FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit 10.1
FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”) is made as of the
26th day of June, 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”), that certain Third Amendment to Revolving Credit Agreement dated as of July 6, 2007
(the “Third Amendment”), and that certain Fourth Amendment to Revolving Credit Agreement dated as
of January 4, 2008 (the “Fourth Amendment”; the Original Credit Agreement, as amended by the First
Amendment, the Second Amendment, the Third Amendment, and the Fourth 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.
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SECTION 2. Amendments.
(a)
The first table in 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:
| 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 | BBB/Baa2 | 1.05 | % | 0.00 | % | 0.925 | % | 0.15 | % | ||||||||||||
| to 0.30 to 1 | ||||||||||||||||||||||
2 |
Greater than 0.30 | BBB-/Baa3 | 1.25 | % | 0.00 | % | 1.125 | % | 0.15 | % | ||||||||||||
| to 1 but less than | ||||||||||||||||||||||
| or equal to 0.40 to 1 | ||||||||||||||||||||||
3 |
Greater than 0.40 | BB+/Ba1 | 1.45 | % | 0.00 | % | 1.325 | % | 0.20 | % | ||||||||||||
| to 1 but less than | ||||||||||||||||||||||
| or equal to 0.50 to 1 | ||||||||||||||||||||||
4 |
Greater than 0.50 | BB/Ba2 | 1.70 | % | 0.00 | % | 1.575 | % | 0.20 | % | ||||||||||||
| to 1 but less than | ||||||||||||||||||||||
| .55 to 1 | ||||||||||||||||||||||
5 |
Equal to or greater | BB-/Ba3 | 2.00 | % | 0.00 | % | 1.875 | % | 0.25 | % | ||||||||||||
| than 0.55 to 1 | ||||||||||||||||||||||
(b) The definition of “Net Funded Notes Payable” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Net Funded Notes Payable” means, for Borrower and its Restricted Subsidiaries as of
any date, (a) the aggregate amount of all Indebtedness (including the pro rata portion of
Indebtedness of a joint venture in which Borrower or a Restricted Subsidiary holds an equity
interest, based on Borrower’s or such Restricted Subsidiary’s equity interest in such joint
venture) minus (b) unrestricted cash and cash equivalents, net of outstanding cash
borrowings under this Agreement, in excess of $50,000,000 based upon the average of the
month-end balances of unrestricted cash, cash equivalents and outstanding cash borrowings
under the Credit Agreement for the fiscal quarter most recently ended.
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(c) The definition of “Tangible Net Worth” in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“Tangible Net Worth” means, with respect to Borrower and its Restricted Subsidiaries,
the sum of (i) the net worth of Borrower and its Restricted Subsidiaries, as defined under
GAAP, plus (ii) to the extent not otherwise included in clause (i), amounts
reflected on the consolidated balance sheet of the Borrower and its Restricted
Subsidiaries attributable to capital stock that does not constitute Indebtedness, less (iii)
all “intangible assets”, but excluding any non-cash gain or loss resulting from any
xxxx-to-market adjustments made directly to the net worth of Borrower and its Restricted
Subsidiaries on a consolidated basis as a result of fluctuations in the value of financial
instruments owned by Borrower or any such Restricted Subsidiaries as mandated under SFAS
133.
(d) Section 1.1 of the Credit Agreement is hereby amended by adding the following definitions
in alphabetical order:
“Deferred Tax Valuation Allowance” means any valuation allowance applied to deferred
tax assets as determined in accordance with GAAP and included in the financial statements of
the Borrower.
“Net Book Value of Land and Lots” means the net book value determined in accordance
with GAAP of Developed Lots, Lots Under Development, and Land Parcels as of the date of
determination.
(e) The definition of “Total Revolving Credit Commitment” in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
“Total Revolving Credit Commitment” means, as of any date of determination, the sum of
all Revolving Credit Commitments for all Lenders then in effect, which sum shall not exceed
$1,650,000,000 unless the Total Revolving Credit Commitment is increased pursuant to
Section 2.10(b).
(f) 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) $2,000,000,000, plus (ii) fifty percent (50%) of annual net profits (with no deduction
for any annual net loss and excluding the effect on annual net profits of any reversal in
any Deferred Tax Valuation Allowance) 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 exceeding $500,000,000, 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),
plus (iv) 100% of the effect on annual net profits for each fiscal year ending after
September 30, 2007 of any reversal in any Deferred Tax Valuation Allowance as of the date of
determination;
(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 of Land and Lots shall not exceed at any time (i) one hundred
fifty percent (150%) of the Adjusted Tangible Net Worth when the Net Book Value of Land and
Lots exceeds $4,740,000,000; and (ii) two hundred percent (200%) of the Adjusted Tangible
Net Worth when the Net Book Value of Land and Lots is equal to or less than $4,740,000,000;
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.
