Exhibit 10.9
AMENDMENT TO MASTER LOAN AGREEMENT
(Under Revolving Line of Credit)
THIS AMENDMENT, made as of the ___ day of December, 1996, by and
between Xxxxxx Housing Corporation, a Florida corporation, whose address 0000
Xxxxxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, ("Borrower"), and
NationsBank, N.A. (South), a national banking association, successor by merger
to NationsBank of Florida, N.A., whose address is 0000 X. Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000, ("Bank").
Recitals
A. In connection with a revolving line of credit loan by Bank to
Borrower for residential construction (the "Loan"), Borrower has previously
executed and delivered its Promissory Note (Revolving Line of Credit) dated
November 15, 1994, in the amount of $5,700,000.00, Additional Advance Promissory
Note (Revolving Line of Credit) dated November 17, 1995, in the amount of
$1,300,000.00, and Consolidation and Renewal Promissory Note (Revolving Line of
Credit) dated November 17, 1995, in the amount of $7,000,000.00, which are
secured by a certain Real Estate Mortgage, Assignment and Security Agreement
recorded Official Records Book 7590, page 1612, of the public records of
Hillsborough County, Florida, and in Official Records Book 3371, page 1582, of
the public records of Pasco County, Florida, as modified, extended, or amended,
(the "Mortgage") and other recorded and unrecorded loan documentation.
B. The Loan is to be administered in accordance with the terms of an
Amended and Restated, Master Loan Agreement dated November 17, 1995 (the "Loan
Agreement").
C. Borrower has requested and Bank has agreed to increase the amount of
the Loan by a future advance in the amount of $3,000,000.00 secured by the
Mortgage and administered under the terms of the Loan Agreement, except as
modified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Note, Mortgage and Loan Agreement, of the loan funds being
advanced from time to time by Bank to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. The foregoing recitals are acknowledged as true and correct and are
incorporated herein.
2. References in the Loan Agreement to the "Note" are expressly amended
to include the Promissory Note (Revolving Line of Credit) dated November 15,
1994, in the amount of $5,700,000.00, Additional Advance Promissory Note
(Revolving Line of Credit) dated November 17, 1995, in the amount of
$1,300,000.00, and Consolidation and Renewal Promissory Note (Revolving Line of
Credit) dated November 17, 1995, in the amount of $7,000,000.00, the Additional
Advance Promissory Note (Revolving Line of Credit) of even date in the principal
amount of $3,000,000.00, and the Consolidation and Renewal Promissory Note
(Revolving Line of Credit) of even date in the principal
/s/ RJS
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amount of $10,000,000.00. The additional definitions of "Note" shall remain in
effect as well.
3. Paragraph 2.3 of the Loan Agreement is modified and amended to read
as follows:
2.3 Approvals for Funding. Bank will advance funds for the
acquisition of lots and the costs of construction of single family
dwellings ("Units") on individual lots owned or to be acquired by
Borrower and mortgaged to Lender in Hillsborough, Pasco, and Pinellas
Counties in Florida, and in such other counties as Lender may approve.
Loan proceeds shall be used solely (i) to fund construction of Units
for which Lender has approved the plans and specifications, and (ii) to
finance the acquisition of developed lots in subdivisions approved by
Lender. Lender will disburse Loan proceeds subject to the following
limitations:
(a) The amount to be funded on each Pre-Sold Unit (as
hereinafter defined) shall be an amount equal to 80% of the lesser of:
(i) the "completed value" of such Unit, which amount shall be
determined by an appraisal satisfactory to Lender; or (ii) the
contracted purchase price for the Unit; provided, however, that in no
event shall Lender be obligated to fund Loan proceeds in an amount in
excess of 100% of the Unit cost breakdown submitted by Borrower and
approved by Lender.
(b) The amount to be funded for each Spec Unit and
Model Unit (as hereinafter defined) shall be in an amount equal to 80%
of the "completed value" of said Spec Unit or Model Unit, which amount
shall be determined by an appraisal satisfactory to Lender; provided,
however, that in no event shall Lender be obligated to disburse Loan
proceeds in excess of 100% of the Unit cost breakdown submitted by
Borrower and approved by Lender.
(c) Use of Loan proceeds for the construction of
Units shall be limited to: 55 Spec and Model Units and a total amount
outstanding and committed of $5,500,000.00 at any one time; and 35
Pre-Sold Units and a total amount outstanding and committed of
$3,500,000.00 at any one time.
(d) Each individual Unit financed under the Loan
shall be completed in a period not to exceed six (6) months from the
date construction commences.
(e) The total amount to be funded for the costs of
construction of a Unit, as approved and allocated by Lender pursuant to
Subparagraphs 3(a) and (b) of this Commitment shall be called the
"Committed Unit Amount." Once Lender approves the commencement of
construction of a Unit, the Committed Unit Amount shall be reserved
under the Loan, and shall not be available for disbursement for
construction of any other Units. After making the initial disbursement
under the Committed Unit Amount, the remaining unfunded Committed Unit
Amount will be disbursed on a percentage basis in accordance
/s/ RJS
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with the attached Percentage Completion Schedule and the terms of this
Commitment. Lender shall not in any case be obligated to approve or
fund the construction of a new Unit unless there are sufficient
"available" Loan proceeds to complete the construction of that Unit.
For purposes of this Commitment, the term "available" Loan proceeds
shall mean the amount derived by subtracting the total Committed Unit
Amounts from the original, principal amount of the Loan.
