AMENDMENT AGREEMENT
Exhibit 10.61
This Amendment Agreement (this “Amendment Agreement”) is entered into as of February 28, 2008, by and between XXXXXXX XXXX HOMES, INC., a California corporation (“Borrower”), and COMERICA BANK (“Lender”). This Amendment Agreement is made with reference to the following facts:
RECITALS
A. Lender has made a revolving line of credit available to Borrower in the initial maximum outstanding principal amount of $50,000,000 (the “Loan”), pursuant to the terms of that certain Revolving Line of Credit Loan Agreement (Borrowing Base Loan) dated as of March 8, 2006 (the “Loan Agreement”). Capitalized terms used in this Amendment Agreement and not defined shall have the meanings assigned to such terms in the Loan Agreement.
B. Subject to the terms and conditions contained in this Amendment Agreement, Borrower and Lender have agreed to modify the Loan Agreement and other Loan Documents as set forth herein.
C. As used in this Amendment Agreement, the term “Loan Documents” means the Loan Agreement, the Note, the Deeds of Trust, the other Security Documents, the Environmental Indemnity, the Guaranty, and the other “Loan Documents” described in the Loan Agreement. This Amendment Agreement and the “Short Forms” described below shall also constitute Loan Documents.
AGREEMENT
NOW, THEREFORE, with reference to the foregoing Recitals and information, and in consideration of the mutual covenants and agreements contained in this Amendment Agreement, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender agree as follows:
1. Recitals; Representations and Warranties. The above statement of facts set forth in the Recitals is true and correct, and the Recitals hereby are incorporated herein as an agreement of Borrower and Lender. Borrower hereby represents and warrants to Lender that (a) no Event of Default or Unmatured Event of Default has occurred or exists, and (b) all representations and warranties of Borrower contained in the Loan Agreement or in any of the other Loan Documents (as the Loan Agreement and such other Loan Documents are amended hereby) are true and correct as of the date hereof.
2. Amendments to Loan Agreement. Borrower and Lender hereby amend the Loan Agreement as follows:
2.1 The definition of “Commitment Amount” set forth in Section 1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
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“ ‘Commitment Amount’ means (a) during the Initial Line Term, the sum of Thirty-Five Million Dollars ($35,000,000.00), and (b) during the Reduction Period, beginning upon the last day of the first Calendar Quarter following the Initial Line Maturity Date, and on or prior to the last day of each Calendar Quarter thereafter during the Reduction Period, the Commitment Amount shall be reduced in the minimum amount of Eight Million Seven Hundred Fifty Thousand and No/100 Dollars ($8,750,000.00) (each, “Reduced Commitment Amount”):
| DATE |
REDUCED COMMITMENT AMOUNT | ||
| Initial Line Maturity Date |
$ | 35,000,000.00 | |
| First Calendar Quarter |
$ | 26,250,000.00 | |
| Second Calendar Quarter |
$ | 17,500,000.00 | |
| Third Calendar Quarter |
$ | 8,750,000.00 | |
| Fourth Calendar Quarter |
$ | 0.00 | |
2.2 The definition of “Maximum Aggregate Borrowing Base Concentrations” set forth in Section 1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“ ‘Maximum Aggregate Borrowing Base Concentration(s)’ shall mean shall mean each and every one of the following:
(a) With respect to all Qualified Projects included in the Borrowing Base (collectively or individually ‘Geographic Concentration Limitation’):
(i) The aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Zoned Land, Lots and/or Homes for Qualified Projects located in the State of Arizona shall not exceed the lesser of (1) Twelve Million Two Hundred Fifty Thousand Dollars ($12,250,000.00), or (2) thirty-five percent (35%) of the then existing Commitment Amount; and
(ii) The aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Zoned Land, Lots and/or Homes for Qualified Projects located in the State of Nevada shall not exceed the lesser of (1) Twelve Million Two Hundred Fifty Thousand Dollars ($12,250,000.00), or (2) thirty-five percent (35%) of the then existing Commitment Amount.
