UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
Date of report (Date of earliest event reported):
October 31,
2009
Orleans Homebuilders, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware
|
|
1-6830
|
|
59-0874323
|
(State or Other
Jurisdiction
of Incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer
Identification No.)
|
3333
Street Road, Suite 101, Bensalem, PA
|
|
19020
|
(Address of
Principal Executive Offices)
|
|
(Zip Code)
|
Registrants telephone number, including area code:
(215) 245-7500
Not Applicable
(Former Name or
Former Address, if Changed Since Last Report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (
see
General Instruction A.2. below):
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On November 4, 2009,
Orleans Homebuilders, Inc. (the Company) received a limited waiver and
amendment extension letter (the Limited Waiver and Amendment Extension Letter)
from Wachovia Bank, National Association, as agent, in connection with the
Companys Second Amended and Restated Revolving Credit Loan Agreement by and
among the Company, its wholly owned subsidiary, Greenwood Financial, Inc.,
certain affiliates of Greenwood Financial, Inc., Wachovia Bank, National
Association, as administrative agent (the Agent), and various other lenders
dated as of September 30, 2008 (as amended to date, the Credit Facility). The Limited Waiver and Amendment Extension
Letter is effective as of October 30, 2009. Subject to certain conditions, the Limited
Waiver and Amendment Extension Letter effectively extends through November 30,
2009 (subject to earlier termination and the ability of Agent to extend the
period of effectiveness through December 20, 2009, provided that certain
conditions are satisfied) certain amendments to the Credit Facility made by the
Second Amendment to the Credit Facility and continued by the Third Amendment to
the Credit Facility. In addition, the
Limited Waiver and Amendment Extension Letter temporarily waives compliance
with certain covenants set forth in the Credit Facility. The summary of the material terms of the
Limited Waiver and Amendment Extension Letter set forth below is qualified in
its entirety by reference to the text of the Amendment Extension Letter, a copy
of which is attached hereto as Exhibit 10.1.
Subject to the expiration
of the waiver and extension period upon the occurrence of events specified in
the Limited Waiver and Amendment Extension Letter (see below), Agent and the
lenders temporarily waived the following events of default and anticipated
events through November 30, 2009 (subject to the ability of Agent to
extend the period of effectiveness through December 20, 2009, provided
that certain conditions are satisfied):
·
The Company and the borrowers under the
Credit Facility (collectively, the Obligors) are in default under the Credit
Facility as of October 31, 2009 due to OHI Financing, Inc.s failure
to make the September 30, 2009 interest payment due under the $30 million
issue of trust preferred securities (which constitutes an event of default
under the trust preferred securities);
·
The Obligors anticipate that an event of
default will occur under the Credit Facility as of December 1, 2009 due to
OHI Financing, Inc.s anticipated failure to make the October 30,
2009 interest payment under the 1% junior subordinated notes issued in August 2009
in exchange for certain outstanding trust preferred securities (which
constitutes an event of default under the 1% junior subordinated notes);
·
The events of defaults under the Credit
Facility which are anticipated, or have occurred, as a result of:
·
Failure to pay the first additional fee
as required by the Credit Facility (estimated to be approximately $13.7 million)
on October 31, 2009 (the First Additional Fee);
·
Failure to deliver borrowing base
certificates which do not include any of the following temporary liquidity
enhancements to the borrowing base implemented by the Second Amendment and
Third Amendment: (i) subtraction from
the calculation of Borrowing Base Availability of up to $5.1 million of
financial letters of credit; (ii) continued inclusion in the borrowing base of
certain parcels of real property known as the Ewing Tracts; (iii) adjustments
to the category limitation percentages applicable to the determination of the
net borrowing base availability; and (iv) appraised value of certain borrowing
base assets determined on the basis of appraisals received and finalized before
June 8, 2009;
·
Failure to deliver to Lenders: (i) audited
annual financial statements of the Company by October 31, 2009; (ii) a
comparison of actual results to budgeted results by October 31, 2009; and (iii) unaudited
managementprepared quarterly financial statements of the Company by November 15,
2009; and
·
Failure to maintain liquidity of $10
million or more, which would result in a default five days after the occurrence
of such event.
