Exhibit 10.1
GREENWOOD FINANCIAL
INC.
SECOND AMENDMENT
TO SECOND AMENDED AND
RESTATED
REVOLVING CREDIT LOAN
AGREEMENT
This SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT (this
“ Amendment ”) is dated as of August 13,
2009 and entered into by and among GREENWOOD FINANCIAL INC.
, a Delaware corporation (“ Master Borrower ”),
the entities identified on Schedule A attached hereto
(together with the Master Borrower, the “ Borrowers
”), Orleans Homebuilders, Inc. (the “
Guarantor ”, and together with the Borrowers, the
“ Obligors ”), the financial institutions listed
on the signature pages hereof (“ Lenders ”)
and WACHOVIA BANK, NATIONAL ASSOCIATION , as administrative
agent for Lenders (“ Agent ”), and is made with
reference to that certain Second Amended and Restated Revolving
Credit Loan Agreement dated as of September 30, 2008, by and
among Obligors, Lenders and Agent, as amended by that First
Amendment to Second Amended and Restated Revolving Credit Loan
Agreement and First Amendment to Security Agreement dated as of
February 11, 2009 (as so amended and as amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”). Capitalized terms used herein
without definition shall have the same meanings herein as set forth
in the Loan Agreement.
RECITALS
WHEREAS , Borrowers and Lenders desire to amend the Loan
Agreement as specifically provided for herein; and
WHEREAS , Obligors, Lenders and Agent deem it advisable
to amend the Loan Agreement as hereinafter provided.
NOW, THEREFORE
, in consideration of the premises
and the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1.
AMENDMENTS TO THE LOAN
AGREEMENT
1.1
Amendments to
Article I: Definitions .
A.
Subsection 1.1 of
the Loan Agreement is hereby amended by adding thereto the
following definitions in proper alphabetical order.
“
Change of Control
” means
the occurrence of one or more of the following events:
1.
any sale, lease,
exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of
the Guarantor to any Person or group of related Persons for
purposes of Section 13(d) of the Securities Exchange Act
of 1934, or any successor
thereto, in each
case as amended from time to time (a “ Group ”), together with any
Affiliates thereof, on an arm’s length basis with an entity
that is not an Affiliate of OHI Financing, Inc. or the
Guarantor; or
2.
any Person or
Group (other than Jeffrey P. Orleans and his Affiliates and family
or any Affiliate of OHI Financing, Inc. or the Guarantor
(collectively, a “ Permitted Party ”)) shall acquire
either by purchase from a Permitted Party or from the Guarantor
through purchase or merger or otherwise, directly or indirectly,
beneficially or of record, shares representing more than 80% of the
issued and outstanding Equity Interests of the Guarantor and more
than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the
Guarantor.
“
Consent ” means that certain
Limited Consent to Exchange Transactions dated as of August 3,
2009 among the Borrowers, Guarantor, Agent and Requisite
Lenders.
“
Equity Interests ” means (a) the
common or preferred equity interest in a corporation, (b) the
membership interests in a limited liability company and
(c) the partnership interests (general or limited) in a
partnership.
“
Second Amendment ” means that certain
Second Amendment to Second Amended and Restated Revolving Credit
Loan Agreement dated as of August 13, 2009.
“ Second Amendment
Effective Date ” has the meaning assigned to such term in
the Second Amendment.
“ Subordinated Debt I
” means the Debt incurred pursuant to that certain Junior
Subordinated Indenture dated as of September 20, 2005, among
OHI Financing, Inc., Guarantor and Wilmington Trust Company,
including any guaranty of such Debt by Guarantor, and the
modifications thereto permitted by the Consent, together with any
refinancing, renewal, replacement Debt, defeasance or refund
thereof in accordance with the provisions of
Section 7.7.
“
Subordinated Debt II
” means the
Debt incurred pursuant to that certain Junior Subordinated
Indenture dated as of August 3, 2009, between OHI
Financing, Inc., as Issuer, and The Bank of New York Mellon,
as Trustee, including any guaranty of such Debt by Guarantor,
together with any refinancing, renewal, replacement Debt,
defeasance or refund thereof in accordance with the provisions of
Section 7.7.
