ex10_1.htm


  
    Exhibit
10.1

             


     

    AGREEMENT
TO MODIFY LOAN DOCUMENTS

     

    THIS
AGREEMENT TO MODIFY LOAN DOCUMENTS (“Agreement”)
is entered into as of June 23, 2008, by WILSON FAMILY COMMUNITIES, INC., a
Delaware corporation (“Borrower”),
and RBC BANK (USA), formerly known as RBC CENTURA BANK, a North Carolina banking
corporation (individually, as a “Lender”
and as “Agent”
for all “Lenders”
[as defined below]), FRANKLIN BANK SSB, and INTERNATIONAL BANK OF COMMERCE,
LAREDO, TEXAS, a Texas state banking association (individually, as a “Lender”
and collectively, with RBC CENTURA BANK, “Lenders”).
Borrower, Agent, and Lenders, for and in consideration of the recitals and
mutual promises contained herein, confirm and agree as follows:

     

    RECITALS

     

    A.    Agent, Lenders
and Borrower previously entered into that certain Borrowing Base Loan Agreement
(Syndicated Revolving Line of Credit) dated as of June 29, 2007 (as the same has
been amended, modified, extended, increased, restated, and renewed, from time to
time, “Loan
Agreement”), whereby Lenders previously extended to Borrower a master
line of credit in the original principal sum of Fifty-Five Million Dollars
($55,000,000.00) (as the same has been amended, modified, extended, increased,
restated, and renewed, from time to time, “Master
Line”).

     

    B.    The Master
Line is evidenced by that certain Promissory Note (RBC Centura Bank) in the
original principal sum of Twenty Million Dollars ($20,000,000.00) (as the same
has been amended, modified, extended, increased, restated, and renewed, from
time to time, “Centura
Note”), that certain Promissory Note (International Bank of Commerce,
Laredo, Texas) in the original principal sum of Twenty Million Dollars
($20,000,000.00) (as the same has been amended, modified, extended, increased,
restated, and renewed, from time to time, “IBC
Note”), and that certain Promissory Note (Franklin Bank SSB) in the
original principal sum of Fifteen Million Dollars ($15,000,000.00) (as the same
has been amended, modified, extended, increased, restated, and renewed, from
time to time, “Franklin
Bank Note,” collectively with Centura Note and IBC Note, “Note”)
all dated June 29, 2007.

     

    C.    The Note is
secured by, among other things, multiple security instruments referred to in the
singular as the “Deed of
Trust” for each and every “Approved
Subdivision” (both as defined in the Loan Agreement) financed with the
proceeds of the Loan.

     

    D.    Certain
obligations under the Loan are guaranteed by GREEN BUILDERS, INC., a Texas
corporation, formerly known as WILSON HOLDINGS INC., a Nevada corporation
(“Guarantor”),
pursuant to that certain Continuing Guaranty Agreement (Completion and Payment
Obligations) dated as of June 29, 2007 (“Guaranty”).
Guarantor is a party to that certain Environmental Indemnity (Georgetown
Village) dated as of September 26, 2007, and that certain Environmental
Indemnity (Phase II - Elm Grove) dated as of March 3, 2008 (as the same may be
amended, supplemented or otherwise modified from time to time, collectively,
“Environmental
Indemnity”), whereby Guarantor agreed to indemnify Lender with respect to
certain environmental matters concerning the Loan.

     

    E.    All of the
documents evidencing or relating to the Master Line, including this Agreement,
and any other modification agreements or amendments that have been or will be
executed in connection with the Master Line, collectively shall be referred to
as the “Loan
Documents.” All capitalized terms not specifically defined herein shall
have the meanings given to such terms in the Loan Agreement.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    F.    Borrower has
requested that Lenders modify the Master Line by, among other things,
decreasing the amount of the Master Line and the “Commitment
Amount” (as defined in the Loan Agreement) from the current amount of
Fifty-Five Million Dollars ($55,000,000.00) to Thirty Million Dollars
($30,000,000.00) (“New
Commitment Amount”) and such other
modifications as are set forth herein.

