Limited Waiver and Amendment
Exhibit 10.1
EXECUTION VERSION
As of September 30, 2015
KeyBank National Association,
as Agent
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Re: Forestar (USA) Real Estate Group Inc. Third Amended and Restated Revolving Credit Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Third Amended and Restated Revolving Credit Agreement dated as of May 15, 2014 (as amended, the “Credit Agreement”), executed by Borrower, the Guarantors defined therein, the Lenders defined therein, and KeyBank National Association, as administrative agent (“Agent”) (Agent and Lenders are individually referred to herein as a “Credit Party” and collectively referred to herein as the “Credit Parties”). Capitalized terms used herein shall, unless otherwise indicated, have the respective meanings set forth in the Credit Agreement.
Section 1. Limited Waiver and Amendment. Subject to the terms and conditions set forth herein, the Lenders hereby agree (a) to waive the requirement to comply with the Consolidated Tangible Net Worth covenant as required by §9.1(e) of the Credit Agreement (the “TNW Covenant”) for the fiscal quarter ending September 30, 2015 (“September Fiscal Quarter”), and (b) that upon the earlier of (i) November 15, 2015 or (ii) the date upon which Forestar Group announces its financial results for the September Fiscal Quarter, together with any quarterly impairments (the “September Financials”), (A) the minimum TNW Covenant will automatically reset such that in §9.1(e)(i) $572,000,000 shall be deleted and replaced with the amount equal to 80% of Consolidated Tangible Net Worth as calculated per the September Financials, and (B) the Effective Date, for the purposes of calculating compliance with §9.1(e) only, shall be changed to September 30, 2015. (the “Limited Waiver and Amendment”).
Section 2. Conditions Precedent. The Limited Waiver is subject to the following terms and conditions:
(a) this Limited Waiver and Amendment shall have been executed by each Loan Party, Agent, and the Required Lenders;
(b) after giving effect to this Limited Waiver and Amendment, the representations and warranties in this Limited Waiver and Amendment shall be true and correct in all material respects; and
(c) after giving effect to this Limited Waiver and Amendment, no Default or Event of Default shall exist.
Section 3. Ratification. By execution of this Limited Waiver and Amendment in the space provided below, Borrower (a) represents and warrants that, after giving effect to this Limited Waiver and Amendment, the representations and warranties in the Credit Agreement are true and correct in all material respects, on and as of the date of this Limited Waiver and Amendment, except to the extent that (i) any of them speak to a different specific date, or (ii) the facts on which any of them were based have been changed by transactions contemplated or permitted by the Credit Agreement, and (b) ratifies and confirms that the Credit Agreement and all other Loan Documents, and all renewals, extensions, and restatements of, and amendments and supplements to, any of the foregoing, are and remain in full force and effect in accordance with their respective terms. Borrower affirms its obligation to pay all reasonable fees, expenses and disbursements of Agent (including reasonable attorneys’ fees) incurred by Agent in connection with this Limited Waiver and Amendment pursuant to §15 of the Credit Agreement.
Section 4. No Impairment. The Limited Waiver hereby granted by Lenders does not, other than to the extent expressly waived or amended hereby, (a) constitute a waiver or modification of any other terms or provisions set forth in the Credit Agreement or any other Loan Document, (b) impair any right that any Credit Party may now or hereafter have under or in connection with the Credit Agreement or any other Loan Document, or (c) impair any Credit Party’s rights to insist upon strict compliance with the Credit Agreement, as amended or otherwise modified hereby, or the other Loan Documents. The Loan Documents continue to bind and inure to the Loan Parties and their respective successors and permitted assigns.
Section 5. Counterparts. This Limited Waiver and Amendment, when countersigned by all required parties, shall be a “Loan Document” as defined and referred to in the Credit Agreement and the other Loan Documents, and may be signed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Limited Waiver and Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Limited Waiver and Amendment. THIS LIMITED WAIVER AND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6. ENTIRE AGREEMENT. THIS LETTER, THE CREDIT AGREEMENT, THE NOTES, THE SECURITY DOCUMENTS, AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank;
Signature Pages to Follow.]
Please execute a copy of this Limited Waiver and Amendment in the space provided below to acknowledge your agreement to the foregoing.
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Sincerely, | |
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FORESTAR (USA) REAL ESTATE GROUP INC., as Borrower | |
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender | |
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By: |
/s/ Xxxxxx Xxxxx |
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Name: |
Xxxxxx Xxxxx |
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Title: |
Vice President |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
To induce the Credit Parties to enter into this Limited Waiver and Amendment, the undersigned jointly and severally (a) consent and agree to this Limited Waiver and Amendment’s execution and delivery, (b) ratify and confirm that all guaranties, assurances, and Liens granted, conveyed, or assigned to the Credit Parties under the Loan Documents are not released, diminished, impaired, reduced, or otherwise adversely affected by this Limited Waiver and Amendment and continue to guarantee, assure, and secure the full payment and performance of all present and future Obligations (except to the extent specifically limited by the terms of such guaranties, assurances, or Liens), and (c) waive notice of acceptance of this consent and agreement, which consent and agreement binds the undersigned and their successors and permitted assigns and inures to the Credit Parties and their respective successors and permitted assigns.
