FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit 10.1
CONFORMED EXECUTION COPY
FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”) is made as of the
4th day of January, 2008, by and among X.X. XXXXXX, INC., a Delaware corporation (the
"Borrower”), the lenders listed on the signature pages hereof (collectively referred to herein as
the “Lenders”), the Guarantors listed on Schedule 1 attached hereto (each a “Guarantor” and
collectively, the “Guarantors”), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent for
the Lenders (the “Administrative Agent”), Swingline Lender and a Letter of Credit Issuer.
R E C I T A L S:
The Borrower, the Administrative Agent and the Lenders have entered into that certain
Revolving Credit Agreement dated as of December 16, 2005 (the “Original Credit Agreement”) and the
Borrower, the Administrative Agent and certain of the Lenders have entered into that certain First
Amendment to Revolving Credit Agreement dated as of November 1, 2006 (the “First Amendment”), that
certain Second Amendment to Revolving Credit Agreement dated as of March 14, 2007 (the “Second
Amendment”), and that certain Third Amendment to Revolving Credit Agreement dated as of July 6,
2007 (the “Third Amendment”; the Original Credit Agreement, as amended by the First Amendment, the
Second Amendment and the Third Amendment, is hereinafter referred to as 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 Borrower, the Administrative Agent and the Lenders desire to amend the Credit Agreement in
certain respects.
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 Guarantors, 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. Amendments.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following definitions
in alphabetical order:
"Adjusted Cash Flow from Operations” means, for any period of four consecutive
fiscal quarters of the Borrower ending on any date of determination, the sum of (a) the cash
generated by (or used in) operating activities, as calculated on the quarterly financial
statements for the Borrower and its Restricted Subsidiaries, on a consolidated basis for
such period, as determined in accordance with GAAP, such amount being reflected in the line
item designated “Net cash (used in) provided by operating activities” on the Borrower’s
quarterly financial statements, plus (b) Interest
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Incurred. In the case of any Subsidiary of Borrower that becomes a Restricted
Subsidiary during any period of calculation, Adjusted Cash Flow from Operations shall, for
the purposes of the foregoing calculations, be adjusted by increasing, if positive, or
decreasing, if negative, Adjusted Cash Flow from Operations by the Adjusted Cash Flow from
Operations of such Subsidiary during such period of calculation occurring prior to the date
such Subsidiary became a Restricted Subsidiary.
"Interest Coverage Ratio” means, for any period, the ratio of (a) EBITDA for such
period to (b) Interest Incurred for such period.
"Unimproved Land” means parcels of land wholly-owned by Borrower or its Restricted
Subsidiaries which are, as of the date of determination, held for future development or
disposition and (a) with respect to which all requisite zoning requirements and land use
requirements have been satisfied, and all requisite approvals have been obtained (on a final
and unconditional basis) from all applicable Governmental Authorities (other than approvals
which are simply ministerial and non-discretionary in nature), in order to develop the
parcel as a residential housing project and construct Dwellings thereon, and (b) as to
parcels located in California and other jurisdictions that have comparable requirements and
procedures, which satisfy the requirements of clause (a) above, and which are subject to a
currently effective vesting tentative map (unless a county or city where the land is located
does not grant vesting tentative maps), have received all necessary approvals (on a final
and unconditional basis, other than future conditions imposed on the development in order to
obtain such approvals ) by all applicable Governmental Authorities.
(b) The definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Applicable Margin” means, on any date of determination, the sum of (i) the percentage
per annum set forth in the first table below for a Loan, a Letter of Credit, or an Unused
Commitment Fee (as the case may be) that corresponds to the Leverage Ratio or the Debt
Rating, as applicable, at such date of determination, as calculated based on the quarterly
compliance certificate of Borrower most recently delivered pursuant to Section 6.6 or the
notice delivered by Borrower pursuant to Section 6.14, as applicable (and in each case as
further set forth in this definition), plus (ii) in the case of a Loan or a Letter
of Credit, the percentage per annum set forth under the column “Pricing Premium” in the
second table below that corresponds to the Interest Coverage Ratio and Leverage Ratio, as
applicable, at such date of determination:
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Applicable Margin
| Eurodollar | ||||||||||||||||||||
| Senior | Rate or | Unused | ||||||||||||||||||
| Pricing | Leverage | Unsecured | LIBOR | Base | Letters of | Commitment | ||||||||||||||
| Level | Ratio | Debt Rating | Rate | Rate | Credit | Fee | ||||||||||||||
1
|
Less than or equal to 0.30 to 1 | BBB+/Baa1 | 0.50 | % | 0.00 | % | 0.375 | % | 0.125 | % | ||||||||||
2
|
Greater than 0.30 to 1 but less than or equal to 0.40 to 1 | BBB/Baa2 | 0.625 | % | 0.00 | % | 0.50 | % | 0.15 | % | ||||||||||
3
|
Greater than 0.40 to 1 but less than or equal to 0.50 to 1 | BBB-/Baa3 | 0.75 | % | 0.00 | % | 0.625 | % | 0.175 | % | ||||||||||
4
|
Greater than 0.50 to 1 but less than .55 to 1 | BB+/Ba1 | 1.00 | % | 0.00 | % | 0.875 | % | 0.20 | % | ||||||||||
5
|
Equal to or greater than 0.55 to 1 | BB/Ba2 | 1.375 | % | 0.00 | % | 1.25 | % | 0.225 | % | ||||||||||
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| If Interest Coverage Ratio is: | AND if Leverage Ratio is: | Pricing Premium: | ||
| Greater than or equal to 2.0 to 1.0 |
Not applicable | 0% | ||
| Greater than or equal to 1.5 to 1.0 but less than 2.0 to 1.0 |
Less than or equal to 0.50 to 1.0 |
.125% | ||
| Greater than or equal to 1.5 to 1.0 but less than 2.0 to 1.0 |
Greater than 0.50 to 1.0 | .25% | ||
| Greater than or equal to 1.0 to 1.0 but less than 1.5 to 1.0 |
Less than or equal to 0.475 to 1.0 |
.25% | ||
| Greater than or equal to 1.0 to 1.0 but less than 1.5 to 1.0 |
Greater than 0.475 to 1.0 | .45% | ||
| Less than 1.0 to 1.0 | Less than or equal to 0.45 to 1.0 |
.375% | ||
| Less than 1.0 to 1.0 | Greater than 0.45 to 1.0 | .65% |
Initially, the Applicable Margin shall be set at Level 3 and, subject to clause (g) of
the proviso below, shall continue at Level 3 until December 31, 2005. Thereafter, the
Applicable Margin shall be determined based upon the Debt Rating (with any adjustment in the
Applicable Margin resulting from a publicly announced change in a Debt Rating to take effect
upon the earlier of (x) the actual date of delivery by Borrower to Administrative Agent of
notice thereof pursuant to Section 6.5, and (y) the date on which Borrower is obligated to
deliver notice thereof to Administrative Agent pursuant to Section 6.5), the Interest
Coverage Ratio and the Leverage Ratio (with the Interest Coverage Ratio and Leverage Ratio
being determined upon delivery of the compliance certificate pursuant to Section 6.6 after
the end of each fiscal quarter and any adjustment in the Applicable Margin resulting from
the Interest Coverage Ratio and Leverage Ratio reflected in such compliance certificate to
take effect on the last day that such compliance certificate was required to be delivered);
provided that (a) if at least two of Xxxxx’x, S&P and Fitch are not providing a Debt Rating,
no Debt Rating shall be deemed to exist, (b) in the event that the Debt Ratings are not
equivalent (where there are only two Debt Ratings), the Debt Rating for purposes of
determining the Applicable Margin shall be (1) the higher Debt Rating if such Debt Ratings
are one level apart and (2) one level lower than the higher Debt Rating if such Debt Ratings
are more than one level apart, (c) in the event that the Debt Ratings are not equivalent
(where there are three Debt Ratings), (1) if two of such three Debt Ratings are at the same
level, the third Debt Rating shall be disregarded, and (2) if all three Debt Ratings are at
different levels, the highest and lowest Debt Ratings shall be disregarded, (d) if the
Leverage Ratio and the Debt Rating (as determined pursuant to clause (b) or (c), as
applicable, of this proviso) are at different Levels and are only one Level apart, the
higher Level shall be deemed to apply (with, for purpose of clarification and by way of
illustration, Xxxxx 0 xxxxx x xxxxxx Xxxxx xxxx Xxxxx 0), (x) if the Leverage Ratio and the
Debt Rating (as determined pursuant to clause
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(b) or clause (c), as applicable, of this proviso) are at different Levels and are more
than one Level apart, the Level that is one Level lower than the higher Level shall be
deemed to apply, (f) if Borrower fails to deliver a compliance certificate with respect to
any fiscal quarter within the period of time required by Section 6.6, then the Leverage
Ratio shall be deemed to be greater than 0.55 to 1 and the Interest Coverage Ratio shall be
deemed to be less than 1.0 to 1.0 until Borrower delivers such compliance certificate with
respect to such fiscal quarter (or a compliance certificate with respect to a subsequent
fiscal quarter), and (g) at all times while an Event of Default exists, the Applicable
Margin shall be set at Level 5.
