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EXHIBIT 4.18
CREDIT AGREEMENT
among
PULTE CORPORATION
as Borrower,
THE MATERIAL SUBSIDIARIES OF PULTE CORPORATION
as Guarantors,
THE LENDERS IDENTIFIED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent,
and
COMERICA BANK,
as Co-Agent
DATED AS OF AUGUST 31, 2000
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager,
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.1 DEFINITIONS..............................................................................................1
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS...........................................20
1.3 ACCOUNTING TERMS........................................................................................20
1.4 TIME....................................................................................................21
SECTION 2 CREDIT FACILITIES.....................................................................................21
2.1 REVOLVING LOANS.........................................................................................21
2.2 SWINGLINE LOANS SUBFACILITY.............................................................................24
2.3 CONTINUATIONS AND CONVERSIONS...........................................................................26
2.4 MINIMUM AMOUNTS.........................................................................................26
2.5 EXTENSION OF MATURITY DATE..............................................................................27
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS................................................................28
3.1 INTEREST................................................................................................28
3.2 PLACE AND MANNER OF PAYMENTS............................................................................29
3.3 PREPAYMENTS.............................................................................................29
3.4 FEES....................................................................................................30
3.5 PAYMENT IN FULL AT MATURITY.............................................................................31
3.6 COMPUTATIONS OF INTEREST AND FEES.......................................................................31
3.7 PRO RATA TREATMENT......................................................................................32
3.8 SHARING OF PAYMENTS.....................................................................................33
3.9 CAPITAL ADEQUACY........................................................................................33
3.10 INABILITY TO DETERMINE INTEREST RATE....................................................................34
3.11 ILLEGALITY..............................................................................................34
3.12 REQUIREMENTS OF LAW.....................................................................................35
3.13 TAXES...................................................................................................36
3.14 COMPENSATION............................................................................................38
3.15 SUBSTITUTION OF LENDER..................................................................................39
3.16 EVIDENCE OF DEBT........................................................................................39
SECTION 4 GUARANTY..............................................................................................40
4.1 GUARANTY OF PAYMENT.....................................................................................40
4.2 OBLIGATIONS UNCONDITIONAL...............................................................................40
4.3 MODIFICATIONS...........................................................................................41
4.4 WAIVER OF RIGHTS........................................................................................41
4.5 REINSTATEMENT...........................................................................................41
4.6 REMEDIES................................................................................................42
4.7 LIMITATION OF GUARANTY..................................................................................42
4.8 RIGHTS OF CONTRIBUTION..................................................................................42
SECTION 5 CONDITIONS PRECEDENT..................................................................................43
5.1 CLOSING CONDITIONS......................................................................................43
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT..................................................................47
SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................47
6.1 FINANCIAL CONDITION.....................................................................................47
6.2 NO MATERIAL CHANGE......................................................................................48
6.3 ORGANIZATION AND GOOD STANDING..........................................................................48
6.4 DUE AUTHORIZATION.......................................................................................48
6.5 NO CONFLICTS............................................................................................48
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6.6 CONSENTS................................................................................................49
6.7 ENFORCEABLE OBLIGATIONS.................................................................................49
6.8 NO DEFAULT..............................................................................................49
6.9 LIENS...................................................................................................49
6.10 INDEBTEDNESS............................................................................................49
6.11 LITIGATION..............................................................................................50
6.12 TAXES...................................................................................................50
6.13 COMPLIANCE WITH LAW.....................................................................................50
6.14 ERISA...................................................................................................50
6.15 SUBSIDIARIES............................................................................................51
6.16 USE OF PROCEEDS.........................................................................................51
6.17 GOVERNMENT REGULATION...................................................................................52
6.18 ENVIRONMENTAL MATTERS...................................................................................52
6.19 INTELLECTUAL PROPERTY...................................................................................53
6.20 SOLVENCY................................................................................................54
6.21 INVESTMENTS.............................................................................................54
6.22 DISCLOSURE..............................................................................................54
6.23 LICENSES, ETC...........................................................................................54
6.24 BURDENSOME RESTRICTIONS.................................................................................54
6.25 LABOR CONTRACTS AND DISPUTES............................................................................54
6.26 BROKER'S FEES...........................................................................................55
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................55
7.1 INFORMATION COVENANTS...................................................................................55
7.2 FINANCIAL COVENANTS.....................................................................................58
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES................................................................59
7.4 BOOKS AND RECORDS.......................................................................................59
7.5 COMPLIANCE WITH LAW.....................................................................................59
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.................................................................59
7.7 INSURANCE...............................................................................................59
7.8 MAINTENANCE OF PROPERTY.................................................................................60
7.9 PERFORMANCE OF OBLIGATIONS..............................................................................60
7.10 USE OF PROCEEDS.........................................................................................60
7.11 AUDITS/INSPECTIONS......................................................................................60
7.12 ADDITIONAL CREDIT PARTIES...............................................................................60
SECTION 8 NEGATIVE COVENANTS....................................................................................61
8.1 INDEBTEDNESS............................................................................................61
8.2 LIENS...................................................................................................62
8.3 NATURE OF BUSINESS......................................................................................62
8.4 CONSOLIDATION AND MERGER................................................................................62
8.5 SALE OR LEASE OF ASSETS.................................................................................62
8.6 SALE AND LEASEBACK......................................................................................63
8.7 ADVANCES, INVESTMENTS AND LOANS.........................................................................64
8.8 RESTRICTED PAYMENTS.....................................................................................64
8.9 TRANSACTIONS WITH AFFILIATES............................................................................64
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS...................................................................64
8.11 NO LIMITATIONS..........................................................................................64
8.12 NO OTHER NEGATIVE PLEDGES...............................................................................64
8.13 OTHER INDEBTEDNESS......................................................................................65
SECTION 9 EVENTS OF DEFAULT.....................................................................................65
9.1 EVENTS OF DEFAULT.......................................................................................65
9.2 ACCELERATION; REMEDIES..................................................................................68
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT...........................................................69
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SECTION 10 AGENCY PROVISIONS....................................................................................69
10.1 APPOINTMENT..........................................................................................69
10.2 DELEGATION OF DUTIES.................................................................................70
10.3 EXCULPATORY PROVISIONS...............................................................................70
10.4 RELIANCE ON COMMUNICATIONS...........................................................................71
10.5 NOTICE OF DEFAULT....................................................................................71
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS...............................................71
10.7 INDEMNIFICATION......................................................................................72
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY......................................................72
10.9 SUCCESSOR ADMINISTRATIVE AGENT.......................................................................73
SECTION 11 MISCELLANEOUS........................................................................................73
11.1 NOTICES..............................................................................................73
11.2 RIGHT OF SET-OFF.....................................................................................73
11.3 BENEFIT OF AGREEMENT.................................................................................74
11.4 NO WAIVER; REMEDIES CUMULATIVE.......................................................................77
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.................................................................77
11.6 AMENDMENTS, WAIVERS AND CONSENTS.....................................................................78
11.7 COUNTERPARTS/TELECOPY................................................................................79
11.8 HEADINGS.............................................................................................79
11.9 DEFAULTING LENDER....................................................................................79
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.......................................79
11.11 GOVERNING LAW; JURISDICTION..........................................................................79
11.12 WAIVER OF JURY TRIAL.................................................................................80
11.13 SEVERABILITY.........................................................................................80
11.14 FURTHER ASSURANCES...................................................................................80
11.15 ENTIRETY.............................................................................................81
11.16 BINDING EFFECT; CONTINUING AGREEMENT.................................................................81
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SCHEDULES
Schedule 1.1(a) Revolving Loan Commitment Percentages
Schedule 1.1(b) Permitted Liens
Schedule 6.10 Indebtedness
Schedule 6.11 Litigation
Schedule 6.15 Subsidiaries
Schedule 6.21(a) Investment Policy
Schedule 6.21(b) Investments
Schedule 6.25 Labor Contract and Disputes
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(f) Form of Revolving Note
Exhibit 2.2(b) Form of Swingline Loan Request
Exhibit 2.2(e) Form of Swingline Note
Exhibit 2.3 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
August 31, 2000 among PULTE CORPORATION, a Michigan corporation (the
"Borrower"), each of the Material Subsidiaries of the Borrower (individually a
"Guarantor" and collectively the "Guarantors"), the Lenders (as defined herein),
BANK OF AMERICA, N.A., as Administrative Agent for the Lenders, BANK ONE, NA, as
Syndication Agent for the Lenders and COMERICA BANK, as Co-Agent for the
Lenders.
RECITALS
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide a senior revolving credit facility in an aggregate principal amount of
up to $375 million, which may be increased in accordance with the terms hereof
to up to $600 million; and
WHEREAS, the Lenders party hereto have agreed to make the requested
senior revolving credit facility available to the Borrower on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition", by any Person, means the acquisition by such
Person of the Capital Stock or all or substantially all of the assets
of another Person, whether or not involving a merger or consolidation
with such Person.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.12 or
otherwise.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
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"Adjusted LIBOR Market Index Rate" means the LIBOR Market
Index Rate plus the Applicable Percentage.
"Administrative Agent" means Bank of America, N.A. (or any
successor thereto) or any successor administrative agent appointed
pursuant to Section 10.9.
"Administrative Fees" has the meaning set forth in Section
3.4(c).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers (or the equivalent) of such Person),
controlled by or under direct or indirect common control with such
Person. A Person shall be deemed to control an entity if such Person
possesses, directly or indirectly, the power (a) to vote 10% or more of
the ordinary voting power for the election of directors (or the
equivalent) of such entity or (b) to direct or cause direction of the
management and policies of such entity, whether through the ownership
of voting securities, by contract or otherwise.
"Agency Services Address" means Bank of America, N.A., 231
South LaSalle Street, Chicago, IL 60697, or such other address as may
be identified by written notice from the Administrative Agent to the
Borrower.
"Applicable Percentage" means, for Eurodollar Loans, Index
Rate Swingline Loans and Facility Fees, the appropriate applicable
percentages corresponding to the Debt to Capitalization Ratio and the
long term unsecured debt rating of the Borrower as described below:
Applicable
Long Term Unsecured Percentage for Applicable
Debt to Debt Rating Eurodollar Loans and Percentage
Pricing Capitalization of Index Rate Swingline for
Level Ratio Borrower Loans Facility Fees
----- ----- -------- ----- -------------
I greater or equal 20% equal or greater BBB+/Baa1 .475% .150%
----------------------- ----------------------- -------------------------- ---------------------- ---------------------
II greater 20% but less=35% BBB/Baa2 .700% .175%
----------------------- ----------------------- -------------------------- ---------------------- ---------------------
III greater 35% but less=45% BBB-/Baa3 .825% .225%
----------------------- ----------------------- -------------------------- ---------------------- ---------------------
IV greater 45% less BBB-/Baa3 1.100% .275%
or not rated by S&P
and Moody's
----------------------- ----------------------- -------------------------- ---------------------- ---------------------
In the event the Debt to Capitalization Ratio and the long term
unsecured debt rating of the Borrower are not at the same level, the
applicable Pricing Level shall be the lowest applicable level (i.e. the
lowest pricing for the Borrower); provided, however, that if the Debt
to Capitalization Ratio corresponds to a level more than one level
lower than the long term debt rating of the Borrower, then the
applicable Pricing Level shall be one level lower than the Pricing
Level determined by the long term unsecured debt rating of the
Borrower. In the event of a split in ratings between Moody's and S&P,
the long term unsecured debt rating of the Borrower shall be the
highest rating; provided, however, that if there is a split
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in ratings between Moody's and S&P of more than one level, the long
term unsecured debt rating of the Borrower shall be one level lower
than the highest rating. The Applicable Percentage shall be determined
and adjusted, as necessary, on the date of any change in the long term
unsecured debt rating of the Borrower or upon receipt of the officer's
certificate required by Section 7.1(c) calculating the then Debt to
Capitalization Ratio.
