RATIO.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE
PERMITTED LEVERAGE RATIO BE LESS THAN THE FOLLOWING AMOUNTS FOR THE FOLLOWING
FISCAL QUARTERS:
PERMITTED LEVERAGE RATIO
FISCAL QUARTERS
55.0%
THE LAST FISCAL QUARTER OF 2008 AND FIRST FISCAL QUARTER OF 2009
52.5%
THE SECOND, THIRD AND FOURTH FISCAL QUARTERS OF 2009
50.0%
THE FIRST FISCAL QUARTER OF 2010 AND THEREAFTER
(E)
MEASURE OF COMPLIANCE.
BORROWER'S
SATISFACTION OF THE INTEREST COVERAGE TEST SHALL BE MEASURED ON A QUARTERLY
BASIS, BASED ON THE FINANCIAL STATEMENTS DELIVERED TO AGENT PURSUANT TO
SECTION 6.1(A) OR (B).
A FAILURE TO SATISFY THE INTEREST COVERAGE TEST ALONE
SHALL NOT CONSTITUTE A DEFAULT OR UNMATURED DEFAULT.
6.
LAND INVENTORY.
SECTION 6.29 IS HEREBY
AMENDED BY DELETING THE REFERENCE "1.0 TO 1.0" AND REPLACING IT WITH "1.15 TO
1.0."
7.
COMPLIANCE CERTIFICATE.
THE COMPLIANCE
CERTIFICATE PROVIDED FOR IN THE CREDIT AGREEMENT SHALL BE MODIFIED (AS
APPLICABLE) TO CONFORM TO THE TERMS OF THIS AMENDMENT.
8.
CONDITIONS PRECEDENT.
THIS AMENDMENT
SHALL BE EFFECTIVE AS OF THE DATE ("AMENDMENT EFFECTIVE DATE") UPON WHICH THE
FOLLOWING CONDITIONS ARE SATISFIED:
(A)
THE AGENT SHALL HAVE RECEIVED FROM THE
BORROWER AND THE REQUIRED LENDERS A COUNTERPART OF THIS AMENDMENT SIGNED ON
BEHALF OF EACH SUCH PARTY.
(B)
THE AGENT SHALL HAVE RECEIVED FROM THE
GUARANTORS THE CONSENT AND AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO
AS APPENDIX I.
(C)
THE AGENT SHALL HAVE RECEIVED SUCH
DOCUMENTS AND CERTIFICATES AS THE AGENT OR ITS COUNSEL MAY REASONABLY REQUEST
RELATING TO THE ORGANIZATION OR FORMATION, EXISTENCE AND GOOD STANDING OF THE
BORROWER, THE AUTHORIZATION OF THIS AMENDMENT AND ANY OTHER LEGAL MATTERS
RELATING TO THE BORROWER, THE AGREEMENT OR THIS AMENDMENT, ALL IN FORM AND
SUBSTANCE SATISFACTORY TO THE AGENT AND ITS COUNSEL.
3
(D)
THE AGENT SHALL HAVE RECEIVED ALL FEES AND
OTHER AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE AMENDMENT EFFECTIVE DATE,
INCLUDING REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES REQUIRED TO BE
REIMBURSED OR PAID BY THE BORROWER HEREUNDER.
The Agent shall notify the Borrower and the Lenders of the Amendment Effective
Date, and such notice shall be conclusive and binding.
9.
REPRESENTATIONS AND WARRANTIES.
THE
BORROWER HEREBY REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF:
(a)
The representations and warranties of the
Borrower in the Credit Agreement are true and correct in all material respects.
(b)
There exists no Default or Unmatured
Default.
10.
RATIFICATION.
THE CREDIT AGREEMENT, AS
AMENDED HEREBY, IS HEREBY RATIFIED AND REMAINS IN FULL FORCE AND EFFECT.
11.
COUNTERPARTS.
THIS AMENDMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AGREEMENT AND ANY OF THE PARTIES HERETO MAY EXECUTE THIS
AMENDMENT BY SIGNING ANY SUCH COUNTERPART.
12.
CHOICE OF LAW.
THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
4
IN WITNESS WHEREOF, the Borrower and