The Pricing Premium shall be determined based upon the Interest Coverage Ratio and the
Leverage Ratio (each being determined upon delivery of the compliance certificate pursuant
to Section 6.6 after the end of each fiscal quarter and any adjustment in the Pricing
Premium resulting from the Leverage Ratio reflected in such compliance certificate to take
effect on the last day that such compliance certificate was required to be delivered).
(c) The definition of “EBITDA” in Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"EBITDA” means, for Borrower and its Restricted Subsidiaries for the twelve (12) month
period ending on any date of determination, an amount equal to (a) consolidated net income
for such period, plus (b) cash dividends from Unrestricted Subsidiaries paid to Borrower
during such period, minus (c) gains from extraordinary items not received in cash for such
period, to the extent included in the calculation of consolidated net income for such period
in accordance with GAAP, but without duplication, plus (d) the sum of (i) any provision for
income taxes for such period, (ii) Interest Expense deducted in the calculation of
consolidated net income for such period in accordance with GAAP (including, without
duplication, previously capitalized Interest Expense which would be included in “cost of
goods sold” and deducted from consolidated revenues in determining consolidated net income),
(iii) the amount of depreciation and amortization for such period, and (iv) extraordinary
losses not paid in cash, other non-cash items and asset valuation adjustments, including but
not limited to impairment charges on inventories and other long-lived assets and land option
cost write-offs, minus (e) the amount of interest income included in the calculation of
consolidated net income for such period in accordance with GAAP, in each case to the extent
included in the calculation of consolidated net income for such period in accordance with
GAAP, but without duplication. In the case of any Subsidiary of Borrower that becomes a
Restricted Subsidiary during any period of calculation, EBITDA shall, for the purposes of
the foregoing calculations, be adjusted by increasing, if positive, or decreasing, if
negative, EBITDA by the EBITDA of such Subsidiary during such period of calculation
occurring prior to the date such Subsidiary became a Restricted Subsidiary.
(d) The definition of “Interest Incurred” in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
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"Interest Incurred” means, for any period, the aggregate amount (without duplication
and determined in each case in accordance with GAAP) of interest incurred, whether such
interest was expensed or capitalized, paid, accrued, or scheduled to be paid
or accrued by Borrower and its Restricted Subsidiaries during such period (including
(a) original issue discount and non-cash interest payments or accruals on any Indebtedness,
(b) the interest portion of all deferred payment obligations, and (c) all commissions,
discounts, and other fees and charges owed with respect to bankers’ acceptances and letter
of credit financings and Financial Xxxxxx, in each case to the extent attributable to such
period, and excluding premiums associated with the prepayment of Indebtedness) net of the
aggregate amount of interest income during such period, but not less than zero. For
purposes of this definition, (i) interest on any obligations arising under Capital Leases
shall be deemed to accrue at an interest rate reasonably determined by Borrower to be the
rate of interest implicit in such obligations in accordance with GAAP, and (ii) interest
expense attributable to any Indebtedness represented by the guaranty of an obligation of
another Person shall be deemed to be the interest expense attributable to the Indebtedness
guaranteed.
(e) The definition of “Loan Inventory” in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Loan Inventory” means Unimproved Land, Lots Under Development, Developed Lots, and
Dwelling Lots which are not encumbered by a Lien or Liens (other than any Permitted
Encumbrance) and which have been designated by Borrower as “Loan Inventory” to be utilized
for the purpose of calculating the Loan Funding Availability, but excluding any Encumbered
Inventory.
(f) Section 2.2(a) of the Credit Agreement is hereby amended by deleting the last sentence of
such Section 2.2(a).
(g) Section 2.8(d) of the Credit Agreement is hereby amended by deleting such Section 2.8(d)
in its entirety and inserting “Intentionally Omitted” in lieu thereof.
(h) Section 3.1(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(a) Calculation of Loan Funding Availability. The Loan Funding Availability
shall be equal to the lesser of:
(i) the sum, without duplication, of “A” plus "B” plus "C” plus "D” plus "E” plus "F”,
each as further described below (and subject to the proviso at the end of this subsection
(i)):
A = thirty percent (30%) of the sum of the net book value, as included in the
Borrower’s most recent consolidated financial statements delivered pursuant to Article 6 of
this Agreement, of all Unimproved Land which is included in the Loan Inventory;
B = sixty-five percent (65%) of the sum of the net book value, as included in the
Borrower’s most recent consolidated financial statements delivered pursuant to Article 6 of
this Agreement, for all Lots Under Development which are included in the Loan Inventory.
If, after a Land Parcel is designated a Lot Under Development, development of such parcel
ceases for thirty (30) calendar days or more (other than by reason of a Force Majeure
Delay), at the discretion of Administrative Agent, such parcel may be categorized as Unimproved Land until development of such Lot Under Development
is resumed to the satisfaction of Administrative Agent;
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C = sixty-five percent (65%) of the sum of the net book value, as included in the
Borrower’s most recent consolidated financial statements delivered pursuant to Article 6 of
this Agreement, for all Developed Lots included in the Loan Inventory;
D = eighty-five percent (85%) of the sum of the net book value, as included in the
Borrower’s most recent consolidated financial statements delivered pursuant to Article 6 of
this Agreement, for all Dwelling Lots included in the Loan Inventory;
E = ninety percent (90%) of the sum of the net book value, as included in the
Borrower’s most recent consolidated financial statements delivered pursuant to Article 6 of
this Agreement, for all funds in escrow payable to, but not yet received by, the Borrower or
a Restricted Subsidiary following, and related to, a Dwelling Unit closing.
