Exhibit 10.1
GREENWOOD FINANCIAL
INC.
THIRD AMENDMENT
TO SECOND AMENDED AND
RESTATED
REVOLVING CREDIT LOAN AGREEMENT
This THIRD AMENDMENT TO SECOND
AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT (this
“ Amendment ”) is dated as of September 30,
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 and that Second Amendment to Second Amended
and Restated Revolving Credit Loan Agreement dated as of
August 13, 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.
“
Third Amendment ” means that certain
Third Amendment to Second Amended and Restated Revolving Credit
Loan Agreement dated as of September 30, 2009.
“
Third Amendment Effective
Date ” has the meaning
assigned to such term in the Third Amendment.
B.
Subsection 1.1 of the
Loan Agreement is hereby further amended by deleting the reference
to “September 29, 2009” in the definition of
“Borrowing Base Availability” and substituting
“October 30, 2009” therefor.
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 clause
(v) therein and substituting the following
therefor:
“(v) Letters of
Credit solely to the extent required to comply with the reserve
requirements under the Subordinated Debt II in an aggregate amount
not to exceed $5,000,000.”
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 October 31, 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) October 31, 2009 and (ii) the date the
Commitments are permanently reduced to $250,000,000 (the
“ Reduction
Date ”). 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 deleting the reference to
“September 29, 2009” in the last sentence therein
and substituting “October 30, 2009”
therefor.
B.
Section 3.3.2.4 of the
Loan Agreement is hereby amended by deleting each of the references
to “September 30, 2009” therein and substituting
“October 31, 2009” therefor.
C.
Section 3.3.2.5 of the
Loan Agreement is hereby amended by deleting each of the references
to “September 30, 2009” therein and substituting
“October 31, 2009” therefor.
D.
Section 3.3.4 for the
Loan Agreement is hereby amended by deleting each of the references
to “September 30, 2009” therein and substituting
“October 31, 2009” therefor.
Section 3.3.4 for the Loan Agreement is hereby further amended
by deleting the reference to “October 15, 2009”
therein and substituting “November 15, 2009”
therefor.
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1.4
Amendments to Article VI:
Affirmative Covenants .
A.
Subsection 6.1.1
of the Loan Agreement is hereby amended by deleting “For the
Fiscal Year ended June 30, 2008, not later than
October 15, 2008” and substituting “For the Fiscal
Year ended June 30, 2009, not later than October 31,
2009” therefor.
B.
Subsection 6.1.5
of the Loan Agreement is hereby amended by inserting the following
at the beginning thereof:
“For the
Fiscal Year ended June 30, 2009, not later than
October 31, 2009, and for each Fiscal Year
thereafter,”.
C.
Subsection 6.1.6
of the Loan Agreement is hereby amended by inserting the following
at the beginning thereof:
“For the
Fiscal Year ended June 30, 2009, not later than
October 31, 2009, and for each Fiscal Year
thereafter,”.
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 October 30, 2009, not
less than $0, and (ii) from and after October 31, 2009,
not less than $10,000,000.
Section 2.
CONDITIONS TO
EFFECTIVENESS
Section 1 of this
Amendment shall become effective only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of
such conditions being referred to herein as the “ Third
Amendment Effective Date ”):
A.
On or before the
Third Amendment Effective Date, Obligors shall deliver to Lenders
(or to Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender) the following, each,
unless otherwise noted, dated the Third Amendment Effective
Date:
1.
A certificate,
dated as of the Third Amendment Effective Date of the respective
Secretary, general partner, manager or members of each Borrower and
Guarantor, certifying that there have been no changes to its
respective Organizational Documents delivered to Lenders on
September 30, 2008;
2.
Certified copies
of all corporate, limited partnership and limited liability company
action (as appropriate) taken by Borrowers and Guarantor, including
resolutions of their respective Boards of Directors, authorizing
the execution, delivery and performance of this Amendment,
certified as of the Third Amendment Effective Date;
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3.
An incumbency and
signature certificate (dated as the date of this Agreement) of the
Secretaries, general partners, managers or members (as appropriate)
of each Borrower and Guarantor, certifying the names and true
signatures of the officers or other authorized Persons of Borrower
and Guarantor authorized to sign this Amendment; and
4.
Copies of this
Amendment executed by each Obligor.
B.
Requisite Lenders
shall have executed this Amendment.
C.
On or before the
Third Amendment Effective Date, all corporate and other proceedings
taken or to be taken by any Obligor in connection with the
transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Agent, acting on behalf
of Lenders, and its counsel shall be satisfactory in form and
substance to Agent and such counsel, and Agent and such counsel
shall have received all such counterpart originals or certified
copies of such documents as Agent may reasonably
request.
D.
Borrowers shall
have paid (i) to Agent, all of Agent’s outstanding
expenses under the Loan Documents, including inspection and
appraisal costs, and (ii) to Reed Smith LLP, counsel to Agent,
all fees and expenses invoiced through the date hereof.
Section 3.
OBLIGORS’ REPRESENTATIONS AND
WARRANTIES
In order to induce Lenders to enter
into this Amendment and to amend the Loan Agreement in the manner
provided herein, each Obligor represents and warrants to each
Lender that the following statements are true, correct and
complete:
A.
Corporate Power and Authority
. Each
Obligor has all requisite power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Loan Agreement as amended by
this Amendment (the “ Amended Agreement ”).
B.
Authorization of Agreements
. The
execution and delivery of this Amendment and the performance of the
Amended Agreements have been duly authorized by all necessary
corporate, partnership or limited liability company action, as
appropriate, on the part of each Obligor.
C.
No Conflict . The execution and
delivery by each Obligor of this Amendment and the performance by
each Obligor of the Amended Agreements do not and will not
(i) require any consent or approval of the shareholders,
partners or members of any such entity not already obtained;
(ii) contravene such entity’s Organizational Documents;
(iii) violate any provision of or cause or result in a breach
of or constitute a default under any law, rule, regulation
(including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination, or award presently in effect
having applicability to such entity; (iv) cause or result in a
breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease, or instrument to
which such entity is a party or by which it or its properties may
be bound or affected; (v) cause or result in or require the
creation or imposition of any Lien upon or with respect to any of
the
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properties now owned or
hereafter acquired by such Obligor except as contemplated by this
Agreement; or (vi) violate any provision of any indenture,
agreement, or other instrument to which any Borrower, Guarantor, or
any of their respective properties or assets are bound, and will
not be in conflict with, result in a breach of, or constitute (with
due notice and/or lapse of time) a default under any such
indenture, agreement, or other instrument, or result in the
creation or imposition of any lien, charge, or encumbrance of any
nature whatsoever upon any of said properties or
assets.
D.
Governmental Consents
. The
execution and delivery by each Obligor of this Amendment and the
performance by each Obligor of the Amended Agreements do not and
will not require any authorization, consent, approval, license or
exemption of, or any registration, qualification, designation,
declaration or a filing with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, except as have been obtained.
E.
Binding Obligation
. This
Amendment has been duly executed and delivered by each Obligor and
this Amendment and the Amended Agreements are the legally valid and
binding obligations of such Obligor, enforceable against such
Obligor in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, and other similar
laws affecting creditors’ rights generally.
F.
Incorporation of
Representations
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