0200617.01 FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT ("Amendment"), dated January 21, 1999, and effective as
of January 4, 1999, is made by and among (i) ▇▇▇▇▇▇▇ HOMES, INC., a Delaware
corporation (the "Company"); (ii) ▇▇▇▇▇▇▇ HOMES OF CALIFORNIA, INC., a
California corporation, ▇▇▇▇▇▇▇ HOMES OF OREGON, INC., an Oregon corporation,
▇▇▇▇▇▇▇ HOMES OF WASHINGTON, INC., a Washington corporation, MELODY HOMES,
INC., a Delaware corporation, ▇▇▇▇▇▇▇ REALTY/MAUI, INC., a Hawaii
corporation, ▇▇▇▇▇▇▇ REALTY/OAHU, INC., a Hawaii corporation, LOKELANI
CONSTRUCTION CORPORATION, a Delaware corporation, MELODY MORTGAGE CO., a
Colorado corporation, and SHLR OF WASHINGTON, INC., a Washington corporation
("SHLR/Washington"), SHLR OF UTAH, INC., a Utah corporation, and SHLR OF
COLORADO, INC., a Colorado corporation (collectively referred to as the
"Guarantors"), (iii) SSHI LLC, a Delaware limited liability company ("SSHI"),
(iv) the banks from time to time party to this Agreement (collectively
referred to as the "Banks", and individually referred to as a "Bank"), (v)
FIRST HAWAIIAN BANK, a Hawaii corporation, as administrative and
co-syndication agent for the Banks (the "Administrative Agent"), and (vi)
BANK OF AMERICA NT&SA, a national banking association, as documentation and
co-syndication agent for the Banks (the "Documentation Agent", the
Administrative Agent and the Documentation Agent are collectively referred to
as the "Agents").
W I T N E S S E T H T H A T:
WHEREAS, the Company, the Banks and the Administrative Agent entered
into that certain Credit Agreement dated as of March 29, 1996 (the "Original
Credit Agreement"), relating to the establishment of a revolving credit
facility (the "Credit Facility") in the principal amount of US$110,000,000.00
(the "Original Commitment") made available to the Company by the Banks; and
WHEREAS, in connection therewith, the Company, the Banks and the
Administrative Agent executed certain Loan Documents (as defined in the
Original Credit Agreement); and
WHEREAS, the Company, the Banks and the Administrative Agent entered
into that certain Supplement No. 1 to Credit Agreement effective as of
January 8, 1997 (the "Supplement"), relating to the use of certain proceeds
of Advances (as defined in the Original Credit Agreement) during the Waiver
Period (as defined in the Supplement); and
WHEREAS, the Company, the Guarantors, the Banks and the Agents entered
into that certain Amended and Restated Credit Agreement dated March 27, 1997
(the "Amended Credit Agreement"), which amended the terms of the Original
Credit Agreement by, among other things, increasing the Original Commitment
to US $137,600,000.00; and
WHEREAS, the Company, the Guarantors, the Banks and the Agents entered
into that certain Second Amendment to Loan Documents dated April 29, 1998
(the "Second Amendment"), which among other things, provided for the consent
to the Company's issuance of "Senior Notes",
as defined therein, which would be PARI PASSU with the Credit Facility and
changed the status of the Guarantors from that as "co-borrowers" to
"guarantors" of the Credit Facility; and
WHEREAS, the Company, the Banks and the Agents entered into that certain
Second Amended and Restated Credit Agreement dated September 30, 1998 (the
"Second Amended Credit Agreement), which further amended the terms of the
Original Credit Agreement by, among other things, decreased the Aggregate
Commitment to $90,000,000.00 and extended the Termination Date to July 1,
2001; and
WHEREAS, the Company has requested the Banks and the Agents to further
amend the Loan Documents to permit the Company, through SHLR/Washington, to
acquire the majority interest in SSHI LLC; and
WHEREAS, the Banks and the Agents are willing to comply with such request,
upon and subject to the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein, unless otherwise
defined herein, shall have the same meanings as those ascribed to them in the
Second Amended Credit Agreement.
2. REPRESENTATIONS AND WARRANTIES. As an essential inducement to the
Banks and the Agents to execute this Amendment, the Company hereby repeats,
reaffirms and incorporates herein by reference all of the representations and
warranties contained in Section 5 of the Second Amended Credit Agreement.
3. AMENDMENT OF LOAN DOCUMENTS. The Loan Documents are hereby amended
as follows:
(a) All references in the Loan Documents to "Guarantor" or
"Guarantors" shall include SSHI.
(b) All references in the Loan Documents to "Guaranty" shall
include all agreements in form and substance satisfactory to the Banks and
the Agents, duly executed by the Guarantors, including SSHI, jointly and
severally guaranteeing the due and punctual payment of the Note, and the
observance and performance of the Borrower's obligations under the Loan
Documents.
4. DELIVERY OF RELATED DOCUMENTS. The Company, the Guarantors and
SSHI shall deliver to the Administrative Agent on or before February 1, 1999
the following documents, all of which shall be in form and substance
satisfactory to the Banks and the Agents:
(a) The Guaranty executed by the Guarantors, including SSHI;
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(b) Properly certified resolutions of the respective Boards of
Directors or other governing body, as applicable, of the Borrower, the
Guarantors and SSHI duly authorizing the execution and delivery of this
Amendment and the Guaranty by such applicable party.
