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EXHIBIT 10.3
EXECUTION COPY
FIRST AMENDMENT TO THE CREDIT AGREEMENT
FIRST AMENDMENT, dated as of January 23, 2001 (this "Amendment"), to
the Credit Agreement, dated as of November 22, 2000 (the "Credit Agreement"),
among XXXXX HOMES, INC., a Florida corporation (the "Borrower"), the banks and
other financial institutions party thereto (the "Lenders"), and BANK OF AMERICA,
N.A., as administrative agent (in such capacity, the "Administrative Agent") for
the Lenders.
RECITALS
WHEREAS, the Borrower, the Administrative Agent and the Lenders wish to
amend the Credit Agreement, but only on the terms and subject to the conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Administrative Agent and the Lenders hereby
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
2. Amendments.
(a) The definition of "Consolidated EBITDA" contained in
Section 1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and substituting in lieu thereof the
following new definition:
"`Consolidated EBITDA': for any period (a)
Consolidated Net Income for such period plus (b) the sum of
each of the following expenses that have been deducted from
the determination of Consolidated Net Income for such Period:
(i) all Consolidated Interest Expense for such period
(including, without duplication, previously capitalized
interest expense which would be included in "costs of goods
sold" and deducted from consolidated revenues in determining
Consolidated Net Income), (ii) all income tax expense
(whether federal, state, local, foreign or otherwise) for
such period, (iii) all depreciation expense for such period,
(iv) all amortization expense for such period and (v) all
extraordinary losses otherwise deducted in determining
Consolidated Net Income for such period less (c) all
extraordinary gains added in determining Consolidated Net
Income for such period, in each case determined on a
consolidated basis and in accordance with GAAP for such
period."
(b) The definition of "Consolidated Fixed Charges" contained
in Section 1.1 of the Credit Agreement is hereby amended by deleting
such definition in its entirety and substituting in lieu thereof the
following new definition:
"`Consolidated Fixed Charges': for any period, the
sum, without duplication, of (i) Consolidated Interest Expense
for such period plus any imputed interest included in payments
under Financing Leases and capitalized interest in respect of
Indebtedness for such period, (ii) the aggregate principal
amount or equivalent thereof of all scheduled payments of
Indebtedness of the Borrower and its Subsidiaries during such
period and
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(iii) the aggregate amounts of dividends and distributions
required to be paid by the Borrower during such period in
respect of its outstanding preferred stock, if any."
(c) The definition of "Consolidated Interest Expense"
contained in Section 1.1 of the Credit Agreement is hereby amended by
deleting such definition in its entirety and substituting in lieu
thereof the following new definition:
"`Consolidated Interest Expense': for any period, the
amount which, in conformity with GAAP, would be set forth
opposite the caption "interest expense" or any like caption on
a consolidated income statement of the Borrower and the
Subsidiaries for such period excluding the amortization of any
original issue discount."
(d) The definition of "Required Lenders" contained in Section
1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and substituting in lieu thereof the
following new definition:
"`Required Lenders': (a) at any time when either (i)
Bank of America, N.A. (together with its Affiliates) shall
have an aggregate Credit Exposure of $150,000,000 or less or
(ii) Bank of America, N.A. (together with its Affiliates)
shall have an aggregate Credit Exposure of $200,000,000 or
less and Bank of America, N.A. or Banc of America Mortgage
Capital Corporation (together with any of their respective
Affiliates) shall not be a "Lender" under the Acquisition
Bridge Facility Documents, Lenders, the aggregate Credit
Exposures of which constitute at least 66-2/3% of the
aggregate Credit Exposure of all Lenders at such time and (b)
at all other times, Lenders, the aggregate Credit Exposures of
which constitute at least 75% of the aggregate Credit Exposure
of all Lenders at such time."
(e) The definition of "Revolving Credit Note" contained in
Section 1.1 of the Credit Agreement is hereby amended by deleting the
reference to "Term Loan Lender" and substituting in lieu thereof the
new reference "Revolving Credit Lender".
(f) Section 6.12 of the Credit Agreement is hereby amended by
deleting Paragraph (b) thereof in its entirety and substituting in lieu
thereof the following new Paragraph:
"(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof shall:
(i) (A) if such Lender is a "bank" within
the meaning of Section 881(c)(3)(A) of the Code,
deliver to the Borrower and the Administrative Agent
two complete and executed (x) U.S. Internal Revenue
Forms W-8BEN (or any successor form thereto) with
respect to an income tax treaty providing for a zero
rate of withholding tax on interest, or (y) U.S.
