XXXXXX, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1996
EXHIBIT 4
EIGHTH AND NINTH AMENDMENTS TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EIGHTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This EIGHTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Eighth Amendment") is dated as of January 31, 1997, and
entered into by and among Xxxxxx, Inc., a New Jersey corporation ("Company"),
Xxxxxx Funding, Inc., a New Jersey corporation (together with Company, the
"Borrowers"), the subsidiaries of Company listed on the signature pages hereof
as guarantors (the "Guarantors"), the financial institutions listed on the
signature pages hereof ("Lenders") and The Chase Manhattan Bank (formerly known
as Chemical Bank), as agent for Lenders ("Agent") and as collateral agent for
Lenders ("Collateral Agent") and is made with reference to that certain Amended
and Restated Loan and Security Agreement dated as of May 28, 1993 (such
agreement, as amended through the date hereof and as it may hereafter be
amended from time to time, the "Amended Loan Agreement"), by and among
Borrowers, Guarantors, Lenders, Agent and Collateral Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Amended Loan Agreement.
RECITALS
WHEREAS, the Amended Loan Agreement has heretofore been amended by
the First Amendment to Amended and Restated Loan and Security Agreement dated
as of September 27, 1993; the Second Amendment to Amended and Restated Loan and
Security Agreement dated as of October 14, 1993: the Limited Waiver, Release
and Consent Regarding Sale of Lancot Mortgage Co., Inc., dated as of
October 14, 1993; the Third Amendment to Amended and Restated Loan and Security
Agreement dated as of January 19, 1994; the Fourth Amendment to Amended and
Restated Loan and Security Agreement dated as of February 28, 1994; the Joinder
Agreement dated as of June 1, 1994 entered into by Pennway Joint Venture, L.P.
in favor of the Collateral Agent (for the benefit of the Lenders); the Joinder
Agreement, Amendment and Limited Waiver (Xxxxxx Homes of Chicago, Inc.) dated
as of September 12, 1994; the Fifth Amendment to Amended and Restated Loan and
Security Agreement dated as of February 23, 1995; the Sixth Amendment to
Amended and Restated Loan and Security Agreement dated as of May 31, 1995; and
the Seventh Amendment to Amended and Restated Loan and Security Agreement dated
as of February 23, 1996;
WHEREAS, subsection 2.8A of the Amended Loan Agreement provides that
the Issuing Lender shall not issue any Letter of Credit with an expiration date
later than the earlier of (x) the Commitment Termination Date and (y) the date
that is one year from the date of issuance of such Letter of Credit;
WHEREAS, Credit Parties and Lenders desire to amend the Amended Loan
Agreement in order to allow the Issuing Lender to extend the expiration date of
the Letters of Credit identified on Schedule 1 hereto beyond the Commitment
Termination Date, to February 28, 1998, and to provide that the reimbursement
obligations of any Letters of Credit that remain outstanding on the Commitment
Termination Date shall be cash collateralized by the Borrowers;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE AMENDED LOAN AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms.
A. Subsection 1.1 of the Amended Loan Agreement is hereby amended by
adding the following definitions thereto in alphabetical order:
"Eighth Amendment" means the Eighth Amendment to Amended and Restated
Loan and Security Agreement dated as of January 31, 1997, by and among
Borrowers, Guarantors, Lenders, Agent and Collateral Agent.
