EXHIBIT 10.7
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS AGREEMENT (the "Agreement") supplements and amends the Credit
Agreement dated as of May 28, 1998 (the "Credit Agreement") by and among Xxxxx
Homes, Inc., a Florida corporation, as Borrower (the "Borrower"), the Banks
named therein and party thereto, as Banks, SunTrust Bank South Florida National
Association, a national banking association, as Administrative Agent (the
"Administrative Agent" or "Agent"), and NationsBank, N.A., a national banking
association, as Documentation Agent (the "Documentation Agent"), and is made as
of this 26th day of May, 1999 by and among the Borrower, the Subsidiaries
(defined in the Credit Agreement) of Borrower existing as of the date of this
Agreement, the Banks now party to the Credit Agreement, and the Administrative
Agent. As of the date of this Agreement, Bank of America National Trust and
Savings Association is the successor in interest to NationsBank, N.A. and The
First National Bank of Chicago is the successor in interest to Bank One,
Arizona, N.A.
RECITALS:
WHEREAS, the Borrower, the Banks party to the Credit Agreement, and the
Administrative Agent executed and delivered the Credit Agreement; and
WHEREAS, the Borrower, the Subsidiaries (defined in the Credit
Agreement) of Borrower existing as of the date of this Agreement, the Banks now
party to the Credit Agreement, and the Administrative Agent desire to recognize
certain changes and amend the Credit Agreement, all as expressly set forth in
this Agreement;
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Subsidiaries (defined in the Credit Agreement)
of Borrower existing as of the date of this Agreement, the Banks now party to
the Credit Agreement, and the Administrative Agent and do hereby covenant and
agree as follows:
1. RECITALS ARE TRUE AND CORRECT; AND DEFINED TERMS.
The foregoing Recitals are true and correct and form a part of
this Agreement and any capitalized terms not defined in this Agreement
shall have the meanings set forth in the Credit Agreement.
2. CHANGES IN COMMITMENTS AND BANKS.
(a) Effective as of May 7, 1999, Borrower permanently
reduced the Aggregate Commitment from $170,000,000.00
to $100,000,000.00 and, therefore, each Bank's
Commitment ratably in proportion to the ratio that its
respective Commitment bears to the Aggregate
Commitment, in accordance with the terms of Section
2.5(d) of the Credit Agreement. In addition, Borrower
delivered an Extension Request pursuant to Section
2.21(a) of the Credit Agreement, requesting a
one-year extension of the Facility Maturity Date from
May 29, 2001 to May 29, 2002, and all of the Banks
approved the Extension Request, except for Banque
Paribas and Credit Lyonnais, Atlanta Agency, both of
whose respective Commitments, as so reduced pursuant
to Section 2.5(d) of the Credit Agreement, were prior
to the date of this Agreement assigned to and
accepted by SunTrust, in its capacity as a Bank, thus
increasing its Commitment by the amount of the
Commitments so assigned.
(b) SCHEDULE "A" attached hereto and incorporated herein
replaces SCHEDULE "A" to the Credit Agreement and
sets forth each of the Banks now party to the Credit
Agreement and their respective Commitments as of the
date of this Agreement, after giving effect to the
changes described in paragraph (a) of this Section of
this Agreement.
(c) The Notes originally issued to each Bank party to
this Agreement shall continue to evidence all Loans
now or hereafter made by or owing to such Bank,
notwithstanding the foregoing changes, since each
Bank's Commitment, as so reduced, and in the case of
SunTrust, as so reduced and then so increased, is now
less than the original stated principal amount of its
respective Note.
3. BILTMORE SOUTH CORP.
Biltmore South Corp. has been released as a Guarantor and from
its liability on the Guaranty with the consent of all parties hereto,
based on Borrower's representation and warranty reaffirmed hereby that
Biltmore South Corp. is no longer a Subsidiary of Borrower.
4. OTHER MODIFICATIONS TO THE CREDIT AGREEMENT.
a. FACILITY MATURITY DATE.
(i) The definition of "Facility Maturity Date" in
Article I of the Credit Agreement is hereby amended and
restated to read as follows:
"Facility Maturity Date" means May 29, 2002, as the
same may be extended for two years as provided in
Section 2.21."