(g) Exhibit D to the Credit Agreement is hereby amended and restated in its entirety to read
as Exhibit D attached hereto.
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(h) The Borrower’s notice address in Schedule 2.1 to the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
| BORROWER: | ADDRESS | |
X.X. Xxxxxx, Inc.
|
000 Xxxxxxxx Xxxxxx | |
| Xxxxx 000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attn: Xxxx X. Xxxxx | ||
Xxxxxx
X. Xxxxx |
||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 (Xx. Xxxxx) | ||
| Fax: 000-000-0000 (Xx. Xxxxx) | ||
E-mail: xxxxxx@xxxxxxxx.xxx |
||
xxxxxx@xxxxxxxx.xxx |
||
| With a copy to: | ||
| 000 Xxxxxxxx Xxxxxx | ||
| Xxxxx 000 | ||
| Xxxx Xxxxx, Xxxxx 00000 | ||
| Attn: Xxx X. Harbour, Esq. | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 | ||
| E-mail: xxxxxxxx@xxxxxxxx.xxx |
SECTION 3. Reduction of Aggregate Commitment. At the request of the Borrower, the
amount of the Total Revolving Credit Commitment is hereby reduced to $1,650,000,000 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.
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 .20% 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;
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(d) payment by the Borrower of all other fees and expenses (including without limitation the
fees and expenses of counsel to the Administrative Agent) payable on the date of this Amendment in
connection herewith; and
(e) 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.
(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.
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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: | EVP, CFO | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH 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 FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent |
||||
| By: | /s/ R. Xxxxx Xxxxxxxxxx | |||
| Name: | R. Xxxxx Xxxxxxxxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| 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: | Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| THE ROYAL BANK OF
SCOTLAND, PLC, as a Lender |
||||
| By: | /s/ Xxxxxxx XxXxxxxx | |||
| Name: | Xxxxxxx XxXxxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BANK OF AMERICA, N.A., as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CALYON NEW YORK BRANCH, as a Lender |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CITICORP, N.A., as a Lender |
||||
| By: | /s/ Xxxxx XxXxxxx | |||
| Name: | Xxxxx XxXxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| JPMORGAN CHASE BANK, N.A., as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| UBS LOAN FINANCE LLC, as a Lender |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director Banking Products Services. US |
|||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director Banking Products Services. US |
|||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BNP PARIBAS, as a Lender |
||||
| By: | /s/ Alain Kasfereit | |||
| Name: | Alain Kasfereit | |||
| Title: | Managing Director | |||
| By: | /s/ XX xx Xxxxxxxx | |||
| Name: | XX xx Xxxxxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| SUNTRUST BANK, as a Lender |
||||
| By: | /s/ W. Xxxx Xxxxxxx | |||
| Name: | W. Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| WASHINGTON MUTUAL BANK, as a Lender |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO FIFTH 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 | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| THE BANK OF NOVA SCOTIA, as a Lender |
||||
| By: | /s/ Ning Cai | |||
| Name: | Ning Cai | |||
| Title: | Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| SCOTIABANC INC., as a Lender |
||||
| By: | /s/ X.X. Xxxx | |||
| Name: | X.X. Xxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BARCLAYS BANK PLC, as a Lender |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Manager | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| COMERICA BANK, as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| XXXXXX XXX, as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| LLOYDS TSB BANK PLC, as a Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Assistant Vice President Risk Management & Business Support S025 |
|||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | Vice President & Manager Risk Management & Business Support B081 |
|||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| NATIXIS (fka NATEXIS BANQUES POPULAIRES), as a Lender |
||||
| By: | /s/ Xxxxx-Xxxxx Dugeny | |||
| Name: | Xxxxx-Xxxxx Dugeny | |||
| Title: | Managing Director | |||
| By: | /s/ Zinda Bouazzoui | |||
| Name: | Zinda Bouazzoui | |||
| Title: | Associate Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| GUARANTY BANK, as a Lender |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| EMIGRANT BANK, as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| PNC BANK, NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as a Lender |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Authorised Signatory | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorised Signatory | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CALIFORNIA BANK & TRUST, a California banking corporation, as a Lender |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH 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 | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| FIFTH THIRD BANK, as a Lender |
