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Exhibit 10.30
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (the "FIRST AMENDMENT") dated as of September 29, 2000 by and among
XXXXXX HOMES, INC. ("XXXXXX HOMES"), XXXXXX HOLDINGS, INC., HEARTHSIDE HOMES,
LLC, XXXXXX NATIONAL LAND HOLDING CORPORATION, XXXXXX NATIONAL HOMES HOLDING
CORPORATION, and XXXXXX LEASING, LLC, as Borrowers and Guarantors, XXXXXX
NATIONAL CORPORATION ("XXXXXX NATIONAL"), XXXXXX HOMES OF INDIANA, L.L.C. and
XXXXXX HOMES KENTUCKY, LLC ("XXXXXX HOMES KENTUCKY"), as Guarantors, the Banks
set forth below, BANK OF AMERICA, N.A. and BANK ONE, NA, as Co-Agents, and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as Agent for the Banks (the
"AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Banks, the
Co-Agents and the Agent are parties to that certain Third Amended and Restated
Credit Agreement dated as of April 13, 2000 (the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers and the Guarantors have requested that
certain covenants of the Credit Agreement be amended as set forth herein;
WHEREAS, the Banks are willing to enter into such amendments
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. DEFINITIONS.
Defined terms used herein and not otherwise defined herein shall have
the meanings given to them in the Credit Agreement, as amended by this First
Amendment.
2. AMENDMENT OF CREDIT AGREEMENT.
A. Section 8.2(f) [Liquidations, Mergers, Consolidations,
Acquisitions] of the Credit Agreement is hereby amended by deleting such section
in its entirety and inserting in lieu thereof the following:
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(f) LIQUIDATIONS, MERGERS, CONSOLIDATIONS, ACQUISITIONS
Each of the Loan Parties shall not dissolve,
liquidate or wind up its affairs, or become a party to any merger or
consolidation, or acquire by purchase, lease or otherwise all or
substantially all of the assets or capital of any other person;
PROVIDED that (i) any Loan Party other than the Borrowers may
consolidate or merge into another Loan Party, (ii) the Loan Parties may
acquire all or substantially all of the assets or all of the capital
stock of other persons engaged in the same business as the business of
the Loan Parties with the prior written consent of the Required Banks,
such consent to be granted or withheld in their sole discretion, and
(iii) Xxxxxx Kentucky may sell all or substantially all of its assets
pursuant to the terms of that certain Asset Purchase Agreement dated as
of September 29, 2000 by and among Xxxxxx Homes Kentucky, as seller,
Olympia Homes, LLC as buyer, and Xxxxxx Homes, as indemnitor (the
"ASSET PURCHASE AGREEMENT").
B. Section 8.2(g) [Disposition of Assets or Subsidiaries] of
the Credit Agreement is hereby amended by deleting such section in its entirety
and inserting in lieu thereof the following:
(g) DISPOSITION OF ASSETS OR SUBSIDIARIES
Each of the Loan Parties shall not sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily
or involuntarily, any of its properties or assets, tangible or
intangible (including but not limited to sale, assignment, discount or
other disposition of accounts, contract rights, chattel paper,
equipment or general intangibles, with or without recourse, or of
capital stock, shares of beneficial interest or partnership interests
of a Subsidiary), except:
(i) transactions involving the sale of land and
building inventory in the ordinary course of business;
(ii) any sale, transfer, lease, abandonment or other
disposition of assets in the ordinary course of business which are no
longer necessary or required in the conduct of the Loan Party's
business;
(iii) any sale, transfer or lease of assets in the
ordinary course of business which are replaced by substitute assets
acquired; and
(iv) the asset sales by Xxxxxx Homes Kentucky and
Xxxxxx Homes described in (a) the Asset Purchase Agreement and (b) that
certain Termination Agreement dated as of September 29, 2000 by and
among Xxxxxx Homes, Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx (the
"TERMINATION AGREEMENT" and, together with the Asset Purchase
Agreement, collectively the "PURCHASE AGREEMENTS").
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3. CONDITIONS OF EFFECTIVENESS OF THIS FIRST AMENDMENT.
The effectiveness of this First Amendment is expressly conditioned upon
satisfaction of each of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. The representations
and warranties of the Loan Parties contained in Section 6 of the Credit
Agreement shall be true and accurate on the date hereof with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which relate solely to an earlier date or
time, which representations and warranties shall be true and correct on and as
of the specific dates or times referred to therein); the Loan Parties shall have
performed and complied with all covenants and conditions of the Credit
Agreement; and no Event of Default or Potential Default under the Credit
Agreement shall have occurred and be continuing or shall exist.