B.
Subsection 1.1 of the
Loan Agreement is hereby further amended by deleting the
definitions of “Borrowing Base Availability”,
“Letter of Credit” and “OHI Financing
Subordinated Debt” therefrom in their entirety and
substituting the following therefor:
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“ Borrowing Base
Availability ” means, at any time, (i) the amount
determined pursuant to Section 3.3, based on the most recently
delivered Borrowing Base Certificate, minus (ii) the aggregate
amount of liability of Agent under then-outstanding Financial
Letters of Credit, minus (iii) the aggregate amount of Swing
Line Loans outstanding, minus (iv) the aggregate principal
amount of all OHI Financing Subordinated Debt that by its terms
matures within one (1) year and Subordinated Debt that by its
terms matures within one (1) year; provided that for
the period commencing on the Second Amendment Effective Date
through and including September 29, 2009, the amount required
to be subtracted pursuant to clause (ii) shall be the amount
by which the aggregate amount of liability of Agent under
then-outstanding Financial Letters of Credit exceeds
$5,100,000.
“ Letter of Credit
” means (a) each letter of credit identified on
Schedule 1.1D which has heretofore been issued with
respect to a Borrowing Base Project, or to developments previously
completed by a Borrower, or to an Eligible Project that secures the
Line of Credit and satisfies the requirements of
Section 4.1.11, or which is a Financial Letter of Credit,
(b) each letter of credit issued by Agent on behalf of the
Lenders for the benefit of Borrower that are to be issued by Agent
to be for the purpose of providing security, including for the
benefit of the issuer of a surety or performance bond, for
(i) the construction by a Borrower of Improvements and other
municipal and public facilities related to Borrowing Base Projects
deemed to be financed under the Revolving Sublimit by their
inclusion in the Borrowing Base, (ii) maintenance by a
Borrower of Improvements and other municipal and public facilities
related to the Borrowing Base Projects financed under the Revolving
Sublimit, and (iii) deposits under purchase contracts for
residential land to which a Borrower is a party, as permitted by
Section 8.5, but excluding deposits for Real Estate subject to
a purchase money mortgage constituting a Permitted Lien, and
(c) any letter of credit issued by Agent in favor of any bank
that is not a Lender to secure any Borrower’s reimbursement
obligations on account of letters of credit and tri-party
agreements issued by such bank of the type described in clause
(b)(i) or (b)(ii) of this definition or in the definition
of “Tri-Party” Agreement contained herein, as
identified on Schedule 1.1.D . Notwithstanding
the foregoing, no Letter of Credit may be issued in connection with
any Joint Venture or any Person that is not a Borrower or a
Guarantor, except that Issuer may issue Letters of Credit solely to
the extent required to comply with the letter of credit requirement
under the Subordinated Debt II in an aggregate amount not to exceed
$5,000,000.
“ OHI Financing
Subordinated Debt ” means the Subordinated Debt I and the
Subordinated Debt II.
C.
Subsection 1.1 of the
Loan Agreement is hereby further amended by deleting paragraph
(vi) in the definition of “Permitted Debt” and
substituting the following therefor:
“(vi)
the guarantees, as in effect on the
Second Amendment Effective Date, or as thereafter modified, amended
or replaced in accordance with the Consent or with Agent’s
consent in accordance with Section 7.7, by Guarantor of the
OHI Financing Subordinated Debt;
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1.2
Amendment to
Article II: Amounts and Terms of the Facility; Security
for the Facility .
A.
Section 2.1.3 of the
Loan Agreement is hereby amended by deleting the reference to
“this Section 2.1.2 therein and substituting “this
Section 2.1.3” therefor.
B.