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GUARANTORS: | ||
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FORESTAR GROUP INC., a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORESTAR MINERALS LP, a Delaware limited partnership | ||
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By: |
Forestar Minerals GP, LLC, general partner | |
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FORESTAR OIL & GAS LLC, a Delaware limited liability company | ||
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FORESTAR REALTY INC., a Delaware corporation | ||
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FORESTAR HOTEL HOLDING COMPANY INC., a Nevada corporation | ||
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CAPITOL OF TEXAS INSURANCE GROUP INC., a Delaware corporation | ||
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FORESTAR CAPITAL INC., a Delaware corporation | ||
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FORESTAR MINERALS GP LLC, a Delaware limited liability company | ||
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JOHNSTOWN FARMS, LLC, a Delaware limited liability company | ||
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SAN JACINTO I LLC, a Texas limited liability company | ||
Guarantor signature page to Limited Waiver and Amendment
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SUSTAINABLE WATER RESOURCES LLC, a Texas limited liability company | ||
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SWR HOLDINGS LLC, a Delaware limited liability company | ||
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STONEY CREEK PROPERTIES LLC, a Delaware limited liability company | ||
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FORCO REAL ESTATE INC., a Delaware corporation | ||
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FORESTAR PETROLEUM CORPORATION, a Delaware corporation | ||
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SECO ENERGY CORPORATION, a Nevada corporation | ||
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UNITED OIL CORPORATION, an Oklahoma corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORESTAR MINERALS HOLDINGS LLC, a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
President |
Guarantor signature page to Limited Waiver and Amendment
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
[execution continued from preceding page]
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FORESTAR REALTY INC., | ||
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a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORESTAR HOTEL HOLDING COMPANY INC., | ||
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a Nevada corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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CAPITOL OF TEXAS INSURANCE GROUP INC., a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Guarantor signature page to Limited Waiver and Amendment
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FORESTAR CAPITAL INC., | ||
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a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORESTAR MINERALS GP LLC, | ||
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a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORESTAR MINERALS HOLDINGS LLC, a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Guarantor signature page to Limited Waiver and Amendment
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HARBOR LAKES GOLF CLUB LLC, | ||
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a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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HARBOR LAKES CLUB MANAGEMENT LLC, A Texas limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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JOHNSTOWN FARMS, LLC, a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Guarantor signature page to Limited Waiver and Amendment
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SAN JACINTO I LLC, a Texas limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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SUSTAINABLE WATER RESOURCES LLC, a Texas limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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SWR HOLDINGS LLC, a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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STONEY CREEK PROPERTIES LLC, a Delaware limited liability company | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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FORCO REAL ESTATE INC., a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Guarantor signature page to Limited Waiver and Amendment
[execution continued from preceding page]
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FORESTAR PETROLEUM CORPORATION, a Delaware corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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SECO ENERGY CORPORATION, a Nevada corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
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UNITED OIL CORPORATION, an Oklahoma corporation | ||
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By: |
/s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxxxx X. Xxxxx |
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Title: |
Chief Financial Officer |
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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OTHER LENDERS: | |
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AgFIRST FARM CREDIT BANK, as a Lender | |
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By: |
/s/ Xxxxxxx X. Xxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxx |
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Title: |
Vice President |
Address:
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[Execution of Limited Waiver and Amendment Continued]
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NORTHWEST FARM CREDIT SERVICES, PCA, as | |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
SVP Credit |
Address:
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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[Execution of Limited Waiver and Amendment Continued]
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AMEGY BANK NATIONAL ASSOCIATION, as a | |
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Lender | |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Assistant Vice President |
Address:
00000 Xxxxxxx Xxxxx, Xxx 000
Xxx Xxxxxxx, XX 00000
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[Execution of Limited Waiver and Amendment Continued]
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CAPITAL ONE N.A., as a Lender | |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Commercial Banking President - Austin |
Address:
000 Xxxx 0xx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax #-
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[Execution of Limited Waiver and Amendment Continued]
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TEXAS CAPITAL BANK, NATIONAL | |
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By: |
/s/ Xxxx XxXxxxxxx |
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Name: |
Xxxx XxXxxxxxx |
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Title: |
Senior Vice President |
Address:
00 Xxx Xxxxxxx Xxxx., Xxx. 000
Xxxxxx, XX 00000
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[Execution of Limited Waiver and Amendment Continued]
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XXXXXXX XXXXX BANK USA, as a Lender | |
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By: |
/s/ Xxxxxxxx Xxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxx |
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Title: |
Authorized Signatory |
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax # 000-000-0000
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[Execution of Limited Waiver and Amendment Continued]
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JPMORGAN CHASE BANK, NATIONAL | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Senior Commercial Banker |
Address:
TX3-8211
X.X. Xxx 000
Xxxxxx, XX 00000-0000
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Xxxxx X. Xxxxx |
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Name: Xxxxx X. Xxxxx | |
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Title: Senior Vice President | |
Address:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
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SYNOVUS BANK, as a Lender and a LC Issuer | |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx | |
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Title: Director | |
Address:
000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
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UNITED FCS, PCA, d/b/a FCS COMMERCIAL | |
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FINANCE GROUP, as a Lender | |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx | |
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Title: Vice President | |
Address:
000 Xxxxxxx 000 Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
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[Execution of Limited Waiver and Amendment Continued]
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CADENCE BANK, X.X.xx a Lender | |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: Xxxxxxx X. Xxxxxxx | |
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Title: Senior Vice President | |
Address:
0000 Xxxxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
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METROPOLITAN LIFE INSURANCE COMPANY, .as a Lender | |
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By: |
/s/ W. Xxxx Xxxxxx |
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Name: W. Xxxx Xxxxxx | |
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Title: Director | |
Address:
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
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Lender signature pages to Limited Waiver and Amendment