"Assignment Agreement" has the meaning set forth in Section
11.3(b).
"Authorized Officer" means, with respect to any certificate
required to be delivered pursuant to this Credit Agreement, the chief
financial officer, treasurer or corporate controller of the Borrower or
any other person designated in writing by such chief financial officer,
treasurer or corporate controller.
"BAS" means Banc of America Securities LLC, in its capacity as
Sole Lead Arranger and Sole Book Manager, and its successors and
assigns.
"Bank of America" means Bank of America, N.A. and its
successors and assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Pulte Corporation, a Michigan corporation,
together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in Chicago,
Illinois; provided that in the case of Eurodollar Loans, such day is
also a day on which dealings between banks are carried on in Dollar
deposits in the London interbank market.
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"Capital Expenditures" means all expenditures of the Credit
Parties and their Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures, including, without limitation,
Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person and the amount of
such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalization" means (a) Funded Debt plus (b) the
consolidated net shareholders equity of the Borrower as determined in
accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than 180 days from the date of
acquisition, (b) Dollar denominated time and demand deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial
bank having capital and surplus in excess of $500,000,000 or (iii) any
bank whose short-term commercial paper rating from S&P is at least A-2
or the equivalent thereof or from Moody's is at least P-2 or the
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 180 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-2 (or the equivalent thereof) or better by S&P or
P-2 (or the equivalent thereof) or better by Moody's and maturing
within 180 days of the date of acquisition, (d) repurchase agreements
with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations, (e)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d), and (f)
Investments consistent with the Pulte Corporation Investment Policy as
set forth on Schedule 6.21(a).
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"Change of Control" means the occurrence of any of the
following events: (a) there shall be consummated any consolidation,
share exchange or merger of the Borrower in which the Borrower is not
the continuing or surviving corporation or pursuant to which the
Borrower's Voting Stock would be converted into cash, securities or
other property, other than, in any case, a merger of the Borrower in
which the holders of Voting Stock immediately prior to the merger have
the same or greater proportionate ownership, directly or indirectly, of
the Voting Stock of the surviving corporation immediately after the
merger as they had of the Voting Stock of the Borrower immediately
before the merger; (b) there is a report filed by any Person, including
Affiliates of the Borrower (other than the Borrower, its Material
Subsidiaries, employee stock ownership plans or employee benefit plans
of the Borrower or its subsidiaries, or a Permitted Holder) on Schedule
13D or 14D-1 (or any successor schedule, form or report under the
Exchange Act) disclosing that such Person (for the purpose of this
definition of "Change in Control" only, the term "Person" shall include
a "person" within the meaning of Section 13(d)(3) and Section 14(d)(2)
of the Exchange Act or any successor provision to either of the
foregoing) has become the beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3, Rule 13d-5 or any successor rule or
regulation promulgated under the Exchange Act) of 30% or more of the
Borrower's Voting Stock; provided, however, that a Person shall not be
deemed the beneficial owner of, or to own beneficially (i) any
securities tendered pursuant to a tender or exchange offer made on
behalf of such Person or any of such Person's Affiliates until such
tendered securities are accepted for purchase or exchange thereunder or
(ii) any securities if such beneficial ownership (A) arises solely as a
result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act, and (B) is not also then
reportable on Schedule 13D (or any successor schedule, form or report)
under the Exchange Act; or (c) during any period of two consecutive
calendar years, individuals who, at the beginning of such period
constituted the board of directors of the Borrower cease for any reason
to constitute a majority of the directors of the Borrower then in
office unless such new directors were elected by the directors of the
Borrower who constituted the board of directors of the Borrower at the
beginning of such period.
"Closing Date" means the date hereof.
"Co-Agent" means Comerica Bank (or any successor thereto).
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified, succeeded
or replaced from time to time. References to sections of the Code
should be construed also to refer to any successor sections.
"Commitments" means (a) with respect to each Lender, the
Revolving Loan Commitment of such Lender and (b) with respect to Bank
of America, the Swingline Loan Commitment.
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"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of (a) Tangible Net Worth and (b) Funded Debt.
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement and all other related agreements and documents issued
or delivered hereunder or thereunder or pursuant hereto or thereto.
"Credit Parties" means the Borrower and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of
the obligations of the Credit Parties to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement,
the Notes or any other Credit Document to which any Credit Party is a
party.
"Debt to Capitalization Ratio" means, as of any date, the
ratio of (a) Funded Debt less (i) Subordinated Debt issued by the
Credit Parties which matures on or after the Maturity Date in an
aggregate amount not to exceed $100 million and (ii) all cash and Cash
Equivalents held by the Credit Parties in excess of $25,000,000 to (b)
Capitalization.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased),
(b) has failed to pay to the Administrative Agent or any other Lender
an amount owed by such Lender pursuant to the terms of this Credit
Agreement (but only for so long as such amount has not been paid) or
(c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or with respect to which (or with respect to any
assets of which) a receiver, trustee or similar official has been
appointed.
"Dollars" and "$" mean dollars in lawful currency of the
United States of America.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of a Credit Party that are domiciled, incorporated or
organized under the laws of any state of the United States or the
District of Columbia (or has any material assets located in the United
States).
"EBITDA" means, for any period, with respect to the Borrower,
the sum of (a) Net Income for such period (excluding the effect of any
extraordinary or other non-recurring gains or losses outside of the
ordinary course of business) plus (b) an amount which, in the
determination of Net Income for such period has been deducted for (i)
interest expense (including previously capitalized interest included in
the cost of goods sold) of the Credit Parties and their Subsidiaries
for such period, (ii) total Federal, state, foreign or other
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income taxes of the Borrower for such period and (iii) depreciation and
amortization of the Credit Parties and their Subsidiaries for such
period, all as determined in accordance with GAAP.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of
a Lender; and (c) any other Person approved by the Administrative Agent
and the Borrower (such approval not to be unreasonably withheld or
delayed); provided that (i) the Borrower's consent is not required
during the existence and continuation of an Event of Default, (ii)
approval by the Borrower shall be deemed given if no objection is
received by the assigning Lender and the Administrative Agent from the
Borrower within two Business Days after notice of such proposed
assignment has been received by the Borrower; and (iii) neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding, or written claim whether administrative, judicial, or
private in nature arising (a) pursuant to, or in connection with, an
actual or alleged violation of, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in
connection with an Environmental Law or other order of a Governmental
Authority or (d) from any actual or alleged damage, injury, threat, or
harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater or
(d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land, surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42
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USC 300(f) et seq., any analogous implementing or successor law, and
any amendment, rule, regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to any
Person of (a) shares of its Capital Stock, (b) any shares of its
Capital Stock pursuant to the exercise of options or warrants or (c)
any shares of its Capital Stock pursuant to the conversion of any debt
securities to equity.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party or
any of its Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes any Credit Party or any
of its Subsidiaries and which is treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest based on a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not a Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
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"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Credit Agreements" means (a) that certain Credit
Agreement, dated as of January 5, 1995, by and among the Borrower,
certain guarantors (as defined therein), Bank of America, N.A.,
formerly NationsBank, N.A., as agent, Comerica Bank and Bank One, NA,
formerly The First National Bank of Chicago, as co-agents and the
lenders party thereto, as the same has been and may be amended,
restated or otherwise modified from time to time and (b) that certain
Credit Agreement, dated as of September 15, 1999, by and among the
Borrower, certain guarantors (as defined therein), Bank of America,
N.A., as administrative agent, Bank One, NA, as syndication agent,
Guaranty Federal Bank, F.S.B., as co-agent and the lenders party
thereto, as the same has been and may be amended, restated or otherwise
modified from time to time.
"Extending Lender" has the meaning set forth in Section
2.5(a).
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender).
"Extension Required Lenders" has the meaning set forth in
Section 2.5(a).
"Facility Fees" means the fees payable to the Lenders pursuant
to Section 3.4(a).
"Federal Funds Rate" means for any day the rate of interest
per annum (rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement dated as of
July 17, 2000 among the Borrower, BAS and the Administrative Agent.
"Funded Debt" means, without duplication, the sum of all
Indebtedness of the Credit Parties for borrowed money, including,
without limitation, (a) all purchase money Indebtedness of the Credit
Parties, (b) the principal portion of all obligations of the Credit
Parties under Capital Leases, (c) all Guaranty Obligations of the
Credit Parties with respect
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to Indebtedness of another Person, (d) all Indebtedness of another
entity secured by a Lien on any property of the Credit Parties whether
or not such Indebtedness has been assumed by a Credit Party, and (e)
all Indebtedness of any partnership or unincorporated joint venture to
the extent a Credit Party is legally obligated or has a reasonable
expectation of being liable with respect thereto, net of any assets of
such partnership or joint venture.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means each of the Material Subsidiaries of the
Borrower and each Additional Credit Party which has executed a Joinder
Agreement or otherwise become a Guarantor hereunder, together with
their successors and assigns.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intending to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent,
(a) to purchase any such Indebtedness or other obligation or any
property constituting security therefor, (b) to advance or provide
funds or other support for the payment or purchase of such Indebtedness
or obligation or to maintain working capital, solvency or other balance
sheet condition of such other Person (including, without limitation,
maintenance agreements, comfort letters, take or pay arrangements, put
agreements or similar agreements or arrangements) for the benefit of
the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness against loss in respect thereof
or (d) to otherwise assure or hold harmless the owner of such
Indebtedness or obligation against loss in respect thereof; provided,
that a guaranty of Non-Recourse Land Financing shall not be deemed to
be a Guaranty Obligation until, and only to the extent that, such
Non-Recourse Land Financing ceases to be Non-Recourse Land Financing.
The amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger)
of the Indebtedness in respect of which such Guaranty Obligation is
made.
"Hazardous Materials" means any substance, material or waste
defined in or regulated under any Environmental Laws.
"Hedging Agreements" means any interest rate protection
agreements, foreign currency exchange agreements, commodity futures
agreements or other interest or exchange rate hedging agreements.