Internal Revenue Service Forms W-8ECI (or any
successor form thereto), or (B) if such Lender is not
a "bank" within the meaning of Section 881(c)(3)(A)
of the Code deliver to the Borrower and the
Administrative Agent two complete and executed U.S.
Internal Revenue Service Forms W-8BEN (or any
successor form thereto), including all appropriate
attachments and (y) a certificate substantially in
the form of Exhibit D (a "Non-Bank Status
Certificate");
(ii) deliver to the Borrower and the
Administrative Agent two further copies of any such
form or certification on or before the date that any
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such form or certification expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for
filing and complete such forms or certifications as
may reasonably be requested by the Borrower or the
Administrative Agent;
unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative
Agent. Such Lender shall certify (i) in the case of a Form
W-8BEN or W-8ECI (or any successor form thereto), that it is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes and (ii) in the case of a Non-Bank Status Certificate,
that it is not a "bank" as such term is defined in Section
881(c)(3)(A) of the Code. Each Person that shall become a
Lender or a Participant pursuant to Section 13.6 shall, upon
the effectiveness of the related transfer, be required to
provide all of the forms and statements required pursuant to
this Section; provided, that in the case of a Participant such
Participant shall furnish all such required forms and
statements to the Lender from which the related participation
shall have been purchased."
(g) Section 10.10 of the Credit Agreement is hereby amended by
adding the words "other than" before the phrase "on terms that are fair
and reasonable" in the sixth line thereof.
(h) Section 12.9 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof
the following new Section:
"12.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent at any
time by giving written notice thereof to the Lenders and the
Borrower. The Administrative Agent shall resign as
Administrative Agent by giving written notice thereof to the
Lenders and the Borrower if at any time the Administrative
Agent shall cease to hold an aggregate Credit Exposure of at
least $35,000,000. The Required Lenders may, by giving written
notice to the Administrative Agent and the Borrower, remove
the Administrative Agent from its position as Administrative
Agent at any time if any action or failure to act by the
Administrative Agent is determined to have directly resulted
from its gross negligence or willful misconduct. Upon any such
resignation or removal, the Required Lenders shall have the
right to appoint a successor Administrative Agent with, so
long as no Event of Default has occurred and is continuing at
the time of the related appointment, the approval of the
Borrower (such approval not to be unreasonably withheld or
delayed and such approval to be deemed to have been given if
no objection thereto is received by the Required Lenders
within two Business Days after the date on which notice of the
proposed appointment is provided to the Borrower). If no
successor Administrative Agent shall have been appointed by
the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Administrative Agent's
receiving notice of removal, then the retiring or removed
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a commercial
bank organized under the laws of the United States of America
or any state thereof and having a combined capital and surplus
of at least $100,000,000. If within 45 days after written
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notice is given of the Administrative Agent's resignation or
removal no successor Administrative Agent shall have been
appointed and shall have accepted such appointment, then on
such 45th day (a) the Administrative Agent's resignation or
removal shall become effective, (b) the Administrative Agent
shall thereupon be discharged from its duties and obligations
under the Loan Documents and (c) the Required Lenders shall
thereafter perform all duties and obligations of the
Administrative Agent under the Loan Documents until such time,
if any, as the Required Lenders appoint a successor
Administrative Agent. Upon acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and
duties of the retiring or removed Administrative Agent, and
the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under the Loan
Documents. After any Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of
this Section 12 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent."
(i) Section 13.6(c) of the Credit Agreement is hereby amended
by deleting the first proviso thereof in its entirety and substituting
in lieu thereof the following new proviso:
"provided, that until the earlier of June 30, 2001
and such time as the Arranger (or the Administrative Agent on
its behalf) shall have notified the Lenders that the
syndication of the Commitments has been completed, no such
assignment shall be permitted, and no Lender shall engage in
any discussions with any Person relating to any such
assignment or potential assignment, without the prior written
consent of the Arranger or the Administrative Agent."
3. Conditions Precedent to the Effectiveness of this Amendment. This
Amendment shall become effective as of the first date (the "Amendment Effective
Date") on which each of the following conditions precedent shall have been
satisfied:
(a) The Administrative Agent shall have received counterparts
of this Amendment executed by the Borrower, all of the Lenders, the
Administrative Agent and each of the Guarantors.