     

    G.    Agent and
Lenders are willing to consent to the modifications to the Loan Documents set
forth herein, subject to the conditions set forth below. The date on which all
conditions set forth herein have been satisfied shall be referred to as the
“Modification
Closing Date.”

     

    AGREEMENT

     

    NOW,
THEREFORE, in consideration of the foregoing premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:

     

    1.    Recitals.
The preamble, recitals and any exhibits hereto are hereby incorporated
into this
Agreement.

     

    2.    Decrease in the Amount of
the Master Line. From and after the Modification Closing Date, the
maximum amount of the Master Line, the Commitment Amount and/or the “Borrowing
Availability” (as defined in the Loan Agreement) are decreased from the
current amount of Fifty-Five Million Dollars ($55,000,000.00) to the New
Commitment Amount of Thirty Million Dollars ($30,000,000.00).

     

    2.1     Modification
of Commitment Amounts. All references in the Loan Documents to the
maximum amount of the Master Line, the Commitment Amount and/or Borrowing
Availability shall be revised to refer to the New Master Line Amount set forth
herein. Lenders’ respective “Commitments”
and “Commitment
Percentage” (both as defined in the Loan Agreement) as a result of the
reduction in the Master Line are as follows:

    


    
      
        	
                Lender

              	
                New
      Commitment

                
                  Percentage

                

              	
                New
      Commitment

              
	
                RBC
      Centura Bank

              	
                33.333%

              	
                $10,000,000.00

              
	
                International
      Bank of Commerce, 

                  Laredo,
      Texas

                

              	
                33.333%

              	
                $10,000,000.00

              
	
                Franklin
      Bank SSB

              	
                33.333%

              	
                $10,000,000.00

              
	
                Total

              	
                100%

              	
                $30,000,000.00

              


      

    

     

    2.2    Decrease
in the Amount of the Note. As a result of the decrease in the maximum
amount of the Master Line and the Commitment Amount, (i) the face amount of the
Centura Note shall be decreased from the current amount of Twenty Million
Dollars ($20,000,000.00) to Ten Million Dollars ($10,000,000.00); (ii) the face
amount of the IBC Note shall be decreased from the current amount of Twenty
Million Dollars ($20,000,000.00) to Ten Million Dollars ($10,000,000.00); and
(iii) the face amount of the Franklin Bank Note shall be decreased from the
current amount of Fifteen Million Dollars ($15,000,000.00) to Ten Million
Dollars ($10,000,000.00).
All references in the Loan Documents to the aggregate face amount of the Note
shall be revised to refer to the New Commitment Amount set forth
herein.

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    3.    Modification and
Forbearance of Spec Home Limitation.

     

    3.1    Modification of Spec Home
Limitation.
From and after the Modification Closing
Date, Section 1.3 (a) of Exhibit “C” to the Loan Agreement shall be deleted in
its entirety and replaced with the following:

     

    “(a)    The collective
amount of Home Loan Allocations for completed Spec Homes (not including any
Model Homes) included in the Eligible Property shall not exceed more than twelve
percent (12%) of the collective amount of Home Loan Allocations for all Homes
then included in the Eligible Property.”

     

    3.2    Forbearance of Spec Home
Limitation. Borrower is currently not in compliance with the Spec
Home limitation as set forth in Section 1.3(a) of Exhibit “C” to the Loan
Agreement (“Spec
Home Limitation Violation”). Borrower has requested and Agent and Lenders
have agreed to forbear from exercising their remedies with regard to the Spec
Home Limitation Violation until July 1, 2008 (“Forbearance
Period”), provided no additional defaults under the Loan occur between
the date hereof and July 1, 2008. From and after July 1, 2008, Borrower shall be
in compliance with all convenants in the Loan Agreement, including without
limitation the Spec Home limitation. Notwithstanding the Spec Home Limitation
Violation or any provision in the Loan Documents to the contrary, during the
Forbearance Period, Lender shall continue to “Advance”
(as defined in the Loan Agreement) Loan funds to Borrower pursuant to the terms
and conditions of the Loan Agreement (excepting any condition which is not
satisfied due solely to the existence of the Spec Home Limitation Violation),
provided no additional defaults exist under the Loan during the Forbearance
Period. Furthermore the amount available to be advanced will be determined
without regard to the Spec Home Limitation Violation.