Subsection 2.6.5 of the
Loan Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
“2.6.5
Additional Loan Fees
. Borrowers shall pay two
additional fees for the Facility. The first additional fee
shall be earned and payable on September 30, 2009 and shall be
equal to 8% per annum of the amount by which the aggregate
Commitments (based on the Facility Amount as it exists from time to
time) exceeds $250,000,000, calculated on a daily basis as such
Commitments (based on the Facility Amount as it exists from time to
time) exist between the Closing Date and the earlier of
(i) September 30, 2009 and (ii) the date the
Commitments are permanently reduced to $250,000,000 (the “
Reduction Date ”); provided that such first
additional fee will be reduced by 80% if the aggregate Commitments
have been permanently reduced to $250,000,000 on or before
September 30, 2009. The second additional fee shall be
earned and payable on December 20, 2009 if the Indebtedness
are not paid in full by such date and such second additional fee
shall be equal to 8% per annum of the amount that the aggregate
Commitments exceeds $250,000,000 calculated on a daily basis as
such Commitments exist from time to time after the Reduction
Date.”
1.3
Amendments to
Article III: Notice of Borrowing; Borrowing Base;
Borrowing Base Availability .
A.
Section 3.2.2 of the
Loan Agreement is hereby amended by adding the following new
sentence at the end thereof:
“Notwithstanding the forgoing,
certain parcels of real property located in Chester County,
Pennsylvania commonly referred to as Ewing tracts 4 and 5 (the
“ Ewing Tracts ”), which are not owned by a
Borrower, shall be deemed admitted to the Borrowing Base solely for
the period through and including September 29, 2009;
provided that (i) the Appraised Value attributed to the
Ewing Tracts shall be the Appraised Value determined in the
Appraisal dated as of February 6, 2009, (ii) Orleans at
Upper Uwchlan, LP shall have granted a security interest to Agent,
as collateral for the Indebtedness, in (x) its membership
interests in the owner of the Ewing Tracts, Ewing Group LLC, and
(y) its right, title and interest to the Straw Party Agreement
dated as of September 22, 2004 among Orleans at Upper Uwchlan,
LP, Ewing Group LLC (formerly Byers Group III LLC) and the other
member of Ewing Group LLC, and (iii) Obligors shall diligently
proceed to record the subdivision for the Ewing Tracts and to cause
Orleans at Upper Uwchlan, LP to grant a mortgage with respect to
the lots conveyed to Orleans at Upper Uwchlan, LP in the Ewing
Tracts to Agent promptly upon the recording of the
subdivision.”
B.
Section 3.3.2.4 of the
Loan Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
4
“3.3.2.4
The maximum Borrowing Base
Availability attributable to Asset Class (ii), including model
Units, determined on the basis of any Borrowing Base Certificate
(a) that is delivered before September 30, 2009 in
accordance with Section 3.4 shall not exceed 58% and
(b) that is delivered on or after September 30, 2009 in
accordance with Section 3.4 shall not exceed 45%, in each case
of the aggregate Borrowing Base Availability attributable to Asset
Classes (i) and (ii) (including model Units) as shown on
any such Borrowing Base Certificate.”
C.
Section 3.3.2.5 of the
Loan Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
“3.3.2.5
The maximum percentage of Borrowing
Base Availability attributable to Asset Classes (iii),
(iv) and (v), based on Borrowing Base Certificates
(a) delivered before September 30, 2009, shall be 65%,
and (b) delivered on or after September 30, 2009 shall be
55%, in each case of the total Borrowing Base Availability as shown
thereon; provided that at no time shall Borrowing Base
Availability attributable to Asset Classes (iii), (iv) and
(v) exceed the following (with such limitations to be reduced
dollar for dollar at the time and in the amounts of any impairments
with respect to assets in Asset Classes (iii), (iv) and
(v) and included in the Borrowing Base taken by
Borrowers):
(i)
Beginning with the Borrowing Base
Certificate delivered on or after the First Amendment Effective
Date: $235,000,000; and
(ii)
Beginning with the Borrowing Base
Certificate delivered on or after September 30, 2009:
$190,000,000.”
D.
