FIRST MODIFICATION OF CREDIT AGREEMENT
Exhibit 10.1(b)
FIRST MODIFICATION OF CREDIT AGREEMENT
THIS FIRST MODIFICATION OF CREDIT AGREEMENT (this “Modification”) is made as of the 15th day of December, 2006, by and among: (a) XXXXXXX XXXX, INC., an Illinois corporation (the “Borrower”), (b) the Guarantors party to the Credit Agreement (as hereinafter defined), (c) the several financial institutions signatory hereto that are party to the Credit Agreement (the “Lenders”), and (d) XXXXXX X.X., as Administrative Agent for itself and the Lenders (“Agent”).
RECITALS
WHEREAS, the Agent, the Lenders, the Borrower, the Guarantors, and certain other agent and lender parties are party to that certain Credit Agreement, dated December 21, 2005 (the “Credit Agreement”); and
WHEREAS, the Agent, the Lenders, the Borrowers, and the Guarantors wish to amend and modify the Credit Agreement as set forth in this Modification;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto under the Credit Agreement.
2. Section 5.1 Amendment. Section 5.1 of the Credit Agreement is hereby amended by adding the following defined terms:
“Global Land” means all Real Property owned by any of the Borrower or any Subsidiary for current or future development or for the future construction of Housing Units, excluding any subdivided portions thereof upon which construction of a Housing Unit has commenced beyond the foundation.
“Global Land Value” means the sum of all costs incurred by the Borrower or any Subsidiary with respect to the acquisition and development of Global Land, excluding any marketing, corporate, general, or administrative expenses.
“Interest Incurred” means, for any period, the total interest paid or accrued by the Borrower, the Wholly-owned Subsidiaries and the Special Project Subsidiaries (including the interest component of any Capital Lease) as calculated in accordance with GAAP, minus, to the extent included in the foregoing amount, amortization of any financing fees and costs.
3. Section 8.22 Modification. Section 8.22 of the Credit Agreement is hereby amended by deleting the text thereof and inserting the following text in lieu thereof:
(a) Tangible Net Worth. The Borrower shall, as of the end of each fiscal quarter of the Borrower, maintain a Tangible Net Worth in an amount not less than the sum of (i) $300,000,000.00 and (ii) 50% of the positive Net Income as earned subsequent to September 30, 2006.
(b) Leverage Ratio. The Borrower shall not, at the end of any fiscal quarter of the Borrower, permit the Leverage Ratio to exceed the ratios set forth in the below table as corresponding to the fiscal quarters of the Borrower specified therein:
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Fiscal Quarter Ending |
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Maximum Leverage |
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December 31, 2006 |
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2.00 to 1.00 |
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March 31, 2007 |
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2.00 to 1.00 |
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June 30, 2007 through September 30, 2008 |
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1.75 to 1.00 |
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December 31, 2008 and thereafter |
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2.50 to 1.00 |
(c) Builder Leverage Ratio. The Borrower shall not, at the end of any fiscal quarter of the Borrower, permit the Builder Leverage Ratio to exceed 1.50 to 1.00.
(d) Interest Coverage Ratio. The Borrower shall not, at the end of any fiscal quarter of the Borrower, permit the ratio of EBITDA to Interest Incurred, as calculated over the preceding four fiscal quarters of the Borrower, to be less than the ratios set forth in the below table as corresponding to the fiscal quarters of the Borrower specified therein:
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Fiscal Quarter Ending |
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Minimum Interest |
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December 31, 2006 |
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1.75 to 1.00 |
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March 31, 2007 |
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1.50 to 1.00 |
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June 30, 2007 |
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1.40 to 1.00 |
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September 30, 2007 |
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1.35 to 1.00 |
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December 31, 2007 |
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1.50 to 1.00 |
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March 31, 2008 |
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1.75 to 1.00 |
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June 30, 2008 and thereafter |
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2.25 to 1.00 |
(e) Global Land Value to Adjusted Tangible Net Worth Ratio. The Borrower shall not, at the end of any fiscal quarter of the Borrower, permit the ratio of Global Land Value to Adjusted Tangible Net Worth to be greater than 1.50 to 1.00.
4. Ratification. Except as modified hereby, the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect, and the Borrower and the Guarantors hereby ratify the terms and conditions thereof.
5. No Default or Event of Default. The Borrower and the Guarantors reaffirm as of the date hereof, all of the covenants, representations, and warranties contained in the Credit Agreement and the other Loan Documents. The Borrower and the Guarantors further warrant and represent, as of the date hereof, the following:
(a) The Credit Agreement and the Loan Documents are binding and enforceable, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law);
(b) There does not exist a Default or Event of Default under the Credit Agreement or any of the Loan Documents; and
(c) None of the Borrower or any Guarantor has any claim, defense, right to set-off, or counterclaim against the obligations evidenced or secured by the Credit Agreement or any of the Loan Documents or against the Agent or the Lenders.