F = one hundred percent (100%) of all unrestricted cash and cash equivalents of the
Borrower as included in the Borrower’s most recent consolidated financial statements
delivered pursuant to Article 6 of this Agreement;
provided that in this clause (i), the sum of “A”, “B” and “C” may not exceed fifty percent
(50%) of the amount of Loan Funding Availability; or
(ii) the sum, without duplication, of “A” plus "B” plus "C”, each as further described
below (and subject to the proviso at the end of this subsection (ii)):
A = sixty-five percent (65%) of the sum of all Acquisition Costs for all Lots Under
Development which are included in the Loan Inventory. If, after a Land Parcel is designated
a Lot Under Development, development of such parcel ceases for thirty (30) calendar days or
more (other than by reason of a Force Majeure Delay), at the discretion of Administrative
Agent, the Loan Funding Availability for such parcel may be reduced to an amount determined
by Administrative Agent (which amount can be zero) until development of such Lot Under
Development is resumed to the satisfaction of Administrative Agent;
B = sixty-five percent (65%) of the sum of all Acquisition Costs for all Developed Lots
included in the Loan Inventory;
C = eighty-five percent (85%) of the sum of all Acquisition Costs and Construction
Costs for all Dwelling Lots included in the Loan Inventory;
provided that in this clause (ii), the sum of “A” and “B” may not exceed fifty percent (50%)
of the amount of Loan Funding Availability.
(i) Section 3.1(b) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
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(b) Designation of Land Parcels, Lots Under Development, Developed Lots and Dwelling Lots. Borrower shall deliver to Administrative Agent an Inventory
Summary Report in the form of Exhibit A and incorporated herein within forty-five (45) days
after the last day of each quarter in each fiscal year of Borrower; provided that Borrower
may, in its discretion, deliver an Inventory Summary Report as of the last day of any
calendar month. The Inventory Summary Report shall reflect Inventory that Borrower desires
to have designated as Loan Inventory. Upon Administrative Agent’s receipt of the Inventory
Summary Report, Administrative Agent may conduct inspections or reviews of the subject
Inventory that Administrative Agent deems appropriate, at the expense of Administrative
Agent except as hereinafter expressly provided. Based upon the information in the Inventory
Summary Report and the other information compiled by Administrative Agent, Administrative
Agent shall determine, in its reasonable discretion, whether Unimproved Land, a Lot Under
Development, a Developed Lot or a Dwelling Lot not previously designated as part of the Loan
Inventory shall be designated part of the Loan Inventory and, if so, whether such Unimproved
Land, Lot Under Development, Developed Lot, or Dwelling Lot shall be designated Unimproved
Land, a Lot Under Development, a Developed Lot, or a Dwelling Lot.
(j) Section 6.6 of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
Compliance Certificates. Borrower shall, within forty-five (45) days from the end of each
of the first three fiscal quarters of Borrower and within sixty-five (65) days from the end
of the fiscal year of Borrower, provide to Administrative Agent a certificate signed by an
Authorized Signatory of Borrower in the form of Exhibit D setting forth such calculations
required to establish whether Borrower was in compliance with Section 6.8 and setting forth
a list of all Guarantors as of the last day of such fiscal quarter.
(k) Section 6.8 of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
Financial and Inventory Covenants. Until the Obligations are repaid in full and the
expiration or termination of all Letters of Credit and the Total Revolving Credit
Commitment, Borrower shall adhere to the following financial covenants, all on a
consolidated basis with the Restricted Subsidiaries and determined as of the last day of
each fiscal quarter of Borrower:
(a) Borrower shall maintain at all times a Leverage Ratio of not more than 0.55 to 1;
(b) If the Borrower shall fail to maintain for any two consecutive fiscal quarters
ending on and after December 31, 2007 an Interest Coverage Ratio equal to or greater than
1.50 to 1.00 for the period of four consecutive fiscal quarters then ended, then as of the
end of such second consecutive fiscal quarter and as of the end of all fiscal quarters
thereafter until the Interest Coverage Ratio is greater than or equal to 1.50 to 1.00, the
Borrower shall either maintain (i) a ratio of (A) Adjusted Cash Flow from Operations to (B)
Interest Incurred of greater than or equal to 1.50 to 1.00 or (ii) a sum of (y) Loan Funding
Availability plus (z) unrestricted cash and cash equivalents, to the extent such
unrestricted cash and cash equivalents are not included in calculating Loan Funding
Availability, equal to or greater than $500,000,000.
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(c) Borrower shall maintain at all times Tangible Net Worth of not less than the sum of
(i) $3,500,000,000, plus (ii) fifty percent (50%) of annual net profits (with no deduction
for any annual net loss) for each fiscal year ending after September 30, 2007, plus (iii)
fifty percent (50%) of the aggregate increase in shareholders’ equity of Borrower after
September 30, 2007 by reason of the issuance of capital stock of Borrower (including upon
conversion of Indebtedness into such capital stock but excluding (x) stock issued in
connection with an employee stock ownership plan, an employee stock option plan, or an
employee stock purchase plan, and (y) any portion of such increase in shareholders’ equity
attributable to goodwill recognized in connection with an Acquisition);
(d) The total number of Speculative Lots owned by Borrower and its Restricted
Subsidiaries at any given time shall not exceed forty percent (40%) of all Closed Sales
during the immediately preceding twelve (12) calendar months. Models shall not be
considered “Speculative Lots” for purposes of this Section 6.8(d); and
(e) The net book value determined in accordance with GAAP of Developed Lots, Lots Under
Development, and Land Parcels owned by Borrower and its Restricted Subsidiaries as of the
date of determination shall not exceed one hundred fifty percent (150%) of the Adjusted
Tangible Net Worth;
provided, however, that the limitations set forth in the preceding subsections (d) and
(e) shall not be operative during any period in which Borrower maintains an Investment Grade
Rating by at least two (2) of Xxxxx’x, S&P, and Fitch.
(l) Section 8.1(g) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(g) A final judgment shall be entered by any court against Borrower or any of its
Restricted Subsidiaries for the payment of money which exceeds $20,000,000, which judgment
is not covered by insurance or a warrant of attachment or execution or similar process shall
be issued or levied against property of Borrower or any of its Restricted Subsidiaries
which, together with all other such property of Borrower or any of its Restricted
Subsidiaries subject to other such process, exceeds in value $20,000,000 in the aggregate,
and if, within thirty (30) days after the entry, issue, or levy thereof, such judgment,
warrant, or process shall not have been paid or discharged or bonded or stayed pending
appeal, or if, after the expiration of any such stay, such judgment, warrant, or process
shall not have been paid or discharged; or
(m) Exhibits A and D to the Credit Agreement are hereby amended and restated in their entirety
to read as Exhibits A and D attached hereto.
SECTION 3. Reduction of Aggregate Commitment. At the request of the Borrower, the
amount of the Total Revolving Credit Commitment is hereby reduced to $2,250,000,000 and such
reduction shall be allocated to each Lender’s Revolving Credit Commitment ratably in accordance
with its Commitment Ratio. The Borrower represents, warrants and certifies that this reduction in
the Total Revolving Credit Commitment is in accordance with Section 2.14 of the Credit Agreement.
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SECTION 4. Conditions to Effectiveness. The effectiveness of this Amendment and the obligations of the Lenders hereunder are subject to satisfaction of the following conditions,
and upon satisfaction of the following conditions, this Amendment shall be effective as of the day
and year first above written:
(a) receipt by the Administrative Agent from the Borrower, the Guarantors, the Administrative
Agent and the Lenders constituting Required Lenders (as defined in the Credit Agreement) of a duly
executed counterpart of this Amendment;
(b) the fact that the representations and warranties of the Borrower and each Guarantor
contained in Article 5 of the Credit Agreement and Section 6 of this Amendment shall be
true on and as of the date hereof;
(c) payment by the Borrower to the Administrative Agent of an amendment fee of .125% of each
Lender’s Revolving Credit Commitment for each Lender approving this Amendment after giving effect
to the reduction of the Total Revolving Credit Commitment in Section 3 of this Amendment
and all other fees and expenses (including without limitation the fees and expenses of counsel to
the Administrative Agent and fees related to the reduction of the Total Revolving Credit Commitment
in accordance with Section 2.14 of the Credit Agreement and Section 3 of this Amendment)
payable on the date of this Amendment to the applicable Lenders and the Administrative Agent; and
(d) receipt of such other documents that the Administrative Agent may reasonably require.