(b) With respect to all Zoned Land and Lots to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Zoned Land, Entitled Land, High End Entitled Land, Lots Under Development and High End Lots Under Development for all Qualified Projects shall not exceed the lesser of (i) Twenty Million Dollars ($20,000,000.00), or (ii) sixty percent (60%) of the then existing Commitment Amount (‘Land Concentration Limitation’).
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(c) With respect to all Zoned Land to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Zoned Land for all Qualified Projects shall not exceed the lesser of (i) Five Million Dollars ($5,000,000.00), or (ii) fifteen percent (15%) of the then existing Commitment Amount (‘Zoned Land Concentration Limitation’).
(d) With respect to all Entitled Land to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Entitled Land for all Qualified Projects shall not exceed the lesser of (i) Ten Million Dollars ($10,000,000.00), or (ii) thirty percent (30%) of the then existing Commitment Amount (‘Entitled Land Concentration Limitation’).
(e) With respect to all High End Entitled Land to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all High End Entitled Land for all Qualified Projects shall not exceed the lesser of (i) Seven Million Five Hundred Thousand Dollars ($7,500,000.00), or (ii) twenty-two percent (22%) of the then existing Commitment Amount (‘High End Entitled Land Concentration Limitation’).
(f) With respect to all Lots Under Development to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all Lots Under Development for all Qualified Projects shall not exceed the lesser of (i) Twenty Million Dollars ($20,000,000.00), or (ii) sixty percent (60%) of the then existing Commitment Amount (‘Lots Under Development Concentration Limitation’).
(g) With respect to all High End Lots Under Development to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all High End Lots Under Development for all Qualified Projects shall not exceed the lesser of (i) Fifteen Million Dollars ($15,000,000.00), or (ii) forty-five percent (45%) of the then existing Commitment Amount (‘High End Lots Under Development Concentration Limitation’).
(h) With respect to all High End Entitled Land and High End Lots Under Development to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all High End Entitled Land and High End Lots Under Development for all Qualified Projects shall not exceed the lesser of (i) Fifteen Million Dollars ($15,000,000.00), or (ii) forty-five percent (45%) of the then existing Commitment Amount (‘High End Land Concentration Limitation’).
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(i) With respect to all Spec Homes to be included in the Borrowing Base, for each and every Qualified Project financed hereunder, the total number of Spec Homes shall not exceed the lesser of (i) twenty-five (25) Spec Homes, (ii) five (5) months’ appraised absorption for the applicable Project, or (iii) five (5) months’ actual absorption for the applicable Project, as determined by Lender from time to time based upon the actual prior six-month Home sales average for the applicable Project (‘Spec Home Concentration Limitation’).
(j) With respect to all High End Spec Homes to be included in the Borrowing Base, for each and every Qualified Project financed hereunder, the total number of High End Spec Homes shall not exceed the lesser of (i) fifteen (15) High End Spec Homes, (ii) four (4) months’ appraised absorption for the applicable Project, or (iii) four (4) months’ actual absorption for the applicable Project, as determined by Lender from time to time based upon the actual prior six-month Home sales average for the applicable Project (‘High End Spec Home Concentration Limitation’).
(k) With respect to all Model Homes or High End Model Homes to be included in the Borrowing Base, for each and every Qualified Project financed hereunder, the total number of Model Homes or High End Model Homes, as applicable, shall not exceed five (5) (‘Model Home Concentration Limitation’).
(l) With respect to any one Qualified Project, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for such Qualified Project shall not exceed Twenty-five Million Dollars ($25,000,000.00).
(m) With respect to all attached condominium Homes for all Qualified Projects other than the Qualified Projects commonly known as ‘Promenade North’ in San Diego, California and ‘Cambridge Lane’ in Tustin, California, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all such attached condominium Homes shall not exceed the lesser of (i) Fifteen Million Dollars ($15,000,000.00), or (ii) forty-five percent (45%) of the then existing Commitment Amount.
