Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
the 27th day of April, 2005, by and among XXXXXX XXXXX USA L.L.C. (the
"Borrower"), the LENDERS party hereto, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, KEY BANK,
NATIONAL ASSOCIATION, as Documentation Agent, and the GUARANTORS party hereto.
RECITALS:
The Borrower, the Administrative Agent and the Lenders have entered
into a certain Credit Agreement (the "Credit Agreement") dated as of January 20,
2005. Capitalized terms used in this Amendment which are not otherwise defined
in this Amendment shall have the respective meanings assigned to them in the
Credit Agreement.
The Guarantors consist of Owner Guarantors that have executed or
otherwise become a party to the Owner Guaranty Agreement and Subsidiary
Guarantors that have executed or otherwise become a party to the Subsidiary
Guaranty Agreement.
The Borrower and Guarantors have requested the Administrative Agent
and the Lenders to amend the Credit Agreement upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Administrative Agent and the Lenders, intending to be legally bound hereby,
agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference
and shall be deemed to be a part of this Amendment.
SECTION 2. Amendment. The Credit Agreement is hereby amended as
follows:
2.1 The definition of "Secured Indebtedness" set forth in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"Secured Indebtedness" shall mean all Indebtedness of Borrower or
any of its Subsidiaries (excluding Indebtedness owing to Borrower or any of
its Subsidiaries) that is (a) secured by a Lien on assets of Borrower or
any of its Subsidiaries or (b) supported by a guarantee of Borrower or any
Subsidiary (including without limitation purchase money Indebtedness,
Non-Recourse Indebtedness, obligations under sale/leaseback transactions
and obligations under Capital Leases) and in either case is Indebtedness
permitted under Section 7.10 hereof; provided, however, that Indebtedness
under the Subordinated Notes shall not be Secured Indebtedness solely by
reason of clause (b) of this definition.
2.2. Section 6.2 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the end of paragraph (d) thereof, (ii) redesignating paragraph
(e) thereof to be paragraph (f) thereof, and (iii) adding a new paragraph (e)
thereto that shall read in its entirety as follows:
(e) copies of all reports, notices and other information
furnished to any holder of any Subordinated Notes as and when such reports,
notices and other information are so furnished to such holder; and
2.3 Section 7.9 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
7.9 Limitation on Payment of Subordinated Indebtedness. Pay,
repay, purchase or defease any Subordinated Indebtedness, directly or
indirectly, in cash or in other property, or by set-off or in any other
manner, unless and until all Obligations have been paid in full and all
Commitments have been terminated. Notwithstanding the foregoing, Borrower
or any Subsidiary may make scheduled payments of interest on the
Subordinated Indebtedness, may redeem Subordinated Indebtedness pursuant to
provisions of such Subordinated Indebtedness allowing redemption at the
option of the Borrower with the proceeds of any equity offering or after
such Subordinated Indebtedness has been outstanding for a defined period,
may purchase Subordinated Indebtedness by issuer tender offer or open
market purchase and may repay Subordinated Indebtedness upon its scheduled
maturity, so long as no Default or Event of Default has occurred and is
continuing or would occur as a result of making such payment, redemption,
purchase or repayment, as the case may be.
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment and the obligations of the Lenders hereunder are subject to the
following conditions:
(a) receipt by the Administrative Agent of a duly executed counterpart
of this Amendment signed by the Borrower, the Guarantors, and the Required
Lenders; and
(b) the fact that the representations and warranties of the Borrower
contained in Article 4 of the Credit Agreement and in Section 5 of this
Amendment shall be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set forth
above, the text of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall it be construed
as, a novation. The Credit Agreement and this Amendment shall be construed
together as a single agreement. Nothing herein contained shall waive, annul,
vary or affect any provision, condition, covenant or agreement contained in the
Credit Agreement, except as herein amended, nor affect nor impair any rights,
powers or remedies under the Credit Agreement as hereby amended. The Lenders and
the Administrative Agent do hereby reserve all of their rights and remedies
against all parties who may be or may hereafter become secondarily liable for
the repayment of the Obligations. The Borrower promises and agrees to perform
all of the requirements, conditions, agreements and obligations under the terms
of the Credit Agreement, as heretofore and hereby amended, the Credit Agreement,
as amended, being
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hereby ratified and affirmed. The Borrower hereby expressly agrees that the
Credit Agreement, as amended, is in full force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants to each of the Lenders as follows:
(a) No Default under the Credit Agreement has occurred and is
continuing on the date hereof.
