FIFTH MODIFICATION AGREEMENT
Exhibit 10.1
THIS FIFTH MODIFICATION AGREEMENT (this “Modification”), dated as of the 29th day
of June, 2007, by and among NEIGHBORHOODS CAPITAL, LLC, a Virginia limited liability company
(“Capital”), the limited liability companies identified above their executions hereof as Borrowers
or Guarantors (Capital and each of the Borrowers and Guarantors, individually, an “Obligor”, and
collectively, the “Obligors”); the parties identified above their executions hereof as Lenders and
other Lenders who may become a party to the Agreement (as hereinafter defined) (each, a “Lender”
and, collectively, the “Lenders”) and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as a Lender, as Agent for the Lenders and as Issuing Lender.
RECITALS:
WHEREAS, pursuant to a First Modified and Restated Loan Agreement dated November 15, 2004, as
modified in a First Modification Agreement dated July 11, 2005, a Second Modification Agreement
dated December 28, 2005, a Third Modification Agreement dated October 5, 2006 and a Fourth
Modification Agreement dated November 20, 2006, by and among the Obligors, the Lenders and the
Agent (the “Agreement”), the Lenders have made a Credit Facility in the principal amount not to
exceed at any time outstanding $150,000,000 available to the Obligors;
WHEREAS, the Obligors, the Lenders and the Agent desire to modify, amend and confirm the
Agreement and the other Loan Documents (as hereinafter defined) as set forth in this Modification;
and
WHEREAS, capitalized terms used but not defined in this Modification shall have the meanings
ascribed to them in the Agreement; the Obligors’ respective indebtedness, duties and obligations
under the Agreement and the other Loan Documents are hereinafter collectively called the
“Obligations”; and all liens, security interests, assignments, superior titles, rights, remedies,
powers, equities and priorities securing the Agreement and/or the other Loan Documents or providing
to Lenders recourse with respect thereto, are hereinafter collectively called the “Liens.”
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Obligors, the Lenders and the Agent agree to modify the Agreement as more
specifically set forth below.
| 1. | Incorporation of Recitals; Defined Terms. |
The Recitals to this Modification are hereby incorporated into this Modification and made a
part hereof.
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| 2. | Modification to Certain Provisions of Agreement. | |
| Section 8.5 of the Agreement is hereby amended and restated in its entirety as follows: |
The aggregate number of Spec Units and Model Units in the Borrowing Base at any time
shall not exceed (a) from the date hereof through and including September 30, 2008, thirty
percent (30%) of the total of all Unit closings during the preceding twelve (12) month
period at any time, and (b) commencing on October 1, 2008 and thereafter, twenty percent
(20%) of the total of all Unit closings during the preceding twelve (12) month period at any
time.
| 3. | Representations and Warranties. |
The Obligors, respectively, hereby reaffirm all of representations and warranties set forth in
the Agreement and the other Loan Documents, and further represent and warrant that (a) the
execution and delivery of this Modification do not contravene, result in a breach of, or constitute
a default under, any deed of trust, loan agreement, indenture or other contract or agreement to
which any Obligor is a party or by which any Obligor or any of its properties may be bound (nor
would such execution and delivery constitute such a default with the passage of time or the giving
of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or
restriction to which any Obligor or any of its properties is subject; (c) this Modification
constitutes the legal, valid and binding obligation of each Obligor, enforceable in accordance with
its terms; (d) the execution and delivery of, and performance under, this Modification are within
each Obligor’s power and authority without the joinder or consent of any other party and are not in
contravention of any law and have been duly authorized by all requisite action, and, are not in
contravention of such Obligor’s certificate of organization, operating agreement or other limited
liability company organizational documents if the Obligor is a limited liability company or such
Obligor’s certificate of incorporation, by-laws or other corporate organizational documents if the
Obligor is a corporation; (e) there exists no default under the Agreement or any other Loan
Document; (f) there are no offsets, claims or defenses with respect to the Obligations or the
Agreement or any other Loan Document; and (g) each Borrower is a duly organized and legally
existing limited liability company in good standing under the laws of the Commonwealth of Virginia,
each Guarantor other than S-M Financing and S-M Communities is a duly organized and legally
existing limited liability company in good standing under the laws of the State of Maryland, S-M
Communities is a duly organized and legally existing limited liability company in good standing
under the laws of the State of Delaware and S-M Financing is a duly organized and legally existing
corporation in good standing under the laws of the State of Delaware. Each Obligor further
represents and warrants that, except as disclosed in writing to the Agent, there is no suit,
judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or,
to such Obligor’s knowledge, threatened) against (i) any Obligor, or (ii) which affects the
Collateral or any Obligor’s title to the Collateral purported to be owned by such Obligor, or (iii)
which affects the validity, enforceability or priority of the Agreement or any other Loan Document
or any Lien. Each Obligor, jointly and severally, agrees to indemnify and hold the Lenders
harmless against any loss, claim, damage, liability or expense (including, without limitation,
reasonable attorneys’ fees) incurred as a result of any representation or
warranty made by any Obligor herein which proves to be untrue or inaccurate in any material
respect, and that, at Agent’s option, any such occurrence shall constitute an Event of Default.
