Exhibit 10.43
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein
called this "AMENDMENT") made as of March 15, 2004 by and between PREFERRED HOME
MORTGAGE COMPANY, a Florida corporation ("BORROWER"), and GUARANTY BANK
("LENDER"),
W I T N E S S E T H:
WHEREAS, Borrower and Lender have entered into that certain Amended and
Restated Credit Agreement dated as of December 19, 2003 (the "CREDIT
AGREEMENT"), for the purposes and consideration therein expressed, pursuant to
which Lender became obligated to make loans to Borrower as therein provided; and
WHEREAS, Borrower and Lender desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Credit Agreement, in
consideration of the loans which may hereafter be made by Lender to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
1.1 TERMS DEFINED IN THE CREDIT AGREEMENT. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the
Credit Agreement shall have the same meanings whenever used in this Amendment.
ARTICLE II.
AMENDMENTS TO CREDIT AGREEMENT
2.1 DEFINITIONS. The definition of "Parent Debt Agreements" in SECTION
1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"PARENT DEBT AGREEMENTS" means each of the following: (i) the
Parent Credit Agreement, all related guaranties and pledge agreements and
other instruments from time to time delivered in connection therewith;
(ii) that certain Senior Indenture dated as of June 25, 2002 among the
Parent, as issuer, the subsidiary guarantors party thereto and Xxxxx Fargo
Bank Minnesota, National Association, as trustee, pursuant to which the
Parent's 9% Senior Notes due 2010 are issued; (iii) that certain Senior
Subordinated Indenture dated as of June 25, 2002 among the Parent, as
issuer, the subsidiary guarantors party thereto and Xxxxx Fargo Bank
Minnesota, National Association, as trustee, pursuant to which the
Parent's 10 3/8% Senior Subordinated Notes due 2012 are issued; (iv) that
certain Indenture dated as of February 3, 2003 among the Parent, as
issuer, the subsidiary
guarantors party thereto and Xxxxx Fargo Bank Minnesota, National
Association, as trustee, pursuant to which the Parent's 9% Senior Notes
due 2010 are issued, and (v) that certain Senior Subordinated Indenture
dated as of March 17, 2004 among the Parent, as issuer, the subsidiary
guarantors party thereto and Xxxxx Fargo Bank, National Association, as
trustee, pursuant to which the Parent's 7 1/2% Senior Subordinated
Notes due 2011 are issued, in each case of clauses (i) through (v), as
the same may be amended, modified, supplemented, waived, replaced,
refinanced from time to time.
ARTICLE III.
CONDITIONS, REPRESENTATIONS AND WARRANTIES
3.1 EFFECTIVE DATE. This Amendment shall become effective as of the
date first above written when and only when Lender shall have received, at
Lender's office, a duly executed counterpart of this Amendment.
ARTICLE IV.
MISCELLANEOUS
4.1 ACKNOWLEDGMENT. Except as otherwise specified herein, the terms and
provisions of the Credit Agreement are ratified and confirmed and shall remain
in full force and effect, enforceable in accordance with their terms. Borrower
hereby acknowledges, agrees and represents that (i) contemporaneously with the
effectiveness of this Amendment, the representations and warranties of Borrower
contained in the Credit Agreement are true and correct representations and
warranties, and (ii) Borrower has no set-offs, counterclaims, defenses or other
causes of action against Lender arising out of the Credit Agreement, this
Amendment or otherwise, and to the extent any such set-offs, counterclaims,
defenses or other causes of action may exist, whether known or unknown, such
items are hereby waived by Borrower.
4.2 PARENT ACKNOWLEDGMENT. By signature below, Parent hereby consents
to Borrower's execution of this Amendment and hereby ratifies and confirms the
Keep-Well Agreement executed by Parent. Parent hereby acknowledges, agrees and
represents that (i) contemporaneously with the effectiveness of this Amendment,
the representations and warranties of Parent contained in the Keep-Well
Agreement are true and correct representations and warranties, and (ii) Parent
has no set-offs, counterclaims, defenses or other causes of action against
Lender arising out of the Keep-Well Agreement or otherwise, and to the extent
any such set-offs, counterclaims, defenses or other causes of action may exist,
whether known or unknown, such items are hereby waived by Parent.
4.3 GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity and
performance.
4.4 COUNTERPARTS; FAX. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be duly executed by facsimile or other electronic
transmissions.
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IN WITNESS WHEREOF, this Amendment is executed effective as of the date first
above written.
PREFERRED HOME MORTGAGE COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Secretary
GUARANTY BANK
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Senior Vice President
CONSENTED AND AGREED TO BY:
TECHNICAL OLYMPIC USA, INC.,
a Delaware corporation
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Vice President and General Counsel
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