1.2 Amendments to Section 2: Amounts and Terms of Loans.
A. Subsection 2.8A of the Amended Loan Agreement is hereby amended
by deleting the second sentence therefrom in its entirety and substituting the
following two sentences therefor:
"In no event shall the Issuing Lender issue any Letter of Credit
having an expiration date later than the earlier of (x) the Commitment
Termination Date and (y) the date which is one year from the date of
issuance of such Letter of Credit; provided that (i) clause (y) of this
sentence shall not prevent the Issuing Lender from agreeing that a Letter
of Credit will be automatically extended for a period not to exceed one
year unless the Issuing Lender elects not to extend for such additional
period and (ii) this sentence shall not prevent the Issuing Lender from
agreeing to extend the expiration date of the Letters of Credit identified
on Schedule 1 to the Eighth Amendment to a date not later than February
28, 1998. On the Commitment Termination Date, an amount equal to the
maximum amount that may at any time be drawn on all Letters of Credit then
outstanding (including, without limitation, Letters of Credit with
expiration dates after the Commitment Termination Date, and whether or not
any beneficiary under any Letter of Credit shall have presented or shall
be entitled to present, the drafts and other documents required to draw
under the Letter of Credit) shall automatically become immediately due and
payable, without presentment, demand, protest or other requirement of any
kind, all of which are hereby expressly waived by each Borrower. Such
amount shall be held by the Issuing Lender, pursuant to such documentation
as the Issuing Lender shall request, as cash collateral for the obligation
of Borrowers to reimburse the Issuing Lender in the event of any drawing
upon such Letters of Credit. Such cash collateral shall be held and
applied by the Issuing Lender as described in the final paragraph of
Section 8."
Section 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS
Section 1 of this Eighth Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Eighth
Amendment Effective Date"):
A. On or before the Eighth Amendment Effective Date, Credit Parties
shall deliver to Lenders (or to Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its
counsel) the following, each, unless otherwise noted, dated the Eighth
Amendment Effective Date:
1. Resolutions of its Board of Directors or, in the case of a
Credit Party which is not a corporation, resolutions of the Board of
Directors of the general partner or other Person authorized to act on
its behalf, approving and authorizing the execution, delivery and
performance of this Eighth Amendment, certified as of the Eighth
Amendment Effective Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment; and
2. Signature and incumbency certificates of its officers
executing this Eighth Amendment, certified as of the Eighth Amendment
Effective Date by its corporate secretary or assistant secretary;
3. Executed copies of this Eighth Amendment.
B. Borrowers shall have paid all fees, costs and expenses of Agent
(including fees and expenses of counsel for Agent) and Xxxxxxx accrued and
unpaid as of the Eighth Amendment Effective Date.
C. On or before the Eighth Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Agent, acting on behalf of Xxxxxxx, and its
counsel shall be satisfactory in form and substance to Agent and such
counsel, and Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Agent may
reasonably request.
Section 3. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Xxxxxxx to enter into this Eighth Amendment and to
amend the Amended Loan Agreement in the manner provided herein, each Credit
Party represents and warrants to each Lender that the following statements are
true, correct and complete:
A. Corporate Power and Authority. Such Credit Party has all
requisite corporate or partnership power and authority to enter into this
Eighth Amendment and to carry out the transactions contemplated by, and perform
its obligations under, the Amended Loan Agreement as amended by this Eighth
Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery by such
Credit Party of this Eighth Amendment and the performance by such Credit Party
of the Amended Agreement have been duly authorized by all necessary corporate
or partnership action on the part of such Credit Party, as the case may be.
C. No Conflict. The execution and delivery by such Credit Party of
this Eighth Amendment and the performance by such Credit Party of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to such Credit Party or any of its
Subsidiaries, or any order, judgment or decree of any court or other agency of
government binding on such Credit Party or any of its Subsidiaries, (ii)
violate any provision of the Certificate or Articles of Incorporation or Bylaws
of such Credit Party if it is a corporation or of its general partner or such
other person or persons authorized to act on its behalf if it is not a
corporation, (iii) violate any provision of its partnership, joint venture or
similar organizational agreement if it is not a corporation, (iv) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of such Credit Party or any of
its Subsidiaries, (v) result in or require the creation or imposition of any
Lien upon any of the properties or assets of such Credit Party or any of its
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Collateral Agent on behalf of Lenders), or (vi) require any approval
of stockholders or partners or any approval or consent of any Person under any
Contractual Obligation of such Credit Party or any of its Subsidiaries, except
for such approvals or consents which have been obtained on or before the Eighth
Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by such
Credit Party of this Eighth Amendment and the performance by such Credit Party
of the Amended Agreement do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Eighth Amendment and the Amended
Agreement have been duly executed and delivered by each of the Credit Parties
party thereto and are the legally valid and binding obligations of each such
Credit Party, enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties From Amended
Loan Agreement. The representations and warranties contained in Section 5 of
the Amended Loan Agreement are and will be true, correct and complete in all
material respects on and as of the Eighth Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Eighth Amendment that would constitute an Event of Default or a Potential Event
of Default.