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"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to
the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations,
other than intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person which would appear as liabilities on a balance sheet of such
Person, (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f)
all Guaranty Obligations of such Person, (g) the principal portion of
all obligations of such Person under (i) Capital Leases and (ii) any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product of such Person where
such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with
GAAP, (h) all net obligations of such Person in respect of Hedging
Agreements, (i) all preferred stock issued by such Person and required
by the terms thereof to be redeemed, or for which mandatory sinking
fund payments are due by a fixed date, (j) the aggregate amount of
uncollected accounts receivable of such Person subject at such time to
a sale of receivables (or similar transaction) regardless of whether
such transaction is effected without recourse to such Person or in a
manner that would not be reflected on the balance sheet of such Person
in accordance with GAAP, and (k) all obligations of such Person to
repurchase any securities which repurchase obligation is related to the
issuance thereof, including, without limitation, obligations commonly
known as residual equity appreciation potential shares. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or unincorporated joint venture in which such Person is
legally obligated.
"Index Rate Swingline Loan" means a Swingline Loan bearing
interest at the Adjusted LIBOR Market Index Rate.
"Intellectual Property" has the meaning set forth in Section
6.19.
"Interest Coverage Ratio" means, as of the end of each fiscal
quarter of the Borrower for the twelve month period ending on such
date, with respect to the Borrower, the ratio of (a) EBITDA for the
applicable period to (b) interest incurred by the Credit Parties,
whether such interest was expensed, capitalized, paid, accrued or
scheduled to be paid or accrued.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar month and the Maturity Date and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and
the Maturity Date and in addition, where the applicable
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Interest Period for a Eurodollar Loan is greater than three months,
then also the date three months from the beginning of the Interest
Period and each three months thereafter.
"Interest Period" means, (a) with respect to Eurodollar Loans,
a period of one, two, three or six months' duration, as the Borrower
may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof) and (b) with respect
to Index Rate Swingline Loans, a period beginning on the date of
advance and ending on the date specified in the applicable Swingline
Loan Request, which shall be between one and seven Business Days in
duration; provided, however, that (i) if any Interest Period would end
on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that where the
next succeeding Business Day falls in the next succeeding calendar
month, such Interest Period shall end on the next preceding Business
Day), (ii) no Interest Period shall extend beyond the Maturity Date,
and (iii) with respect to Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such
Interest Period shall end on the last Business Day of such calendar
month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than assets acquired in the ordinary course
of business), shares of Capital Stock, bonds, notes, debentures, joint
venture, partnership or other ownership interests or other securities
of such other Person or (b) any deposit with, or advance, loan or other
extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to
or investment in such Person, including, without limitation, any
Guaranty Obligation incurred for the benefit of such Person and any
support provided for a Letter of Credit issued on behalf of such
Person.
"Joinder Agreement" means a joinder agreement substantially in
the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Eligible Assignee which may become
a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"LIBOR Market Index Rate" shall mean, for any day, the one
week London Interbank Offered Rate for U.S. Dollar deposits (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London
time) on such day, or if such day is not a Business Day, then the
immediately preceding Business Day, or if not so reported, then as
determined by the Administrative Agent from another recognized source
of interbank quotation; provided, however, if more than one rate is
specified on Telerate Page 3750, the applicable rate shall be the
arithmetic mean of all such rates.
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"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans and the Swingline
Loans (or a portion of any Revolving Loan or Swingline Loan),
individually or collectively, as appropriate.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London Interbank Offered Rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period and having an advance date and a maturity date
comparable to such Interest Period; provided, however, if more than one
rate is specified on Telerate Page 3750, the applicable rate shall be
the arithmetic mean of all such rates.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Credit Parties taken as a whole, (b) the ability of the Credit Parties
taken as a whole to perform their obligations under this Credit
Agreement or any of the other Credit Documents, or (c) the validity or
enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Lenders hereunder or
thereunder taken as a whole.
"Material Subsidiary" means any Domestic Subsidiary of the
Borrower, now owned or hereafter acquired, that has assets with a fair
market value of $10,000,000 or greater other than as set forth in
clauses (a), (b), (c) and (d) below; provided that in no event may
there exist Domestic Subsidiaries of the Borrower (other than the
Excluded Subsidiaries) that have assets, in the aggregate, with a fair
market value in excess of $50,000,000 that are not Guarantors
hereunder. For purposes of this definition, the following Subsidiaries
(collectively, the "Excluded Subsidiaries") shall not be considered
Material Subsidiaries: (a) Pulte Mortgage Corporation; (b) First
Heights Bank; (c) North American Builders Indemnity Company; (d)
Subsidiaries the investment in which was made as permitted by clause
(f) of the definition of Permitted Investments; (e) any Subsidiary
formed for the specific purpose of (i) acquiring mortgages or other
assets from a Credit Party, for cash or Cash Equivalents and at a value
which is comparable to that which would be obtained for such assets on
an arm's length transaction and (ii) entering into a securitization
program (or similar transaction or series of transactions) with respect
to the acquired assets; provided that the sole recourse of such
Subsidiary's creditors is the assets of such Subsidiary or another
Person that is not a Credit Party; and (f) a Domestic Subsidiary whose
sole asset is the ownership of a foreign entity or assets of a foreign
entity; provided that the investment in any such Subsidiary subsequent
to the Closing Date must be a Permitted Investment.
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"Maturity Date" means August 31, 2005, as such date may be
extended in accordance with the terms of Section 2.5 (other than with
respect to the Commitments and Loans of any Refusing Lender, in which
case the applicable Maturity Date for such Commitments and Loans shall
be the RL Maturity Date).
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate and at
least one employer other than a Credit Party or any of its Subsidiaries
or any ERISA Affiliate are contributing sponsors.
"Net Income" means, for any period, the net income after taxes
for such period of the Borrower, as determined in accordance with GAAP.
"Non-Excluded Taxes" has the meaning set forth in Section
3.13.
"Non-Recourse Land Financing" means any Indebtedness of any
Credit Party for which the owner of such Indebtedness has no recourse,
directly or indirectly, to a Credit Party for the principal of,
premium, if any, and interest on such Indebtedness, and for which a
Credit Party is not, directly or indirectly, obligated or otherwise
liable for the principal of, premium, if any, and interest on such
Indebtedness, except pursuant to mortgages, deeds of trust or other
security interests or other recourse obligations or liabilities in
respect of specific land or other real property interests of a Credit
Party; provided that recourse obligations or liabilities of a Credit
Party solely for indemnities, covenants or breach of warranty,
representation or covenant in respect of any Indebtedness will not
prevent Indebtedness from being classified as Non-Recourse Land
Financing.
"Note" or "Notes" means the Revolving Notes and the Swingline
Note, individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a
Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrower to continue an existing Eurodollar Loan for a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan (other than
a Swingline Loan) or a Base Rate Loan (other than a Swingline Loan) to
a Eurodollar Loan, in the form of Exhibit 2.3.
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"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in any Loans as provided
in Section 2.2 or Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Holder" means (i) William J. Pulte, (ii) any of his
Affiliates, parents, spouse, descendants and spouses of descendants or
(iii) any trusts or other entities controlled by Mr. Pulte and his
respective estates, heirs, administrators or personal representatives.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or made
in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, (c) inventory, raw materials and
general intangibles acquired in the ordinary course of business, (d)
Investments by a Credit Party in another Credit Party, (e) loans to
directors, officers, employees, agents, customers or suppliers in the
ordinary course of business, including the financing to purchasers of
homes and other residential properties from a Credit Party, not to
exceed, in the aggregate, $10,000,000 at any one time, (f) Investments
in international home building and related ventures not to exceed $150
million during the term of this Credit Agreement, (g) Investments in
Pulte Mortgage Corporation in an amount not to exceed at any one time
the sum of (i) $100 million plus (ii) amounts (net of applicable taxes)
received by the Credit Parties from Pulte Mortgage Corporation, as a
dividend, subsequent to the Closing Date, (h) acquisitions of mortgages
from Pulte Mortgage Corporation or another Affiliate of the Borrower at
market or better than market terms for similar types of loans, (i)
Investments in Capital Expenditures, or (j) other Investments (in
addition to those set forth above) not to exceed, in the aggregate,
$200 million at any one time.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations; (b) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof); (c) Liens in respect of
property imposed by law arising in the ordinary course of business such
as materialmen's, mechanics', warehousemen's, carrier's, landlords' and
other nonconsensual statutory Liens which are not yet due and payable
or which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account thereof);
(d) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation insurance, unemployment
insurance, pensions or social security programs; (e) Liens arising from
good faith deposits in connection with or to secure performance of
tenders, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (other than obligations in respect of the
payment of borrowed money); (f) Liens arising from good faith deposits
in connection with or to secure performance of statutory obligations
and
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surety and appeal bonds; (g) easements, rights-of-way, restrictions
(including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not,
in any material respect, impairing the use of the encumbered property
for its intended purposes; (h) judgment Liens that would not constitute
an Event of Default; (i) Liens in connection with Capital Leases and
Liens securing Indebtedness permitted by Section 8.1(g) and (h); (j)
Liens arising by virtue of any statutory or common law provision
relating to banker's liens, rights of setoff or similar rights as to
deposit accounts or other funds maintained with a creditor depository
institution; (k) Liens existing on the Closing Date and identified on
Schedule 1.1(b); and (l) Liens granted to secure any Indebtedness
permitted by Section 8.1(b); provided that (i) no such Lien shall
extend to any property other than the property subject thereto on the
Closing Date and (ii) the principal amount of the Indebtedness secured
by such Liens shall not be increased from that existing as of the
Closing Date (as such Indebtedness has been amortized subsequent to the
Closing Date).
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Prime Rate" means the per annum rate of interest established
from time to time by the Administrative Agent as its prime rate in
effect at its principal office in Charlotte, North Carolina (or such
other principal office of the Administrative Agent as communicated in
writing to the Borrower and the Lenders). Any change in the interest
rate resulting from a change in the Prime Rate shall become effective
as of 12:01 a.m. of the Business Day on which each change in the Prime
Rate is announced by the Administrative Agent. The Prime Rate is a
reference rate used by the Administrative Agent in determining interest
rates on certain loans and is not intended to be the lowest rate of
interest charged on any extension of credit to any debtor.
"Real Properties" means such real properties as the Credit
Parties may own or lease (as lessee or sublessee) from third parties
from time to time.
"Refusing Lender" has the meaning set forth in Section 2.5(a).
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T,
U or X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
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"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes at least 51% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term "Credit Exposure" as
applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the Revolving Loan Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount
and (b) at any time after the termination of the Commitments, the sum
of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender's Participation Interests in the face amount of
the outstanding Swingline Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Revolving Committed Amount" means the aggregate of the
Revolving Loan Commitments of all Lenders, as such amount may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof. The Revolving Committed Amount on the
Closing Date shall be THREE HUNDRED SEVENTY-FIVE MILLION DOLLARS
($375,000,000).
"Revolving Loan Commitment" means, as to any Lender, the
obligation of such Lender to make Revolving Loans hereunder for the
account of the Borrower in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1.1(a) hereto, as such amount may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof.