(b) The Borrower and Guarantors have the power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by them.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and Guarantors and
constitutes a legal, valid and binding obligation of the Borrower, and each
Guarantor enforceable against it in accordance with its terms, provided that
such enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and the performance
of the Borrower and Guarantors hereunder do not and will not require the consent
or approval of any regulatory authority or governmental authority or agency
having jurisdiction over the Borrower or any Guarantor, nor be in contravention
of or in conflict with the articles of incorporation or bylaws or other
applicable organizational documents of the Borrower, or any Guarantor, or the
provision of any statute, or any judgment, order or indenture, instrument,
agreement or undertaking, to which the Borrower, or any Guarantor is party or by
which the assets or properties of the Borrower or Guarantors are or may become
bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of North Carolina.
SECTION 8. Consent by Guarantors. The Guarantors consent to the
foregoing amendments. Each Guarantor promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty Agreement to which it is a party, said Guaranty Agreement being hereby
ratified and affirmed. Each Guarantor hereby expressly agrees that the Guaranty
Agreement to which it is a party is in full force and effect.
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Exhibit 10.2
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have
caused their respective duly authorized officers or representatives to execute
and deliver, under seal, this Amendment as of the day and year first above
written.
BORROWER:
XXXXXX XXXXX USA L.L.C.,
a Nevada limited liability company
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Manager
Signature Page of
Third Amendment to Second Amended and Restated Credit Agreement
Page 1 of 13
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and a Lender
By:
------------------------------------
Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 2 of 13
BANK OF AMERICA, N.A., as Syndication
Agent and a Lender
By:
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Name:
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Title:
---------------------------------
Signature Page of
First Amendment to Credit Agreement
Page 3 of 13
KEY BANK, NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 4 of 13
FIRST AMERICAN BANK, as a Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 5 of 13
GUARANTY BANK, as a Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 6 of 13
COMERICA BANK, as a Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 7 of 13
NATIONAL CITY BANK, as a Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 8 of 13
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:
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Name:
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Title:
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Signature Page of
First Amendment to Credit Agreement
Page 9 of 13
OWNER GUARANTORS:
ELLY NEVADA, INC., a Nevada corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXXX NEVADA, INC., a Nevada
corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXX NEVADA, INC., a Nevada corporation
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXX NEVADA, INC., a Nevada corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXX NEVADA, INC., a Nevada corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: President
SEYMOUR NEVADA, INC., a Nevada
corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Signature Page of
First Amendment to Credit Agreement
Page 10 of 13
HAYDN NEVADA, INC., a Nevada corporation
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
LITTLE SHOTS NEVADA L.L.C., a Nevada
limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
Signature Page of
First Amendment to Credit Agreement
Page 11 of 13
SUBSIDIARY GUARANTORS:
ASHTON ATLANTA RESIDENTIAL, L.L.C.,
a Georgia limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
ASHTON DALLAS RESIDENTIAL L.L.C.,
a Texas limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
XXXXXX XXXXXXX RESIDENTIAL L.L.C.,
a Texas limited liability company
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Manager
XXXXXX XXXXX ARIZONA L.L.C.,
a Nevada limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
XXXXXX XXXXXXX RESIDENTIAL L.L.C.,
a Nevada limited liability company
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Manager
Signature Page of
First Amendment to Credit Agreement
Page 12 of 13
XXXXXX XXXXXX, LLC,
a Florida limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
ASHTON TAMPA RESIDENTIAL LLC,
a Nevada limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
ASHTON DENVER RESIDENTIAL, LLC,
a Nevada limited liability company
By:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
PINERY JOINT VENTURE, a Colorado joint
venture
By:
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Name: Xxxxx Xxxxxxxxx
Title: Authorized Representative
Signature Page of
First Amendment to Credit Agreement
Page 13 of 13