H. Subsidiaries of Borrowers. Other than the Guarantors listed on
the signature pages hereof, no Subsidiary of the Borrowers owns assets with any
material value.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Borrowers are each party to the Borrower Security Agreement, the
Borrower Pledge Agreement, the Account Collateral Security Agreement and
certain other Security Documents, in each case as amended through the Eighth
Amendment Effective Date, pursuant to which Borrowers have created Liens in
favor of Collateral Agent on certain Collateral to secure the Obligations of
the Borrowers. Each Guarantor is a party to the Amended Guaranty Agreement and
certain Guarantors are parties to the Guarantor Security Agreement, the
Guarantor Pledge Agreement, the Account Collateral Security Agreement, certain
Mortgages, and/or certain other Security Documents, in each case as amended
through the Eighth Amendment Effective Date, pursuant to which such Guarantor
has (i) guarantied the Obligations of the Borrowers and (ii) created Liens in
favor of Collateral Agent on certain Collateral to secure the Obligations of
such Guarantor under the Amended Guaranty Agreement. Borrowers and Guarantors
are collectively referred to herein as the "Credit Support Parties", and the
Amended Guaranty Agreement and the Security Documents are collectively referred
to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of this Eighth Amendment and consents to the
amendments and limited waiver effected pursuant to this Eighth Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Credit Support Document), including
without limitation the payment and performance of all such "Obligations,"
"Guarantied Obligations" or "Secured Obligations," as the case may be, in
respect of the Obligations of Borrowers now or hereafter existing under or in
respect of the Amended Agreement and the other Loan Documents.
Each Credit Support Party acknowledges and agrees that each of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Eighth Amendment.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Amended Loan Agreement and the
Other Loan Documents.
(i) On and after the Eighth Amendment Effective Date, each reference
in the Amended Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Amended Loan Agreement,
and each reference in the other Loan Documents to the "Amended Loan
Agreement", "thereunder", "thereof" or words of like import referring to
the Amended Loan Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by Section 1 of this Eighth
Amendment, the Amended Loan Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Eighth
Amendment shall not constitute a waiver of any provision of, or operate as
a waiver of any right, power or remedy of Agent, Collateral Agent or any
Lender under, the Amended Loan Agreement or any of the other Loan
Documents.
(iv) Nothing herein shall constitute a waiver or forbearance with
respect to any Events of Default and/or Potential Events of Default
existing on the date hereof.
B. Fees and Expenses. Borrowers acknowledge that all costs, fees
and expenses as described in subsection 11.2 of the Amended Loan Agreement
incurred by Agent, Collateral Agent, Lenders and their counsel with respect to
this Eighth Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrowers.
C. Headings. Section and subsection headings in this Eighth
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Eighth Amendment for any other purpose or be given
any substantive effect.
D. Applicable Law. THIS EIGHTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Eighth Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Eighth Amendment shall
become effective upon the execution of a counterpart hereof by each Lender and
each of the other parties hereto, receipt by Company and Agent of written or
telephonic notification of such execution and authorization of delivery thereof
and satisfaction or waiver by each Lender of the conditions to effectiveness
set forth in Section 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXX FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
GUARANTORS:
Xxxxxx California Equity Corp.
Xxxxxx Capital, Inc.
Xxxxxx Capital II, Inc.
Xxxxxx General, Inc.
Xxxxxx Homes, Inc.
Xxxxxx Homes of California, Inc.
Xxxxxx Homes of Florida, Inc.
Xxxxxx Homes of Pennsylvania, Inc.
Xxxxxx Homes of Pennsylvania
at Pennway, Inc.
Xxxxxx Homes of Tampa, Inc.
Xxxxxx Lindenwood Corporation
Xxxxxx Manzanita Corporation
Xxxxxx Tamarack Corporation
Calcap Commercial Management, Inc.
Calcap X, Inc.
Calcap XV, Inc.
