the liens and encumbrances created by the Loan Documents.
(b) ENFORCEABILITY. The execution and delivery of this Amendment are
valid and legally binding obligations of such Borrower and Guarantor
enforceable in accordance with the respective terms and provisions hereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally
the enforcement of creditors' rights and the effect of general principles of
equity.
(c) APPROVALS. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby do not require the
approval or consent of or approval of any Person or the authorization,
consent, approval of or any license or permit issued by, or any filing or
registration with, or the giving of any notice to, any court, department,
board, commission or other governmental agency or authority other than those
already obtained and the filing of the Security Documents in the appropriate
records office with respect thereto.
6. NO DEFAULT. By execution hereof, the Borrowers and the Guarantors
certify that such Persons are and will be in compliance with all covenants
under the Loan Documents after the execution and delivery of this Amendment,
and that, to their knowledge, no Default or Event of Default has occurred and
is continuing.
7. WAIVER OF CLAIMS. The Borrowers and the Guarantors acknowledge,
represent and agree that none of such Persons has any defenses, setoffs,
claims, counterclaims or causes of action of any kind or nature whatsoever
with respect to the Loan Documents, the administration or funding of the Loan
or with respect to any acts or omissions of Agent or any Bank, or any past or
present officers, agents or employees of Agent or any Bank, and each of such
Persons does hereby expressly waive, release and relinquish any and all such
defenses, setoffs, claims, counterclaims and causes of action, if any.
8. RATIFICATION. Except as hereinabove set forth, all terms, covenants
and provisions of the Credit Agreement remain unaltered and in full force and
effect, and the parties hereto do hereby expressly ratify and confirm the
Loan Documents and the Credit Agreement as modified and amended herein.
Nothing in this Amendment shall be deemed or construed to constitute, and
there has not otherwise occurred, a novation, cancellation, satisfaction,
release,
3
extinguishment or substitution of the indebtedness evidenced by the Notes or
the other obligations of the Borrowers and the Guarantors under the Loan
Documents.
9. AMENDMENT AS LOAN DOCUMENT. This Amendment shall constitute a Loan
Document.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
11. MISCELLANEOUS. This Amendment shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. This Amendment
shall be binding upon and shall inure to the benefit of the parties hereto
and their respective permitted successors, successors-in-title and assigns as
provided in the Credit Agreement and the Guaranty.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWERS:
WESTERN PACIFIC HOUSING - BAY VISTA, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - ESCONDIDO, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - WINTERHAVEN, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
WESTERN PACIFIC HOUSING - MURRIETA, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - NORCO ESTATES, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - CANYON PARK, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - XXXXXX XXXXX, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - SONOMA, LLC, a Delaware limited
liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - LAND PARK NORTH, LLC, a
Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - XXXXXX XXXXX XX, LLC, a
Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - XXXXXX GROVE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - XXXXXXXX COMMONS I, LLC, a
Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - XXXXXXXX, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - EAST PARK, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - NATOMAS VILLAGE 13, LLC, a
Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - EDGEWOOD 45, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
XXXXX, LLC, a Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - CREEKSIDE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - SPANISH HILLS, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - TORREY HILLS, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - SAN ELIJO, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - STONE LAKE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - LOMAS VERDES, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - PARADISE CREEK, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - WINDSOR POINTE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - PROVIDENCE I, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - MENIFEE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
[CORPORATE SEAL]
WESTERN PACIFIC HOUSING - SUN VALLEY, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
[CORPORATE SEAL]
WESTERN PACIFIC HOUSING-CLOVERDALE I, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - FIELDSTONE, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING - ANTIGUA, LLC, a Delaware
limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
[CORPORATE SEAL]
GUARANTORS:
WESTERN PACIFIC HOUSING DEVELOPMENT LIMITED
PARTNERSHIP, a California limited partnership
By: LAMCO Housing, Inc., a California corporation,
Managing General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WESTERN PACIFIC HOUSING DEVELOPMENT II LIMITED
PARTNERSHIP, a California limited partnership
By: AP LHI, Inc., a California corporation,
Managing General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
WPH-XXXXXX, LLC, a Delaware limited liability company
By: LAMCO Housing, Inc., a California corporation,
Administrative Manager Member
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx,
Vice President
[SIGNATURES CONTINUED ON THE NEXT PAGE]
BANKS:
FLEET NATIONAL BANK, individually and as Administrative
Agent
By: /s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
Director
BANK UNITED
By: /s/ Elise Forest
----------------------------
Its: Vice President
----------------------
U. S. BANK
By: /s/
----------------------------
Its: Vice President
----------------------
CALIFORNIA BANK & TRUST
By: /s/ Xxxxxx Xxxxx
----------------------------
Its: Vice President
----------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
----------------------------
Its: Vice President
----------------------
BANK ONE ARIZONA, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
----------------------------
Its: Vice President
----------------------
XXXXXX FINANCIAL, INC.
By: /s/
----------------------------
Its:
----------------------
CENTRAL PACIFIC BANK
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Its: Vice President
----------------------
GUARANTY BANK
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
----------------------
Its: Vice President
----------------------
SCHEDULE 1.3
BANKS AND COMMITMENTS
Name and Address Commitment Commitment Percentage
---------------- ---------- ---------------------
Fleet National Bank
000 Xxxxxxx Xxxxxx $50,000,000.00 22.727272727%
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Eurodollar Lending Office
same as above
Bank United $35,000,000.00 15.909090909%
0000 Xx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Elise Forest
Eurodollar Lending Office
same as above
Bank One Arizona, National Association $26,750,000.00 12.159090909%
Northern California Division
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Eurodollar Lending Office
same as above
KeyBank National Association $26,400,000.00 12.000000000%
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Eurodollar Lending Office
Same as above
Guaranty Bank $20,000,000.00 9.090909091%
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Eurodollar Lending Office
same as above
Xxxxxx Financial, Inc. $18,850,000.00 8.568181818%
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxx
Eurodollar Lending Office
same as above
California Bank & Trust $18,000,000.00 8.181818182%
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Eurodollar Lending Office
Same as above
U.S. Bank $15,000,000.00 6.818181818%
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxx Xxxxx
Eurodollar Lending Office
Same as above
Central Pacific Bank $10,000,000.00 4.545454545%
Corporate Banking Division
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xx. Xx Xxxxxxxxx
Eurodollar Lending Office
same as above
Total: $220,000,000.00 100.0%