6. Successors and Assigns. This Modification shall be binding upon and inure to the benefit of the Agent, the Lenders, the Borrower, the Guarantors and their respective successors and assigns.
7. Cross Reference. All references in the Loan Documents to the Credit Agreement shall hereafter include the modifications to the Credit Agreement set forth herein.
8. Time of the Essence. Time is of the essence of this Modification.
9. Counterparts. This Modification may be executed in multiple counterparts, each of which shall be deemed an original, and all of which when taken together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the undersigned have duly executed this Modification as of the date first set forth above.
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BORROWER: |
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XXXXXXX XXXX, INC., an Illinois corporation |
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/s/ Xxxxx X. Xxxx |
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Name: |
Xxxxx X. Xxxx |
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Chairman & CEO |
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GUARANTORS: |
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CACTUS HILLS, LLC |
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XXXXXXX XXXX HOMES AUSTIN |
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XXXXXXX XXXX HOMES XXXXXX |
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XXXXXXX XXXX HOMES DALLAS |
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XXXXXXX XXXX HOMES DALLAS |
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XXXXXXX XXXX HOMES HOUSTON |
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XXXXXXX XXXX HOMES HOUSTON |
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XXXXXXX XXXX TEXAS INVESTMENT |
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By: |
/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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EAST LAKE PARK, INC. |
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XXXXXXX XXXX STATEWAY, INC. |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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President |
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XXXXXXX XXXX FAR EAST DETROIT, LLC |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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KH FINANCIAL HOLDING COMPANY |
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KHH TEXAS TRADING COMPANY X.X. |
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XXXXXXX XXXX HOMES XXXXXX, X.X. |
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XXXXXXX XXXX HOMES CALIFORNIA, INC. |
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XXXXXXX XXXX HOMES DALLAS, X.X. |
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XXXXXXX XXXX HOMES FLORIDA, INC. |
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XXXXXXX XXXX HOMES HOUSTON, X.X. |
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XXXXXXX XXXX HOMES ILLINOIS, LLC |
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XXXXXXX XXXX HOMES NEVADA, INC. |
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XXXXXXX XXXX HOMES OHIO, INC. |
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XXXXXXX XXXX HOMES OREGON, INC. |
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XXXXXXX
XXXX HOMES REALTY FLORIDA, |
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XXXXXXX XXXX HOMES SAN ANTONIO, X.X. |
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XXXXXXX XXXX HOMES TEXAS, INC. |
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XXXXXXX XXXX HOMES WASHINGTON, INC. |
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XXXXXXX
XXXX HOMES WISCONSIN, |
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NATIONAL
CREDIT AND GUARANTY |
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RIVER OAKS REALTY, L.P. |
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By: |
/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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18TH AND PEORIA, LLC |
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Xxxxxxx Xxxx Suburban Centers, |
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Xxxxxxx Xxxx, Inc., its |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX SUBURBAN CENTERS, |
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XXXXXXX XXXX URBAN CENTERS, L.L.C. |
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THE GLENS AT WESTLAKE, L.L.C. |
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Xxxxxxx Xxxx, Inc., its manager |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX URBAN CENTERS |
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XXXXXXX XXXX URBAN CENTERS |
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XXXXXXX XXXX URBAN CENTERS SPECIAL |
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Xxxxxxx Xxxx Urban Centers, L.L.C., |
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Xxxxxxx Xxxx, Inc., its |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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BRIDLE RIDGE LIMITED PARTNERSHIP |
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PARKVIEW LIMITED PARTNERSHIP |
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RIVER POINTE LIMITED PARTNERSHIP |
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SONATA AT MORADA RANCH LIMITED |
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WINDMILL PARK LIMITED PARTNERSHIP |
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Xxxxxxx Xxxx Homes California, Inc., |
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its general partner |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX BELLEVUE RANCH, LLC |
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XXXXXXX XXXX REFLECTIONS, LLC |
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XXXXXXX XXXX XXXXXXX LAKES, LLC |
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XXXXXXX XXXX VILLAGES, LLC |
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Xxxxxxx Xxxx Homes California, Inc., |
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By: |
/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX XXXXXXXX FARMS |
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KIMBALL
WEST FRISCO LIMITED |
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Xxxxxxx Xxxx Homes Dallas, |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX CALUSA PALMS LIMITED |
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XXXXXXX
XXXX MARBELLA ESTATES |
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Xxxxxxx Xxxx Homes Florida, Inc., its |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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INDIAN TRAILS LIMITED PARTNERSHIP |
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Xxxxxxx Xxxx Homes Houston, L.P., |
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By: |
/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX TX PROPERTIES, LLC |
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Xxxxxxx Xxxx Homes Houston, L.P., |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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ASTOR PLACE LIMITED PARTNERSHIP |
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BOLINGBROOK LIMITED PARTNERSHIP |
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EDGEWATER LIMITED PARTNERSHIP |
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HUNTINGTON
CHASE LIMITED |
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LEGEND LAKES LIMITED PARTNERSHIP |
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THE
XXXX TOWNHOMES LIMITED |