Calcap XXXI, Inc.
Calcap XXXII, Inc.
Calcap XXXIII, Inc.
Calcap 36, Inc.
Calcap 42, Inc.
Calcap 48, Inc.
Xxxxxx Homes of Chicago, Inc.
Each by: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Xxxxxx Homes Finance, Inc.
Xxxxxx Homes Finance II, Inc.
Each by: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Talcon Title Agency, L.P.
By: Xxxxxx General, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 31, L.P.
By: Calcap XXXI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 32, L.P.
By: Calcap XXXII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 33, L.P.
By: Calcap XXXIII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 48, L.P.
By: Calcap 48, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 36, L.P.
By: Calcap 36, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
LENDERS:
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), Individually
and as Agent and Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
DRESDNER KLEINWORT XXXXXX LIMITED,
as a Lender
By: /s/ Xxxx Xxxxx
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
(formerly known as Pearl Street, L.P.),
as a Lender
By: /s/ Xxxx X. Xxxxx
Title: Authorized Signer
SCHEDULE 1
LETTERS OF CREDIT
1. Letter of Credit Number T-218170 in the amount of $500,000.00.
2. Letter of Credit Number T-218171 in the amount of $500,000.00.
3. Letter of Credit Number T-228642 in the amount of $235,585.76.
4. Letter of Credit Number T-241136 in the amount of $158,225.38.
NINTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Ninth Amendment") is dated as of February 28, 1997, and
entered into by and among Xxxxxx, Inc., a New Jersey corporation ("Company"),
Xxxxxx Funding, Inc., a New Jersey corporation (together with Company, the
"Borrowers"), the subsidiaries of Company listed on the signature pages hereof
as guarantors (the "Guarantors"), the financial institutions listed on the
signature pages hereof ("Lenders") and The Chase Manhattan Bank (formerly known
as Chemical Bank), as agent for Lenders ("Agent") and as collateral agent for
Lenders ("Collateral Agent") and is made with reference to that certain Amended
and Restated Loan and Security Agreement dated as of May 28, 1993 (such
agreement, as amended through the date hereof and as it may hereafter be
amended from time to time, the "Amended Loan Agreement"), by and among
Borrowers, Guarantors, Lenders, Agent and Collateral Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Amended Loan Agreement.
RECITALS
WHEREAS, the Amended Loan Agreement has heretofore been amended by
the First Amendment to Amended and Restated Loan and Security Agreement dated
as of September 27, 1993; the Second Amendment to Amended and Restated Loan and
Security Agreement dated as of October 14, 1993: the Limited Waiver, Release
and Consent Regarding Sale of Lancot Mortgage Co., Inc., dated as of
October 14, 1993; the Third Amendment to Amended and Restated Loan and Security
Agreement dated as of January 19, 1994; the Fourth Amendment to Amended and
Restated Loan and Security Agreement dated as of February 28, 1994; the Joinder
Agreement dated as of June 1, 1994 entered into by Pennway Joint Venture, L.P.
in favor of the Collateral Agent (for the benefit of the Lenders); the Joinder
Agreement, Amendment and Limited Waiver (Xxxxxx Homes of Chicago, Inc.) dated
as of September 12, 1994; the Fifth Amendment to Amended and Restated Loan and
Security Agreement dated as of February 23, 1995; the Sixth Amendment to
Amended and Restated Loan and Security Agreement dated as of May 31, 1995; the
Seventh Amendment to Amended and Restated Loan and Security Agreement dated as
of February 23, 1996; and the Eighth Amendment to Amended and Restated Loan and
Security Agreement dated as of January 31, 1997;
WHEREAS, the parties hereto wish to amend the definition of
"Commitment Termination Date" in order to extend the scheduled expiration of
the Commitments from February 28, 1997 to March 31, 1997;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE AMENDED LOAN AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms.
Subsection 1.1 of the Amended Loan Agreement is hereby amended by
deleting the reference to "February 28, 1997" in the definition of "Commitment
Termination Date" and substituting therefor a reference to "March 31, 1997".