2
Initially, the extension
period during which the limited waiver is effective runs through November 30,
2009. The waiver and extension period
may, however, be extended through December 20, 2009 (the maturity date of
the Credit Facility) by the Agent if the Agent and the Company have reached a
mutual agreement in principle on a terms sheet containing the significant terms
and conditions for amending and restating the Credit Facility and no event of
default has occurred under the Credit Facility (other than those waived in the
Limited Waiver and Amendment Extension).
The waiver and amendment extension period will, however, end immediately
if:
·
A creditor of any Obligor exercises or
commences any enforcement actions against any Obligor (including without
limitation, the acceleration of the debt outstanding pursuant to the $30
million issue of trust preferred securities) as a result of the OHI Financing
Inc.s failure to make the September 30, 2009 payment due under the trust
preferred securities or the October 30, 2009 payment due under the junior
subordinated notes;
·
In the reasonable judgment of Agent,
Obligors and Agent fail to reach a mutual agreement in principal on a term
sheet containing the significant terms and conditions for amending and
restating the Credit Facility, subject to completion of due diligence, on or
prior to November 5, 2009 which has been extended by Agent to
November 12, 2009 and may be extended further;
·
The Company or any of its affiliates make
any bonus payments, incentive payments or any similar payment to any officer,
director, employer or affiliates (other than commission or construction bonus
payments to filed personnel in the ordinary course of business) during the
waiver and amendment extension period;
·
A notice of borrowing for general working
capital and corporate purposes fails to provide sufficient detail of the
intended use of the advance or if the use is not deemed satisfactory to Agent,
but the payment is made over the Agents objection);
·
The Obligors fail to deliver financial
statements to Agent on the next business day after they are filed with the
Securities and Exchange Commission; or
·
The occurrence of any event of default
under the Credit Facility or other loan documents, except those events of
defaults waived under the Limited Waiver and Amendment Extension Letter.
Upon the termination of
the waiver and extension period, the events of default described above will
immediately constitute events of default under the Credit Facility with no
further notice and Agent and the lenders will be able to exercise all of their rights
and remedies under the Credit Facility and under applicable law.
During the waiver and
extension period, the borrowing base and the borrowing base availability
calculations relating to borrowing base certificates delivered on or after October 30,
2009 will be made using the modifications to the definition of Borrowing Base
Availability and to Article III of the Credit Facility (Notice of
Borrowing; Borrowing Base and Borrowing Base Availability) in the Third
Amendment to the Credit Facility notwithstanding that such modifications, by
their terms, are otherwise no longer effective.
As a result, the liquidity enhancements of contained in the Second
Amendment and Third Amendment to the Credit Facility will generally continue to
be effective during the waiver and extension period.
Notwithstanding the
limited waiver and amendment extension, under the Limited Waiver and Amendment
Extension Letter, the First Additional Fee of approximately $13.7 million was
earned on October 31, 2009.
Presently, the Company does not have sufficient liquidity available to
pay this fee. The event of default
caused by the failure to pay the First Additional Fee is, however, waived
during the waiver and amendment extension period, thereby effectively deferring
payment of the fee until termination of the waiver and amendment extension
period. Furthermore, solely for purposes
of certain certifications in any notice of borrowing relating to the tangible
net worth covenant in the Credit Facility, the Obligors may make the certifications
without giving effect to the accrual of the First Additional Fee.
The Limited Waiver and
Amendment Extension letter also extended until the end of the waiver and
amendment extension period the lenders consent for the Company to enter into
an exchange offer with respect to its outstanding $30 million issue of 8.52%
unsecured junior subordinated trust preferred securities issued by the Companys
affiliate Orleans Homebuilders Trust I provided that (i) the terms of the
3
exchange offer for those
trust preferred securities are substantially similar to, and no less favorable
to the Obligors and the lenders, than the terms of exchange of the Companys
previously outstanding $75 million issue of trust preferred securities, as
determined by the Agent, (ii) the documentation for the exchange offer is
in form and substance satisfactory to the Agent, and (iv) no event of
default (other than those waived by the Limited Waiver and Amendment Extension
Letter), or any condition or event that, after notice or lapse of time or both,
would constitute an event of default, has occurred and is continuing as of the
effective date of the exchange offer.