(f) Use of Loan proceeds for the purchase of
developed lots shall be limited to 70 lots and a total amount
outstanding and committed of $1,000,000.00 at any one time. The amount
to be funded for each lot shall be an amount equal to the lesser of (i)
Borrower's cost, or (ii) 75% of appraised value. Any unused lot
allocation of the Loan may be used for additional Pre-Sold Units,
subject to the same conditions as to the amounts to be advanced.
(g) Use of Loan proceeds shall be limited to a
maximum of 10 Spec or Model Units in any one subdivision at any one
time, and 25 lots in any one subdivision at any one time, unless
otherwise approved by Lender.
Pre-Sold Units are defined as those having a firm purchase contract
negotiated at arm's length with bona fide third party purchasers (no relatives
or affiliates of Borrower or Guarantors) with no contingencies except a first
mortgage financing contingency and either (a) a minimum of 5% deposit, and a
preliminary mortgage approval from an institutional lender to include income
qualification and credit verification, or (b) a minimum of 10% deposit on a
contract for all cash. A Spec Unit is defined as a Unit for which a firm
purchase contract meeting the foregoing requirements has not been received or
approved. A Model Unit is defined as a Unit constructed and furnished initially
for inspection by prospective purchasers. Assuming the Loan is not in default
and Borrower has otherwise complied with the terms of the Loan Agreement as to
partial releases, Units will be released from the Mortgage upon payment of the
actual amount funded under the line for each Unit, plus accrued unpaid interest
thereon.
All remaining terms and provisions of Paragraph 2.3 shall be unchanged.
4. Paragraph 5.11 of the Loan Agreement is modified and amended to read
as follows:
5.11 Financial Statements. Borrower will provide Lender with: (a)
quarterly 10-Q filings for International American Homes, Inc., including
internally prepared consolidating financial information for Xxxxxx Xxxxxxxx
Corporation and Xxxxxx Housing Corporation, within 60 days of the end of each
quarter; and (b) annual 10-K for International American Homes, including
consolidating financial information for Xxxxxx Xxxxxxxx Corporation and Xxxxxx
Housing Corporation, within 120 days of fiscal year end. Any individual
Guarantor shall provide personal financial statements on Lender's form annually
within 120 days of the anniversary date of a previously submitted financial
statement.
5. The existing individual guaranty of Xxxxxx X. Xxxxxx will be
released as to sums previously advanced and his guaranty shall not extend to
sums advanced under
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the Loan in the future, for the construction of Pre-Sold Units. Furthermore, if
the financial statements for International American Homes, Inc. tested
semi-annually, show a Tangible Net Worth of $7,200,000 or more, and a Total
Debt/Tangible Net Worth ratio (adjusted for bonds) of 2.75:1, or better, then
the personal guaranty of Xxxxxx X. Xxxxxx will be abated as to 50% of the sums
previously advanced or advanced in the future for the construction of Spec and
Model Units and lots. If the financial statements for International American
Homes, Inc. tested semi-annually, show a Tangible Net Worth of $7,500,000 or
more, and a Total Debt/Tangible Net Worth ratio (adjusted for bonds) of 2.50:1,
or better, then the personal guaranty of Xxxxxx X. Xxxxxx will be abated in
full. The personal guaranty of Xx Xxxxxx will be reinstated consistent with the
foregoing standards if International American Homes, Inc. fails to maintain the
stated ratios. Borrower will at all times report its financial condition using
generally accepted accounting principles consistently applied, except to the
extent modified by the following definitions:
(a) Tangible Net Worth: "Tangible Net Worth" is defined as the
aggregate of total shareholders' equity plus any debt to Related
Parties (as hereinafter defined) which are subordinated to the Loan,
less any intangible assets and any obligations due from shareholders,
partners, employees, and/or affiliates.
(b) Ratio of Total Debt to Tangible Net Worth: The "Ratio of
Total Debt to Tangible Net Worth," is defined as the aggregate of
current liabilities and non-current liabilities (excluding contingent
liabilities and non-recourse bonds) less subordinated loans from
Related Parties (as hereinafter defined), divided by Tangible Net
Worth.
(c) Related Parties: "Related Parties" shall mean the partners
or shareholders of Borrower, or any corporations, trusts, partnerships,
or other entities in which Borrower owns directly, or indirectly, a 51%
interest.
6. In all remaining respects the terms and provisions of the Loan
Agreement shall be unchanged, and Borrower ratifies and reaffirms the terms
thereof.
IN WITNESS WHEREOF, the undersigned Borrower and Guarantor have set
their hands and seals.
Xxxxxx Housing Corporation,
a Florida corporation
{Seal}
/s/ By: /s/ Xxxxxx X. Xxxxxx
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Witness
/s/ Its: President
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Witness
"Borrower"
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NationsBank, N.A. (South), successor by
merger to NationsBank of Florida N.A.
{Seal}
/s/ By: /s/
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Witness
/s/ Its: Vice President
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Witness
"Bank"
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JOINDER OF GUARANTOR
The undersigned as Guarantor hereby joins in and consents to the
foregoing Amendment to Amended and Restated Master Loan Agreement.
International American Homes, Inc.,
a Delaware corporation
{Seal}
/s/ By: /s/ Xxxxxx X. Xxxxxx
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Witness
/s/ Its: President
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Witness
/s/
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Witness
/s/ By: /s/ Xxxxxx X. Xxxxxx
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Witness Xxxxxx X. Xxxxxx
"Guarantor"
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