Exhibit 10.3
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
the 21st day of September, 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 dated as of January 20, 2005 (as amended by the
First Amendment to Credit Agreement dated as of April 27, 2005, the "Credit
Agreement"). 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 Section 1.1 of the Credit Agreement is hereby amended by adding the
following definitions:
"Distribution" means any dividend or other distribution (whether
in cash or other tangible property) with respect to any capital stock or
other equity interest of any Person or any Subsidiary, or any payment
(whether in cash or other tangible property) to any Person or Persons other
than the Borrower, including any redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity
interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest.
"Cash Equivalents" means:
(a) marketable obligations with a maturity of 360 days or less
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the full
faith and credit of the United States of America is pledged in support
thereof);
(b) demand and time deposits and certificates of deposit or
acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits not less that $500 million and is
assigned at least a "B" rating by Thomson Financial BankWatch;
(c) commercial paper maturing no more than 180 days from the date
of creation thereof issued by a corporation that is not the Borrower or an
Affiliate of the Borrower, and is organized under the laws of any State of
United States of America or the District of Columbia and rated at least A-1
by S&P or at lease P-1 by Xxxxx'x;
(d) repurchase obligations with a term of not more than ten days
for underlying securities of the types described in clause (a) above
entered into with any commercial bank meeting the specifications of clause
(b) above; and
(e) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types
described in clauses (a) through (d) above.
2.2 Section 7.7 of the Credit Agreement is hereby amended and restated in
its entirety as follows;
7.7 Transactions With Affiliates. Engage in any transaction with
any Affiliate of Borrower or any Subsidiary on terms less favorable to
Borrower or such Subsidiary than would be obtainable at the time in
comparable transactions with Persons not Affiliates of the Borrower or any
Subsidiary, provided that nothing herein shall be deemed to restrict any
capital contribution or equity purchase by any Affiliate of the Borrower to
or from the Borrower or any Distribution made by the Borrower in accordance
with Section 7.11 hereof.
2.3 Section 7.11 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
7.11. Limitation on Distributions. Declare or make, directly or
indirectly, any Distribution, or incur any obligation (contingent or
otherwise) to do so, except that, so long as no Default shall have occurred
and be continuing at the time of any Distribution or would result
therefrom, Borrower may make Distributions on any date in an amount not to
exceed
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(i) fifty percent (50%) of Consolidated Earnings earned between
June 1, 2004 and the date of such Distribution, plus
(ii) one hundred percent (100%) of the aggregate amount of cash
or Cash Equivalents received by the Borrower either (x) as contributions to
common equity of the Borrower after June 1, 2005 or (y) from the issuance
and sale of equity interests after such date, other than any such amounts
received from a Subsidiary of the Borrower, minus
(iii) the amount of any Distributions previously made between
June 1, 2004 and the date of such Distribution.
Further, notwithstanding the foregoing, so long as no Default
shall have occurred and be continuing at the time of any Distribution or
would result therefrom, Borrower may make Distributions in addition to
Distributions made pursuant to the foregoing limitations, to its direct
parents in amounts required to pay federal, state and local income taxes
payable by such direct parent that are solely attributable to the income of
the Borrower and its Subsidiaries by virtue of the Borrower being a
pass-through entity for federal or state income tax purposes; provided,
however, that (a) the amount of Distributions paid with respect to such tax
obligations at any time will not exceed the amount of such federal, state
and local income taxes actually owing by any such direct parent at such
time for the respective period (excluding any tax liability of any such
direct parent not attributable to the Borrower or its Subsidiaries)
(provided that the Borrower may make periodic Distributions based on an
estimate of such tax liability with an annual reconciliation at the end of
each tax year) and (b) any refunds received by or on behalf of, or any
overpayment based on the annual reconciliation to, any of the Borrower's
direct parents attributable to the Borrower and its Subsidiaries shall
promptly be returned by such direct parent to the Borrower or credited
against the Borrower's ability to make additional Distributions pursuant to
the foregoing provisions of this Section 7.11.
2.4 Section 7.16 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
7.16 Increase in Capital. Increase the capital of Borrower or any
Guarantor by transferring assets among Borrower and Guarantors or
Borrower's Affiliates to Borrower and Guarantor, provided that nothing
herein shall prohibit the purchase of additional equity interests from, or
the making of a capital contribution to, Borrower by any parent of Borrower
that is also a Guarantor.
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;
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(b) receipt by the Administrative Agent from the Borrower of any and
all fees and expenses to be paid by the Borrower to the Administrative Agent in
connection with this Amendment; and
(c) 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 so amended, is 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.
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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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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
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Amendment to Credit Agreement
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and a Lender
By:
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Name:
----------------------------------
Title:
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Amendment to Credit Agreement
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BANK OF AMERICA, N.A., as Syndication
Agent and a Lender
By:
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Name:
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Title:
---------------------------------
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Amendment to Credit Agreement
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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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Amendment to Credit Agreement
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FIRST AMERICAN BANK, as a Lender
By:
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Name:
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Title:
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Amendment to Credit Agreement
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GUARANTY BANK, as a Lender
By:
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Name:
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Title:
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Amendment to Credit Agreement
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COMERICA BANK, as a Lender
By:
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Name:
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Title:
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Amendment to Credit Agreement
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NATIONAL CITY BANK, as a Lender
By:
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Name:
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Title:
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Amendment to Credit Agreement
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U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:
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Name:
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Title:
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Amendment to Credit Agreement
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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:
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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: 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
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Amendment to Credit Agreement
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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
Amendment to Credit Agreement
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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:
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Name: Xxxxx Xxxxxxxxx
Title: Manager
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Amendment to Credit Agreement
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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
Amendment to Credit Agreement
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