SECTION 5. No Other Amendment. Except for the amendments set forth herein, 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 or waived, nor affect or 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 hereby
ratified and affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as amended,
is in full force and effect.
SECTION 6. Representations and Warranties. The Borrower and each Guarantor hereby
represents and warrants to the Administrative Agent and the Lenders as follows:
(a) No Default or Event of Default under the Credit Agreement has occurred and is continuing
on the date hereof.
(b) The Borrower and each Guarantor each has the power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated hereunder, or thereunder,
to be done, observed and performed by it.
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(c) The execution, delivery and performance by each of the Borrower and each Guarantor of this
Amendment and each Loan Document to which such Person is a party that is being delivered in connection with this Amendment have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (i) contravene the terms of any
of such Person’s Organizational Documents or Authority Documents, (ii) conflict with or result in
any breach or contravention of, or the creation of any Lien under, any contractual obligation to
which such Person is party or another order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject, or (iii) violate any Applicable Law.
(d) This Amendment and each Loan Document being delivered in connection with this Amendment
have each been duly executed and delivered by the Borrower and each Guarantor that is party hereto
and thereto. This Amendment and each such Loan Document each constitutes the legal, valid and
binding obligation of the Borrower and each Guarantor that is a party thereto, enforceable against
the Borrower and each Guarantor in accordance with its terms, except as enforceability may be
limited by applicable Debtor Relief Laws and general principles of equity.
SECTION 7. 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 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA; PROVIDED THAT THE ADMINISTRATIVE AGENT,
LETTER OF CREDIT ISSUERS AND LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
SECTION 9. Consent by Guarantors. The Guarantors consent to this Amendment. Each
Guarantor promises and agrees to perform all of the requirements, conditions, agreements and
obligations under the terms of the Subsidiary Guaranty to which it is a party, such Subsidiary
Guaranty being hereby ratified and affirmed. Each Guarantor hereby expressly agrees that the
Subsidiary Guaranty to which it is a party is in full force and effect.
[Signature Pages Follow]
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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, this Amendment as of
the day and year first above written.
| BORROWER: | ||||
| X.X. XXXXXX, INC., a Delaware corporation | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Executive V.P. and Chief Financial Officer | |||
| GUARANTORS: | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, in the capacities described and on behalf of the entities set forth in Exhibit A | ||||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
EXHIBIT A
INITIAL GUARANTORS as of December 16, 2005
C. Xxxxxxx Xxxxxx Builders, Inc., a Virginia corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
CH Investments of Texas, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
CHI Construction Company, an Arizona corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
CHTEX of Texas, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Continental Homes of Texas, L.P., a Texas limited partnership, by CHTEX of Texas, Inc., its General
Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Continental Homes, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Continental Residential, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X. X. Xxxxxx, Inc. — Fresno, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx — Emerald, Ltd., a Texas limited partnership, by Xxxxxxx I, Ltd., its General Partner,
by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
X.X. Xxxxxx — Texas, Ltd., a Texas limited partnership, by Xxxxxxx I, Ltd., its General Partner, by
Xxxx X. Xxxxx in his capacity as Chief Financial Officer
X.X. Xxxxxx LA North, Inc. (f/k/a DRH Regrem X, Inc.), a Delaware corporation, by Xxxx X. Xxxxx in
his capacity as Chief Financial Officer
X.X. Xxxxxx Los Angeles Holding Company, Inc., a California corporation, by Xxxx X. Xxxxx in his
capacity as Chief Financial Officer
X.X. Xxxxxx Management Company, Ltd., a Texas limited partnership, by Xxxxxxx I, Ltd., its General
Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
X.X. Xxxxxx Materials, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx OCI, Inc., (f/k/a X.X. Xxxxxx Orange County, Inc.), a Delaware corporation, by Xxxx X.
Xxxxx in his capacity as Chief Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
X.X. Xxxxxx VEN, Inc. (f/k/a X.X. Xxxxxx San Diego Holding Company, Inc.), a California
corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
X.X. Xxxxxx, Inc. — Birmingham, an Alabama corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Chicago, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Denver, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Xxxxx-Xxxxx, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Greensboro, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Gulf Coast, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Jacksonville, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Louisville, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Minnesota, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — New Jersey, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Portland, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Sacramento, a California corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx, Inc. — Torrey, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
X.X. Xxxxxx-Xxxxxxx Homes, LLC, a Delaware limited liability company, by Vertical Construction
Corporation, a manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
DRH Cambridge Homes, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
DRH Cambridge Homes, LLC, a Delaware limited liability company, by X.X. Xxxxxx, Inc. — Chicago, a
managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
DRH Construction, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
DRH Regrem VII, LP, a Texas limited partnership, by Xxxxxxx I, Ltd., its General Partner, by Xxxx
X. Xxxxx in his capacity as Chief Financial Officer
DRH Regrem VIII, LLC, a Delaware limited liability company, by X.X. Xxxxxx, Inc. — Chicago, a
managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
DRH Regrem XI, Inc. a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
DRH Regrem XII, LP, a Texas limited partnership, by Xxxxxxx I, Ltd., its General Partner, by Xxxx
X. Xxxxx in his capacity as Chief Financial Officer
DRH Southwest Construction, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as
Chief Financial Officer
DRH Tucson Construction, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
DRHI, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
HPH Homebuilders 2000, L.P., a California limited partnership, by Western Pacific Housing
Management, Inc., a General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
KDB Homes, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx I, Ltd., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx II, Ltd., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx IX, Inc., a New Jersey corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx VIII, Ltd., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx X, Inc., a New Jersey corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Melmort Co., a Colorado corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Melody Homes, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Xxxxxxx Homes of Arizona LLC, a Delaware limited liability company, by SRHI LLC, a managing member,
by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Xxxxxxx Homes of California, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as
Chief Financial Officer
Xxxxxxx Homes of Oregon, Inc., an Oregon corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Xxxxxxx Homes of Washington, Inc., a Washington corporation, by Xxxx X. Xxxxx in his capacity as
Chief Financial Officer
Xxxxxxx Mortgage, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Xxxxxxx Realty Hawaii, Inc., a Hawaii corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
SGS Communities at Grande Quay, LLC, a New Jersey limited liability company, by Xxxxxxx IX, Inc., a
managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
SHA Construction LLC, a Delaware limited liability company, by SRHI, LLC, a managing member, by
Xxxx X. Xxxxx in his capacity as Chief Financial Officer
SHLR of California, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
SHLR of Colorado, Inc., a Colorado corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
SHLR of Nevada, Inc., a Nevada corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
SHLR of Utah, Inc., a Utah corporation, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