     

    4.    Modification of A&D
Lot and Entitled Land and Pods Limitations. From and after the
Modification Closing Date, the A&D Lot and Entitled Land and Pods
Limitations set forth in Section 1.1 of Exhibit “C” to the Loan Agreement shall
be deleted in its entirety and replaced with the following:

     

    “1.1   A&D Lot and Entitled
Land and Pods Limitations. Until the Pay-Off Date, Borrower, on an
aggregate basis, shall comply with the following covenants, as evidenced by the
financial statements provided by Borrower to Agent and Lenders pursuant to the
provisions of this Agreement:

     

    
      
        	 	
                ■ 

              	
                Entitled
      Land and Pods: Not more than fifteen percent (15%) of Allocations
      under the Master Line shall consist in the aggregate of Entitled Land or
      Pods.

              
	 	 	 
	 	
                ■  

              	Developed
      Lots: Not more twenty percent (20%) of Allocations under the Master
      Line shall consist of Developed Lots.
	 	 	 
	 	
                ■  

              	
                Entitled
      Land, Pods, Lots Under Development and Developed Lots: Not
      more fifty-five percent (55%) of Allocations under the Master Line shall
      consist in the aggregate of Entitled Land, Pods, Developed Lots and/or
      Lots Under Development.

              
	 	 	 
	 	
                ■ 

              	
                Entitled
      Land, Pods, Lots Under Development, Developed Lots, and Spec Homes:
      Not more sixty percent (60%) of Allocations under the Master Line shall
      consist in the aggregate of Entitled Land, Pods, Developed Lots, Lots
      Under Development and/or Spec Homes.

              
	 	 	 


      

    

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    
       

      
        	 	
                ■  

              	
                All
      Lots and Homes: No property shall be included as a Project under
      the Master Line unless it is located in the greater Austin, Texas
      metropolitan areas (hereinafter “Geographic
      Limitation”).

              
	 	 	 
	 	
                ■  

              	
                A&D
      Lot Sub-limit: As used herein, the term “A&D
      Lot Sub-limit” shall mean the aggregate Maximum Allowed A&D Lot
      Allocations with respect to Lots (other than Lots that have been
      reclassified as Homes) included in Eligible Property in an amount not to
      exceed the least of (a) the Commitment Amount (less the aggregate Home
      Loan Allocations for Homes included as Eligible Property), (b) the
      Borrowing Availability for all Lots Under Development, Developed Lots,
      Pods and Entitled Land entered into the Master Line as Eligible Property,
      or (c) the aggregate amount required to comply with the limitations in
      this Section 1.1.”
      

              


      

       

    

    5.    Modification of Guarantor
Name. Guarantor has changed its name with the Secretary of State
of Texas from WILSON HOLDINGS INC., a Nevada corporation, to GREEN BUILDERS,
INC., a Texas corporation (“New
Guarantor Name”). As a result of Guarantor’s name change, Guarantor under
the New Guarantor Name shall execute (i) that certain Amended and Restated
Continuing Guaranty Agreement (Completion and Payment Obligations) of even date
herewith (“New
Guaranty”); (ii) that certain Environmental Indemnity (Georgetown
Village) of even date
herewith (“Georgetown
Environmental Indemnity”); and(iii) that certain Environmental (Phase
- Elm Grove) even date herewith(“Elm
Grove Environmental
Indemnity,” collectively with the Georgetown Environemental Indemnity,
“New
Environmental Indemnity”). All references to the Guarantor or “Indemnitor”
(as defined in the Loan Agreement) shall be revised to refer to the New
Guarantor Name. All references in the Loan Documents to the Guaranty shall be
revised to refer to New Guaranty set forth herein and all references in the Loan
Documents to the Environmental Indemnity shall be revised to refer to the New
Environmental Idemnity set forth herein.