"Revolving Loan Commitment Percentage" means, as to any Lender
at any time, the ratio of (a) such Lender's Revolving Loan Commitment
to (b) the Revolving Committed Amount, as such percentage may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof. The Revolving Loan Commitment Percentage
for each Lender on the Closing Date shall be as set forth on Schedule
1.1(a).
"Revolving Loans" means the Revolving Loans made to the
Borrower by the Lenders pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1, individually or
collectively, as appropriate, as such promissory
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notes may be amended, modified, supplemented, extended, renewed or
replaced from time to time and as evidenced in the form of Exhibit
2.1(f).
"RL Maturity Date" has the meaning set forth in Section
2.5(a).
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, or any successor or assignee of the business
of such division in the business of rating securities.
"Sale and Leaseback Transaction" means a sale or transfer made
by a Credit Party (except a sale or transfer made from one Credit Party
to another Credit Party) of any property which is either (a) a
manufacturing plant, warehouse, office building or model home whose
book value constitutes 1% or more of Consolidated Net Tangible Assets
as of the date of determination or (b) any property which is not a
manufacturing plant, warehouse, office building or model home whose
book value constitutes 5% or more of Consolidated Net Tangible Assets
as of the date of determination, if such sale or transfer is made with
the intention of leasing, or as part of an arrangement involving the
lease of, such property to the Borrower or a Material Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to each Credit Party as of a
particular date, that on such date (a) such Credit Party is able to pay
its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such
Credit Party does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Credit Party's ability to pay as
such debts and liabilities mature in their ordinary course, (c) such
Credit Party is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Credit
Party's assets would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which
such Credit Party is engaged or is to engage, (d) the fair value of the
assets of such Credit Party is greater than the total amount of
liabilities (excluding (i) letters of credit and surety bonds issued in
the normal course of business in connection with such Credit Party's
development activities and (ii) intercompany indebtedness owed to other
Credit Parties), including, without limitation, contingent liabilities
of such Credit Party and (e) the present fair saleable value of the
assets of such Credit Party is not less than the amount that will be
required to pay the probable liability of such Credit Party on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
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"Subordinated Debt" means any Indebtedness incurred by a
Credit Party that is subordinated in full to the Loans on subordination
terms acceptable to the Administrative Agent.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture, limited liability company or
other entity in which such person directly or indirectly through
Subsidiaries has more than a 50% equity interest at any time.
"Swingline Committed Amount" means FIFTY MILLION DOLLARS
($50,000,000).
"Swingline Loan Commitment" means, with respect to Bank of
America, the commitment of Bank of America to make Swingline Loans
available to the Borrower in the principal amount of up to the
Swingline Committed Amount.
"Swingline Loan Request" means a request by the Borrower for a
Swingline Loan in substantially the form of Exhibit 2.2(b).
"Swingline Loans" means the loans made by Bank of America
pursuant to Section 2.2.
"Swingline Note" means the promissory note of the Borrower in
favor of Bank of America evidencing the Swingline Loans provided
pursuant to Section 2.2, as such promissory note may be amended,
modified, supplemented, extended, renewed or replaced from time to time
in and as evidenced by the form of Exhibit 2.2(e).
"Syndication Agent" means Bank One, NA (or any successor
thereto).
"Tangible Net Worth" means, as of any date, shareholders'
equity or net worth of the Borrower, as determined in accordance with
GAAP minus (i) intangibles (as determined in accordance with GAAP) and
(ii) Investments described in clause (f) of the definition of Permitted
Investments.
"Termination Event" means (a) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(c) the distribution of a notice of intent to
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terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (e) any event or condition which might reasonably
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; (f) the
complete or partial withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan; or (g)
the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Upfront Fees" means the fees payable to the Lenders pursuant
to Section 3.4(e).
"Utilization Fees" means the fees payable to the Lenders
pursuant to Section 3.4(b).
"Utilized Revolving Committed Amount" means, for any period
from the Closing Date to the Maturity Date, the amount equal to the
daily average sum for such period of the aggregate principal amount of
all Revolving Loans outstanding plus the aggregate amount of all
Swingline Loans outstanding.
"Voting Stock" of a corporation means all classes of the
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements described in Section 5.1(d)); provided,
however, if (a) the Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the Administrative
Agent or the Required Lenders shall so object in writing within 30 days after
delivery of such financial statements, then such calculations shall be made on a
basis consistent with GAAP as in effect as of the date of the most recent
financial statements delivered by the Borrower to the Lenders to which no such
objection shall have been made.
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1.4 TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
revolving loans (each a "Revolving Loan" and collectively the
"Revolving Loans") to the Borrower, in Dollars, at any time and from
time to time, during the period from and including the Effective Date
to but not including the Maturity Date (or such earlier date if the
Revolving Committed Amount has been terminated as provided herein);
provided, however, that (i) the sum of the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of Swingline
Loans outstanding plus the aggregate amount of secured Indebtedness
incurred by the Credit Parties pursuant to Section 8.1(h) in excess of
$100,000,000 shall not exceed the Revolving Committed Amount and (ii)
with respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's (other than Bank of
America) pro rata share of outstanding Swingline Loans shall not exceed
such Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount. Subject to the terms of this Credit Agreement
(including Section 3.3), the Borrower may borrow, repay and reborrow
Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than
12:00 noon (i) on the date of the requested borrowing of Revolving
Loans that will be Base Rate Loans or (ii) three Business Days prior to
the date of the requested borrowing of Revolving Loans that will be
Eurodollar Loans, the Borrower shall telephone the Administrative Agent
with the information described below as well as submit a written Notice
of Borrowing in the form of Exhibit 2.1(b) (which may be submitted via
telecopy) to the Administrative Agent setting forth (A) the amount
requested, (B) whether such Revolving Loans shall accrue interest at
the Base Rate or the Adjusted Eurodollar Rate, (C) with respect to
Revolving Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (D) certification that the Borrower has complied
in all respects with Section 5.2. Revolving Loans made on the Effective
Date may be Base Rate Loans or, subject to compliance by the Borrower
with the terms of this Section 2.1(b) and delivery by the Borrower to
the Administrative Agent of a funding indemnity letter in form and
substance satisfactory to the Administrative Agent, Eurodollar Loans or
a combination thereof.
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(c) Funding of Revolving Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the Lenders
as to the terms thereof. Each Lender shall make its Revolving Loan
Commitment Percentage of the requested Revolving Loans available to the
Administrative Agent by 3:00 p.m. on the date specified in the Notice
of Borrowing by deposit, in Dollars, of immediately available funds at
the Agency Services Address.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Revolving Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any such Revolving Loan
that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to be made on
such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of
such Revolving Loans, and the Administrative Agent in reliance upon
such assumption, may (in its sole discretion but without any obligation
to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from the Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the applicable rate for such
Revolving Loan pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Rate.
(d) Reductions of Revolving Committed Amount.
(i) Upon at least three Business Days' notice, the
Borrower shall have the right to permanently reduce, without
premium or penalty, all or part of the aggregate unused amount
of the Revolving Committed Amount at any time or from time to
time; provided that (A) each partial reduction shall be in an
aggregate amount at least equal to $5,000,000 and in integral
multiples of $1,000,000 above such amount and (B) no reduction
shall be made which would reduce the Revolving Committed
Amount to an amount less than the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of
Swingline Loans outstanding plus the aggregate amount of
secured Indebtedness incurred by the Credit Parties pursuant
to Section 8.1(h) in excess of $100,000,000.
(ii) On the first anniversary of the Closing Date, if
Bank of America has not assigned at least $30,000,000 of its
Revolving Loan Commitment to an Eligible
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Assignee, then the Revolving Loan Commitment of Bank of
America and the Revolving Committed Amount shall be reduced by
an amount equal to the sum of $30,000,000 minus the amount of
Bank of America's Revolving Loan Commitment assigned to an
Eligible Assignee prior to such date. Notwithstanding anything
to the contrary in Section 3.3(c), any such reduction of the
Revolving Loan Commitment of Bank of America and the Revolving
Committed Amount shall be accompanied by a prepayment (if
necessary) of the outstanding Loans of Bank of America in an
amount such that, after giving effect to such prepayment, the
outstanding Loans of Bank of America shall not exceed its
Revolving Loan Commitment, as reduced hereby. Each of the
Lenders consents to the foregoing reduction of the Revolving
Loan Commitment of Bank of America (and the corresponding
prepayment of Bank of America's Loans and reduction of the
Revolving Committed Amount) without a pro rata reduction of
such Lender's Revolving Loan Commitment (or corresponding
prepayment of such Lender's Loans).
(iii) Any reduction in (or termination of) the
Revolving Committed Amount may not be reinstated without the
consent of all the Lenders; provided, however, the Borrower
shall still be entitled to increase the Revolving Committed
Amount in accordance with the terms of Section 2.1(e). The
Administrative Agent shall immediately notify the Lenders of
any reduction in the Revolving Committed Amount.
(e) Increase of Revolving Committed Amount. Prior to the
Maturity Date and upon at least 15 days' prior written notice to the
Administrative Agent (which notice shall be promptly transmitted by the
Administrative Agent to each Lender), the Borrower shall have the
right, subject to the terms and conditions set forth below, to increase
the Revolving Committed Amount; provided that (a) such increase must be
in a minimum amount of $10,000,000 and in integral multiples of
$1,000,000 above such amount, (b) the Revolving Committed Amount cannot
be increased to an aggregate amount greater than the sum of (i) Six
Hundred Million Dollars ($600,000,000) minus (ii) the aggregate amount
of all reductions of the Revolving Committed Amount pursuant to Section
2.1(d), without the prior written consent of the Required Lenders, (c)
the Borrower shall execute and deliver such Note(s) as are necessary to
reflect the increase in the Revolving Committed Amount, (d) Schedule
1.1(a) hereto shall be amended to reflect the revised Revolving
Committed Amount and aggregate Commitments of the Lenders, (e) if any
Loans are outstanding at the time of an increase in the Revolving
Committed Amount, the Borrower will prepay (provided that any such
prepayment shall be subject to Section 3.14 hereof) one or more
existing Loans in an amount necessary such that after giving effect to
the increase in the Revolving Committed Amount each Lender will hold
its pro rata share (based on its share of the revised aggregate
Commitments) of outstanding Loans and (f) during the first year
following the Closing Date, the Revolving Committed Amount cannot be
increased until Bank of America has assigned at least $30,000,000 of
its Revolving Loan Commitment to one or more Eligible Assignees.
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Any such increase in the Revolving Committed Amount shall
apply, at the option of the Borrower, to (i) the Commitment of one or
more existing Lenders; provided that any Lender whose Commitment is
being increased must consent in writing thereto and/or (ii) the
creation of a new Commitment to one or more institutions that is not an
existing Lender; provided that any such institution must qualify as an
Eligible Assignee and must become a Lender under this Credit Agreement
by execution and delivery of an appropriate joinder agreement or of
counterparts to this Credit Agreement in a manner acceptable to the
Borrower and the Administrative Agent.
(f) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower
to such Lender in an original principal amount equal to such Lender's
Revolving Commitment Percentage of the Revolving Committed Amount and
in substantially the form of Exhibit 2.1(f).