SHLR of Washington, Inc., a Washington corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
SRHI LLC, a Delaware limited liability company, by SHLR of Nevada, Inc., a managing member, by Xxxx
X. Xxxxx in his capacity as Chief Financial Officer
SSHI LLC, a Delaware limited liability company, by SHLR of Washington, a managing member, by Xxxx
X. Xxxxx in his capacity as Chief Financial Officer
Vertical Construction Corporation, a Delaware corporation, by Xxxx X. Xxxxx in his capacity as
Chief Financial Officer
Western Pacific Funding, Inc., a California corporation, by Xxxx X. Xxxxx in his capacity as
Executive Vice President
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Western Pacific Housing — Aviara, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing — Oso, L.P., a California limited partnership, by Western Pacific Housing
Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing — Scripps, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing — Seacove, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing — Windflower, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing Co., a California limited partnership, by Western Pacific Housing
Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing Management, Inc., a California corporation, by Xxxx X. Xxxxx in his
capacity as Chief Financial Officer
Western Pacific Housing, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Antigua, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Boardwalk, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing-Broadway, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Canyon Park, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Carmel, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Western Pacific Housing-Xxxxxxxx, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Communications Hill, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Copper Canyon, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Creekside, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Xxxxxx City, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Del Xxxxx, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Lomas Verdes, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Lost Hills Park, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-XxXxxxxxx Canyon, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Mountaingate, L.P. a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Norco Estates, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Pacific Park II, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Western Pacific Housing-Park Avenue East, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Park Avenue West, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Playa Vista, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing-Poinsettia, L.P., a California limited partnership, by Western Pacific
Housing Management, Inc., its General Partner, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-River Ridge, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing-Robinhood Ridge, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Santa Fe, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Scripps II, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Studio 528, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing-Terra Bay Duets, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Torrance, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
Western Pacific Housing-Torrey Commercial, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Western Pacific Housing-Xxxxxx Xxxxxxx, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial
Officer
Western Pacific Housing-Torrey Multi-Family, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Torrey Village Center, LLC, a Delaware limited liability company, by
Western Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as
Chief Financial Officer
Western Pacific Housing-Vineyard Terrace, LLC, a Delaware limited liability company, by Western
Pacific Housing Management, Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief
Financial Officer
Western Pacific Housing-Windemere, LLC, a Delaware limited liability company, by Western Pacific
Housing Management, Inc., its manager, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
WPH-Camino Xxxx, LLC, a Delaware limited liability company, by Western Pacific Housing Management,
Inc., its managing member, by Xxxx X. Xxxxx in his capacity as Chief Financial Officer
ADDITIONAL GUARANTORS as of June 13, 2006
DRH Regrem XIII, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XIV, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XV, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XVI, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XVII, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XVIII, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XIX, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XX, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
DRH Regrem XXI, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XXII, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XXIII, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XXIV, Inc., a Delaware corporation, by Xxxx X. Xxxxx in his capacity as Executive Vice
President and Chief Financial Officer
DRH Regrem XXV, Inc. (f/k/a X.X. Xxxxxx, Inc. — Los Angeles), a Delaware corporation, by Xxxx X.
Xxxxx in his capacity as Executive Vice President and Chief Financial Officer
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as | ||||
| Administrative Agent | ||||
| By: | /s/ R. Xxxxx Xxxxxxxxxx | |||
| Name: | R. Xxxxx Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender, | ||||
| Swingline Lender and a Letter of Credit Issuer | ||||
| By: | /s/ R. Xxxxx Xxxxxxxxxx | |||
| Name: | R. Xxxxx Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
| THE ROYAL BANK OF SCOTLAND, PLC, as a Lender | ||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | Senior Vice President | |||
| BANK OF AMERICA, N.A., as a Lender | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CALYON NEW YORK BRANCH, as a Lender | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Managing Director and Regional Head | |||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| JPMORGAN CHASE BANK, N.A., as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
| UBS LOAN FINANCE LLC, as a Lender | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BNP PARIBAS, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| SUNTRUST BANK, as a Lender | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| REGIONS BANK (successor by merger to AmSouth Bank), as a Lender | ||||
| By: | /s/ Xxxxxx XxXxxxxxx | |||
| Name: | Xxxxxx XxXxxxxxx | |||
| Title: | Assistant Vice President | |||
| THE BANK OF NOVA SCOTIA, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| SCOTIABANC INC., as a Lender | ||||
| By: | /s/ P.M. Xxxxx | |||
| Name: | P.M. Xxxxx | |||
| Title: | Managing Director | |||
| BARCLAYS BANK PLC, as a Lender | ||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| COMERICA BANK, as a Lender | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
| LLOYDS TSB BANK PLC, as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Director, Corporate Banking USA, C103 | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Vice President & Manager, Risk Management & Business Support, 8081 | |||
| NATIXIS (fka NATEXIS BANQUES POPULAIRES), as a Lender | ||||
| By: | /s/ Xxxxx-Xxxxx Dugeny | |||
| Name: | Xxxxx-Xxxxx DUGENY | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx XXXXXXX | |||
| Title: | Associate | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| GUARANTY BANK, as a Lender | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
| EMIGRANT BANK, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | M.D. | |||
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
| CALIFORNIA BANK & TRUST, a California | ||||
| banking corporation, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CITY NATIONAL BANK, a national banking association, | ||||
| as a Lender | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| FIFTH THIRD BANK, as a Lender | ||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
| MIZUHO CORPORATE BANK, LTD., as a Lender | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| SOCIÉTÉ GÉNÉRALE, as a Lender | ||||
| By: | /s/ Xxxxxxx Groeden | |||
| Name: | Xxxxxxx Groeden | |||
| Title: | Director | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| UNION BANK OF CALIFORNIA N.A., as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
| CHEVY CHASE BANK, F.S.B., as a Lender | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxx | |||
| Title: | Group Vice President | |||
| COMPASS BANK, as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| AMERICAN SAVINGS BANK FSB, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BANK OF HAWAII, as a Lender | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | XXXXX X. XXXXXX | |||
| Title: | VICE PRESIDENT | |||
| FIRST HAWAIIAN BANK, as a Lender | ||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | XXX X. XXXXXXXX | |||
| Title: | VICE PRESIDENT | |||
| THE NORTHERN TRUST COMPANY, as a Lender | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
| XXXXX XXX COMMERCIAL BANK, LTD., | ||||
| NEW YORK BRANCH, as a Lender | ||||