     

    6.    Modification of Interest
Rate. Notwithstanding anything to the contrary in the Loan
Documents, in no event shall the “Applicable
Interest Rate” (as defined in the Note) be less than five and one-half of
one percent percent (5.50%) per annum.

     

    7.    Conditions
Precedent. In no event shall Agent have any obligation to close this
transaction unless and until all of the following conditions are
satisfied:

     

    7.1     No
Defaults. Other than in connection with the Spec Home Limitation
Violation,there shall be no: (a) uncured Event of Default under the Master Line
or under any of the Loan Documents, (b) continuing representation, covenant or
warranty hereunder or under the Loan Documents that is false or misleading in
any manner, and (c) event currently existing which, with the passage of time or
the giving of notice or both, will result in an Event of Default or the falsity
of any continuing representation, covenant or warranty hereunder or under the
Loan Documents.

     

    7.2     No Financial
Change. There has been no material adverse change in the financial
condition of Borrower or any Borrower Party since the closing of the Master
Line.

     

    7.3     Payment Of Lender’s
Costs. Borrower pays to Agent the applicable Commitment Fee and
all of Agent’s costs and expenses incurred in connection with the documentation
and closing of the modifications to the Loan Documents described herein,
including without limitation all attorneys’ fees, title costs, recording charges
and other closing fees and costs.

     

    7.4     Additional
Documents. Agent has received all additional documents executed by
Borrower as required by Agent in connection with this Agreement.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    8.     Representations
and Warranties. Borrower hereby represents and warrants to Lenders
as follows:

     

     8.1     No
Default. Other than in connection with the Spec Home Limitation
Violation, no Event of Default under any of the Loan Documents has occurred that
remains uncured, and no event has occurred which, with the giving of notice or
the passage of time, or both, would constitute an Event of Default under any of
the Loan Documents.

     

     8.2     Representations
and Warranties. As of the date hereof, all of the representations and
warranties contained in all of the Loan Documents remain true, correct, complete
and accurate except to the extent such representations and warranties would be
affected by the Spec Home Limitation Violation.

     

     8.3     No
New Liens. Borrower has granted no liens or permitted any encumbrances
upon any “Project”
or security interests in any “Lot”
or “Home”
(all as defined in the Loan Agreement) described in the Loan Documents, except
for the liens and security interests permitted under the Loan
Agreement.

     

     8.4     No
Claims or Defenses. As of the date hereof, neither Borrower nor any
Borrower Party has any claims against Agent or any Lender nor defenses to the
enforcement of any of the Loan Documents in accordance with their respective
terms, as amended by this Agreement.

     

     8.5     Satisfaction of
Conditions. All of the conditions precedent set forth herein have
been fully satisfied.

    


    9.     Further
Assurances. Borrower agrees to perform such other and further acts, and
to execute such additional documents, agreements, notices or financing
statements, as Agent deems necessary or desirable from time to time to create,
preserve, continue, perfect, validate or carry out any of Agent’s and Lenders’
rights under this Agreement and the other Loan Documents.

     

    10.   Integration.
All rights, remedies, powers and interest provided for Agent and Lenders
herein are in addition to the rights, remedies, powers and interests provided
for Agent and Lenders
in the Loan Documents, the terms and provisions of which are incorporated herein
by this reference
and made a part hereof. If and to the extent any term or provision hereof is
inconsistent with any
term or provision of the Loan Documents, the term or provision of this Agreement
shall prevail.

     

    11.   Section
Headings. The section headings of this Agreement are included for
convenience
only, and shall not affect the construction or interpretation of any provision
of this Agreement.

     

    12.   Entire Agreement;
Amendments. Except as expressly amended herein, the Loan Agreement,
the Note and all of the other Loan Documents remain unmodified and in full force
and effect.
This Agreement and all of the other Loan Documents contain the entire agreement
between Borrower,
Agent and Lenders with respect to the Master Line, and all prior negotiations,
commitments,
understandings and agreements concerning any modification of the Master Line are
superseded
by this Agreement and the Loan Documents. No amendment, modification,
supplement, extension,
termination or waiver of any provision of this Agreement, any Loan Document, or
any other
agreement executed in connection with any of the foregoing is effective unless
in writing and signed by
Agent, Lenders and Borrower, and then only in the specific instance and for the
specific purpose
given.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    13.   Governing
Law. The Loan Documents shall be governed by, and construed and
enforced
in accordance with, the internal laws of the State of Texas and the applicable
laws of the United
States of America, without regard to its conflict of laws
principles.

