EXHIBIT 10.36
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment") made as of September 22, 2003 by and between PREFERRED HOME
MORTGAGE COMPANY, a Florida corporation ("Borrower"), and GUARANTY BANK, a
federal savings bank ("Lender").
WITNESSETH:
WHEREAS, Borrower, Technical Mortgage, L.P., a Texas limited
partnership ("Technical Mortgage"), and Lender entered into that certain Credit
Agreement dated as of August 1, 2002 (as heretofore amended, the "Original
Credit Agreement"), for the purposes and consideration therein expressed,
pursuant to which Lender became obligated to make loans to Borrower and
Technical Mortgage as therein provided; and
WHEREAS, effective February 28, 2003, TM Investments, L.L.C., General
Partner of Technical Mortgage, and NMH Investments, Inc. were merged into
Borrower, and effective March 11, 2003 Technical Mortgage was dissolved, leaving
Borrower as the remaining sole Borrower; and
WHEREAS, Borrower and Lender desire to amend the Original Credit
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original 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
ss. 1.1 TERMS DEFINED IN THE ORIGINAL CREDIT AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Credit Agreement shall have the same meanings
whenever used in this Amendment.
ss. 1.2 OTHER DEFINED TERMS. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this ss. 1.2.
"AMENDMENT" has the meaning set forth in the introductory
paragraph hereto.
"AMENDMENT DOCUMENTS" means, collectively, this Amendment and
the confirmation by Parent with respect to this Amendment.
"CREDIT AGREEMENT" means the Original Credit Agreement as
amended hereby.
"ORIGINAL OMNIBUS CERTIFICATE" means the Omnibus Certificate
dated August 1, 2002 executed and delivered by officers of Borrower pursuant to
the Original Credit Agreement.
ARTICLE II.
AMENDMENTS TO ORIGINAL CREDIT AGREEMENT
ss. 2.1 DEFINITIONS. The following definitions in Section 1.1 of the
Original Credit Agreement are hereby amended in their entirety to read as
follows:
"DRAWDOWN TERMINATION DATE" means the earlier of November 21,
2003, or the day on which any Note first becomes due and payable in full."
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
ss. 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) a duly executed counterpart of this Amendment,
(b) a duly executed Consent and Agreement in the form of
Exhibit A hereto,
(c) a duly executed certificate of officers of Preferred
certifying that (i) the specimen signatures of certain duly elected, qualified
and acting officers of Preferred attached to such officers' certificate are true
and correct, (ii) resolutions of its board of directors attached to the Original
Omnibus Certificate authorizing the execution, delivery, and performance of this
Amendment are in full force and effect, and (iii) the Articles of Incorporation
and Bylaws of Preferred attached to the Original Omnibus Certificate have not
been amended since the date of such Certificate,
(d) each other document to be executed and delivered by
Borrower pursuant hereto or thereto.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
ss. 4.1 REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to induce
Lender to enter into this Amendment, Borrower represents and warrants to Lender
that:
(a) The representations and warranties contained in Article IV
of the Original Credit Agreement are true and correct at and as of the time of
the effectiveness hereof;
(b) Borrower is duly authorized to execute and deliver this
Amendment and other Amendment Documents and is and will continue to be duly
authorized to borrow and to perform its obligations under the Original Credit
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Agreement. Borrower has duly taken all corporate action necessary to authorize
the execution and delivery of this Amendment and the other Amendment Documents
and to authorize the performance of the obligations of such Borrower hereunder
and thereunder;
(c) The execution and delivery by Borrower of this Amendment
and the other Amendment Documents, the performance by such Borrower of its
obligations hereunder and thereunder and the consummation of the transactions
contemplated hereby do not and will not conflict with any provision of law,
statute, rule or regulation or of the articles of incorporation and bylaws of
such Borrower, or of any material agreement, judgment, license, order or permit
applicable to or binding upon such Borrower, or result in the creation of any
lien, charge or encumbrance upon any assets or properties of such Borrower.
Except for those which have been duly obtained, no consent, approval,
authorization or order of any court or governmental authority or third party is
required in connection with the execution and delivery by either Borrower of
this Amendment and the other Amendment Documents or to consummate the
transactions contemplated hereby and thereby;
(d) When duly executed and delivered, each of this Amendment
and the other Amendment Documents will be a legal and binding instrument and
agreement of Borrower, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or similar laws applying to creditors' rights
generally and by principles of equity applying to creditors' rights generally;
and
(e) The draft of audited annual Consolidated financial
statements of Borrower dated as of December 31, 2002 and the unaudited quarterly
Consolidated financial statements of Borrower dated as of June 30, 2003 fairly
present the Consolidated financial position at such dates and the Consolidated
statement of operations and the changes in Consolidated financial position for
the periods ending on such dates for Borrower. Copies of such financial
statements have heretofore been delivered to Lender. Since such dates no
material adverse change has occurred in the financial condition or businesses or
in the Consolidated financial condition or businesses of Borrower.
ARTICLE V.
MISCELLANEOUS
ss. 5.1 RATIFICATION OF AGREEMENT. The Original Credit Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Original Credit Agreement in any Loan Document shall be deemed to refer
to this Amendment also. The execution, delivery and effectiveness of this
Amendment and the other Amendment Documents shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of Lender
under the Original Credit Agreement or any other Loan Document nor constitute a
waiver of any provision of the Original Credit Agreement or any other Loan
Document.
ss. 5.2 SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, and shall further survive
until all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by Borrower hereunder or
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under the Original Credit Agreement to Lender shall be deemed to constitute
representations and warranties by, or agreements and covenants of, Borrower
under this Amendment and under the Original Credit Agreement.
ss. 5.3 LOAN DOCUMENTS. This Amendment and the other Amendment
Documents are each a Loan Document, and all provisions in the Original Credit
Agreement pertaining to Loan Documents apply hereto and thereto.
ss. 5.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance 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.
ss.5.5 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 Agreement may be duly executed by facsimile or other electronic
transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
BORROWER: PREFERRED HOME MORTGAGE COMPANY
By: /s/ XXXXX XXXXXX
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Xxxxx XxXxxx
Vice-President Finance and Administration
LENDER: GUARANTY BANK
By: /s/ XXXXXXX X. XXXX
-----------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
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STATE OF TEXAS )
):SS
COUNTY OF XXXXXX )
This instrument was acknowledged before me on SEPTEMBER 22, 2003, by
XXXXX XXXXXX, VICE PRESIDENT FINANCE AND* of PREFERRED HOME MORTGAGE COMPANY, a
Florida corporation on behalf of said corporation.
*ADMINISTRATION PROVED TO ME THROUGH DRIVER'S LICENSE
/s/ XXXXX X. XXXXXX
------------------------------------------
Notary Public, State of Texas
XXXXX X. XXXXXX
------------------------------------------
(printed name)
My Commission Expires:
8-17-07
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EXHIBIT A
CONSENT AND AGREEMENT
TECHNICAL OLYMPIC USA, INC. hereby consents to the provisions of this
Fifth Amendment to Credit Agreement and the transactions contemplated herein and
hereby ratifies and confirms the Guaranty dated as of August 1, 2002 made by it
for the benefit of Lender, and agrees that its obligations and covenants
thereunder are unimpaired hereby shall remain in full force and effect.
TECHNICAL OLYMPIC USA, INC.
By: /S/ XXXXX XXXXXX
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Name: Xxxxx XxXxxx
By: Vice-President and Chief Financial Officer
