THIRD AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
EXECUTION
COPY
THIRD
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is made as of the 20th day of December, 2007, by and among
XXXXXX XXXXX USA L.L.C. (the “Borrower”), the LENDERS party hereto, WACHOVIA
BANK, NATIONAL ASSOCIATION, as agent (the “Agent”), and the GUARANTORS party
hereto.
R
E C I T A L
S:
The
Borrower, the Agent and the Lenders have entered into a certain First Amended
and Restated Credit Agreement dated as of December 16, 2005 (as amended by
that certain First Amendment to First Amended and Restated Credit Agreement
dated as of January 11, 2007 and that certain Second Amendment to First
Amended and Restated Credit Agreement dated as of June 15, 2007, the
“Credit Agreement”). Capitalized terms used in this Amendment which
are not otherwise defined in this Amendment shall have the respective meanings
assigned to them in the Credit Agreement.
The
Guarantors consist of Owner Guarantors that have executed or otherwise become
a
party to the Owner Guaranty Agreement and Subsidiary Guarantors that have
executed or otherwise become a party to the Subsidiary Guaranty
Agreement.
The
Borrower and the Guarantors have requested the Agent and the Lenders to amend
the Credit Agreement to modify the provisions related to the Interest Coverage
Ratio and to make other such changes as the parties hereunder deem appropriate
upon the terms and conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the Recitals and the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Agent, the
Lenders and the Guarantors, intending to be legally bound hereby, agree as
follows:
SECTION
1. Recitals. The
Recitals are incorporated herein by reference and shall be deemed to be a
part
of this Amendment.
SECTION
2. Amendment. The
Credit Agreement is hereby amended as follows:
2.1 Section
1.1 of the Credit Agreement is hereby amended by deleting the language in
clause
(i) in the definition of “Borrowing Base” and inserting “Intentionally Omitted”
in lieu thereof.
2.2 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, the sum
of
(a)
the cash generated by (or used in) operating activities, as calculated on
the
quarterly financial statements for the Borrower, 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
Expense.”
““Borrowing
Base
Availability” means, on any date, the excess (if any) of the Borrowing
Base as most recently determined in accordance with this Agreement over the
amount of Borrowing Base Indebtedness on such date.”
““Unrestricted
Cash” of
a Person means the cash and Cash Equivalents of such Person that would not
be
identified as “restricted” on a balance sheet of such Person prepared in
accordance with GAAP.”
2.3
Section
2.5(b) of the Credit Agreement is hereby amended by deleting Section 2.5(b)
in
its entirety and inserting the following in lieu thereof:
“(b)
(i) The Applicable Unused Fee Rate shall be determined by reference to the
Leverage Ratio in accordance with the following table and the provisions
of this
Section 2.5(b) and (ii) the Applicable LIBOR Margin for LIBOR Rate Loans,
the Applicable Facility L/C Rate, and the Applicable ABR Margin for ABR Loans
shall be determined as the sum of (A) the applicable percentage in the row
titled “Unadjusted Rate” in the first table below determined by reference to the
Leverage Ratio plus (B) the
applicable percentage in the row titled “Pricing Premium” in the second table
below determined by reference to the Interest Coverage Ratio:
|
Level
I
|
Level
II
|
Level
III
|
|
|
Leverage
Ratio
|
Less
than or equal to 1.00 to 1.00
|
Greater
than 1.00 to 1.00 but less than or equal to 1.50 to 1.00
|
Greater
than 1.50 to 1.00
|
|
Unadjusted
Rate
|
1.875
|
2.125%
|
2.375%
|
|
Applicable
Unused Fee Rate
|
0.20%
|
0.20%
|
0.25%
|
2
|
Interest
Coverage
|
Greater
than or equal to 2.00 to 1.00
|
Greater
than or equal to 1.50 to 1.00 but less than 2.00 to 1.00
|
Greater
than or equal to 1.00 to 1.00 but less than 1.50 to 1.00
|
Greater
than or equal to .50 to 1.00 but less than 1.00 to 1.00
|
Less
than .50 to 1.00
|
|
Pricing
Premium
|
.00%
|
.25%
|
.375%
|
.50%
|
.625%
|
|
Maximum
Leverage Ratio1
|
2.00
to 1.00
|
1.75
to 1.00
|
1.50
to 1.00
|
1.25
to 1.00
|
1.00
to 1.00
|
2.4
Section
6.10 of the Credit Agreement is hereby amended by deleting such
section and inserting the following in lieu thereof:
“6.10
Maintenance of
Tangible Net Worth. Maintain at all times Tangible Net Worth
in amounts at all times equal to or exceeding (i) $110,000,000, plus (ii)
fifty
percent (50%) of the Consolidated Earnings for each quarter after November
30,
2007 (excluding any quarter in which Consolidated Earnings are less than
zero
(0)), plus (iii) fifty percent (50%) of the net proceeds or other consideration
received by Borrower for any capital stock issued or other equity interests
sold
after November 30, 2007.”
