EX-10.1 FIRST AMENDMENT TO CREDIT AGREEMENT



 






Exhibit
10.1


FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is made
as of the 11th day of January, 2007, by and among ASHTON WOODS USA L.L.C. (the
“Borrower”), the LENDERS party hereto, WACHOVIA BANK, NATIONAL ASSOCIATION, as agent (the “Agent”),
and the GUARANTORS party hereto.



R E C I T A L S:




          The Borrower, the Agent and the Lenders have entered into a certain First Amended and Restated
Credit Agreement dated as of December 16, 2005 (the “Credit Agreement”). Capitalized terms used in
this Amendment which are not otherwise defined in this Amendment shall have the respective meanings
assigned to them in the Credit Agreement.



          The Guarantors consist of Owner Guarantors that have executed or otherwise become a party to
the Owner Guaranty Agreement and Subsidiary Guarantors that have executed or otherwise become a
party to the Subsidiary Guaranty Agreement.



          The Borrower and the Guarantors have requested the Agent and the Lenders to amend the Credit
Agreement to extend the Maturity Date in accordance with Section 2.7 of the Credit Agreement and to
make other such changes as the parties hereunder deem appropriate upon the terms and conditions
hereinafter set forth.



          NOW, THEREFORE, in consideration of the Recitals and the mutual promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Agent and the Lenders, intending to be legally bound hereby, agree
as follows:



          SECTION 1. Recitals. The Recitals are incorporated herein by reference and shall be
deemed to be a part of this Amendment.



          SECTION 2. Amendment. Section 1.1 of the Credit Agreement is hereby amended as
follows:



     2.1 The definition of “EBITDA” is hereby amended and restated in its entirety
to read as follows:




          “EBITDA” means, for any period, the sum of (a) net income for such
period, less (b) franchise taxes payable in Texas, less (c) any non-cash or
extraordinary gains, to the extent included in calculating net income for such
period, plus (d) the following, to the extent deducted in calculating net income for
such period, (i) depreciation expense and amortization expense for such period, (ii)
interest expense in cost of goods sold for such period, (iii) interest expense from
operations for such period, and (iv) any non-cash or extraordinary losses or charges



 









 







in such period, all as determined for Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.




     2.2 The definition of “Maturity Date” is hereby amended and restated in its
entirety to read as follows:




          “Maturity Date” shall mean January 19, 2011 or such later date as
determined in accordance with Section 2.7(b).



          SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment and the
obligations of the Lenders hereunder are subject to the following conditions:




          (a) receipt by the Agent of a duly executed counterpart of this Amendment signed by the
Borrower, the Guarantors, and the Required Lenders;




          (b) receipt by the Agent from the Borrower of any and all fees and expenses to be paid by the
Borrower to the Agent and the Lenders in connection with this Amendment; and




          (c) the fact that the representations and warranties of the Borrower contained in Article 4 of
the Credit Agreement and in Section 5 of this Amendment shall be true in all material respects on
and as of the date hereof.




          SECTION 4. No Other Amendment. Except for the amendments set forth above, the text of
the Credit Agreement shall remain unchanged and in full force and effect. This Amendment is not
intended to effect, nor shall it be construed as, a novation. The Credit Agreement and this
Amendment shall be construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained in the Credit
Agreement, except as herein amended, nor affect nor impair any rights, powers or remedies under the
Credit Agreement as hereby amended. The Lenders and the Agent do hereby reserve all of their
rights and remedies against all parties who may be or may hereafter become secondarily liable for
the repayment of the Obligations. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the Credit Agreement, as
heretofore and hereby amended. The Credit Agreement, as so amended, is hereby ratified and
affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as amended, is in full
force and effect.




          SECTION 5. Representations and Warranties. The Borrower hereby represents and
warrants to each of the Lenders as follows:




          (a) No Default under the Credit Agreement has occurred and is continuing on the date hereof.




          (b) The Borrower and Guarantors have the power and authority to enter into this Amendment and
to do all acts and things as are required or contemplated hereunder to be done, observed and
performed by them.




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          (c) This Amendment has been duly authorized, validly executed and delivered by one or more
authorized officers of the Borrower and Guarantors and constitutes a legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against it in accordance with its terms,
subject to the effect, if any, of bankruptcy, insolvency, reorganization, arrangement or other
similar laws relating to or affecting the rights of creditors generally and the limitations, if
any, imposed by the general principles of equity and public policy.