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| 4. | Renewal; Lien Continuation; No Novation. |
The Obligors, respectively, hereby renew the Obligations for which they are responsible under
the Agreement, as modified by this Modification, and under the other Loan Documents and promise to
pay and perform all Obligations for which they are responsible under the Agreement, as modified by
this Modification, and the other Loan Documents. The Obligors, respectively, ratify and confirm
the Liens as valid, subsisting and continuing to secure the Obligations, as modified by this
Modification. This Modification shall not in any manner diminish, impair, release, waive or
extinguish the Obligations or the Liens. The execution and delivery of this Modification shall not
constitute a novation of the debt evidenced and secured by the Agreement and the other Loan
Documents.
| 5. | Miscellaneous. |
Unless specifically modified in this Modification, all terms of the Agreement and the other
Loan Documents shall remain in full force and effect. To the extent of any direct conflict between
the Agreement and the other Loan Documents and this Modification, this Modification shall control.
This Modification (a) shall bind and benefit the parties hereto and their respective successors and
assigns; (b) shall be governed by the laws of the Commonwealth of Virginia and United States
federal law; and (c) may be executed in several counterparts, and by the parties hereto on separate
counterparts, and each counterpart, when executed and delivered, shall constitute an original
agreement enforceable against all who signed it without production of or accounting for any other
counterpart, and all separate counterparts shall constitute the same agreement.
| 6. | Reaffirmation of Guaranty. |
Without limiting the other provisions of this Modification, each Guarantor hereby consents to
and joins in this Modification and hereby declares to and agrees with the Lenders that the
Guaranty is and shall continue in full force and effect for the benefit of Lenders with respect to
the Obligations, as modified by this Modification, that there are no offsets, claims or defenses
of Guarantor with respect to the Guaranty or the Obligations, that the Guaranty is not diminished
or impaired, released, waived or extinguished in any way by this Modification or the transactions
contemplated hereby, and that the Guaranty is hereby ratified and confirmed in all respects. Each
Guarantor further hereby reaffirms all of the representations and warranties set forth in the
Guaranty. Each Guarantor acknowledges that the Lenders would not execute this Modification or
otherwise consent to its terms without the foregoing agreements.
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WITNESS THE FOLLOWING EXECUTIONS AND SEALS.
| OBLIGORS: | ||||||||
| BORROWERS: | ||||||||
| NEIGHBORHOODS CAPITAL, LLC | ||||||||
| By: | /s/ Xxxxxx X. Alloy | (SEAL) | ||||||
| Name: Xxxxxx X. Alloy | ||||||||
| Title: Chairman | ||||||||
| BRAM NEIGHBORHOODS, LLC, GLENKIRK NEIGHBORHOODS, LLC, XXXXX XXXXX ESTATES, LLC, NEIGHBORHOODS I, L.L.C., NEIGHBORHOODS II, LLC, NEIGHBORHOODS III, LLC, NEIGHBORHOODS IV, LLC, COLES RUN NEIGHBORHOODS, LLC, ZION NEIGHBORHOODS, LLC, WALL NEIGHBORHOODS, LLC, MARUMSCO NEIGHBORHOODS, LLC, NEIGHBORHOODS VI, LLC, BEECH GROVE NEIGHBORHOODS, LLC, NEIGHBORHOODS V, LLC, LANDMARK NEIGHBORHOODS, LLC, BRAM III NEIGHBORHOODS, LLC, OLD DOMINION NEIGHBORHOODS, LLC, SPRING PARK NEIGHBORHOODS, LLC, FAIR OAKS NEIGHBORHOODS, LLC, SHIRLINGTON NEIGHBORHOODS, LLC, XXXXXX’X NEIGHBORHOODS II, LLC, WOODLANDS NEIGHBORHOODS, LLC, and FALLS GATE NEIGHBORHOODS, LLC |
||||||||
| By: | NEIGHBORHOODS CAPITAL, LLC, its Sole Member |
|||||||
| By: | /s/ Xxxxxx X. Alloy
|
(SEAL) | ||||||
| Title: Chairman | ||||||||
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| GUARANTORS: | ||||||||
| XXXXXXX-XXXXXX COMMUNITIES, LLC a Delaware limited liability company |
||||||||
| By: | /s/ Xxxxxx X. Alloy | (SEAL) | ||||||
| Name: Xxxxxx X. Alloy | ||||||||
| Title: President | ||||||||
| XXXXXXX-XXXXXX FINANCING CORP., a Delaware corporation |
||||||||
| By: | /s/ Xxxxxx X. Alloy | (SEAL) | ||||||
| Name: Xxxxxx X. Alloy | ||||||||
| Title: President | ||||||||
| KF NEIGHBORHOODS, L.L.C., XX XX NEIGHBORHOODS, LLC, WILDEWOOD NEIGHBORHOODS, LLC, and WILDEWOOD RESIDENTIAL, LLC |
||||||||
| By: | NEIGHBORHOODS CAPITAL, LLC, its Sole Member |
|||||||
| By: | /s/ Xxxxxx X. Alloy
|
(SEAL) | ||||||
| Title: Chairman | ||||||||
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| AGENT AND LENDER: | ||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and Lender, including as successor in merger to SouthTrust Bank |
||||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx
|
(SEAL) | ||||
| Title: Vice President | ||||||
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| OTHER LENDERS: | ||||||
| BRANCH BANKING AND TRUST COMPANY | ||||||
| By: | /s/ Xxxx X Xxxxxxxxx
|
(SEAL) | ||||
| Title SVP | ||||||
| KEYBANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxx Xxxx
|
(SEAL) | ||||
| Title Senior Vice President | ||||||
| FIRST HORIZON HOME LOAN CORPORATION | ||||||
| By: | /s/ Xxxxxxxxx X. Paladeali
|
(SEAL) | ||||
| Title Vice President | ||||||
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