| By: | /s/ Xxx X.X. Xxxx | |||
| Name: | Xxx X.X. Xxxx | |||
| Title: | VP & General Manager | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| LEGACY TEXAS BANK, as a Lender | ||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx |
|||
| Title: | Senior Vice President | |||
| MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. | ||||
| NEW YORK BRANCH, as a Lender | ||||
| By: | /s/ Xxxxx — Xxx Xxx | |||
| Name: | Xxxxx — Xxx Xxx | |||
| Title: | VP & DGM | |||
| MALAYAN BANKING BERHAD, NEW YORK BRANCH, as a Lender | ||||
| By: | /s/ Fauzi Zulkifli | |||
| Name: | Fauzi Zulkifli | |||
| Title: | General Manager | |||
| NATIONAL CITY BANK, as a Lender | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender | ||||
| By: | /s/ Xxxxxx C.A. Xxxxxxxx, Jr. | |||
| Name: | XXXXXX C.A. XXXXXXXX, JR. | |||
| Title: | SENIOR VICE PRESIDENT & MANAGER | |||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | XXXXX X. XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
SCHEDULE 1
GUARANTORS
INITIAL GUARANTORS as of December 16, 2005
C. Xxxxxxx Xxxxxx Builders, Inc., a Virginia corporation
CH Investments of Texas, Inc., a Delaware corporation
CHI Construction Company, an Arizona corporation
CHTEX of Texas, Inc., a Delaware corporation
Continental Homes, Inc., a Delaware corporation
Continental Homes of Texas, L.P., a Texas limited partnership
Continental Residential, Inc., a California corporation
X.X. Xxxxxx — Emerald, Ltd., a Texas limited partnership
X.X. Xxxxxx, Inc. — Birmingham, an Alabama corporation
X.X. Xxxxxx, Inc. — Chicago, a Delaware corporation
X.X. Xxxxxx, Inc. — Denver, a Delaware corporation
X.X. Xxxxxx, Inc. — Xxxxx-Xxxxx, a Delaware corporation
X.X. Xxxxxx, Inc. — Fresno, a Delaware corporation
X.X. Xxxxxx, Inc. — Greensboro, a Delaware corporation
X.X. Xxxxxx, Inc. — Gulf Coast, a Delaware corporation
X.X. Xxxxxx, Inc. — Jacksonville, a Delaware corporation
X.X. Xxxxxx, Inc. — Louisville, a Delaware corporation
X.X. Xxxxxx, Inc. — Minnesota, a Delaware corporation
X.X. Xxxxxx, Inc. — New Jersey, a Delaware corporation
X.X. Xxxxxx, Inc. — Portland, a Delaware corporation
X.X. Xxxxxx, Inc. — Sacramento, a California corporation
X.X. Xxxxxx, Inc. — Torrey, a Delaware corporation
X.X. Xxxxxx LA North, Inc. (f/k/a DRH Regrem X, Inc.), a Delaware corporation
X.X. Xxxxxx Los Angeles Holding Company, Inc., a California corporation
X.X. Xxxxxx Management Company, Ltd., a Texas limited partnership
X.X. Xxxxxx Materials, Inc., a Delaware corporation
X.X. Xxxxxx OCI, Inc. (f/k/a X.X. Xxxxxx Orange County, Inc.), a Delaware corporation
X.X. Xxxxxx VEN, Inc. (f/k/a X.X. Xxxxxx San Diego Holding Company, Inc.), a California corporation
X.X. Xxxxxx — Texas, Ltd., a Texas limited partnership
DRH Cambridge Homes, Inc., a California corporation
DRH Cambridge Homes, LLC, a Delaware limited liability company
DRH Construction, Inc., a Delaware corporation
DRH Regrem VII, LP, a Texas limited partnership
DRH Regrem VIII, LLC, a Delaware limited liability company
DRH Southwest Construction, Inc., California corporation
DRH Tucson Construction, Inc., a Delaware corporation
DRHI, Inc., a Delaware corporation
KDB Homes, Inc., a Delaware corporation
Xxxxxxx I, Ltd., a Delaware corporation
Xxxxxxx II, Ltd., a Delaware corporation
Xxxxxxx VIII, Ltd., a Delaware corporation
Xxxxxxx IX, Inc., a New Jersey corporation
Xxxxxxx X, Inc., a New Jersey corporation
SGS Communities at Grande Quay, LLC, a New Jersey limited liability company
X.X. Xxxxxx-Xxxxxxx Homes, LLC, a Delaware limited liability company
HPH Homebuilders 2000, L.P., a California limited partnership
Melody Homes, Inc., a Delaware corporation
Melmort Co., a Colorado corporation
Xxxxxxx Homes of Arizona LLC, a Delaware limited liability company
Xxxxxxx Homes of California, Inc., a California corporation
Xxxxxxx Homes of Oregon, Inc., an Oregon corporation
Xxxxxxx Homes of Washington, Inc., a Washington corporation
Xxxxxxx Mortgage, Inc., a Delaware corporation
Xxxxxxx Realty Hawaii, Inc., a Hawaii corporation
SHA Construction LLC, a Delaware limited liability company
SHLR of California, Inc., a California corporation
SHLR of Colorado, Inc., a Colorado corporation
SHLR of Nevada, Inc., a Nevada corporation
SHLR of Utah, Inc., a Utah corporation
SHLR of Washington, Inc., a Washington corporation
SRHI LLC, a Delaware limited liability company
SSHI LLC, a Delaware limited liability company
Vertical Construction Corporation, a Delaware corporation
Western Pacific Funding, Inc., a California corporation
Western Pacific Housing Co., a California limited partnership
Western Pacific Housing Management, Inc., a California corporation
Western Pacific Housing, Inc., a Delaware corporation
Western Pacific Housing-Antigua, LLC, a Delaware limited liability company
Western Pacific Housing — Aviara, L.P., a California limited partnership
Western Pacific Housing-Boardwalk, LLC, a Delaware limited liability company
Western Pacific Housing-Broadway, LLC, a Delaware limited liability company
Western Pacific Housing-Canyon Park, LLC, a Delaware limited liability company
Western Pacific Housing-Carmel, LLC, a Delaware limited liability company
Western Pacific Housing-Xxxxxxxx, LLC, a Delaware limited liability company
Western Pacific Housing-Communications Hill, LLC, a Delaware limited liability company
Western Pacific Housing-Copper Canyon, LLC, a Delaware limited liability company
Western Pacific Housing-Creekside, LLC, a Delaware limited liability company
Western Pacific Housing-Xxxxxx City, L.P., a California limited partnership
Western Pacific Housing-Del Xxxxx, LLC, a Delaware limited liability company
Western Pacific Housing-Lomas Verdes, LLC, a Delaware limited liability company
Western Pacific Housing-Lost Hills Park, LLC, a Delaware limited liability company
Western Pacific Housing-XxXxxxxxx Canyon, LLC, a Delaware limited liability company
Western Pacific Housing-Mountaingate, L.P. a California limited partnership
Western Pacific Housing-Norco Estates, LLC, a Delaware limited liability company
Western Pacific Housing — Oso, L.P., a California limited partnership
Western Pacific Housing-Pacific Park II, LLC, a Delaware limited liability company
Western Pacific Housing-Park Avenue East, LLC, a Delaware limited liability company
Western Pacific Housing-Park Avenue West, LLC, a Delaware limited liability company
Western Pacific Housing-Playa Vista, LLC, a Delaware limited liability company
Western Pacific Housing-Poinsettia, L.P., a California limited partnership
Western Pacific Housing-River Ridge, LLC, a Delaware limited liability company
Western Pacific Housing-Robinhood Ridge, LLC, a Delaware limited liability company
Western Pacific Housing-Santa Fe, LLC, a Delaware limited liability company
Western Pacific Housing-Scripps II, LLC, a Delaware limited liability company
Western Pacific Housing — Scripps, L.P., a California limited partnership
Western Pacific Housing — Seacove, L.P., a California limited partnership
Western Pacific Housing-Studio 528, LLC, a Delaware limited liability company
Western Pacific Housing-Terra Bay Duets, LLC, a Delaware limited liability company
Western Pacific Housing-Torrance, LLC, a Delaware limited liability company
Western Pacific Housing-Torrey Commercial, LLC, a Delaware limited liability company
Western Pacific Housing-Xxxxxx Xxxxxxx, LLC, a Delaware limited liability company
Western Pacific Housing-Torrey Multi-Family, LLC, a Delaware limited liability company
Western Pacific Housing-Torrey Village Center, LLC, a Delaware limited liability company
Western Pacific Housing-Vineyard Terrace, LLC, a Delaware limited liability company
Western Pacific Housing-Windemere, LLC, a Delaware limited liability company
Western Pacific Housing — Windflower, L.P., a California limited partnership
WPH-Camino Xxxx, LLC, a Delaware limited liability company
DRH Regrem XI, Inc. a Delaware corporation
DRH Regrem XII, LP, a Texas limited partnership
ADDITIONAL GUARANTORS as of June 13, 2006
DRH Regrem XIII, Inc., a Delaware corporation
DRH Regrem XIV, Inc., a Delaware corporation
DRH Regrem XV, Inc., a Delaware corporation
DRH Regrem XVI, Inc., a Delaware corporation
DRH Regrem XVII, Inc., a Delaware corporation
DRH Regrem XVIII, Inc., a Delaware corporation
DRH Regrem XIX, Inc., a Delaware corporation
DRH Regrem XX, Inc., a Delaware corporation
DRH Regrem XXI, Inc., a Delaware corporation
DRH Regrem XXII, Inc., a Delaware corporation
DRH Regrem XXIII, Inc., a Delaware corporation
DRH Regrem XXIV, Inc., a Delaware corporation
DRH Regrem XXV, Inc. (f/k/a X.X. Xxxxxx, Inc. — Los Angeles), a Delaware corporation
EXHIBIT A
FORM OF INVENTORY SUMMARY REPORT
AS OF ,
REPORT DATE: ,
ADMINISTRATIVE AGENT:
|
Wachovia Bank, National Association, a national banking association | |
BORROWER:
|
X. X. Xxxxxx, Inc., a Delaware corporation |
This certificate is delivered under the Revolving Credit Agreement dated as of December
_____
, 2005
(as modified, amended, renewed, extended, supplemented, or restated from time to time, the “Credit
Agreement”), among Borrower, Administrative Agent, the Letter of Credit Issuers defined therein,
the Swingline Lender defined therein and the Lenders defined therein. Capitalized terms used
herein shall, unless otherwise indicated, have the respective meanings set forth in the Credit
Agreement.