     

    14.   Attorneys’
Fees. If any action or other proceeding is brought to interpret or
enforce any
provision of this Agreement, the prevailing party shall be entitled to recover
attorneys’ fees and expenses.

     

    15.   Binding
Effect. This Agreement and the other Loan Documents shall be binding
upon, and shall inure to the benefit of, Borrower, Agent and Lenders and their
respective successors and assigns, or heirs and personal representatives, as
applicable, subject to any provision of the Loan Documents restricting transfers
of the Property.

     

    16.   Severability
of Provisions. No provision of this Agreement or any other Loan Document
that is held to be inoperative, unenforceable and invalid shall affect the
remaining provisions, and this and all provisions of this Agreement and the Loan
Documents are hereby declared to be severable.

     

    17.   Miscellaneous.
No reference to this Agreement is necessary in any instrument or document at any
time referring to the Loan Documents. A reference to the Loan Documents is
deemed a reference to such document as modified hereby.

     

    18.   No
Commitment. The furnishing of this Agreement and other modification
documents shall in no way be construed as a commitment by Agent or any Lender to
modify, amend, extend or otherwise alter the Loan Documents. Neither Agent or
any Lender is under an obligation to close the transaction evidenced by this
Agreement unless this Agreement and all related documents are returned to Agent
fully executed by Borrower, and unless this Agreement is actually executed by
Agent and Lenders and delivered to Borrower.

     

    19.   Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which, when so
executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.

    
 

     

    [The
balance of this page is intentionally left blank.]

    


     

     

    
 

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth on the cover page of this Agreement.

    
 

     

    
      
        	 	BORROWER	 
	 	 	 
	 	
                WILSON FAMILY COMMUNITIES,
      INC., a 

                Delaware
      corporation

              	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Clark N.
      Wilson 	 
	 	 	Clark N. Wilson, its
      President	 
	 	 	 	 


      

    

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      
        
          	 	AGENT	 
	 	 	 
	 	
                  RBC BANK (USA), formerly
      known as RBC 

                  CENTURA BANK, a North
      Carolina banking 

                  corporation

                	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/ Seema
      Sachdev	 


        

        
          	 	 	 	Seema
      Sachdev 	,
      Vice President	 
	 	 	 	 


        

      

       

    

    
      
        
          
            
              	 	LENDER	 
	 	 	 
	 	
                      RBC BANK (USA), formerly
      known as RBC 

                      CENTURA BANK, a North
      Carolina banking 

                      corporation

                    	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/ Seema Sachdev 	 


            

            
              	 	 	 	Seema
      Sachdev 	,
      Vice President	 
	 	 	 	 
	 	 	 	 


            

          

        

      

    

     

    


     

    [Signatures
continued on the following page.]

     

     

     

     

     

    
      
        
        

      

      
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                      	 	LENDER:	 
	 	 	 
	 	FRANKLIN BANK SSB, a Texas state savings bank	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/
      Celli Lyon 	 
	 	 	Celli
      Lyon 	, its
      	Vice
      President	 
	 	 	 	 


                    

                     

                  

                

              

            

          

        

      

    

    
      
        


         
[Signatures
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                      	 	LENDER:	 
	 	 	 
	 	
                              INTERNATIONAL BANK OF
      COMMERCE, 

                              LAREDO,
      TEXAS, a Texas state banking association

                            	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/
      Chad Wilson 	 
	 	 	Chad
      Wilson 	, its
      	FVP	 
	 	 	 	 


                    

                     

                  

                

              

            

          

          
             

          

        

      

      
        
          
            
              
                
                  
                     

                  

                

              

            

          

          
             

            
            

          

        

      

    

    
       

       

       

      
 

       

       

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