2.5
Section
6.11 of the Credit Agreement is hereby amended by deleting such
section and inserting the following in lieu thereof:
“6.11
Maintenance of
Leverage Ratio. Maintain a Leverage Ratio not in excess
of
(a)
2.00
to 1.00 (as determined on the last day of each fiscal quarter) for any fiscal
quarter that the Interest Coverage Ratio is greater than or equal to 2.00
to
1.00,
(b)
1.75
to 1.00 (as determined on the last day of each fiscal quarter) for any fiscal
quarter that the Interest Coverage Ratio is greater than or equal to 1.50
to
1.00 but less than 2.00 to 1.00,
(c)
1.50
to 1.00 (as determined on the last day of each fiscal quarter) for any fiscal
quarter that the Interest Coverage Ratio is greater than or equal to 1.00
to
1.00 but less than 1.50 to 1.00,
(d)
1.25
to 1.00 (as determined on the last day of each fiscal quarter) for any fiscal
quarter that the Interest Coverage Ratio is greater than or equal to 0.50
to
1.00 but less than 1.00 to 1.00, and
(e)
1.00
to 1.00 (as determined on the last day of each fiscal quarter) for any fiscal
quarter that the Interest Coverage Ratio is less than 0.50 to 1.00.
2.6
Section
6.12 of the Credit Agreement is hereby amended by deleting such section and
inserting the following in lieu thereof:
“6.12
Maintenance of
Interest Coverage Ratio. Maintain an Interest Coverage Ratio
of not less than 2.00 to 1.00 (as determined in each case in this Section
6.12
on the last day of each fiscal quarter for the four fiscal quarter period
ending
on the last day of such fiscal quarter); provided that, notwithstanding the
foregoing, the Interest Coverage Ratio may be less than 2.00 to 1.00 for
any
fiscal quarter ending on or before the Maturity Date so long as (i) the number
of fiscal quarters in which the Interest Coverage Ratio is less than 1.50
to
1.00 does not exceed in the aggregate eight fiscal quarters ending after
November 30, 2007, and (ii) the number of fiscal quarters in which the Interest
Coverage Ratio is less than 0.50 to 1.00 does not exceed in the aggregate
four
fiscal quarters ending after November 30, 2007.”
2.7
Article
6
of the Credit Agreement is hereby amended by adding the following new Section
6.15:
Section
6.15 Minimum
Liquidity. If as of the last day of the fiscal quarter most
recently ended (a) the Interest Coverage Ratio is less than 1.50 to 1.00
and (b)
the ratio of (1) Adjusted Cash Flow From Operations for the last four quarters
then ended to (2) Interest Expense is less than 1.50 to 1.00, on and after
such
day, the Borrower shall maintain Unrestricted Cash, together with any Borrowing
Base Availability, in an amount of not less than $43,000,000.
