Limited Waiver and Amendment
Exhibit 10.1
EXECUTION VERSION
Limited Waiver and Amendment
As of September 30, 2015
KeyBank National Association,
as Agent
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
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.
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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/ Christopher L. Nines |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender | |
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| By: | /s/ Nathan Weyer |
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| Name: | Nathan Weyer |
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| Title: | Vice President |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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 | ||
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Michael Quinley | |
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| Name: | Michael Quinley |
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| Title: | President |
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| FORESTAR REALTY INC., | ||
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| a Delaware corporation | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| FORESTAR CAPITAL INC., | ||
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| a Delaware corporation | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| HARBOR LAKES GOLF CLUB LLC, | ||
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| a Delaware limited liability company | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| SAN JACINTO I LLC, a Texas limited liability company | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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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/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| FORESTAR PETROLEUM CORPORATION, a Delaware corporation | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| SECO ENERGY CORPORATION, a Nevada corporation | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| UNITED OIL CORPORATION, an Oklahoma corporation | ||
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| By: | /s/ Christopher L. Nines | |
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| Name: | Christopher L. Nines |
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| Title: | Chief Financial Officer |
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| OTHER LENDERS: | |
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| AgFIRST FARM CREDIT BANK, as a Lender | |
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| By: | /s/ Matthew H. Jeffords |
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| Name: | Matthew H. Jeffords |
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| Title: | Vice President |
Address:
1401 Hampton Street
Columbia, SC 29201
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| NORTHWEST FARM CREDIT SERVICES, PCA, as | |
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| By: | /s/ Candy Casteal |
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| Name: | Candy Casteal |
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| Title: | SVP Credit |
Address:
1700 South Assembly Street
Spokane, WA 99224
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| AMEGY BANK NATIONAL ASSOCIATION, as a | |
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| By: | /s/ Barrett Tondre |
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| Name: | Barrett Tondre |
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| Title: | Assistant Vice President |
Address:
10001 Reunion Place, Ste 300
San Antonio, TX 78216
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| CAPITAL ONE N.A., as a Lender | |
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| By: | /s/ Michael B. Perrine |
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| Name: | Michael B. Perrine |
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| Title: | Commercial Banking President - Austin |
Address:
106 East 6th Street
Suite 600
Austin, TX 78701
Attn: Michael B. Perrine
Fax #-
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| TEXAS CAPITAL BANK, NATIONAL | |
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| By: | /s/ Mike McConnell |
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| Name: | Mike McConnell |
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| Title: | Senior Vice President |
Address:
98 San Jacinto Blvd., Ste. 200
Austin, TX 78701
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| GOLDMAN SACHS BANK USA, as a Lender | |
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| By: | /s/ Michelle Latzoni |
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| Name: | Michelle Latzoni |
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| Title: | Authorized Signatory |
Address:
200 West Street
New York, NY 10282
Fax # 917 ###-###-####
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| JPMORGAN CHASE BANK, NATIONAL | |
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| By: | /s/ Melissa Burnett |
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| Name: | Melissa Burnett |
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| Title: | Senior Commercial Banker |
Address:
TX3-8211
P.O. Box 550
Austin, TX 78767-0550
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | |
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| By: | /s/ Chris M. Garza |
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| Name: Chris M. Garza | |
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| Title: Senior Vice President | |
Address:
111 Congress Avenue, Suite 530
Austin, TX 78701
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| SYNOVUS BANK, as a Lender and a LC Issuer | |
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| By: | /s/ David W. Bowman |
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| Name: David W. Bowman | |
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| Title: Director | |
Address:
800 Shades Creek Parkway
Birmingham, AL 35209
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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/ Lisa Caswell |
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| Name: Lisa Caswell | |
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| Title: Vice President | |
Address:
600 Highway 169 South, Suite 850
Minneapolis, MN 55426
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| CADENCE BANK, N.A.as a Lender | |
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| By: | /s/ Melinda N. Jackson |
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| Name: Melinda N. Jackson | |
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| Title: Senior Vice President | |
Address:
3500 Colonnade Pkwy, Ste. 600
Birmingham, AL 35243
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| METROPOLITAN LIFE INSURANCE COMPANY, .as a Lender | |
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| By: | /s/ W. Kirk Purvis |
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| Name: W. Kirk Purvis | |
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| Title: Director | |
Address:
6750 Poplar Avenue
Suite 109
Germantown, TN 38138
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