          (d) The execution and delivery of this Amendment and the performance of the Borrower
and Guarantors hereunder do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction over the
Borrower or any Guarantor, nor be in contravention of or in conflict with the articles of
incorporation or bylaws or other applicable organizational documents of the Borrower, or any
Guarantor, or the provision of any statute, or any judgment, order or indenture, instrument,
agreement or undertaking, to which the Borrower, or any Guarantor is party or by which the
assets or properties of the Borrower or Guarantors are or may become bound.




          SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same agreement. Transmission by telecopy, facsimile, email or other
form of electronic transmission of an executed counterpart of this Amendment shall be deemed to
constitute due and sufficient delivery of such counterpart.




          SECTION 7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of North Carolina.




          SECTION 8. Consent by Guarantors. The Guarantors consent to the foregoing amendments.
Each Guarantor promises and agrees to perform all of the requirements, conditions, agreements and
obligations under the terms of the Guaranty Agreement to which it is a party, said Guaranty
Agreement being hereby ratified and affirmed. Each Guarantor hereby expressly agrees that the
Guaranty Agreement to which it is a party is in full force and effect.




[The remainder of this page intentionally left blank.]




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     IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have caused their
respective duly authorized officers or representatives to execute and deliver, under seal, this
Amendment as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS USA L.L.C.,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Robert Salomon
	 	 
	 

	 	Title:
	 	Chief Financial Officer, Treasurer and Secretary	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Michael R. Jordan
 

Michael R. Jordan
	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Gene Walton
 

Gene Walton
	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	CITIBANK , N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Rick Thompson
 

Rick Thompson
	 	 
	 

	 	Title:
	 	V.P. Citibank, N.A.	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	REGIONS BANK (successor by merger to AmSouth Bank), as
a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Daniel McClurkin
 

Daniel McClurkin
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 
	 	 	GUARANTY BANK, as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dan M. Killian
	 

	 	 	 	 
	 

	 	Name:
	 	Dan M. Killian
	 

	 	Title:
	 	Senior Vice President






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	COMERICA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Charles Wedell
 

Charles Wedell
	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	KEY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Andrew McKown
 

Andrew McKown
	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	OWNER GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	ELLY NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Vice President and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	NORMAN NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Vice President and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	LARRY NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Vice President and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	BRUCE NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Vice President and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	HARRY NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: President and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	SEYMOUR NEVADA, INC., a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Vice President and Secretary	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	LITTLE SHOTS NEVADA L.L.C., a Nevada limited liability
company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Harry Rosenbaum
 

	 	 
	 	 	Name: Harry Rosenbaum	 	 
	 	 	Title: Manager	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	SUBSIDIARY GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON ATLANTA RESIDENTIAL, L.L.C.,	 	 
	 	 	a Georgia limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON DALLAS RESIDENTIAL L.L.C.,	 	 
	 	 	a Texas limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON HOUSTON RESIDENTIAL L.L.C.,	 	 
	 	 	a Texas limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS ARIZONA L.L.C.,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON ORLANDO RESIDENTIAL L.L.C.,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	ASHTON BURDEN, LLC,	 	 
	 	 	a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON TAMPA RESIDENTIAL LLC,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON DENVER RESIDENTIAL, LLC,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	PINERY JOINT VENTURE, a Colorado joint venture	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Ashton Woods USA
L.L.C., a Nevada limited liability company, the member
authorized to act on its behalf	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 

	 	 	 	Name: Robert Salomon	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS FINANCE CO., a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Chief Financial Officer, Treasurer and Secretary	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	ASHTON WOODS ORLANDO LIMITED PARTNERSHIP, a Florida limited
partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Ashton Woods
Lakeside L.L.C., a Nevada limited liability company, its
general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 

	 	 	 	Name: Robert Salomon	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS CORPORATE, LLC,	 	 
	 	 	a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS TRANSPORTATION, LLC,	 	 
	 	 	a Georgia limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 	 	Name: Robert Salomon	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	ASHTON WOODS CONSTRUCTION LLC,	 	 
	 	 	an Arizona limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Ashton Woods
Arizona L.L.C., a Nevada limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Salomon
 

	 	 
	 

	 	 	 	Name: Robert Salomon	 	 
	 

	 	 	 	Title: Manager	 	 






Signature Page of

First Amendment to First Amended and Restated Credit Agreement