2.2 SWINGLINE LOANS SUBFACILITY.
(a) Swingline Loans. Bank of America hereby agrees, on the
terms and subject to the conditions set forth herein and in the other
Credit Documents, to make revolving loans to the Borrower, in Dollars,
at any time and from time to time during the period from and including
the Effective Date to but not including the Maturity Date (each such
loan, a "Swingline Loan" and collectively, the "Swingline Loans");
provided that (i) the aggregate principal amount of the Swingline Loans
outstanding at any one time shall not exceed the Swingline Committed
Amount, and (ii) the aggregate amount of Swingline Loans outstanding
plus the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of secured Indebtedness incurred by the Credit
Parties, pursuant to Section 8.1(h), in excess of $100,000,000 shall
not exceed the Revolving Committed Amount. Prior to the Maturity Date,
Swingline Loans may be repaid and reborrowed by the Borrower in
accordance with the provisions hereof.
(b) Method of Borrowing and Funding Swingline Loans. By no
later than 2:00 p.m. on the date of the requested borrowing of
Swingline Loans, the Borrower shall provide telephonic notice to Bank
of America, followed promptly by a written Swingline Loan Request in
the form of Exhibit 2.2(b) (which may be submitted via telecopy), each
of such telephonic notice and such written Swingline Loan Request
setting forth (i) the amount of the requested Swingline Loan (which
shall not be less than $100,000 and in integral multiples of $50,000 in
excess thereof), (ii) the date of the requested Swingline Loan, (iii)
certification that the Borrower has complied in all respects with
Section 5.2 and (iv) whether such Swingline Loan is to be a Base Rate
Loan or an Index Rate Swingline Loan and, if such Swingline Loan is to
be an Index Rate Swingline Loan, the applicable Interest Period. If the
Borrower has requested an Index Rate Swingline Loan, Bank of America
shall provide to the Borrower no later than 2:30 p.m. on the date of
such request the Adjusted LIBOR Market Index Rate. The Borrower shall
notify Bank of America by 3:00 p.m. on such date whether it wishes to
accept the Adjusted LIBOR Market Index Rate. Failure of the Borrower to
timely accept the Adjusted LIBOR Market Index Rate shall make the
Adjusted LIBOR Market Index Rate and the corresponding Index Rate
Swingline Loan
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void. Bank of America shall initiate the transfer of funds representing
the Swingline Loan advance to the Borrower by 4:00 p.m. on the Business
Day of the requested borrowing.
(c) Repayment and Participations of Swingline Loans. The
Borrower agrees to repay all Swingline Loans that are Base Rate Loans
within one Business Day of demand therefor by Bank of America and all
Swingline Loans that are Index Rate Swingline Loans at the end of the
applicable Interest Period; provided that each Swingline Loan shall be
repaid within seven Business Days from the date of advance. Each
repayment of a Swingline Loan may be accomplished by requesting
Revolving Loans, which request is not subject to the conditions set
forth in Section 5.2. In the event that the Borrower shall fail to
timely repay any Swingline Loan, and in any event upon (i) the request
of Bank of America, (ii) the occurrence of an Event of Default
described in Section 9.1(f) or (iii) the acceleration of any Loan or
termination of any Commitment pursuant to Section 9.2, each other
Lender shall irrevocably and unconditionally purchase from Bank of
America, without recourse or warranty, an undivided interest and
participation in such Swingline Loan in an amount equal to such other
Lender's Revolving Loan Commitment Percentage thereof, by directly
purchasing a participation in such Swingline Loan in such amount
(regardless of whether the conditions precedent thereto set forth in
Section 5.2 hereof are then satisfied, whether or not the Borrower has
submitted a Notice of Borrowing and whether or not the Commitments are
then in effect, any Event of Default exists or all the Loans have been
accelerated) and paying the proceeds thereof to Bank of America at the
Agency Services Address, in Dollars and in immediately available funds.
If such amount is not in fact made available to Bank of America by any
Lender, Bank of America shall be entitled to recover such amount on
demand from such Lender, together with accrued interest thereon (to the
extent the Borrower fails to pay accrued interest with respect to such
amount) for each day from the date of demand thereof, at the Federal
Funds Rate. If such Lender does not pay such amount forthwith upon Bank
of America's demand therefor, and until such time as such Lender makes
the required payment, Bank of America shall be deemed to continue to
have outstanding Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Credit Documents other
than those provisions requiring the other Lenders to purchase a
participation therein. Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its
Loans, and any other amounts due to it hereunder to Bank of America to
fund Swingline Loans in the amount of the participation in Swingline
Loans that such Lender failed to purchase pursuant to this Section
2.2(c) until such amount has been purchased (as a result of such
assignment or otherwise). On the date the Lenders are required to
purchase participations in outstanding Swingline Loans pursuant to this
Section 2.2(c), the outstanding principal amount, including Bank of
America's pro rata share, of such Swingline Loans shall be deemed to be
a Revolving Loan accruing interest at the Base Rate.
(d) Interest on Swingline Loans. Subject to the provisions of
Section 3.1, each Swingline Loan shall bear interest at a per annum
rate equal to the Base Rate or the Adjusted LIBOR Market Index Rate, as
applicable.
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(e) Swingline Note. The Swingline Loans shall be evidenced by
a duly executed promissory note of the Borrower to Bank of America in
the original principal amount of the Swingline Committed Amount and in
substantially the form of Exhibit 2.2(e).
2.3 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate
Loans (other than Swingline Loans) into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans (other than Swingline Loans); provided,
however, that (a) each such continuation or conversion must be requested by the
Borrower pursuant to a written Notice of Continuation/Conversion, in the form of
Exhibit 2.3, in compliance with the terms set forth below, (b) except as
provided in Section 3.11, Eurodollar Loans may only be continued or converted
into Base Rate Loans on the last day of the Interest Period applicable thereto,
(c) Eurodollar Loans may not be continued nor may Base Rate Loans be converted
into Eurodollar Loans during the existence and continuation of a Default or an
Event of Default and (d) any request to continue a Eurodollar Loan that fails to
comply with the terms hereof or any failure to request a continuation of a
Eurodollar Loan at the end of an Interest Period shall constitute a conversion
to a Base Rate Loan on the last day of the applicable Interest Period. Each
continuation or conversion must be requested by the Borrower no later than 12:00
noon (i) on the date for a requested conversion of a Eurodollar Loan to a Base
Rate Loan or (ii) three Business Days prior to the date for a requested
continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a
Eurodollar Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Administrative Agent which shall set
forth (A) whether the Borrower wishes to continue or convert such Loans and (B)
if the request is to continue a Eurodollar Loan or convert a Base Rate Loan to a
Eurodollar Loan, the Interest Period applicable thereto.
2.4 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan shall be in a minimum
amount of $5,000,000 (and in integral multiples of $1,000,000 in excess
thereof), (b) each Base Rate Loan shall be in a minimum amount of the lesser of
$1,000,000 (and integral multiples of $100,000 in excess thereof) or the
remaining amount available under the Revolving Committed Amount and (c) each
Swingline Loan shall be in a minimum amount of $100,000 (and in integral
multiples of $50,000 in excess thereof) or the remaining amount of the Swingline
Committed Amount. For the purposes of this Section, all Eurodollar Loans with
the same Interest Periods that begin and end on the same date shall be
considered as one Eurodollar Loan, but Eurodollar Loans with different Interest
Periods, even if they begin on the same date, shall be considered as separate
Eurodollar Loans.
2.5 EXTENSION OF MATURITY DATE.
(a) At least 60 days but not more than 75 days prior to each
annual anniversary of the Closing Date, the Borrower may, by delivering
a written notice to the
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Administrative Agent, request that the Maturity Date be extended for
one additional year. The Administrative Agent shall notify each Lender
of such request promptly upon its receipt of such notice and shall
request that each Lender respond to such request by the Borrower within
ten Business Days of notice thereof. If any Lender does not consent or
respond to the Borrower's request then such Lender (a "Refusing
Lender") shall be deemed to have rejected such request. If Lenders
whose combined Revolving Loan Commitment Percentages equal at least 80%
(the "Extension Required Lenders"; each Lender agreeing to extend its
Revolving Loan Commitment is referred to herein as an "Extending
Lender") timely agree in writing to extend their Revolving Loan
Commitments, then (i) the Revolving Loan Commitments of the Extending
Lenders shall without further action be extended for an additional one
year period, (ii) the term "Maturity Date" shall thenceforth mean, (A)
as to the Commitments and Loans of the Extending Lenders, the last day
of such additional one year period and (B) as to the Commitments and
Loans of the Refusing Lenders, the Maturity Date in effect prior to
such extension (each a "RL Maturity Date"), (iii) subject to the terms
of subsection (b) below, the Revolving Loan Commitments of the Refusing
Lenders shall terminate on the applicable RL Maturity Date and the
Loans and other amounts owed to such Lenders shall be due and payable
on such date and (iv) subject to the terms of subsection (b) below, on
a RL Maturity Date (A) the Revolving Committed Amount shall be reduced
by an amount equal to the sum of the Revolving Loan Commitments of the
applicable Refusing Lenders and (B) the Revolving Loan Commitment
Percentage of the Extending Lenders shall be reallocated, on a pro rata
basis, so that the sum of such Revolving Loan Commitment Percentages
equals one hundred percent (100%). If such extension is not approved by
the Extension Required Lenders, the Maturity Date then in effect will
be retained.
(b) So long as the Extension Required Lenders consent to the
extension of the Maturity Date in accordance with the terms of Section
2.5(a):
(i) with respect to any Refusing Lender, the Borrower
may request, in its own discretion and at its own expense,
such Refusing Lender to transfer and assign (and such Refusing
Lender shall be required to transfer and assign upon such
request) in whole (but not in part), without recourse and in
accordance with and subject to the terms of Section 11.3(b),
all of its interests, rights and obligations under this Credit
Agreement to one or more Eligible Assignees (which may be one
or more existing Lenders if any existing Lender accepts such
assignment); provided that (A) such assignment or assignments
shall not conflict with any law, rule, regulation or order of
any court or other Governmental Authority, (B) the Borrower or
such Eligible Assignee or Eligible Assignees shall pay to such
Refusing Lender in immediately available funds the principal
of and interest accrued to the date of such payment on the
portion of the Loans hereunder held by such Refusing Lender
and all other amounts owed to such Refusing Lender hereunder,
as well as any processing fee owing to the Administrative
Agent under Section 11.3(b), (C) the maturity date of the
Loans transferred to such Eligible Assignee shall be the
Maturity Date as extended in accordance with
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Section 2.5(a) above and (D) such transfer and assignment must
occur on or prior to the applicable RL Maturity Date; or
(ii) the Borrower may (A) notify the Administrative
Agent and the Extending Lenders in writing that it wishes to
(and each such Extending Lender shall agree to) reduce the
Revolving Loan Committed Amount by an amount equal to the sum
of the Revolving Loan Commitments of the Refusing Lenders, (B)
pay all outstanding Loans of the Refusing Lenders and any
other amounts owing to the Refusing Lenders, and terminate the
Revolving Loan Commitments of the Refusing Lenders and (C)
reallocate the Revolving Loan Commitment Percentage of the
Extending Lenders, on a pro rata basis, so that the sum of
such Revolving Loan Commitment Percentages equals one hundred
percent (100%).
