EXHIBIT 10.34
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment") made as of June 24, 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 entirely to read as
follows:
"'DRAWDOWN TERMINATION DATE' means the earlier of September
22, 2003, or the day on which any Note first becomes due and payable in
full."
"'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 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 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; and (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, in each case of clauses
(i) through (iv), as the same may be amended, modified, supplemented,
waived, replaced, refinanced from time to time."
"'WET WAREHOUSING SUBLIMIT' means thirty-five percent (35%) of
the Commitment."
ss. 2.2. Limitation on Indebtedness. Subparagraph (d) of Section 6.2 of
the Original Credit Agreement is hereby deleted.
ss. 2.3. Waiver. Lender hereby waives any Default or Event of Default
arising solely as a result of the dissolution of Technical Mortgage in the
manner described above.
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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 the president - chief
executive officer and secretary of Preferred certifying that (i) the
specimen signatures of certain duly elected, qualified and acting
officers of Preferred attached to the Officers' Certificate dated as of
October 15, 2002 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 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
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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
March 31, 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
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.
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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 Amendment 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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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/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Authorized Representative
LENDER: GUARANTY BANK
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Senior Vice President
THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on June 19, 2003,
by Xxxxxx Xxxxxxxxx, Authorized Representative OF PREFERRED HOME MORTGAGE
COMPANY, a Florida corporation, on behalf of said corporation.
/s/ Xxxxxx Xxxxxx
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Notary Public, State of Texas
Xxxxxx Xxxxxx
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(printed name)
My Commission Expires:
03-07-2005