2.8
Section
7.8 of the Credit Agreement is hereby amended by deleting such section and
inserting the following in lieu thereof:
“7.8
Limitation on
Payment
of Subordinated Indebtedness. Pay, repay, purchase or defease
any Subordinated Indebtedness, directly or indirectly, in cash or in other
property, or by set-off or in any other manner, unless and until all Obligations
have been paid in full and all Commitments have been
terminated. Notwithstanding the foregoing, Borrower or any Subsidiary
may (a) make scheduled payments of interest on the Subordinated Indebtedness,
(b) repay Subordinated Indebtedness upon its scheduled maturity, and (c)
so long
as (i) the Leverage Ratio for the last reporting period is less than 1.25
to
1.00 after giving effect to the redemption or purchase of Subordinated
Indebtedness
4
contemplated
in this clause (c) as if such redemption or purchase occurred in such last
reporting period and (ii) the Interest Coverage Ratio for the last reporting
period is greater than 2.00 to 1.00 after giving effect to the redemption
or
purchase of Subordinated Indebtedness contemplated in this clause (c) as
if such
redemption or purchase occurred in such last reporting period, (y) redeem
Subordinated Indebtedness pursuant to provisions of such Subordinated
Indebtedness allowing redemption at the option of the Borrower with the proceeds
of any equity offering or after such Subordinated Indebtedness has been
outstanding for the defined period set forth in such Subordinated Indebtedness,
or (z) purchase Subordinated Indebtedness by issuer tender offer or open
market
purchase, so long as, with respect to clauses (a), (b) or (c) above, no Default
or Event of Default has occurred and is continuing or would occur as a result
of
making such payment, redemption, purchase or repayment, as the case may
be.”
SECTION
3. Reduction
of Aggregate
Commitment. The Borrower has requested a reduction of the
amount of the Aggregate Commitment to $250,000,000 outstanding as of the
date
hereof and such reduction shall be allocated to each Lender’s Commitment ratably
in accordance with its Ratable Share. The Borrower represents,
warrants and certifies that this reduction in the Aggregate Commitment is
in
accordance with Section 2.6 of the Credit Agreement.
SECTION
4. Conditions
to
Effectiveness. The effectiveness of this
Amendment and the obligations of the Lenders hereunder are subject to
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 Agent of a duly executed counterpart of this Amendment signed by the
Borrower, the Guarantors, and the Required Lenders;
(b) receipt
by the Agent, for the account of all Lenders signing this Amendment, a fee
of
0.20% of the amount of each such Lender’s Commitment;
(c) receipt
by the Agent from the Borrower of any and all other fees and expenses to
be paid
by the Borrower to the Agent and the Lenders in connection with this Amendment;
and
(d) the
fact
that the representations and warranties of the Borrower contained in Article
4
of the Credit Agreement and in Section 6 of this Amendment shall be true
in all
material respects on and as of the date hereof.
SECTION
5. No
Other
Amendment. Except for the amendments set forth above, the text
of the Credit Agreement shall remain unchanged and in full force and
effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment
shall be construed together as a single
agreement. Nothing
5
herein
contained shall waive, annul, vary or affect any provision, condition, covenant
or agreement contained in the Credit Agreement, except as herein amended,
nor
affect nor impair any rights, powers or remedies under the Credit Agreement
as
hereby amended. The Lenders and the Agent do hereby reserve all of
their rights and remedies against all parties who may be or may hereafter
become
secondarily liable for the repayment of the Obligations. The Borrower
promises and agrees to perform all of the requirements, conditions, agreements
and obligations under the terms of the Credit Agreement, as heretofore and
hereby amended. The Credit Agreement, as so amended, is hereby
ratified and affirmed. The Borrower hereby expressly agrees that the
Credit Agreement, as amended, is in full force and effect.
SECTION
6. Representations
and
Warranties. The Borrower hereby represents and warrants to
each of the Lenders as follows:
(a) No
Default under the Credit Agreement has occurred and is continuing on the
date
hereof.
(b) The
Borrower and Guarantors have the power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by them.
(c) This
Amendment has been duly authorized, validly executed and delivered by one
or
more authorized officers of the Borrower and Guarantors and constitutes a
legal,
valid and binding obligation of the Borrower and each Guarantor, enforceable
against it in accordance with its terms, subject to the effect, if any, of
bankruptcy, insolvency, reorganization, arrangement or other similar laws
relating to or affecting the rights of creditors generally and the limitations,
if any, imposed by the general principles of equity and public
policy.
(d) The
execution and delivery of this Amendment and the performance of the Borrower
and
Guarantors hereunder do not and will not require the consent or approval
of any
regulatory authority or governmental authority or agency having jurisdiction
over the Borrower or any Guarantor, nor be in contravention of or in conflict
with the articles of incorporation or bylaws or other applicable organizational
documents of the Borrower, or any Guarantor, or the provision of any statute,
or
any judgment, order or indenture, instrument, agreement or undertaking, to
which
the Borrower, or any Guarantor is party or by which the assets or properties
of
the Borrower or Guarantors are or may become bound.