The Company currently
anticipates that the one-month liquidity enhancement provided by the Limited
Waiver and Amendment Extension Letter should meet the Companys liquidity needs
only up to approximately November 30, 2009. The Company anticipates that without either a
Credit Facility maturity extension and other modifications, or an additional
amendment to the Credit Facility to increase borrowing base availability on or
before November 30, 2009: (i) the net borrowing base availability at
that time will be significantly less than the borrowings under the Credit
Facility at that time; (ii) the Company will be unable to pay an existing
loan fee earned by the lenders without an additional amendment to defer the
timing of the payment of such loan fee; (iii) the Company will likely
violate the minimum liquidity covenant at some time in or before early December 2009;
(iv) the Company will violate certain other covenants under the Credit
Facility at that time (or shortly thereafter); and (v) the Company will
likely not have sufficient liquidity to continue its normal operations at that
time (or shortly thereafter). In
addition, the Company may need additional amendments to its Credit Facility for
a variety of reasons on or prior to November 30, 2009. For additional discussion of the Companys
liquidity, including a discussion of the scheduled December 20, 2009
maturity date of the Companys Credit Facility, please refer to the Liquidity
and Capital Resources section of the Companys Quarterly Report on Form 10-Q
for the quarter ended March 31, 2009 filed with the Securities and Exchange
Commission on May 15, 2009, as well as the Current Reports on Form 8-K
and press releases filed with the Securities and Exchange Commission on August 14,
2009 and October 6, 2009 and the Companys Form 12b-25 filed with the
Securities and Exchange Commission on September 29, 2009.
On November 5, 2009
the Company issued a press release announcing the Limited Waiver and Amendment
Extension Letter, a copy of which is furnished herewith as Exhibit 99.1.
Item 2.04 Triggering Events That
Accelerate or Increase a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
Item 1.01 is incorporated
herein by reference.
But for the Limited
Waiver and Amendment Extension Letter, the occurrence of one of more of the
events of default and/or anticipated events of default described above would
allow the lenders to exercise all of their remedies under the Credit Facility,
including accelerating payment of the entire amount outstanding under the
Credit Facility. As of November 4,
2009, there is approximately $328 million of principal outstanding, plus
accrued interest of approximately $1.6 million.
The earliest date on which any of the events of default or anticipated
events of default under the Credit Facility described above occurred is October 31,
2009.
OHI Financing, Inc.,
a wholly-owned subsidiary of the Company, did not make the scheduled $639,000
quarterly interest payment due on September 30, 2009 under the 8.52%
junior subordinated note underlying the $30 million issue of trust preferred
securities during the applicable grace period.
As a result, an event of default occurred on October 31, 2009 under
the junior subordinated note indenture dated as of September 30, 2005
entitling the trustee and/or the holders of the trust preferred securities to
exercise all of their remedies under such junior subordinated note indenture,
including accelerating payment of the outstanding principal and accrued, but
unpaid interest, together with a premium of 7.5% of the outstanding principal. Currently, there is $30 million of principal
outstanding under the 8.52% junior subordinated note, plus accrued interest of
approximately $852,000. The junior
subordinated note is guaranteed on a subordinated basis by the Company.
Item 3.01 Notice of Delisting of
Failure to Satisfy a Continued Listing Rule or Standard; Transfer of
Listing
On November 2, 2009, the Company received a
written notice from the NYSE Amex LLC (the Exchange) stating that the Company
is not in compliance with the Exchanges continuing listing criteria
4
set forth in Sections 134 and 1101 of the NYSE Amex
LLC Company Guide because it failed to timely file its Annual Report on Form 10-K (the Form 10-K) for the fiscal year
ended June 30, 2009 and such failure constitutes a material violation of
its listing agreement with the Exchange authorizing the Exchange to suspend
and, unless prompt corrective action is taken, remove the Companys common
stock from the Exchange pursuant to Section 1003(d) of the Company
Guide. The Company intends to comply
with requirements set forth in the written notice by submitting a plan of
compliance to the Exchange by November 16, 2009 advising the Exchange of
the actions the Company intends to take to bring the Company into compliance
with the applicable provisions of the Company Guide by February 2, 2010.
As previously reported,
the Company could not timely file its Form 10-K without unreasonable
effort or expense. The Company is
working as expeditiously as possible to finalize its accounting and related
disclosure for the period covered by its Form 10-K and currently expects
to file the Form 10-K during the month of December 2009. The Company can, however, offer no assurance
that it will file its Form 10-K at or before that time.