(c) The Borrower shall indemnify each Lender (whether an
Extending Lender or Refusing Lender) for any eurodollar breakage costs
or expenses incurred by such Lender as a result of any extension of the
Maturity Date pursuant to this Section 2.5 and any assignment of such
Lender's Commitments and Loans or any reallocation of such Lender's
Revolving Loan Commitment Percentage in connection with such extension.
(d) Each of the Lenders hereby authorizes the Administrative
Agent, on their behalf, to enter into an amendment to this Credit
Agreement (and the Credit Parties hereby agree to enter into any such
amendment on terms reasonably acceptable to the Credit Parties and the
Administrative Agent) to effectuate any extension of the Maturity Date,
reduction of the Revolving Committed Amount, repayment of Loans or
reallocation of the Revolving Loan Commitment Percentages, in each case
as expressly contemplated by the terms of this Section 2.5.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
3.1 INTEREST.
(a) Interest. Subject to the provisions of Section 3.1(b):
(i) Base Rate Loans. During such periods as Loans
shall be comprised in whole or in part of Base Rate Loans,
such Base Rate Loans shall bear interest at a per annum rate
equal to the Base Rate.
(ii) Eurodollar Loans. During such periods as Loans
shall be comprised in whole or in part of Eurodollar Loans,
such Eurodollar Loans shall bear interest at a per annum rate
equal to the Adjusted Eurodollar Rate.
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(iii) Swingline Loans. Swingline Loans shall bear
interest in accordance with the terms of Section 2.2(d).
(b) Default Rate of Interest. Upon the occurrence, and during
the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents (including without
limitation fees and expenses) shall bear interest, payable on demand,
at a per annum rate equal to 2% plus the rate which would otherwise be
applicable (or if no rate is applicable, then the rate for Revolving
Loans that are Base Rate Loans plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day,
except that in the case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then such
Interest Payment Date shall be deemed to be the next preceding Business
Day.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Credit Party under this Credit Agreement shall be made without
setoff, deduction or counterclaim and received not later than 2:00 p.m. on the
date when due, in Dollars and in immediately available funds, by the
Administrative Agent at the Agency Services Address. Payments received after
such time shall be deemed to have been received on the next Business Day. The
Borrower shall, at the time it makes any payment under this Credit Agreement,
specify to the Administrative Agent the Loans, fees or other amounts payable by
the Borrower hereunder to which such payment is to be applied (and in the event
that it fails to specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall, subject to Section 3.7, distribute
such payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute such payments to the
applicable Lenders on the same Business Day if any such payment is received
prior to 2:00 p.m.; otherwise the Administrative Agent will distribute such
payment to the applicable Lenders on the next succeeding Business Day. Whenever
any payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent and (ii) each such partial prepayment of Loans
shall be in the
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minimum principal amount of (A) $5,000,000 and integral multiples of
$1,000,000 in excess thereof for Revolving Loans and (B) $100,000 and
integral multiples of $50,000 in excess thereof for Swingline Loans.
All prepayments under this Section shall be subject to Section 3.14 and
be accompanied by interest on the principal amount prepaid through the
date of prepayment.
(b) Mandatory Prepayments. If, at any time, the sum of the
aggregate amount of Revolving Loans outstanding plus Swingline Loans
outstanding plus the aggregate amount of secured Indebtedness incurred
by the Credit Parties, pursuant to Section 8.1(h), in excess of
$100,000,000 exceeds the Revolving Committed Amount, the Borrower shall
immediately make a principal payment to the Administrative Agent in the
manner and in an amount such that the sum of the aggregate amount of
Revolving Loans outstanding plus Swingline Loans outstanding plus the
aggregate amount of secured Indebtedness incurred by the Credit
Parties, pursuant to Section 8.1(h), in excess of $100,000,000 is less
than or equal to the Revolving Committed Amount (to be applied as set
forth in Section 3.3(c) below).
(c) Application of Prepayments. All amounts required to be
paid pursuant to Section 3.3(b) shall be applied first to Swingline
Loans and second to Revolving Loans. Within the parameters of the
applications set forth above, prepayments shall be applied first to
Base Rate Loans and then to Eurodollar Loans (or Index Rate Swingline
Loans, as applicable) in direct order of Interest Period maturities.
All prepayments hereunder shall be subject to Section 3.14 and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
3.4 FEES.
(a) Facility Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrower
agrees to pay to the Administrative Agent, for the pro rata benefit of
each Lender (based on each Lender's Revolving Loan Commitment
Percentage of the Revolving Committed Amount), a per annum fee equal to
the Applicable Percentage for Facility Fees multiplied by the Revolving
Committed Amount (the "Facility Fees"). The Facility Fees shall
commence to accrue on the Effective Date and shall be due and payable
in arrears on the first Business Day after the end of each fiscal
quarter of the Borrower (as well as on the Maturity Date and on any
date that the Revolving Committed Amount is reduced) for the
immediately preceding fiscal quarter (or portion thereof), beginning
with the first of such dates to occur after the Closing Date.
(b) Utilization Fees.
(i) If, as calculated on the last day of each fiscal
quarter of the Borrower (as well as on the Maturity Date and
on any date that the Revolving Loan Commitment is reduced),
the Utilized Revolving Committed Amount for such fiscal
quarter exceeds fifty percent (50%) of the Revolving Committed
Amount, then for the pro rata benefit of each Lender, the
Borrower agrees to pay to the Administrative
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Agent a per annum fee equal to one-tenth of one percent (.10%)
of the Utilized Revolving Committed Amount (the "Utilization
Fees").
(ii) The Utilization Fees, if any, shall be due and
payable in arrears on the first Business Day after the end of
each fiscal quarter of the Borrower (as well as on the
Maturity Date and on any date that the Revolving Loan
Commitment is reduced) for the immediately preceding fiscal
quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee (the
"Administrative Fees") in accordance with the terms of the Fee Letter.
(d) Extension Fee. The Borrower agrees to pay to the
Administrative Agent for the pro rata benefit of each Extending Lender,
at the time of any extension of the Maturity Date pursuant to Section
2.5, such extension fees as are agreed upon among the Borrower, the
Administrative Agent and such Extending Lenders.
(e) Upfront Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrower
agrees to pay to each Lender an upfront fee in accordance with the
terms of the fee letter among such Lender, the Borrower and the
Administrative Agent (the "Upfront Fees"). The Upfront Fees shall be
due and payable on or prior to the Effective Date.
3.5 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans and Swingline Loans, together with accrued but unpaid interest
and all other sums owing with respect thereto, shall be due and payable in full,
unless accelerated sooner pursuant to Section 9.2.
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans and Swingline Loans, in which
case interest shall be computed on the basis of a 365 or 366 day year
as the case may be, all computations of interest and fees hereunder
shall be made on the basis of the actual number of days elapsed over a
year of 360 days. Interest shall accrue from and include the date of
borrowing (or continuation or conversion) but exclude the date of
payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrower are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
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Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrower or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans
or any other Indebtedness evidenced by any of the Credit Documents does
not include the right to accelerate the payment of any interest which
has not otherwise accrued on the date of such demand, and the Lenders
do not intend to charge or receive any unearned interest in the event
of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, each Revolving Loan
borrowing, each payment or prepayment of principal of any Revolving Loan, each
payment of fees (other than the Administrative Fees retained by the
Administrative Agent for its own account), each reduction of the Revolving
Committed Amount, and each conversion or continuation of any Revolving Loan,
shall (except as otherwise provided in Section 3.11) be allocated pro rata among
the relevant Lenders in accordance with the respective Revolving Loan Commitment
Percentages of such Lenders (or, if the Commitments of such Lenders have expired
or been terminated, in accordance with the respective principal amounts of the
outstanding Loans and Participation Interests of such Lenders); provided that,
if any Lender shall have failed to pay its applicable pro rata share of any
Revolving Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this Section 3.7 shall instead be payable to the Administrative
Agent until the share of such Revolving Loan not funded by such Lender has been
repaid; provided further, that in the event any amount paid to any Lender
pursuant to this Section 3.7 is rescinded or must otherwise be returned by the
Administrative Agent, each Lender shall, upon the request of the Administrative
Agent, repay to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned by the
Administrative Agent until the date the Administrative Agent receives such
repayment at a rate per annum equal to, during the period to but excluding the
date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus two percent (2%) per annum.
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3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other Lenders a participation in
such Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by payment in cash or a
repurchase of a participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Administrative Agent shall fail to remit
to the Administrative Agent or any other Lender an amount payable by such Lender
or such Administrative Agent to such Administrative Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to such
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
If, after the date hereof, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender, or its parent corporation, with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's (or parent corporation's)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender, or its parent corporation, could have
achieved but for such adoption,
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effectiveness, change or compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
written notice from such Lender to the Borrower, the Borrower shall be obligated
to pay to such Lender such additional amount or amounts as will compensate such
Lender on an after-tax basis (after taking into account applicable deductions
and credits in respect of the amount indemnified) for such reduction. Each such
written notice of a determination by any such Lender of amounts owing under this
Section 3.9 shall set forth and certify in reasonable detail the basis for such
determination and the calculation of amounts so owing, which certification
shall, absent manifest error, be conclusive and binding on the parties hereto.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to make any payments to any Lender or the Administrative Agent
pursuant to this Section 3.9 relating to any period of time which is greater
than 90 days prior to such Person's request for additional payment except for
retroactive application of such law, rule or regulation, in which case the
Borrower is required to make such payments so long as such Person makes a
request therefor within 90 days after the public announcement of such
retroactive application. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter, and will also give prompt written
notice to the Borrower when such conditions no longer exist. If such notice is
given (a) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans and (b) any Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans. Until
such notice is withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Base Rate Loans to Eurodollar Loans.
3.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last
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days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to Section 3.14.
3.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 3.13 (including Non-Excluded Taxes imposed
solely by reason of any failure of such Lender to comply with its
obligations under Section 3.13(b)) and changes in taxes measured by or
imposed upon the overall net income, or franchise tax (imposed in lieu
of such net income tax), of such Lender or its applicable lending
office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender on an
after-tax basis (after taking into account applicable deductions and credits in
respect of the amount indemnified) for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Administrative Agent at least one Business Day's notice of such election, in
which case the Borrower shall promptly pay to such Lender, upon demand, without
duplication, such amounts, if any, as may be required pursuant to Section 3.14.
