EXHIBIT 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “Amendment”) dated as
of the 21st day of May, 2009, to the Amended and Restated Credit
Agreement, dated as of March 27, 2008 (as heretofore amended,
supplemented or otherwise modified, the “Credit
Agreement”), by and among Avatar Properties Inc., a Florida
corporation (the “Borrower”), Avatar Holdings Inc., a
Delaware corporation (the “Guarantor”), the several
lenders from time to time parties thereto (the
“Lenders”), and Wachovia Bank, National Association, as
administrative agent (the “Agent”) and as a Lender.
R E C I T A L S
:
WHEREAS, the Borrower, the Lenders
and the Agent are parties to 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.
WHEREAS, the Borrower has requested
that the Requisite Lenders and the Agent amend the Credit
Agreement, and the Requisite Lenders are agreeable to such request
upon the terms and subject to the conditions set forth herein.
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 Agent and the
Requisite Lenders, intending to be legally bound hereby, agree as
follows:
SECTION 1. Recitals . The
Recitals are incorporated herein by reference and shall be deemed a
part of this Amendment.
SECTION 2. Amendments . The
Credit Agreement is hereby amended as follows:
2.1 Amendment
to Article 1 . Article 1 of the Credit Agreement is
hereby amended by inserting the following new definitions in
appropriate alphabetical order:
“ CDD
Bonds . CDD Bonds means bonds issued by a community development
district (“CDD”) established by a real estate or
homebuilding company pursuant to Chapter 190, Florida
Statutes, or any other authorized governmental entity, of
“low-floater” tax-exempt municipal bonds or other type
of bond authorized by Chapter 190, Florida Statutes, to
finance the development, construction and installation of
infrastructure improvements on land owned by such real estate or
homebuilding company and off-site infrastructure improvements for
the benefit of such land in connection with the development of such
land, including without limitation roadway improvements, streets
and utility lines and facilities.”
“
Mortgage . Mortgage means any mortgage, deed of trust or
other security deed with respect to land, homes under construction
and/or finished homes.”
2.2 Amendment
to Section 6.04 . Section 6.04 of the Credit
Agreement is hereby amended by deleting such Section in its
entirety and inserting in lieu thereof the following:
“6.04
Investments . Borrower and Guarantor shall not, and shall
not cause or permit their subsidiaries to directly or indirectly
make or own any Investment in any Person except (provided that no
Event of Default has occurred and is continuing):
(a)
(i) investments, loans, advances, or guarantees relating to
real estate related joint venture partnerships and equity
investments in publicly-traded companies that are in the same or
similar business as the Borrower or Guarantor and which are
reflected on the consolidated financial statements of Guarantor,
(ii) investments in, loans to, or advances to a real estate or
homebuilding company; provided, however, that all investments,
loans, and advances under this clause (ii) are secured by
Mortgages made in favor of the Borrower or Guarantor, as
applicable, on land, homes under construction and/or finished homes
of such real estate or homebuilding company; and
(iii) investments in CDD Bonds; provided, further, that the
aggregate amount outstanding at any time of all investments, loans,
advances and guarantees permitted under clauses (i), (ii) and
(iii) of this Section 6.04(a) shall not exceed
twenty-five percent (25%) of the Tangible Net Worth of Guarantor on
a consolidated basis;
(b) investments in direct obligations of the United States of
America, or any agency thereof;
(c) investments in certificates of deposit having a maturity
of less than one year issued by commercial banks in the United
States having capital and surplus in excess of $50,000,000,
provided that at the time of such purchase s