Section 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS
Section 1 of this Ninth Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Ninth
Amendment Effective Date"):
A. On or before the Ninth Amendment Effective Date, Credit Parties
shall deliver to Lenders (or to Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its
counsel) the following, each, unless otherwise noted, dated the Ninth
Amendment Effective Date:
1. Resolutions of its Board of Directors or, in the case of a
Credit Party which is not a corporation, resolutions of the Board of
Directors of the general partner or other Person authorized to act on
its behalf, approving and authorizing the execution, delivery and
performance of this Ninth Amendment, certified as of the Ninth
Amendment Effective Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment; and
2. Signature and incumbency certificates of its officers
executing this Ninth Amendment, certified as of the Ninth Amendment
Effective Date by its corporate secretary or assistant secretary;
3. Executed copies of this Ninth Amendment.
B. Borrowers shall have paid all fees, costs and expenses of Agent
(including fees and expenses of counsel for Agent) and Lenders accrued and
unpaid as of the Ninth Amendment Effective Date.
C. On or before the Ninth Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Agent, acting on behalf of Xxxxxxx, and its
counsel shall be satisfactory in form and substance to Agent and such
counsel, and Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Agent may
reasonably request.
Section 3. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Xxxxxxx to enter into this Ninth Amendment and to
amend the Amended Loan Agreement in the manner provided herein, each Credit
Party represents and warrants to each Lender that the following statements are
true, correct and complete:
A. Corporate Power and Authority. Such Credit Party has all
requisite corporate or partnership power and authority to enter into this Ninth
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Amended Loan Agreement as amended by this Ninth
Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery by such
Credit Party of this Ninth Amendment and the performance by such Credit Party
of the Amended Agreement have been duly authorized by all necessary corporate
or partnership action on the part of such Credit Party, as the case may be.
C. No Conflict. The execution and delivery by such Credit Party of
this Ninth Amendment and the performance by such Credit Party of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to such Credit Party or any of its
Subsidiaries, or any order, judgment or decree of any court or other agency of
government binding on such Credit Party or any of its Subsidiaries, (ii)
violate any provision of the Certificate or Articles of Incorporation or Bylaws
of such Credit Party if it is a corporation or of its general partner or such
other person or persons authorized to act on its behalf if it is not a
corporation, (iii) violate any provision of its partnership, joint venture or
similar organizational agreement if it is not a corporation, (iv) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of such Credit Party or any of
its Subsidiaries, (v) result in or require the creation or imposition of any
Lien upon any of the properties or assets of such Credit Party or any of its
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Collateral Agent on behalf of Lenders), or (vi) require any approval
of stockholders or partners or any approval or consent of any Person under any
Contractual Obligation of such Credit Party or any of its Subsidiaries, except
for such approvals or consents which have been obtained on or before the Ninth
Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by such
Credit Party of this Ninth Amendment and the performance by such Credit Party
of the Amended Agreement do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Ninth Amendment and the Amended
Agreement have been duly executed and delivered by each of the Credit Parties
party thereto and are the legally valid and binding obligations of each such
Credit Party, enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties From Amended
Loan Agreement. The representations and warranties contained in Section 5 of
the Amended Loan Agreement are and will be true, correct and complete in all
material respects on and as of the Ninth Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Ninth Amendment that would constitute an Event of Default or a Potential Event
of Default.
H. Subsidiaries of Borrowers. Other than the Guarantors listed on
the signature pages hereof, no Subsidiary of the Borrowers owns assets with any
material value.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Borrowers are each party to the Borrower Security Agreement, the
Borrower Pledge Agreement, the Account Collateral Security Agreement and
certain other Security Documents, in each case as amended through the Ninth
Amendment Effective Date, pursuant to which Borrowers have created Liens in
favor of Collateral Agent on certain Collateral to secure the Obligations of
the Borrowers. Each Guarantor is a party to the Amended Guaranty Agreement and
certain Guarantors are parties to the Guarantor Security Agreement, the
Guarantor Pledge Agreement, the Account Collateral Security Agreement, certain
Mortgages, and/or certain other Security Documents, in each case as amended
through the Ninth Amendment Effective Date, pursuant to which such Guarantor
has (i) guarantied the Obligations of the Borrowers and (ii) created Liens in
favor of Collateral Agent on certain Collateral to secure the Obligations of
such Guarantor under the Amended Guaranty Agreement. Borrowers and Guarantors
are collectively referred to herein as the "Credit Support Parties", and the
Amended Guaranty Agreement and the Security Documents are collectively referred
to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of this Ninth Amendment and consents to the amendments
and limited waiver effected pursuant to this Ninth Amendment. Each Credit
Support Party hereby confirms that each Credit Support Document to which it is
a party or otherwise bound and all Collateral encumbered thereby will continue
to guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Obligations," "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as such terms are
defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Borrowers now or hereafter existing under or in respect of the
Amended Agreement and the other Loan Documents.