If any Lender becomes entitled to claim any additional amounts pursuant to this
Section 3.12, it shall provide prompt written notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events
described in
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this Section 3.12 has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this Section 3.12 submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive and binding on the parties hereto in the absence of manifest error.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder. Notwithstanding
anything to the contrary contained herein, the Borrower shall not be required to
make any payments to any Lender or the Administrative Agent pursuant to this
Section relating to any period of time which is greater than 90 days prior to
such Person's request for additional payment except for retroactive application
of such law, rule or regulation, in which case the Borrower is required to make
such payments so long as such Person makes a request therefor within 90 days
after the public announcement of such retroactive application.
3.13 TAXES.
(a) Except as provided below in this Section 3.13, all
payments made by the Borrower under this Credit Agreement and any Notes
shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official,
excluding taxes measured by or imposed upon the net income of any
Lender or its applicable lending office, or any branch or affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business
or taxes on the capital or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes: (i) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any Lender hereunder
or under any Notes, (A) the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrower shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section 3.13 whenever any Non-Excluded Taxes are
payable by the Borrower, and (B) as promptly as possible after
requested the Borrower shall send to such Administrative Agent for its
own account or for
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the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative
Agent and any Lender for any incremental Non-Excluded Taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the
Borrower under this Credit Agreement or Notes to such Lender,
deliver to the Borrower and the Administrative Agent (x) two
duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as
the case may be, certifying that it is entitled to receive
payments under this Credit Agreement and any Notes without
deduction or withholding of any United States federal income
taxes and (y) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that
it is entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the Borrower or the Administrative
Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (A) represent to the Borrower (for the
benefit of the Borrower and the Administrative Agent) that it
is not a bank within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (B) agree to furnish to the
Borrower, on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent, two
accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Internal Revenue
Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and
the Administrative Agent two further copies of such form on or
before the date it
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expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form
and, if necessary, obtain any extensions of time reasonably
requested by the Borrower or the Administrative Agent for
filing and completing such forms), and (C) agree, to the
extent legally entitled to do so, upon reasonable request by
the Borrower, to provide to the Borrower (for the benefit of
the Borrower and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding
with respect to payments under this Credit Agreement and any
Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrower and the Administrative
Agent, then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender pursuant
to Section 11.3 shall, upon the effectiveness of the related transfer,
be required to provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the case of
a participant of a Lender, the obligations of such participant of a
Lender pursuant to this subsection (b) shall be determined as if the
participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall
have been purchased.
3.14 COMPENSATION.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement and (c) the making of a prepayment of Eurodollar Loans on
a day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loans provided for herein
(excluding, however, the Applicable Percentage included therein, if any) minus
(ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. The agreements in this Section shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
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3.15 SUBSTITUTION OF LENDER.
If (a) the obligation of any Lender to make Eurodollar Loans has been
suspended pursuant to Section 3.11 or (b) any Lender has demanded compensation
under Section 3.9, 3.11, 3.12, 3.13 or 3.14, the Borrower shall have the right,
with the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders. Any substitution under this Section 3.15 may be
accomplished, at the Borrower's option, either (i) by the replaced Lender
assigning its rights and obligations hereunder to a replacement lender or
lenders pursuant to Section 11.3(b) at a mutually agreeable price or (ii) by the
Borrower's prepaying all outstanding Loans from the replaced Lender and
terminating such Lender's Commitment on a date specified in a notice delivered
to the Administrative Agent and the replaced Lender at least three Business Days
before the date so specified (and compensating such Lender for any resulting
funding losses as provided in Section 3.14 but otherwise without premium or
penalty) and concurrently a replacement Lender or Lenders assuming a Commitment
in an amount equal to the Commitment being terminated and making Loans in the
same aggregate amount and having the same maturity date or dates, respectively,
as the Loans being prepaid, all pursuant to documents reasonably satisfactory to
the Administrative Agent (and in the case of any document to be signed by the
replaced Lender, reasonably satisfactory to such Lender). No such substitution
shall relieve the Borrower of its obligations to compensate and/or indemnify the
replaced Lender as required by Section 3.9, 3.11, 3.12, 3.13 or 3.14 with
respect to the period before it is replaced and to pay all accrued interest,
accrued fees and other amounts owing to the replaced Lender hereunder.
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder, and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof, if any. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such account, such Register, or such
subaccount, as
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applicable, or any error therein, shall not in any manner affect the obligation
of the Borrower to repay the Loans made by such Lender in accordance with the
terms hereof.
SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender and the Administrative
Agent the prompt payment of the Credit Party Obligations in full when due
(whether at stated or extended maturity, as a mandatory prepayment, by
acceleration or otherwise). This Guaranty is a guaranty of payment and not of
collection and is a continuing guaranty and shall apply to all Credit Party
Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by
the Lenders without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes or any other of the Credit Documents or any collateral, if
any, hereafter securing the Credit Party Obligations or otherwise and each
Guarantor hereby waives the right to require the Lenders to proceed against the
Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor of the
Credit Party Obligations for amounts paid under this Guaranty until such time as
the Lenders (and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents. Each Guarantor further agrees that
nothing contained herein shall prevent the Lenders from suing on the Notes or
any of the other Credit Documents or any of the Hedging Agreements or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Credit Party Obligations or from exercising any other rights available to it
under this Credit Agreement, the Notes, any other of the Credit Documents, or
any other instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any Guarantor's obligations hereunder; it being the
purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances. Neither
any Guarantor's obligations under this
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Guaranty nor any remedy for the enforcement thereof shall be impaired, modified,
changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower or by reason of
the bankruptcy or insolvency of the Borrower. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Credit Party
Obligations and notice of or proof of reliance of by the Administrative Agent or
any Lender upon this Guaranty or acceptance of this Guaranty. The Credit Party
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guaranty. All dealings between the Borrower and any of the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantors further agree to all rights of
set-off as set forth in Section 11.2.
4.3 MODIFICATIONS.
Each Guarantor agrees that (a) the time or place of payment of the
Credit Party Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (b) the Borrower and any other party liable for payment under the Credit
Documents may be granted indulgences generally; (c) any of the provisions of the
Notes or any of the other Credit Documents may be modified, amended or waived;
(d) any party (including any co-guarantor) liable for the payment thereof may be
granted indulgences or be released; (e) the Maturity Date may be extended; and
(f) any deposit balance for the credit of the Borrower or any other party liable
for the payment of the Credit Party Obligations or liable upon any security
therefor may be released, in whole or in part, at, before or after the stated,
extended or accelerated maturity of the Credit Party Obligations, all without
notice to or further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; (e) all other notices to which such
Guarantor might otherwise be entitled; and (f) demand for payment under this
Guaranty.
4.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the
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Credit Party Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.6 REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Administrative Agent and the Lenders, on the other hand, the Credit
Party Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
4.8 RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of the Credit Parties under the Credit Documents and no Credit Party
shall exercise such rights of contribution until all Credit Party Obligations
have been paid in full and the Commitments terminated.
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SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction (or waiver by
each of the Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes and (iii) all other Credit Documents, each in form and substance
reasonably acceptable to the Administrative Agent and the Lenders;
provided that receipt by the Administrative Agent of an executed
signature page to this Credit Agreement from a Lender shall be deemed
approval by such Lender of the form and substance of the Credit
Documents.
(b) Authority Documents.
(i) Partnership Documents. With respect to each
Credit Party that is a partnership or limited liability
partnership (for the purposes hereof, each a "Partnership"),
receipt by the Administrative Agent of the following:
(A) Authorization. Authorization of the
general partner(s) of such Partnership, as of the
Closing Date, approving and adopting the Credit
Documents to be executed by such Partnership and
authorizing the execution and delivery thereof.
(B) Partnership Agreements. Certified
copies of the partnership agreement of such
Partnership, together with all amendments thereto.
(C) Certificates of Good Standing or
Existence. Certificate of good standing or existence
for such Partnership, issued as of a recent date by
its state of organization and each other state where
the failure to qualify or be in good standing would
have or could be reasonably expected to have a
Material Adverse Effect.
(D) Incumbency. An incumbency certificate of
the general partner(s) of such Partnership certified
by a secretary or assistant secretary of such general
partner to be true and correct as of the Closing
Date.
(ii) Corporate Documents. With respect to each Credit
Party that is a corporation, (for the purposes hereof, each a
"Corporation"), and with respect to each corporate entity
acting, directly or indirectly, on behalf of a Credit Party
that is a partnership, limited liability partnership or
limited liability company (for the
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purposes of this clause (ii), each a "Managing Person"),
receipt by the Administrative Agent of the following:
(A) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of each such Corporation or
Managing Person, as applicable, certified to be true
and complete as of a recent date by the appropriate
Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Corporation
or Managing Person, as applicable, to be true and
correct as of the Closing Date.
(B) Bylaws. A copy of the bylaws of each
such Corporation or Managing Person, as applicable,
certified by a secretary or assistant secretary of
such Corporation or Managing Person, as applicable,
to be true and correct as of the Closing Date.
(C) Resolutions. Copies of resolutions of
such Corporation's board of directors approving and
adopting the Credit Documents to which it or the
Person for whom it is acting is a party and the
transactions contemplated therein and authorizing
execution and delivery thereof, certified by a
secretary or assistant secretary of such Corporation
or Managing Person, as applicable, to be true and
correct and in full force and effect as of the
Closing Date.
(D) Good Standing. Copies of (A)
certificates of good standing, existence or their
equivalent with respect to such Corporation or
Managing Person, as applicable, certified as of a
recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of
incorporation and each other jurisdiction in which
the failure to so qualify and be in good standing
would have or could be reasonably expected to have a
Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all
corporate franchise taxes certified as of a recent
date by the appropriate governmental taxing
authorities.
(E) Incumbency. An incumbency certificate of
such Corporation or Managing Person, as applicable,
certified by an officer of such Corporation or
Managing Person, as applicable, to be true and
correct as of the Closing Date.
(iii) Limited Liability Company Documents. With
respect to each Credit Party that is a limited liability
company (for the purposes hereof, each an "LLC") and with
respect to any limited liability company acting, directly or
indirectly, on behalf of a Credit Party (for the purposes of
this clause (iii), each a "Managing Person"), receipt by the
Administrative Agent of the following:
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(A) Certificate of Formation. A copy of the
certificate of formation of such LLC or Managing
Person, as applicable, certified to be true and
complete by the appropriate Governmental Authority of
the state or jurisdiction of its formation and
certified by the sole or managing member of such LLC
or Managing Person, as applicable, to be true and
correct as of the Closing Date.
(B) LLC Agreement. A copy of the LLC
Agreement of such LLC or Managing Person, as
applicable, certified by the sole or managing member
of such LLC or Managing Person, as applicable, to be
true and correct as of the Closing Date.
(C) Resolutions. Copies of resolutions of
the sole or managing member of such LLC or Managing
Person approving and adopting the Credit Documents to
which it or the Person for whom it is acting is a
party and the transactions contemplated therein and
authorizing execution and delivery thereof.
(D) Good Standing. Copies of certificates of
good standing, existence or their equivalent with
respect to such LLC or Managing Person, as
applicable, certified as of a recent date by the
appropriate Governmental Authorities of the state or
other jurisdiction of formation and each other
jurisdiction in which the failure to so qualify and
be in good standing would have or could be reasonably
expected to have a Material Adverse Effect.