Section 3.3.4 for the
Loan Agreement is hereby amended by deleting the fourth and fifth
sentences therein in its entirety and substituting the following
therefor:
“Master Borrower shall have
fifteen (15) Business Days to respond to the Agent with comments to
any Appraisal; however, the final Appraisal amount shall be
determined by the Agent in its sole discretion after consideration
of such comments. Following the receipt and review of any new
Appraisal, commencing with the next monthly Borrowing Base
Certificate delivered, the appraised values from such Appraisal
will be used in the calculation of the Borrowing Base in compliance
with Sections 3.3.2.1, 3.3.2.2 and 3.3.2.3; provided that
any change in appraised value resulting from an Appraisal finalized
after July 8, 2009 is not required to be reflected in any
Borrowing Base Certificate delivered after the Second Amendment
Effective Date and before the Borrowing Base Certificate required
to be delivered by October 15, 2009 reflecting the Borrowing
Base as of September 30, 2009.”
1.4
Amendments to
Article VII: Negative Covenants .
A.
Section 7.6
of the Loan Agreement is hereby amended by deleting the
introductory clause therin and substituting the following
therefor:
5
“Permit Guarantor or any
Borrower, or any Affiliate of Guarantor with respect to clause (z),
to, directly or indirectly, declare, order, pay, make or set apart
any sum for”.
B.
Section 7.6
of the Loan Agreement is hereby amended by deleting clause
(z) and substituting the following therefor:
“(z) providing the funds
for or the making of any payment or prepayment of principal of,
premium, if any, interest on, fees related to, or redemption,
purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any
purchase money mortgages, Subordinated Debt or the OHI Financing
Subordinated Debt, except as permitted by the Consent, except
for”.
C.
Section 7.6
of the Loan Agreement is hereby further amended by deleting clause
(v) and substituting the following therefor:
“(v) any
extension, refinancing, renewal, repayment, replacement,
defeasance, refund or payment of fees with respect to the OHI
Financing Subordinated Debt to the extent approved by the Agent in
accordance with Section 7.7 or permitted by the
Consent.”
D.
Section 7.7
of the Loan Agreement is hereby amended by deleting clause
(v) therein and substituting the following
therefor:
“(v)
The aggregate outstanding principal
amount of the OHI Financing Subordinated Debt does not exceed
(i) with respect to the Subordinated Debt II, $93,750,000
plus, (ii) with respect to the Subordinated Debt I,
$30,928,000 plus any increase pursuant to the Consent, in each case
in accordance with the terms thereof as in effect on the Second
Amendment Effective Date or as modified pursuant to the Consent
(plus, in the event of a refinancing described below, all accrued
and unpaid interest thereon and such reasonable expenses incurred
in connection therewith).”
1.5
Amendments to Article VIII:
Financial Covenants . Subsection 8.8 of the Loan
Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
“8.8
Liquidity . The Liquidity shall be (i) from the
Second Amendment Effective Date through September 29, 2009,
not less than $0, and (ii) from and after September 30,
2009, not less than $10,000,000.
1.6
Amendments to Article IX:
Events of Default . Article IX of the Loan
Agreement is hereby amended by deleting paragraph 9.4 therein and
substituting the following therefor:
“9.4
(a) the dissolution or
reorganization of a Borrower, other than a dissolution or
reorganization of a Borrower solely as a result of an Internal
Reorganization or (b) a Change of Control.”
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1.7
Amendments to Article XI:
The Agent .
A.
Section 11.13 of the
Loan Agreement is hereby amended by deleting clause
(v) therein and substituting the following
therefor:
“(v) has been
placed under a receivership or conservatorship by the Federal
Deposit Insurance Corporation (“ FDIC ”) and the FDIC has not
assumed the obligations of such Lender under the Loan Documents and
affirmed to Agent its intent to fully comply with its obligations
under the Loan Documents, in each case in writing in form and
substance satisfactory to Agent”.
B.
Section 11.13 of the
Loan Agreement is hereby amended by adding the following new
sentence at the end thereof:
“Notwithstanding the
foregoing, if a Lender (i) was a Defaulting Lender pursuant to
clause (v) of this Section 11.13, and (ii) such
Lender is no longer a Defaulting Lender but is still under an FDIC
receivership or conservatorship (a “ Special Lender ”), then such Special
Lender shall be deemed to have acted with respect to a specific
matter in the same manner as the majority of other Lenders (other
than the Defaulting Lenders) that have expressly voted, consented
or withheld consent, or directed any action of Agent or Lenders if
such Special Lender does not expressly respond to a