(b) The representations and warranties contained in each of
the Loan Documents shall be correct on and as of the Amendment
Effective Date, before and after giving effect to this Amendment, as
though made on and as of such date.
(c) No event shall have occurred and be continuing, or shall
result from the effectiveness of this Amendment, that constitutes a
Default.
(d) All of the accrued fees and expenses of the Administrative
Agent (including the reasonable accrued and invoiced fees and expenses
of counsel for the Administrative Agent) shall have been paid in full
in accordance with Section 13.5 of the Credit Agreement.
The effectiveness of this Amendment is further conditioned upon the accuracy of
all of the factual matters described herein. This Amendment is subject to the
provisions of Section 13.1 of the Credit Agreement.
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4. Reference to and Effect on the Loan Documents.
(a) On and after the Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as
amended and otherwise modified by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents,
as amended and otherwise modified by the amendments and other
modifications specifically provided above in Section 2, are and shall
continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Administrative Agent under
any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
5. Costs and Expenses. The Borrower hereby agrees to reimburse, upon
demand, all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, the reasonable fees and disbursements of
counsel for the Administrative Agent) in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Amendment and the other documents, instruments and agreements to be delivered
hereunder or in connection herewith, all in accordance with the terms of Section
13.5 of the Credit Agreement.
6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this Amendment.
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7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
XXXXX HOMES INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
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Acknowledged and Accepted:
The Guarantors:
XXXXX HOLDINGS CORP.,
a Delaware corporation
By: /s/ XXXXX XXXXXX
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Name: Xxxxx XxXxxx
Title: Vice President
XXXXX HOMES REALTY, INC.,
a Georgia corporation
XXXXX HOMES/ARIZONA, INC.,
a Florida corporation
XXXXX HOMES/ARIZONA CONSTRUCTION, INC.,
an Arizona corporation
XXXXX HOMES/ATLANTA, INC.,
a Florida corporation
BANYAN TRAILS, INC.,
a Florida corporation
XXXXX HOMES/BROWARD, INC.,
a Florida corporation
XXXXX HOMES/COLORADO, INC.,
a Florida corporation
XXXXX HOMES/GEORGIA, INC.,
a Georgia corporation
XXXXXXXXX HOMES, INC.,
a Florida corporation
XXXXX HOMES/GULF COAST, INC.,
a Florida corporation
XXXXX HOMES/JACKSONVILLE, INC.,
a Florida corporation
XXXXX HOMES/XXXX XXXXXXXXXX, INC.,
a Florida corporation
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XXXXX HOMES/NORTH CAROLINA, INC.,
a Florida corporation
XXXXX HOMES/ORLANDO, INC.,
a Florida corporation
XXXXX HOMES/PALM BEACH, INC.,
a Florida corporation
XXXXX HOMES/PEMBROKE, INC.,
a Florida corporation
PEMBROKE FALLS REALTY, INC.,
a Florida corporation
PREFERRED BUILDERS REALTY, INC.,
a Florida corporation
PREFERRED HOME MORTGAGE COMPANY,
a Florida corporation
XXXXX HOMES/SOUTHWEST FLORIDA, INC.,
a Florida corporation
ST. TROPEZ AT BOCA GOLF, INC.,
a Florida corporation
XXXXX HOMES/TEXAS, INC.,
a Florida corporation
UNIVERSAL LAND TITLE, INC.,
a Florida corporation
UNIVERSAL LAND TITLE OF COLORADO, INC.,
a Colorado corporation
XXXXX HOMES/VIRGINIA, INC.,
a Florida corporation
UNIVERSAL LAND TITLE OF VIRGINIA, INC.,
a Virginia corporation
UNIVERSAL LAND TITLE OF TEXAS, INC.,
a Texas corporation
UNIVERSAL LAND TITLE AGENCY, INC.,
a Arizona corporation
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
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UNIVERSAL LAND TITLE OF THE PALM BEACHES, LTD.,
a Florida limited partnership
PROFESSIONAL ADVANTAGE TITLE, LTD.,
a Florida limited partnership
THE CENTURY TITLE AGENCY, LTD.,
a Florida limited partnership
EASTERN TITLE SERVICES, LTD.,
a Florida limited partnership
By: UNIVERSAL LAND TITLE, INC.
a Florida corporation and its general partner
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
XXXXX HOMES DELAWARE, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
XXXXX HOMES FINANCING, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
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