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THE XXXXXXXX PLACE PARTNERSHIP |
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WATERFORD LIMITED PARTNERSHIP |
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WHISPERING
MEADOW LIMITED |
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WHITE OAK LIMITED PARTNERSHIP |
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Xxxxxxx Xxxx Homes Illinois, LLC, |
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By: |
/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XX XXXXXX PARK SOUTH, LLC |
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KH SRAV II, LLC |
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Xxxxxxx Xxxx Homes Illinois, LLC, |
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/s/ Xxxxx X. Xxxx |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX XXXX CENTENNIAL HEIGHTS |
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XXXXXXX XXXX HEATHERS/CAPAROLA |
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XXXXXXX MOUNTAIN FIRST LIMITED |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXXX COVE LIMITED PARTNERSHIP |
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XXXXXXX XXXX XXXXXX XXXX XX LIMITED |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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RIVER OAKS HOMES, LLP |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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GABLES AT HIDDENBROOK LIMITED |
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Xxxxxxx Xxxx Homes Washington, |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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PARK SHORE, L.L.C. |
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Xxxxx X. Xxxx |
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Chairman and CEO |
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XXXXXX X.X., as Administrative
Agent, L/C Issuer, |
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Vice President |
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BANK OF AMERICA, N.A., as a Lender |
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By: |
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/s/ Xxxxxxxx X. Xxxxxxxxxx |
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Xxxxxxxx X. Xxxxxxxxxx |
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Senior Vice President |
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KEYBANK NATIONAL ASSOCIATION, as
a |
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/s/ Xxxxx XxXxxxxx |
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Xxxxx XxXxxxxx |
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Senior Vice President |
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WACHOVIA BANK, NATIONAL |
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Xxxxxxx X. Xxxx |
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Vice President |
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CHARTER ONE BANK, N.A., as a Lender |
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Vice President |
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FIRST BANK, as a Lender |
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Xxxxx X. Xxxxxxx |
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Vice President |
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LaSALLE BANK, NATIONAL ASSOCIATION,
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Xxxxxx Xxxxx |
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First Vice President |
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FIFTH THIRD BANK, as a Lender |
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/s/ Xxxxxx X. X’Xxxxxxx |
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Xxxxxx X. X’Xxxxxxx |
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Assistant Vice President |
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ASSOCIATED BANK NATIONAL |
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Xxxxxx X. Xxxxx |
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Vice President |
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NATIONAL CITY BANK, as a Lender |
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/s/ Xxxx Xxxxxxxx |
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Xxxx Xxxxxxxx |
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Title: |
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Assistant Vice President |
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CITIBANK, N.A., as a Lender |
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/s/ Xxxx X. Xxxx |
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Name: |
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Xxxx X. Xxxx |
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Title: |
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Vice President |
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FRANKLIN BANK, SSB, as a Lender |
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By: |
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/s/ Xxxxxx X. Day |
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Name: |
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Xxxxxx X. Day |
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Title: |
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Senior Vice President |
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JPMORGAN CHASE BANK, N.A., as a Lender |
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By: |
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/s/ Xxxxxxxxx Xxxxxxxx |
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Name: |
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Xxxxxxxxx Xxxxxxxx |
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Title: |
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Vice President |
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MB FINANCIAL BANK, N.A., Successor in |
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By: |
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/s/ Xxxxxxxxxxx Xxxxxx |
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Name: |
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Xxxxxxxxxxx Xxxxxx |
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Title: |
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Vice President |
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BANK OF THE WEST, as a Lender |
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By: |
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/s/ Xxxx Xxxxxx |
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Name: |
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Xxxx Xxxxxx |
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Title: |
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Senior Vice President |
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COMERICA BANK, as a Lender |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxx |
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Title: |
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Vice President |
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COMPASS BANK, as a Lender |
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By: |
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/s/ Xxxxxxx Xxxx Xxxxx |
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Name: |
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Xxxxxxx Xxxx Xxxxx |
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Title: |
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Senior Vice President |
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