Each Credit Support Party acknowledges and agrees that each of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Ninth Amendment.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Amended Loan Agreement and the
Other Loan Documents.
(i) On and after the Ninth Amendment Effective Date, each reference
in the Amended Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Amended Loan Agreement,
and each reference in the other Loan Documents to the "Amended Loan
Agreement", "thereunder", "thereof" or words of like import referring to
the Amended Loan Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by Section 1 of this Ninth
Amendment, the Amended Loan Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Ninth
Amendment shall not constitute a waiver of any provision of, or operate as
a waiver of any right, power or remedy of Agent, Collateral Agent or any
Lender under, the Amended Loan Agreement or any of the other Loan
Documents.
(iv) Nothing herein shall constitute a waiver or forbearance with
respect to any Events of Default and/or Potential Events of Default
existing on the date hereof.
B. Fees and Expenses. Borrowers acknowledge that all costs, fees
and expenses as described in subsection 11.2 of the Amended Loan Agreement
incurred by Agent, Collateral Agent, Lenders and their counsel with respect to
this Ninth Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrowers.
C. Headings. Section and subsection headings in this Ninth
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Ninth Amendment for any other purpose or be given any
substantive effect.
D. Applicable Law. THIS NINTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Ninth Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Ninth Amendment shall
become effective upon the execution of a counterpart hereof by each Lender and
each of the other parties hereto, receipt by Company and Agent of written or
telephonic notification of such execution and authorization of delivery thereof
and satisfaction or waiver by each Lender of the conditions to effectiveness
set forth in Section 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Ninth
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXX FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
GUARANTORS:
Xxxxxx California Equity Corp.
Xxxxxx Capital, Inc.
Xxxxxx Capital II, Inc.
Xxxxxx General, Inc.
Xxxxxx Homes, Inc.
Xxxxxx Homes of California, Inc.
Xxxxxx Homes of Florida, Inc.
Xxxxxx Homes of Pennsylvania, Inc.
Xxxxxx Homes of Pennsylvania
at Pennway, Inc.
Xxxxxx Homes of Tampa, Inc.
Xxxxxx Lindenwood Corporation
Xxxxxx Manzanita Corporation
Xxxxxx Tamarack Corporation
Calcap Commercial Management, Inc.
Calcap X, Inc.
Calcap XV, Inc.
Calcap XXXI, Inc.
Calcap XXXII, Inc.
Calcap XXXIII, Inc.
Calcap 36, Inc.
Calcap 42, Inc.
Calcap 48, Inc.
Xxxxxx Homes of Chicago, Inc.
Each by: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Xxxxxx Homes Finance, Inc.
Xxxxxx Homes Finance II, Inc.
Each by: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Talcon Title Agency, L.P.
By: Xxxxxx General, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 31, L.P.
By: Calcap XXXI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 32, L.P.
By: Calcap XXXII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 33, L.P.
By: Calcap XXXIII, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 48, L.P.
By: Calcap 48, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
Talpro 36, L.P.
By: Calcap 36, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: President
LENDERS:
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), Individually
and as Agent and Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
DRESDNER KLEINWORT XXXXXX LIMITED,
as a Lender
By: /s/ Xxxx Xxxxx
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
(formerly known as Pearl Street, L.P.),
as a Lender
By: /s/ Xxxx X. Xxxxx
Title: Authorized Signer