(n) With respect to all attached condominium Homes in those Qualified Projects commonly known as ‘Promenade North’ in San Diego, California and ‘Cambridge Lane’ in Tustin, California, the aggregate Maximum Allowed Advance multiplied by the applicable Draw Percentage for all such attached condominium Homes (i) for each such Qualified Project shall not exceed the lesser of (A) Fifteen Million Dollars ($15,000,000.00), or (B) forty-five percent (45%) of the then existing Commitment Amount, and (ii) for both such Qualified Projects in the aggregate shall not exceed the lesser of (A) Twenty-Five Million Dollars ($25,000,000.00), or (B) seventy-two percent (72%) of the then existing Commitment Amount.
(o) With respect to all High End Homes to be included in the Borrowing Base, the aggregate Maximum Allowed Advance multiplied by the
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applicable Draw Percentage for all such High End Homes shall not exceed the lesser or (i) Twenty Million Dollars ($20,000,000.00), or (ii) sixty percent (60%) of the then existing Commitment Amount.”
2.3 The subheadings entitled “ENTITLED LAND”, “LOTS UNDER DEVELOPMENT” and “HIGH END LOTS UNDER DEVELOPMENT” within the definition of “Maximum Allowed Advance” set forth in Section 1.1 of the Loan Agreement are hereby deleted in their entirety and replaced with the following new subheadings:
| “– | ENTITLED LAND: The sum of all Advances for Entitled Land shall not exceed the lesser of (i) sixty-five percent (65%) of Total Project Costs, or (ii) fifty percent (50%) of the Appraised Value for Entitled Land, subject to Lender’s approval.” |
| “– | LOTS UNDER DEVELOPMENT: The sum of all Advances for Lots Under Development shall not exceed the lesser of (i) eighty percent (80%) of Total Project Costs, or (ii) sixty-five percent (65%) of the Bulk Finished Lot Value for Lots Under Development, subject to Lender’s approval.” |
| “– | HIGH END LOTS UNDER DEVELOPMENT: The sum of all Advances for High End Lots Under Development shall not exceed the lesser of (i) seventy-five percent (75%) of Total Project Costs, or (ii) sixty-five percent (65%) of the Bulk Finished Lot Value for High End Lots Under Development, subject to Lender’s approval.” |
2.4 In Section 2.12(a) of the Loan Agreement, the current reference to “Fifty Million and No/100 Dollars ($50,000,000.00)” is hereby deleted and replaced with “Thirty-Five Million and No/100 Dollars ($35,000,000.00)”.
2.5 Section 6.15 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“6.15 FINANCIAL COVENANTS. Financial covenants described in this Section 6.15, together with all other financial covenants and restrictions set forth in this Agreement, shall be monitored quarterly by Lender upon receipt of the financial statements to be provided hereunder.
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| COVENANT PARTY |
COVENANT TYPE |
COVENANT REQUIREMENT | ||
| Guarantor |
Maximum Total Liabilities-to-Tangible Net Worth Ratio | Not in excess of (a) 5.00:1.0 from January 1, 2008 through December 31, 2008, and (b) 4.00:1.0 from and after January 1, 2009 | ||
| Guarantor |
Minimum Tangible Net Worth | Not less than (a) $175,000,000 through December 31, 2008, and (b) from and after January 1, 2009, the sum of (i) $175,000,000, plus (ii) 50% of quarterly net income after December 31, 2008 | ||
| Guarantor |
Minimum Liquidity | Not less than $20,000,000, at least $10,000,000 of which must be cash on hand | ||
Upon the satisfaction of all of the conditions precedent set forth in Section 7 below, the effective date of the replacement of Section 6.15 of the Loan Agreement shall be deemed to be December 31, 2007.