(b) COUNTERPARTS OF FIRST AMENDMENT. The Agent shall have received
counterparts of this First Amendment duly executed by the Loan Parties and the
Banks. This First Amendment may be executed by the parties hereto in any number
of separate counterparts, each of which when taken together and duly executed
and delivered shall together constitute one and the same instrument.
(c) SECRETARY'S CERTIFICATE. The Agent shall have received a
certificate signed by the Secretary or Assistant Secretary of Xxxxxx National,
Xxxxxx Homes and Xxxxxx Homes Kentucky certifying as to all action taken by
Xxxxxx National, Xxxxxx Homes and Xxxxxx Homes Kentucky to authorize the
execution, delivery and performance of the Asset Purchase Agreement and the
Termination Agreement and the documents executed in connection therewith.
(d) CLOSING OF ASSET SALES. The Agent shall have received a fully
executed copy of the Purchase Agreements and the asset sales contemplated by the
Purchase Agreements shall be consummated substantially on the terms set forth in
the drafts of the Purchase Agreements previously provided to the Agent.
(e) CASH PROCEEDS. All cash proceeds received by any of the Loan
Parties pursuant to the Asset Purchase Agreement shall immediately upon receipt
be applied, first, to prepay the Term Loans and, second, to prepay the Revolving
Credit Loans.
(f) NOTES. Xxxxxx Homes shall, immediately upon receipt, endorse the
Amenities Notes and the Inventory Note (both as defined in the Termination
Agreement and, collectively, the "NOTES") to the Agent, on behalf of the Banks,
and deliver the original Notes to the Agent, on behalf of the Banks, and assign
the Amenities Mortgage and the Inventory Mortgage to the Agent on behalf of the
Banks.
4. FORCE AND EFFECT.
Except as expressly modified by this Amendment, the Credit Agreement
and the other Loan Documents are hereby ratified and confirmed and shall remain
in full force and effect on and after the date hereof.
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5. GOVERNING LAW.
This First Amendment shall be deemed to be a contract under the laws of
the State of Ohio and for all purposes shall be governed by and construed and
enforced in accordance with the internal laws of the State of Ohio without
regard to its conflict of laws principles.
6. FEES AND EXPENSES.
The Borrower hereby agrees to reimburse the Agent and the Banks on
demand for all fees, costs, expenses and disbursements (including without
limitation attorneys' fees) relating to this First Amendment which are payable
by the Loan Parties as previously agreed to by the Borrower and as provided in
Sections 10 and 11 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
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[PAGE 1 OF 3 TO FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
BORROWERS AND GUARANTORS:
XXXXXX HOMES, INC.
By:______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
XXXXXX HOLDINGS, INC.
By:______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Treasurer
HEARTHSIDE HOMES, LLC
By: Xxxxxx National Corporation, as member
By:______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL LAND HOLDING CORPORATION
By:______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL HOMES HOLDING CORPORATION
By:______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
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[SIGNATURE PAGE 2 OF 3 TO FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
XXXXXX LEASING, LLC
By: Xxxxxx National Corporation, as sole
member and manager
By:________________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX NATIONAL CORPORATION
By:________________________________________________
Name: Xxxxxx X. Xxxxx
Title: Secretary/Treasurer
XXXXXX HOMES OF INDIANA, L.L.C.
By: Xxxxxx Homes, Inc., as member
By:________________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
XXXXXX HOMES KENTUCKY, LLC,
By: Xxxxxx Holdings, Inc., as manager
By:________________________________________________
Name: Xxxxxx X. Xxxxx
Title: Treasurer
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[SIGNATURE PAGE 3 OF 3 TO FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT]
AGENT:
PNC BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank
By:_______________________________________________
Name: Xxxxxx X. XxXxxx
Title: Senior Vice President
CO-AGENTS:
BANK OF AMERICA, N.A., as a Co-Agent and as a Bank
By:_______________________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
BANK ONE, NA, as a Co-Agent and as a Bank
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: First Vice President
OTHER BANKS:
COMERICA BANK,
By:_______________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
THE FIFTH THIRD BANK
By:_______________________________________________
Name: Xxxxx X. Xxxx
Title: Vice President