I certify to Lenders that:
(a) I am an Authorized Signatory of Borrower in the position(s) set forth under my signature
below;
(b) the financial details set forth on the attached Annex I were prepared in accordance with
GAAP, and present accurately in all material respects the Loan Inventory for Borrower as of, and
for the month ended on, , ; and
(c) all insurance coverage which is customary and usual for the industry and which is required
by Section 6.12 of the Credit Agreement is in full force and effect.
| X. X. XXXXXX, INC., a Delaware corporation | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
Exhibit A
Annex I
to Inventory Summary Report
As Of _______, ___
(Amounts in Millions)
to Inventory Summary Report
As Of _______, ___
(Amounts in Millions)
Section 3.1(a)(i) Calculation of Loan Funding Availability
| Less | ||||||||||||
| Encumbered | Unencumbered | |||||||||||
| Loan Inventory | Portion, as | Portion, as | Advance | |||||||||
| At Book Value | Total | applicable | applicable | Rate | Amount | |||||||
(A) Net book value
of Unimproved
Land1
|
30 | % | ||||||||||
(B) Net book value
of Lots Under
Development2
|
65 | % | ||||||||||
(C) Net book value
of Developed
Lots3
|
65 | % | ||||||||||
(D) Net book value
of Dwelling
Lots4
|
85 | % | ||||||||||
(E) Net book value
of all funds in
escrow for Dwelling
Unit closings
|
90 | % | ||||||||||
(F) Unrestricted
cash and cash
equivalents
|
100 | % | ||||||||||
(G) TOTAL (Sum of
A+B+C+D+E+F) |
||||||||||||
(H) Borrowing
Limitation (amount,
if any, by which
A+B+C exceeds 50%
of G) |
||||||||||||
(I) TOTAL of
Section 3.1(a)(i)
(line G — line H) |
||||||||||||
Section 3.1(a)(ii) Calculation of Loan Funding Availability
| Less | ||||||||||||
| Encumbered | Unencumbered | |||||||||||
| Loan Inventory | Portion, as | Portion, as | Advance | |||||||||
| At Cost Basis | Total | Applicable | Applicable | Rate | Amount | |||||||
(A) Lots Under
Development2
|
65 | % | ||||||||||
(B) Developed
Lots3
|
65 | % | ||||||||||
(C) Dwelling Lots4
|
85 | % | ||||||||||
(D) TOTAL (Sum of A+B+C) |
||||||||||||
(E) Borrowing Limitation
(amount, if any, by which
A+B exceeds 50% of D) |
||||||||||||
(F) TOTAL of Section
3.1(a)(ii) (line D — line
E) |
||||||||||||
Annex I to Exhibit A
Reconciliation of Remaining Loan Funding Availability
(A) Loan Funding Availability [ = lesser of TOTAL of Section 3.1(a)(i) or Section 3.1(a)(ii) as calculated above] |
||
(B) Less: Senior Unsecured Indebtedness (other than the Obligations under this Facility) |
||
(C) Subtotal of Loan Funding Availability
[ = (A) — (B)] |
||
(D) Advances under this Facility |
||
(E) Unreimbursed Draws under
Performance Letters of Credit |
||
(F) Letter of Credit Exposure on
non-Performance Letters of Credit |
||
(G) Remaining Loan Funding Availability for
additional debt [ = (C) — (D) — (E) — (F)] |
||
1. "Unimproved Land” means parcels of land wholly-owned by Borrower or its Restricted
Subsidiaries which are, as of the date of determination, held for future development or disposition
and (a) with respect to which all requisite zoning requirements and land use requirements have been
satisfied, and all requisite approvals have been obtained (on a final and unconditional basis) from
all applicable Governmental Authorities (other than approvals which are simply ministerial and
non-discretionary in nature), in order to develop the parcel as a residential housing project and
construct Dwellings thereon, and (b) as to parcels located in California and other jurisdictions
that have comparable requirements and procedures, which satisfy the requirements of clause (a)
above, and which are subject to a currently effective vesting tentative map (unless a county or
city where the land is located does not grant vesting tentative maps), have received all necessary
approvals (on a final and unconditional basis, other than future conditions imposed on the
development in order to obtain such approvals ) by all applicable Governmental Authorities.
2. "Lots under Development” means Land Parcels which are, as of the date hereof, being
developed into Developed Lots or which are scheduled for the commencement of development into
Developed Lots within six (6) calendar months from the date hereof, and which Borrower has
designated and are included as “Lots Under Development” in the foregoing calculation on
the date hereof.
3. "Developed Lots” means subdivision lots wholly-owned by Borrower or its Restricted
Subsidiaries, subject to a recorded plat and which are in substantial compliance with all
Applicable Laws and are suitable for the construction thereon of foundations for a Dwelling, which
Borrower has designated and are included as “Developed Lots” in the foregoing calculation
on the date hereof (exclusive of any Dwelling Lot).
4. "Dwelling Lots” means Developed Lots with Dwellings which Borrower or any Restricted
Subsidiary has designated and are included as “Dwelling Lots” in the calculation of the
Loan Funding Availability. The term “Dwelling Lot” includes the Dwelling located
thereon.
Page 2
Annex I to Exhibit A
EXHIBIT D
FORM OF QUARTERLY COMPLIANCE CERTIFICATE
FOR ENDED ,
DATE: ,
ADMINISTRATIVE AGENT:
|
Wachovia Bank, National Association, a national banking association | |
BORROWER:
|
X. X. Xxxxxx, Inc., a Delaware corporation |
This certificate is delivered under the Revolving Credit Agreement dated as of December
_____
,
2005 (as modified, amended, renewed, extended, supplemented, or restated from time to time, the
"Credit Agreement”), among Borrower, Administrative Agent, the Letter of Credit Issuers defined
therein, the Swingline Lender defined therein and the Lenders defined therein. Capitalized terms
used herein shall, unless otherwise indicated, have the respective meanings set forth in the Credit
Agreement.