(ii) The first sentence of paragraph (a) of Section
2.21 of the Credit Agreement is amended and restated to read
as follows:
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"Borrower may request a single, two-year extension of
the Facility Maturity Date by submitting a written
request for an extension to Agent (an "Extension
Request") no earlier than 630 days and no later than
two years after May 28, 1998, the date of this Credit
Agreement."
(iii) Consistent with the foregoing provisions of
this paragraph (a) of this Section 4 of this Agreement, all
other references to "one (1) year" in Section 2.21 of the
Credit Agreement are hereby amended and restated to be "two
(2) years".
(iv) The schedule in paragraph (c) of Section 2.5 of
the Credit Agreement, showing the extension fee payable if the
Facility Maturity Date is extended pursuant to the provisions
of Section 2.21 of the Credit Agreement, is hereby amended and
restated to be as follows:
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BANK'S EXTENSION FEE
COMMITMENT (as a percentage of Bank's Commitment)
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$30,000,000.00 or more .10 %
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$20,000,000.00 to $29,999,999.99 .070 %
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$10,000,000.00 to $19,999,999.99 .035 %
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b. BORROWING BASE.
Clause (i) in the definition of "Borrowing Base" in
Article I of the Credit Agreement is hereby amended and
restated to read as follows:
"(i) 100% of all Housing Unit Costs, plus."
c. LETTER OF CREDIT FACILITY LIMITATION.
The reference to `"$10,000,000"' in clause (ii) of
Section 4.2 of the Credit Agreement is hereby amended and
restated to be "$15,000,000".
d. INDEBTEDNESS LIMITATION.
Clause (viii) of Section 8.2 of the Credit Agreement
is hereby amended and restated to read as follows:
"(viii) Contingent Indebtedness with respect to
undrawn Letters of Credit, banker's acceptances, and
performance, completion, guarantee, surety,
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construction and similar bonds entered into the
ordinary course of business not to exceed in the
aggregate at any time outstanding $35,000,000,
excluding such Contingent Indebtedness of or on
behalf of Xxxxx Homes/Pembroke, Inc."
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that: (a) the representations
and warranties in the Credit Agreement are true in all materials
respects as of the date hereof (both before and after giving effect to
this Agreement); and (b) no Event of Default or Unmatured Event of
Default has occurred and is continuing as of the date hereof (both
before and after giving effect to this Agreement).
6. CONDITIONS PRECEDENT.
The effectiveness of this Agreement is subject to the receipt
by the Agent of the following:
a. At least ten (10) original counterparts of
this Agreement, duly executed by all
signatories hereto; and
b. Any and all additional certificates,
opinions, agreements, instruments, documents
and assurances as the Agent may reasonably
request.
7. CONSENT OF GUARANTORS.
Each of the Subsidiaries has joined into the execution of this
Agreement for the purposes of consenting to this Agreement in their
capacity as Guarantors and ratifying the Guaranty, which remains in
full force and effect in accordance with its terms, and for the further
purpose of confirming that each of them remains liable as a Guarantor
on the Guaranty and that such liability is not in any way altered,
diminished or impaired by this Agreement.
8. EFFECT OF THIS AGREEMENT.
This Agreement supplements and amends the Credit Agreement and
constitutes a part of the Credit Agreement and one of the Loan
Documents. Except as specifically supplemented or amended by this
Agreement, the Credit Agreement and all other Loan Documents are hereby
ratified and each shall remain in full force and effect according to
their respective terms.
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9. CLAIMS AND DEFENSES.
The Borrower and each Subsidiary represents and warrants to
each of the other parties to this Agreement that there is no defense or
right of offset against any Obligations, and the Borrower and each
Subsidiary hereby waives, and releases, acquits, satisfies, and forever
discharges each of the other parties to this Agreement and their
respective officers, directors, shareholders and agents (collectively,
"Released Parties") from any and all claims, counterclaims, defenses,
actions, causes of action, suits, controversies, agreements, promises
and demands whatsoever in law or in equity which the Borrower or any
Subsidiary ever had, now has or which any legal representative,
successor or assign of any of them can, shall, or may have against any
of the Released Parties for, upon or by reason of any matter, cause or
thing whatsoever from the beginning of time to the date of this
Agreement, including, without limitation, any such matter, cause or
thing arising out of or with respect to the Guaranty or any of the Loan
Documents, excluding only those obligations of the Agent and Banks
expressly set forth in the Loan Documents to the extent arising on or
after the date of this Agreement.
10. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the
parties hereto and their respective legal representatives, successors
and assigns; provided, however, that no party may assign, and no Person
shall succeed to, any rights, powers, duties or obligations in
violation of the Credit Agreement or other Loan Documents.
11. CAPTIONS.
All captions or headings contained in this Agreement are
provided for convenience and ease of reference only, and are in no way
intended to, nor shall they, form a part of or limit, restrict or
define the scope or content of this Agreement.
12. GOVERNING LAW.
This Agreement shall be governed by and construed according to
the laws of the State of Florida.
13. COUNTERPARTS.
This Agreement may be executed and delivered in any number of
counterparts, each of which, when so executed and delivered, shall be
and constitute an original and one and the same document.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BORROWER:
XXXXX HOMES, INC., a Florida corporation
By: /S/ XXXXX XXXXXXX
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
(SEAL)
GUARANTORS:
XXXXX HOMES/ORLANDO, INC.,
XXXXX HOMES/PALM BEACH, INC.,
XXXXX HOMES/BROWARD, INC.,
XXXXX HOMES/PEMBROKE, INC.,
XXXXX HOMES/GULF COAST, INC.,
XXXXX HOMES/ATLANTA, INC.
(f/k/a Xxxxx Homes/Dade, Inc.),
XXXXX HOMES/SOUTHWEST FLORIDA, INC.
(f/k/a Xxxxx Homes/Naples, Inc.),
XXXXX HOMES/XXXX XXXXXXXXXX, INC.,
XXXXX HOMES/COLORADO, INC.
(f/k/a Park Xxxxx Homes, Inc.),
XXXXX HOMES/ARIZONA, INC.
(f/k/a Xxxxx Homes/Maryland, Inc.),
XXXXX HOMES/NORTH CAROLINA, INC.,
XXXXX HOMES/TEXAS, INC.,
XXXXX HOMES/VIRGINIA, INC.,
XXXXXXXXX HOMES, INC.,
PREFERRED BUILDERS REALTY, INC.,
PREFERRED HOME MORTGAGE COMPANY,
UNIVERSAL LAND TITLE, INC.,
PEMBROKE FALLS REALTY, INC.,
ST. TROPEZ AT BOCA GOLF, INC.,
XXXXX HOMES/JACKSONVILLE, INC. and
BANYAN TRAILS, INC., each a Florida corporation,
XXXXX HOMES/ARIZONA CONSTRUCTION, INC.,
an Arizona corporation, and
UNIVERSAL LAND TITLE OF COLORADO, INC.,
a Colorado corporation, and
XXXXX HOMES REALTY, INC., a Georgia corporation
By: /S/ XXXXX XXXXXXX
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
(CORPORATE SEALS)
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BANKS:
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association,
successor in interest to NationsBank, N.A.
By: /S/ XXXX X. XXXXXXXXX
----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
GUARANTY FEDERAL BANK, FSB
By: /S/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO, successor in
interest to Bank One, Arizona, N.A.
By: /S/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Corporate Banking Officer
BANKBOSTON, N.A.
By: /S/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Director
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NORWEST BANK COLORADO, NATIONAL ASSOCIATION
By: /S/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
AGENT:
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
a national banking association
By: /S/ XXXXXXX X. XXXXXXX
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
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SCHEDULE "A"
Existing Banks and Commitments
SunTrust Bank, South Florida, National Association $38,235,294
Bank of America National Trust and Savings Association $17,647,059
Guaranty Federal Bank, FSB $14,705,882
BankBoston, N.A. $11,764,706
The First National Bank of Chicago $11,764,706
Norwest Bank, Colorado, N.A. $5,882,353
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