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. Transmission by telecopy, facsimile, email or
other form of electronic transmission of an executed counterpart of this
Amendment shall be deemed to constitute due and sufficient delivery of such
counterpart.
SECTION
8. Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of North Carolina.
6
SECTION
9. Consent
by
Guarantors. The Guarantors consent to the foregoing
amendments. Each Guarantor promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty Agreement to which it is a party, said Guaranty Agreement being
hereby
ratified and affirmed. Each Guarantor hereby expressly agrees that
the Guaranty Agreement to which it is a party is in full force and
effect.
[The
remainder of this page intentionally left blank.]
7
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: | |
| XXXXXX XXXXX USA L.L.C., | |
| a Nevada limited liability company | |
| By: ___________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Chief Financial Officer, Treasurer and | |
| Secretary |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| WACHOVIA BANK, NATIONAL | |
| ASSOCIATION, as Agent and a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| BANK OF AMERICA, N.A., as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| CITIBANK, N.A. (successor by merger to Citibank | |
| Texas, N.A.), as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| REGIONS BANK (successor by merger to | |
| AmSouth Bank), as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| GUARANTY BANK, as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| COMERICA BANK, as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| KEY BANK, as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
| NATIONAL CITY BANK, as a Lender | |
| By: ______________________________________ | |
| Name: ___________________________________ | |
| Title: ___________________________________ |
Signature
Page of
Third
Amendment to First Amended and Restated Credit Agreement
|
OWNER
GUARANTORS:
|
|
| ELLY NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Vice President and Secretary |
| XXXXXX NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Vice President and Secretary |
| XXXXX NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Vice President and Secretary |
| XXXXX NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Vice President and Secretary |
| XXXXX NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: President and Secretary |
| SEYMOUR NEVADA, INC., a Nevada corporation | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Vice President and Secretary |
| LITTLE SHOTS NEVADA L.L.C., a Nevada | |
| limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxx Xxxxxxxxx | |
| Title: Manager |
Signature
Page of
Third
Amendment to First Amended and Restated Credit
Agreement
|
SUBSIDIARY
GUARANTORS
|
|
| ASHTON ATLANTA RESIDENTIAL, L.L.C., | |
| a Georgia limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| ASHTON DALLAS RESIDENTIAL L.L.C., | |
| a Texas limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXXXX RESIDENTIAL L.L.C., | |
| a Texas limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXX ARIZONA L.L.C., | |
| a Nevada limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXXXX RESIDENTIAL L.L.C., | |
| a Nevada limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
Signature
Page of
Third
Amendment to First Amended and Restated Credit
Agreement
| XXXXXX XXXXXX, LLC, | |
| a Florida limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| ASHTON TAMPA RESIDENTIAL LLC, | |
| a Nevada limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| ASHTON DENVER RESIDENTIAL, LLC, | |
| a Nevada limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| PINERY JOINT VENTURE, a Colorado joint venture | |
| By: Xxxxxx
Xxxxx USA L.L.C., a Nevada limited liability company, the member authorized to act on its behalf |
|
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXX FINANCE CO., a Delaware | |
| corporation | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Chief Financial Officer, Treasurer and Secretary |
Signature
Page of
Third
Amendment to First Amended and Restated Credit
Agreement
|
XXXXXX
XXXXX ORLANDO LIMITED
|
|
| PARTNERSHIP, a Florida limited partnership | |
| By: Xxxxxx
Xxxxx Lakeside L.L.C., a Nevada limited
liability company, its general partner |
|
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXX CORPORATE, LLC, | |
| a Nevada limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
| XXXXXX XXXXX TRANSPORTATION, LLC, | |
| a Georgia limited liability company | |
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
|
XXXXXX
XXXXX CONSTRUCTION LLC,
|
|
| an Arizona limited liability company | |
| By: Xxxxxx
Xxxxx Arizona L.L.C., a Nevada limited
liability company |
|
| By: ______________________________________ | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Manager |
Signature
Page of
Third
Amendment to First Amended and Restated Credit
Agreement