3. Amendments to Note. The Loan, as the maximum principal amount outstanding thereunder has been reduced pursuant to this Amendment Agreement, shall be evidenced by the Note, as amended hereby. The Note shall is hereby amended so that the figure “Fifty Million and No/100 Dollars ($50,000,000.00)” set forth twice in the first paragraph on page one of the Note is hereby deleted and replaced with “Thirty-Five Million and No/100 Dollars ($35,000,000.00)”, and the figure “$50,000,000.00” appearing in the upper left hand corner on page one of the Note is hereby deleted and replaced with “$35,000,000.00”.
4. Extension of Initial Line Maturity Date. Lender has completed its annual review and hereby extends the Initial Line Maturity Date for an additional twelve (12) Calendar Months to and until April 3, 2009. Lender hereby gives notice of such extension to Borrower in accordance with subsection 2.1.3(e) of the Loan Agreement. The “Maturity Date” of “April 3, 2009” set forth in the first paragraph on page one of the Note is hereby deleted and replaced with “April 3, 2010”.
5. Security Documents. Each Deed of Trust, and all other Security Documents, shall secure, in addition to all other indebtedness and obligations secured thereby, the payment and performance of all present and future indebtedness and obligations of Borrower under (a) this Amendment Agreement, (b) any and all amendments, modifications, renewals and/or extensions of the Loan Agreement, regardless of whether any such amendment, modification, renewal or extension is evidenced by a new or additional instrument, document or agreement, and (c) all other Loan Documents (other than the Guaranty and the Environmental Indemnity, the obligations under which continue to remain unsecured by each Deed of Trust), as amended by this Agreement and by the Short Forms.
6. Definitions. Except as provided in this Amendment Agreement, all references in the Loan Agreement and in the other Loan Documents (a) to the Deeds of Trust shall mean the Deeds of Trust, as amended by this Amendment Agreement, (b) to the Loan shall mean the Loan, as the maximum principal amount thereof has been reduced pursuant to this Amendment
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Agreement, (c) to the Note shall mean the Note as amended by this Amendment Agreement, (d) to the Loan Agreement shall mean the Loan Agreement as amended by this Amendment Agreement, (e) to the Loan Documents shall mean the Loan Documents as such term is defined in this Amendment Agreement, and (f) to any particular Loan Document shall mean such Loan Document as modified by this Amendment Agreement or any document executed pursuant hereto. In addition, all references in the Loan Agreement and in the other Loan Documents to (i) “$50,000,000.00” or “$50,000,000”, and (ii) to “Fifty Million and No/100 Dollars” or “Fifty Million Dollars”, are hereby changed to “$35,000,000.00” or “Thirty-Five Million and No/100 Dollars”.
7. Conditions Precedent. Lender’s obligation to modify the terms of the Loan Agreement and the other Loan Documents as set forth herein is subject to the satisfaction of all of the following conditions precedent (any of which may be waived by Lender in its sole discretion):
7.1 Lender shall have received a fully-executed original of this Agreement (including an original of the executed Guarantor’s Consent attached hereto).
7.2 Lender have received an original of each Amendment Agreement (Short Form), each of even date herewith (collectively, the “Short Forms”), fully executed and acknowledged by Borrower and consented to by all applicable Subordinate Rights Holders.
7.3 The Short Forms shall have been recorded in the official records of the counties in which each Project is located in accordance with Lender’s instructions to the Title Company, in addition to all other documents which Lender may reasonably request to be recorded.
7.4 Lender shall have received such endorsements to each existing Title Policy (or commitments by the Title Company to issue the same in form acceptable to Lender) as Lender shall reasonably request to insure the validity and continuing first position liens of the Deeds of Trust, as amended hereby, including without limitation a CLTA 110.5 endorsement (or its local equivalent).
7.5 Lender shall have received a current good standing certificate of Borrower (and its managing member) issued by the applicable Secretary of State of the state of each such entity’s formation.