||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| MIZUHO CORPORATE BANK, LTD., as a Lender |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| SOCIÉTÉ GÉNÉRALE, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CHEVY CHASE BANK, F.S.B., as a Lender |
||||
| By: | /s/ Xxxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxxx X. Xxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| COMPASS BANK, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxx Xxxxx | |||
| Title: | SVP | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| AMERICAN SAVINGS BANK FSB, as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| BANK OF HAWAII, as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| FIRST HAWAIIAN BANK, as a Lender |
||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| THE NORTHERN TRUST COMPANY, as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| 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 FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH, as a Lender |
||||
| By: | /s/ Xxxxx - Xxx Xxx | |||
| Name: | Xxxxx - Xxx Xxx | |||
| Title: | VP & DGM | |||
SIGNATURE PAGE TO FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| NATIONAL CITY BANK, as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Executive Vice President | |||
SIGNATURE PAGE TO FIFTH 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 FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
| CAMULOS MASTER FUND LP, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney-in-Fact | |||
SIGNATURE PAGE TO FIFTH 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 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: Average of month end balances for the 3 applicable fiscal calendar months of cash & cash equiv, net of outstanding cash borrowings under the Credit Agreement, in excess of $50,000,000 | ||||||||||||||||
| 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 | EBITDA | $ | ||||||||||||
| Interest incurred | ||||||||||||||||
| Coverage Ratio (times) | ||||||||||||||||
| 1.50 | Adjusted Cash Flow from Operations |
|||||||||||||||
| $500 | Ratio of Adjusted Cash Flow
from Operations to Interest
Incurred |
|||||||||||||||
| Sum of Loan Funding Availability | ||||||||||||||||
Plus Unrestricted cash and cash
equivalents |
||||||||||||||||
Annex I to Exhibit D
| Current | ||||||||||||||||
| Covenant | ||||||||||||||||
| Section | Limitation/Covenant | Amount | Status, _______, 200___ | Notes* | ||||||||||||
6.8(c)
|
Minimum Tangible Net Worth of at least $2,000,000,000 plus (generally) 50% of annual net profits subsequent to September 30, 2007, (generally) 50% of additional future equity offerings in excess of $500,000,000, and 100% of Deferred Tax Valuation Allowance reversals for each fiscal year ended after September 30, 2007 | $2,000 | Total Net Worth
Plus: capital stock not
Indebtedness
Less: Intangible Assets
Less: Non-cash gain or loss
from
SFAS 133 Xxxx to Market
Adjustments
Tangible Net Worth
|
$ | ||||||||||||
| _____ / _____ / _____ minimum (in millions) | ||||||||||||||||
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 or 150% (or 200% so long as net book value of such does not exceed $4.74 billion) of Adjusted Tangible Net Worth | 150% (or 200%) | Net Book Value of Lots & Land 150% (or 200%) 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) |
|||||||||||||||
| * | 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.
|
Annex I to Exhibit D
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:
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:
| 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 | BBB/Baa2 | 1.05 | % | 0.00 | % | 0.925 | % | 0.15 | % | ||||||||||||||
| to 0.30 to1 | ||||||||||||||||||||||||
2 |
Greater than 0.30 | BBB-/Baa3 | 1.25 | % | 0.00 | % | 1.125 | % | 0.15 | % | ||||||||||||||
| to 1 but less than | ||||||||||||||||||||||||
| or equal to 0.40 to 1 | ||||||||||||||||||||||||
3 |
Greater than 0.40 | BB+/Ba1 | 1.45 | % | 0.00 | % | 1.325 | % | 0.20 | % | ||||||||||||||
| to 1 but less than | ||||||||||||||||||||||||
| or equal to 0.50 to 1 | ||||||||||||||||||||||||
4 |
Greater than 0.50 | BB/Ba2 | 1.70 | % | 0.00 | % | 1.575 | % | 0.20 | % | ||||||||||||||
| to 1 but less than | ||||||||||||||||||||||||
| .55 to 1 | ||||||||||||||||||||||||
5 |
Equal to or greater | BB-/Ba3 | 2.00 | % | 0.00 | % | 1.875 | % | 0.25 | % | ||||||||||||||
| than 0.55 to 1 | ||||||||||||||||||||||||
Annex I to Exhibit D
| If Interest Coverage Ratio is: | AND if Leverage Ratio is: | Pricing Premium: | ||||||
Greater than or equal to 2.0 |
Not applicable | 0 | % | |||||
to 1.0 |
||||||||
Greater than or equal to 1.5 |
Less than or equal to | .125 | % | |||||
to 1.0 but less than 2.0 to 1.0 |
0.50 to 1.0 | |||||||
Greater than or equal to 1.5 |
Greater than 0.50 to 1.0 | .25 | % | |||||
to 1.0 but less than 2.0 to
1.0 |
||||||||
Greater than or equal to 1.0 |
Less than or equal to | .25 | % | |||||
to 1.0 but less than 1.5 to 1.0 |
0.475 to 1.0 | |||||||
Greater than or equal to 1.0 |
Greater than 0.475 to 1.0 | .45 | % | |||||
to 1.0 but less than 1.5 to
1.0 |
||||||||
Less than 1.0 to 1.0 |
Less than or equal to | .375 | % | |||||
| 0.45 to 1.0 | ||||||||
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