(c) A copy of the Certificate of Formation and the Operating
Agreement for SSHI, a copy of the certificate of good standing of SSHI issued
by the applicable state agency, and such authenticated copies of such other
corporate documents as the Administrative Agent may reasonably request.
(d) An opinion from counsel to the Borrower stating that after the
execution and delivery of this Amendment by the Borrower, the Loan Documents
will continue to be enforceable in accordance with their terms and will
continue to constitute the valid and legally binding obligations of the
Borrower.
(e) An opinion from counsel to the Guarantors and SSHI stating
that after the execution and delivery of this Amendment and the Guaranty by
the Guarantors and SSHI, the Loan Documents, including the Guaranty, will
continue to be enforceable in accordance with their terms and the Guaranty
will constitute the valid and legally binding obligations of the Guarantors
and SSHI.
5. CONFORMANCE. The Loan Documents are hereby amended to conform with
this Amendment, but in all other respects such provisions are to be and
continue in full force and effect.
6. CONTINUANCE OF SECURITY. The performance of the obligations of the
Company under the Loan Documents, as herein amended, shall be fully secured
by and entitled to the benefits of the Guaranty and the other Loan Documents,
and any modifications, extensions, renewals or replacements thereof.
7. NO OFFSETS. As of the date hereof, the Company has no claims,
defenses or offsets against the Banks or the Agents, or against the Company's
obligations under the "Loan Documents", as herein amended, whether in
connection with the negotiations for or closing of the Credit Facility, of
any prior amendments, of this Amendment, or otherwise, and if any such
claims, defenses or offsets exist, they are hereby irrevocably waived and
released. As of the date hereof, the Guarantors and SSHI have no claims,
defenses or offsets against the Banks or the Agents, or against the
Guarantors' and SSHI's obligations under the Guaranty, whether in connection
with the negotiations for or closing of the Credit Facility, of any prior
amendments, of this Amendment, or otherwise, and if any such claims, defenses
or offsets exist, they are hereby irrevocably waived and released.
8. NO WAIVER. This Amendment is made on the express condition that
nothing herein contained shall in any way be construed as affecting,
impairing or waiving any rights of the Banks or the Agents under any of the
Loan Documents, as herein amended.
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9. ENTIRE AGREEMENT. This Amendment incorporates all of the
agreements between the parties relating to the amendment of the Loan
Documents and supersedes all other prior or concurrent oral or written
letters, agreements or understandings relating to such amendment.
10. HEADINGS. The headings of paragraphs and subparagraphs herein are
inserted only for convenience and reference, and shall in no way define,
limit or describe the scope or intent of any provisions of this Amendment.
11. GOVERNING LAW; SEVERABILITY. This Amendment is executed and
delivered, and shall be construed and enforced, in accordance with and
governed by the laws of the State of Hawaii. If any provision of this
Amendment is held to be invalid or unenforceable, the validity or
enforceability of the other provisions of this Amendment shall remain
unaffected.
12. SUBMISSION TO JURISDICTION. The Company, the Guarantors and SSHI
hereby irrevocably and unconditionally submit, but only for the purposes of
any action or proceeding which the Banks and/or the Agents may bring to
enforce any of the Loan Documents, as amended herein, to the jurisdiction of
the courts of the State of Hawaii and the United States District Court for
the District of Hawaii. Such submission to such jurisdiction shall not
prevent the Banks and the Agents from commencing any such action or
proceeding in any other court having jurisdiction.
13. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument, and in making proof of
this Amendment, it shall not be necessary to produce or account for more than
one such counterpart.
14. EXPENSES. The Company shall pay all expenses incurred by the
Administrative Agent in negotiations for and documentation of this Amendment
and the satisfaction of the conditions thereof, including, but not limited
to, fees and expenses of legal counsel for the Administrative Agent, and any
other costs incurred by the Administrative Agent in connection with any of
the matters described in this Amendment.
15. BINDING EFFECT. This Amendment shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that the Company shall not assign this Amendment or any of the
rights, duties or obligations of the Company hereunder without the prior
written consent of the Banks and the Agents.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
day and year first above written.
▇▇▇▇▇▇▇ HOMES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
"Borrower"
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▇▇▇▇▇▇▇ HOMES OF CALIFORNIA, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
▇▇▇▇▇▇▇ HOMES OF OREGON, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
▇▇▇▇▇▇▇ HOMES OF WASHINGTON, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
MELODY HOMES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
▇▇▇▇▇▇▇ REALTY/MAUI, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
▇▇▇▇▇▇▇ REALTY/OAHU, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
LOKELANI CONSTRUCTION CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
MELODY MORTGAGE CO.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
SHLR OF WASHINGTON, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
SHLR OF UTAH, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
SHLR OF COLORADO, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
"Guarantors"
SSHI LLC
By SHLR of Washington, Inc.
Its Managing Member
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
"SSHI"
FIRST HAWAIIAN BANK, as Administrative Agent and
Co-Syndication Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Assistant Vice President
"Administrative Agent"
BANK OF AMERICA NT&SA, as Documentation Agent and
Co-Syndication Agent
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
"Documentation Agent"
FIRST HAWAIIAN BANK, as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Assistant Vice President
BANK OF AMERICA NT&SA, as a Bank
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, ARIZONA, NA
By /s/ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK BOSTON, NA
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK OF HAWAII
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
"Banks"
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