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.

 

[Remainder of Page Intentionally Left Blank;

Signature Pages to Follow.]

 











 

Please execute a copy of this Limited Waiver and Amendment in the space provided below to acknowledge your agreement to the foregoing.

 

	
 
    	
Sincerely,
    
	
 
    	
 
    
	
 
    	
FORESTAR (USA) REAL ESTATE   GROUP INC., as Borrower
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L. Nines
    
	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
Title:
    	
Chief Financial   Officer
    


 

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KEYBANK NATIONAL   ASSOCIATION, as Agent and as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Nathan Weyer
    
	
 
    	
Name:
    	
Nathan Weyer
    
	
 
    	
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.

 

	
 
    	
GUARANTORS:  
    
	
 
    	
 
    
	
 
    	
FORESTAR GROUP INC., a   Delaware corporation 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L. Nines 
    
	
 
    	
 
    	
Name: 
    	
Christopher L. Nines 
    
	
 
    	
 
    	
Title: 
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FORESTAR MINERALS LP, a   Delaware limited partnership 
    
	
 
    	
 
    
	
 
    	
By: 
    	
Forestar Minerals GP, LLC, general partner
    
	
 
    	
 
    
	
 
    	
FORESTAR OIL &   GAS LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
FORESTAR REALTY INC., a   Delaware corporation
    
	
 
    	
 
    
	
 
    	
FORESTAR HOTEL HOLDING COMPANY INC., a Nevada   corporation
    
	
 
    	
 
    
	
 
    	
CAPITOL OF TEXAS   INSURANCE GROUP INC., a Delaware corporation
    
	
 
    	
 
    
	
 
    	
FORESTAR CAPITAL INC., a   Delaware corporation
    
	
 
    	
 
    
	
 
    	
FORESTAR MINERALS GP LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
JOHNSTOWN FARMS, LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
SAN JACINTO I LLC, a Texas   limited liability company
    


 

Guarantor  signature page to Limited Waiver and Amendment

 











 

	
 
    	
SUSTAINABLE WATER   RESOURCES LLC, a Texas limited liability company
    
	
 
    	
 
    
	
 
    	
SWR HOLDINGS LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
STONEY CREEK PROPERTIES   LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
FORCO REAL ESTATE INC., a   Delaware corporation
    
	
 
    	
 
    
	
 
    	
FORESTAR PETROLEUM   CORPORATION, a Delaware corporation
    
	
 
    	
 
    
	
 
    	
SECO ENERGY CORPORATION, a Nevada   corporation
    
	
 
    	
 
    
	
 
    	
UNITED OIL CORPORATION, an   Oklahoma corporation 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L. Nines 
    
	
 
    	
 
    	
Name: 
    	
Christopher L. Nines 
    
	
 
    	
 
    	
Title: 
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
FORESTAR MINERALS   HOLDINGS LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael Quinley 
    
	
 
    	
 
    	
Name: 
    	
Michael Quinley
    
	
 
    	
 
    	
Title: 
    	
President
    


 

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FORESTAR REALTY INC.,
    
	
 
    	
a Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FORESTAR HOTEL HOLDING COMPANY INC.,
    
	
 
    	
a Nevada corporation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
CAPITOL OF TEXAS INSURANCE GROUP INC., a   Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    


 

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FORESTAR CAPITAL INC.,
    
	
 
    	
a Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FORESTAR MINERALS GP LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FORESTAR MINERALS HOLDINGS LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    


 

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HARBOR LAKES GOLF CLUB LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
HARBOR LAKES CLUB MANAGEMENT LLC, A Texas   limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JOHNSTOWN FARMS, LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    


 

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SAN JACINTO I LLC, a Texas   limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SUSTAINABLE WATER RESOURCES LLC, a Texas   limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SWR HOLDINGS LLC, a   Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
STONEY CREEK PROPERTIES LLC, a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial   Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
FORCO REAL ESTATE INC., a   Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial   Officer
    


 

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FORESTAR PETROLEUM CORPORATION, a   Delaware corporation
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial   Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SECO ENERGY CORPORATION, a Nevada   corporation
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial   Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
UNITED OIL CORPORATION, an   Oklahoma corporation
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Christopher L.   Nines
    
	
 
    	
 
    	
Name:
    	
Christopher L. Nines
    
	
 
    	
 
    	
Title:
    	
Chief Financial   Officer
    


 

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OTHER LENDERS:
    
	
 
    	
AgFIRST FARM CREDIT BANK, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Matthew H. Jeffords
    
	
 
    	
Name:
    	
Matthew H. Jeffords
    
	
 
    	
Title:
    	
Vice President
    


 

 

Address:

 

1401 Hampton Street

Columbia, SC  29201

 

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NORTHWEST FARM CREDIT SERVICES, PCA, as
   a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Candy Casteal
    
	
 
    	
Name:
    	
Candy Casteal
    
	
 
    	
Title:
    	
SVP Credit
    


 

 

Address:

 

1700 South Assembly Street

Spokane, WA  99224

 

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AMEGY BANK NATIONAL ASSOCIATION, as a
    
	
 
    	
Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Barrett Tondre
    
	
 
    	
Name:
    	
Barrett Tondre
    
	
 
    	
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
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael B. Perrine
    
	
 
    	
Name:
    	
Michael B. Perrine
    
	
 
    	
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
   ASSOCIATION, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mike McConnell
    
	
 
    	
Name:
    	
Mike McConnell
    
	
 
    	
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
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michelle Latzoni
    
	
 
    	
Name:
    	
Michelle Latzoni
    
	
 
    	
Title:
    	
Authorized Signatory
    


 

 

Address:

 

200 West Street

New York, NY  10282

Fax # 917-977-3966

 

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JPMORGAN CHASE BANK, NATIONAL
   ASSOCIATION, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Melissa Burnett
    
	
 
    	
Name:
    	
Melissa Burnett
    
	
 
    	
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
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Chris M. Garza
    
	
 
    	
Name: Chris M. Garza
    
	
 
    	
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
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ David W. Bowman
    
	
 
    	
Name: David W. Bowman
    
	
 
    	
Title: Director
    


 

Address:

 

800 Shades Creek Parkway

Birmingham, AL  35209

 

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UNITED FCS, PCA, d/b/a FCS COMMERCIAL
    
	
 
    	
FINANCE GROUP, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lisa Caswell
    
	
 
    	
Name: Lisa Caswell
    
	
 
    	
Title: Vice President
    


 

 

Address:

 

600 Highway 169 South, Suite 850

Minneapolis, MN 55426

 

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CADENCE BANK, N.A.as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Melinda N. Jackson
    
	
 
    	
Name: Melinda N. Jackson
    
	
 
    	
Title: Senior Vice President
    


 

Address:

 

3500 Colonnade Pkwy, Ste. 600

Birmingham, AL  35243

 

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METROPOLITAN LIFE INSURANCE COMPANY, .as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ W. Kirk Purvis
    
	
 
    	
Name: W. Kirk Purvis
    
	
 
    	
Title: Director
    


 

 

Address:

 

6750 Poplar Avenue

Suite 109

Germantown, TN  38138

 

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