7.6 Lender shall have received a current good standing certificate of Borrower issued by each state in which each Qualified Project included in the Borrowing Base is located.
7.7 No change shall have occurred in the financial condition of Borrower, Guarantor or any Project, which would have, in Lender’s sole judgment, a material adverse effect on such Project or on Borrower’s or Guarantor’s ability to repay the Loan or otherwise perform their respective obligations under the Loan Documents as of the date hereof.
7.8 No condemnation or adverse zoning or usage change proceeding shall have occurred or shall have been threatened against any Project; no Project shall have suffered any significant damage by fire or other casualty which has not been repaired; no law, regulation,
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ordinance, moratorium, injunctive proceeding, restriction, litigation, action, citation or similar proceeding or matter shall have been enacted, adopted, or threatened by any governmental authority, which would have, in Lender’s judgment, a material adverse effect on Borrower or any Project as of the date hereof.
7.9 The representations and warranties contained in the Loan Agreement and in all other Loan Documents shall remain true and correct as of the date hereof.
7.10 No Event of Default or Unmatured Event of Default shall have occurred and be continuing.
7.11 Borrower shall have reimbursed Lender for all costs and expenses incurred by Lender in connection with the transaction contemplated by this Amendment Agreement, including title insurance costs, recording fees, and attorneys’ fees and costs.
8. Non-Impairment. Except as expressly provided herein, nothing in this Amendment Agreement shall alter or affect any provision, condition or covenant contained in the Loan Agreement or the other Loan Documents or affect or impair any rights, powers or remedies thereunder, and the parties hereto intend that the provisions of the Loan Agreement and the other Loan Documents shall continue in full force and effect except as expressly modified hereby.
9. Miscellaneous. This Amendment Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California applicable to contracts made and performed in such state, without regard to the principles thereof regarding conflict of laws, and any applicable laws of the United States of America. The headings used in this Amendment Agreement are for convenience only and shall be disregarded in interpreting the substantive provisions of this Amendment Agreement. If any provision of this Amendment Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed herefrom and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable provision had never been a part hereof. As used in this Amendment Agreement, the term “include(s)” shall mean “include(s), without limitation,” and the term “including” shall mean “including, but not limited to.”
10. Integration; Interpretation. The Loan Documents, including this Amendment Agreement, contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein, and supersede all prior negotiations. No reference to this Amendment Agreement is necessary in any instrument or document at any time referring to a Loan Document. Any reference to a Loan Document (including in any other Loan Document) shall be deemed a reference to such document as amended hereby.
11. Counterparts. This Amendment Agreement may by executed in any number of counterparts, all of which shall be considered one in the same instrument. The original, executed signature pages of exact copies of this Amendment Agreement may be attached to one of such copies to form one document.
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IN WITNESS WHEREOF, Borrower and Lender have executed this Amendment Agreement as of the day and year first set forth above.
BORROWER:
XXXXXXX XXXX HOMES, INC., a
California corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
LENDER:
COMERICA BANK
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Its: XX. Xxxxxxx Xxxxxx
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GUARANTOR’S CONSENT
XXXXXXX XXXX HOMES, a Delaware corporation (“Guarantor”), hereby consents to the terms, conditions and provisions of the foregoing Amendment Agreement (“Amendment Agreement”) and the transactions contemplated by the Amendment Agreement. Guarantor hereby reaffirms the full force and effectiveness of its Guaranty dated as of March 8, 2006 (the “Guaranty”), in light of the Amendment, including without limitation all waivers, authorizations and agreements set forth therein. Guarantor hereby confirms and agrees that all references in the Guaranty to the Loan Agreement and other Loan Documents shall hereafter be deemed references to the Loan Agreement and other Loan Documents as amended by the Amendment. In addition, Guarantor acknowledges that its obligations under the Guaranty are separate and distinct from those of Borrower on the Loan.
Dated as of February 28, 2008
GUARANTOR:
XXXXXXX XXXX HOMES, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CONSENT