I certify to Administrative Agent and Lenders that:
(a) I am an Authorized Signatory of Borrower and its Restricted Subsidiaries (for purposes
hereof “Companies”) in the position(s) set forth under my signature below;
(b) the consolidated Current Financials of Borrower and its Subsidiaries delivered to
Administrative Agent concurrently with the delivery hereof were prepared in accordance with GAAP;
present fairly in all material respects the consolidated financial condition and results of
operations of Borrower and its Subsidiaries; and serve as the basis for the status of compliance by
Borrower with certain covenants in the Credit Agreement set forth on Annex I as of, and for the
(three, six, or nine months, or fiscal year) ended on, ,
(the “Subject Period”); and
(c) the status of compliance by Borrower with Sections 6.8(a), (b), (c), (d) and (e) of the
Credit Agreement at the end of the Subject Period is as set forth on Annex I to this certificate;
provided that Sections 6.8(d) and (e) may be labeled “not applicable” so long as Borrower has, as
of the date hereof, an Investment Grade Rating by at least two (2) of Xxxxx’x, S&P and Fitch.
| X. X. XXXXXX, INC., a Delaware corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Exhibit D
ANNEX I TO QUARTERLY COMPLIANCE CERTIFICATE
Status of Compliance with
Sections 6.8(a), (b), (c), (d) and (e)
of the Credit Agreement
(Dollar Amounts in Millions)
Sections 6.8(a), (b), (c), (d) and (e)
of the Credit Agreement
(Dollar Amounts in Millions)
[(Unless otherwise indicated, all calculations are made on a consolidated basis for
Borrower and its Restricted Subsidiaries at the date of determination
with respect to the most recently-ended fiscal quarter)]
Borrower and its Restricted Subsidiaries at the date of determination
with respect to the most recently-ended fiscal quarter)]
| Current | ||||||||||||
| Covenant | ||||||||||||
| Section | Limitation/Covenant | Amount | Status, _______, 200___ | Notes * | ||||||||
6.8(a)
|
Leverage Ratio — Net Funded Notes Payable divided by Total Capitalization (Net Funded Notes Payable plus net shareholders equity) of 0.55 to 1.0 or less | 0.55 | Indebtedness Less: Cash & cash equiv in excess of $50,000,000 (adjustments not to exceed $500,000,000) Net Funded Notes Payable Plus: Net shareholders equity Total Capitalization Leverage Ratio |
$ | ||||||||
6.8(b)
|
Ratio of EBITDA (generally income before interest expense, provision for income taxes, depreciation and amortization, extraordinary and other non-cash losses, etc.) for most recent 12 months to Interest Incurred for any two consecutive fiscal quarters of at least 1.50 to 1.00 or the Borrower shall either maintain (i) a ratio of (A) Adjusted Cash Flow from Operations to (B) Interest Incurred of greater than or equal to 1.50 to 1.00 or (ii) a sum of (y) Loan Funding Availability plus (z) unrestricted cash and cash equivalents, to the extent such unrestricted cash and cash equivalents are not included in calculating Loan Funding Availability, equal to or greater than $500,000,000. | 1.50
1.50 $500 |
EBITDA Interest incurred Coverage Ratio (times) Adjusted Cash Flow from Operations Ratio of Adjusted Cash Flow from Operations to Interest Incurred Sum of Loan Funding Availability Plus Unrestricted cash and cash equivalents |
$ | ||||||||
6.8(c)
|
Minimum Tangible Net Worth of at
least $3,500,000,000 plus
(generally) 50% of annual net
profits subsequent to September
30, 2007 and (generally) 50% of
additional future equity offerings _____ / _____ / _____ minimum (in millions) |
$ | 3,500 | Total Net Worth Less: Intangible Assets Less: Non-cash gain or loss from SFAS 133 Xxxx to Market Adjustments Tangible Net Worth |
$ | |||||||
6.8(d)1
|
Speculative Lots not to exceed 40% of trailing twelve months’ unit closings (excludes models) | 40 | % | Speculative Lots Trailing twelve months’ closings Percentage |
||||||||
6.8(e)1
|
Net book value of Developed Lots, Lots Under Development and Land Parcels not to exceed 150% of Adjusted Tangible Net Worth | 150 | % | Net Book Value of Lots & Land 150% of Adjusted Tangible Net Worth |
$ | |||||||
| $ | ||||||||||||
| Applicable Margin (see grid below): | Pricing Level Pricing Premium, if applicable Applicable Margin (bps) — Cash borrowing Applicable Margin (bps) — Letters of Credit Unused Commitment Fee (bps) |
|||||||||||
Annex I to Exhibit D
| * | See attached Calculation Worksheets, which are incorporated herein by reference. |
|
| 1. | Not applicable when Borrower has an Investment Grade Rating by at least two (2) of Xxxxx’x, S&P
and Fitch. |
Applicable Margin
The sum of (i) the percentage per annum set forth in the first table below, as applicable, plus
(ii) in the case of a Loan or a Letter of Credit, the percentage per annum set forth under the
column “Pricing Premium” in the second table below, as applicable:
The sum of (i) the percentage per annum set forth in the first table below, as applicable, plus
(ii) in the case of a Loan or a Letter of Credit, the percentage per annum set forth under the
column “Pricing Premium” in the second table below, as applicable:
| Senior | Eurodollar | Unused | ||||||||||||||||||
| Pricing | Unsecured Debt | Rate or | Base | Letters of | Commitment | |||||||||||||||
| Level | Leverage Ratio | Rating | LIBOR Rate | Rate | Credit | Fee | ||||||||||||||
1
|
Less than or equal to 0.30 to 1 |
BBB+/Baa1 | 0.50 | % | 0.00 | % | 0.375 | % | 0.125 | % | ||||||||||
2
|
Greater than 0.30 to 1 but less than or equal to 0.40 to 1 | BBB/Baa2 | 0.625 | % | 0.00 | % | 0.50 | % | 0.15 | % | ||||||||||
3
|
Greater than 0.40 to 1 but less than or equal to 0.50 to 1 | BBB-/Baa3 | 0.75 | % | 0.00 | % | 0.625 | % | 0.175 | % | ||||||||||
4
|
Greater than 0.50 to 1 but less than .55 to 1 | BB+/Ba1 | 1.00 | % | 0.00 | % | 0.875 | % | 0.20 | % | ||||||||||
5
|
Equal to or greater than 0.55 to 1 | BB/Ba2 | 1.375 | % | 0.00 | % | 1.25 | % | 0.225 | % | ||||||||||
Annex I to Exhibit D
| If Interest Coverage Ratio is: | AND if Leverage Ratio is: | Pricing Premium: | ||
| Greater than or equal to 2.0 to 1.0 | Not applicable | 0% | ||
| Greater than or equal to 1.5 to 1.0 but less than 2.0 to 1.0 |
Less than or equal to 0.50 to 1.0 | .125% | ||
| Greater than or equal to 1.5 to 1.0 but less than 2.0 to 1.0 |
Greater than 0.50 to 1.0 | .25% | ||
| Greater than or equal to 1.0 to 1.0 but less than 1.5 to 1.0 |
Less than or equal to 0.475 to 1.0 | .25% | ||
| Greater than or equal to 1.0 to 1.0 but less than 1.5 to 1.0 |
Greater than 0.475 to 1.0 | .45% | ||
| Less than 1.0 to 1.0 | Less than or equal to 0.45 to 1.0 | .375% | ||
| Less than 1.0 to 1.0 | Greater than 0.45 to 1.0 | .65% |
Annex I to Exhibit D
SUPPLEMENT TO ANNEX I
Calculation Worksheets
[TO BE ATTACHED BY BORROWER.]
Annex I to Exhibit D