On November 5, 2009
the Company issued a press release announcing receipt of the written notice
from NYSE Amex LLC, a copy of which is furnished herewith as Exhibit 99.1.
Cautionary Statement for
Purposes of the Safe Harbor Provisions of the Private Securities Litigation
Reform Act of 1995
Certain information
included herein and in other Company statements, reports and SEC filings is
forward-looking within the meaning of the Private Securities Litigation Reform
Act of 1995, including, but not limited to, statements concerning anticipated
or expected financing arrangements, anticipated amendments to its Credit
Facility, payments on its 8.52% Trust Preferred Securities and the New Junior
Subordinated Notes, anticipated increases in net new orders, conditions in or
recovery of the housing market, and economic conditions; the Companys
long-term opportunities; continuing overall economic conditions and conditions
in the housing and mortgage markets and industry outlook; anticipated or
expected operating results, revenues, sales, net new orders, backlog, pace of
sales, spec unit levels, and traffic; future or expected liquidity, financial
resources, debt or equity financings, amendments to or extensions of our existing
revolving Credit Facility, strategic transactions and alternatives; other
alternative recapitalization or exchange offer transactions; the anticipated
impact of bank reappraisals; future impairment charges; future tax valuation
allowance and its value; anticipated or possible federal and state stimulus
plans or other possible future government support for the housing and financial
services industries; anticipated cash flow from operations; reductions in land
expenditures; the Companys ability to meet its internal financial objectives
or projections, and debt covenants; potential future land sales; the Companys
future liquidity, capital structure and finances; the Companys response to
market conditions; and the Companys response to the Exchanges notice
concerning listing requirements. Such
forward-looking information involves important risks and uncertainties that
could significantly affect actual results and cause them to differ materially
from expectations expressed herein and in other Company statements, reports and
SEC filings. These risks and
uncertainties include local, regional and national economic conditions, the
effects of governmental regulation, the competitive environment in which the
Company operates, fluctuations in interest rates, changes in home prices, the
availability and cost of land for future growth, the availability of capital,
our ability to modify or extend our existing Credit Facility or otherwise
engage in a financing or strategic transaction; the availability and cost of
labor and materials, our dependence on certain key employees and weather
conditions. In addition, there can be no
assurance that the Company will be able to obtain any amendment to or extension
of its existing revolving Credit Facility or other alternative financing or
adjust successfully to current market conditions. Additional information concerning factors the
Company believes could cause its actual results to differ materially from
expected results is contained in Item 1A of the Companys Annual Report on Form 10-K/A
for the fiscal year ended June 30, 2008 filed with the SEC and
subsequently filed Quarterly Reports on Form 10-Q.
5
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
The following exhibits are filed or furnished with
this Current Report on Form 8-K:
Exhibit No.
|
|
Description
|
|
|
|
10.1
|
|
Limited Waiver and
Amendment Extension Letter, dated as of October 30, 2009, by and among
Greenwood Financial, Inc. and certain affiliates, Orleans
Homebuilders, Inc., Wachovia Bank, National Association and various
other lenders party thereto (filed herewith).
|
99.1
|
|
Press release of
Orleans Homebuilders, Inc. dated November 5, 2009 (furnished
herewith).
|
6
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: November 5, 2009
|
Orleans
Homebuilders, Inc.
|
|
|
|
By:
|
Garry
P. Herdler
|
|
|
Name:
|
Garry
P. Herdler
|
|
|
Title:
|
Executive
Vice President, Chief Financial Officer and Principal Financial Officer
|
7
EXHIBIT INDEX
The following exhibits
are filed or furnished with this Current Report on Form 8-K:
Exhibit No.
|
|
Description
|
|
|
|
10.1
|
|
Limited Waiver and
Amendment Extension Letter, dated as of October 30, 2009, by and among
Greenwood Financial, Inc. and certain affiliates, Orleans
Homebuilders, Inc., Wachovia Bank, National Association and various
other lenders party thereto (filed herewith).
|
99.1
|
|
Press release of
Orleans Homebuilders, Inc. dated November 5, 2009 (furnished
herewith).
|
8
Orleans Homebuilders (AMEX:OHB)
과거 데이터 주식 차트
부터 4월(4) 2024 으로 5월(5) 2024
Orleans Homebuilders (AMEX:OHB)
과거 데이터 주식 차트
부터 5월(5) 2023 으로 5월(5) 2024