(E) Incumbency. An incumbency certificate of
such LLC or Managing Person certified by an officer
of such LLC or Managing Person to be true and correct
as of the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of
an opinion or opinions from legal counsel to the Credit Parties (which
shall cover, among other things, authority, legality, validity, binding
effect, and enforceability of the Credit Documents), reasonably
satisfactory to the Administrative Agent, addressed to the
Administrative Agent and the Lenders and dated as of the Closing Date.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Credit Parties required to be
delivered pursuant to Section 7.1 of each Existing Credit Agreement
prior to the Closing Date.
(e) Litigation. There shall not exist (i) any order, decree,
judgment, ruling or injunction which prohibits or restrains the
consummation of the transactions contemplated hereby or (ii) any
pending (except as set forth on Schedule 6.11) or, to the knowledge of
any Credit Party, threatened action, suit, investigation or proceeding
against a Credit Party that would have or could be reasonably expected
to have a Material Adverse Effect.
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(f) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by an Authorized
Officer of the Borrower as of the Closing Date stating that (i) the
Borrower and each of its Subsidiaries are in compliance with all
existing material financial obligations after giving effect to this
Credit Agreement, (ii) no action, suit, investigation or proceeding is
pending or, to the knowledge of any Credit Party, threatened in any
court or before any arbitrator or governmental instrumentality that
purports to affect the Borrower, any of its Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding would have or could be reasonably expected
to have a Material Adverse Effect, (iii) the financial statements and
information delivered to the Administrative Agent on or before the
Closing Date were prepared in good faith and in accordance with GAAP
and (iv) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated herein and
therein, including the initial Extensions of Credit hereunder (if any),
to occur on such date, (A) no Default or Event of Default exists, (B)
all representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects, (C) the
Credit Parties are in compliance with each of the financial covenants
set forth in Section 7.2 (with calculations demonstrating same) and (D)
each Credit Party is Solvent.
(g) Material Adverse Effect. There shall not have occurred a
Material Adverse Effect since March 31, 2000; it being understood and
agreed that, for purposes of this Section 5.1(g), matters disclosed in
the Borrower's Form 10-Q report for the fiscal quarter ending March 31,
2000, as filed with the U.S. Securities and Exchange Commission, shall
not constitute a Material Adverse Effect.
(h) Fees and Expenses. Payment by the Credit Parties of the
fees and expenses owed by them to the Administrative Agent, the Lenders
and BAS pursuant to the terms of Section 3.4 and of the Fee Letter.
(i) Existing Credit Agreements. The Administrative Agent shall
have received evidence that all documents executed or delivered in
connection with the Existing Credit Agreements shall have been
terminated and that all amounts owing in connection with the Existing
Credit Agreements shall have been paid in full on or before the
Effective Date.
(j) Market Disruption. There shall not have occurred any
material disruption of or a material adverse change in conditions in
the financial, banking or capital markets which the Administrative
Agent and BAS, in their reasonable discretion, deem material in
connection with the syndication of this Credit Agreement.
(k) Other. Receipt and satisfactory review by the
Administrative Agent and its counsel of such other documents,
instruments, agreements or information as reasonably and timely
requested by the Administrative Agent, its counsel or any Lender,
including, but not limited to, shareholder agreements, management
agreements and information regarding litigation, tax, accounting,
labor, insurance, pension liabilities (actual or contingent), real
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estate leases, material contracts, debt agreements, property ownership,
contingent liabilities and management of the Borrower and its
Subsidiaries.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans unless:
(a) Notice. The Borrower shall have delivered (i) in the case
of any new Revolving Loan, a Notice of Borrowing, duly executed and
completed, by the time specified in Section 2.1 and (ii) in the case of
any new Swingline Loan, a Swingline Loan Request, duly executed and
completed, by the time specified in Section 2.2.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof), the sum
of the Revolving Loans outstanding plus Swingline Loans outstanding
plus the aggregate amount of secured Indebtedness incurred by the
Credit Parties pursuant to Section 8.1(h) in excess of $100,000,000
shall not exceed the Revolving Committed Amount.
The delivery of each Notice of Borrowing and each Swingline Loan Request shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c) and (d) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent and warrant to the Administrative
Agent and each Lender that:
6.1 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders prior to
the Effective Date and pursuant to Section 7.1(a) and (b): (i) have
been prepared in accordance with GAAP and (ii) present fairly the
consolidated and consolidating (as applicable) financial condition,
results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such periods.
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(b) Since December 31, 1999, there has been no sale, transfer
or other disposition by any Credit Party of any material part of the
business or property of the Credit Parties taken as a whole, and no
purchase or other acquisition by any of them of any business or
property (including any Capital Stock of any other Person) material in
relation to the consolidated financial condition of the Credit Parties
taken as a whole, in each case which is not (i) reflected in the most
recent financial statements delivered to the Lenders pursuant to
Section 7.1 or in the notes thereto or (ii) otherwise permitted by the
terms of this Credit Agreement and communicated to the Administrative
Agent.
6.2 NO MATERIAL CHANGE.
Since March 31, 2000, there has been no development or event relating
to or affecting a Credit Party which has had or could be reasonably expected to
have a Material Adverse Effect, other than the developments in the First
Heights-related litigation described in Note 4 to the Borrower's condensed
consolidated financial statements contained in its Form 10-Q report for the
fiscal quarter ended March 31, 2000, as filed with the U.S. Securities and
Exchange Commission.
6.3 ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the state (or other jurisdiction) of its organization, (b) is duly
qualified and in good standing as a foreign entity and authorized to do business
in every jurisdiction unless the failure to be so qualified, in good standing or
authorized would have or could be reasonably expected to have a Material Adverse
Effect and (c) has the requisite power and authority to own its properties and
to carry on its business as now conducted and as proposed to be conducted.
6.4 DUE AUTHORIZATION.
Each Credit Party (a) has the requisite power and authority to execute,
deliver and perform this Credit Agreement and the other Credit Documents to
which it is a party and to incur the obligations herein and therein provided for
and (b) is duly authorized to, and has been authorized by all necessary action,
to execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws, (b) violate, contravene or materially conflict with any
Requirement of Law or any other law, regulation (including, without limitation,
Regulation D, O, T, U or X), order, writ, judgment, injunction, decree or permit
applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any
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indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound, the violation
of which would have or could be reasonably expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien (other than those
contemplated in or created in connection with the Credit Documents) upon or with
respect to its properties.
6.6 CONSENTS.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by such Credit Party.
6.7 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or moratorium laws or similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
6.8 NO DEFAULT.
No Credit Party is in default in any respect under any contract, lease,
loan agreement, indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its properties is bound
which default would have or could be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Lenders.
6.9 LIENS.
The assets of the Credit Parties are not subject to any Liens other
than Permitted Liens, which, individually or in the aggregate, would have or
could be reasonably expected to have a Material Adverse Effect.
6.10 INDEBTEDNESS.
The Credit Parties have no Indebtedness except (a) as disclosed in the
financial statements referenced in Section 6.1, (b) as set forth on Schedule
6.10, and (c) as otherwise permitted by this Credit Agreement.
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6.11 LITIGATION.
Except as set forth on Schedule 6.11, there are no actions, suits or
legal, equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Credit Party, threatened against any Credit Party which, if
adversely determined, would have or could be reasonably expected to have a
Material Adverse Effect.
6.12 TAXES.
Each Credit Party has filed, or caused to be filed, all material tax
returns (federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due and payable (including interest and
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) that are due and payable by it, except for such taxes (i)
which are not yet delinquent or (ii) that are being contested in good faith and
by proper proceedings, and against which adequate reserves are being maintained
in accordance with GAAP. To the knowledge of the Credit Parties, there are no
material tax assessments (including interest and penalties) claimed to be due
against any of them by any Governmental Authority.
6.13 COMPLIANCE WITH LAW.
Each Credit Party is in material compliance with all material
Requirements of Law and all other material laws, rules, regulations, orders and
decrees (including without limitation Environmental Laws) applicable to it, or
to its properties. No Requirement of Law would cause or could be reasonably
expected to cause a Material Adverse Effect.
6.14 ERISA.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred, and, to the knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan;
(ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any
other applicable federal or state laws; and (iv) no lien in favor of
the PBGC or a Plan has arisen or is reasonably likely to arise on
account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(within the meaning of Section 4001 of ERISA) under each Single
Employer Plan (determined utilizing the actuarial assumptions used to
fund such Plans), whether or not vested, did not, as of the last annual
valuation date prior to the date on which this representation is made
or deemed
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made, exceed the fair market current value as of such date of the
assets of such Plan allocable to such accrued liabilities.
(c) Neither the Borrower, nor any of its Subsidiaries, nor any
ERISA Affiliate has incurred, or, to the knowledge of such parties, are
reasonably expected to incur, any withdrawal liability under ERISA to
any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower,
nor any of its Subsidiaries, nor any ERISA Affiliate has received any
notification pursuant to ERISA that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and, to the best
knowledge of such parties, no Multiemployer Plan is reasonably expected
to be in reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan which has
subjected or is reasonably expected to subject the Borrower or any of
its Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which the Borrower
or any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(e) The present value of the liability of the Borrower and its
Subsidiaries and each ERISA Affiliate for post-retirement welfare
benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of
ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the Financial Statements in accordance with
FASB 106.
(f) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in material compliance with such
sections.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party and whether each such Person is a Material
Subsidiary. Schedule 6.15 shall be updated by the Borrower within 120 days after
the end of each calendar year and may be, but need not be, updated at any other
time and from time to time by the Borrower by giving written notice thereof to
the Administrative Agent.
6.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.10. No proceeds of the Loans hereunder have been
or will be used for the Acquisition of another Person unless the board of
directors (or other comparable governing body) or stockholders, as appropriate,
of such Person has approved such Acquisition.
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6.17 GOVERNMENT REGULATION.
(a) No proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to
the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 referred to
in Regulation U. No Indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Credit Parties and their Subsidiaries. None of the transactions
contemplated by the Credit Documents (including, without limitation,
the direct or indirect use of the proceeds of the Loans) will violate
or result in a violation of (i) the Securities Act or (ii) the Exchange
Act.
(b) No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, no Credit
Party is (i) an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, and is
not controlled by an "investment company", or (ii) a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(c) No director, executive officer or principal shareholder of
any Credit Party is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used
with reference to any Lender) have the respective meanings assigned
thereto in Regulation O.
6.18 ENVIRONMENTAL MATTERS.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws,
and there is no violation of any Environmental Law with respect to the
Real Properties or the businesses operated by the Credit Parties (the
"Businesses"), and there are no conditions relating to the Businesses
or Real Properties that would reasonably be expected to give rise to
liability under any applicable Environmental Laws.
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(b) No Credit Party has received any written notice of, or
inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with Environmental Laws
with regard to any of the Real Properties or the Businesses, nor, to
the knowledge of a Credit Party, is any such notice being threatened.
(c) Hazardous Materials have not been transported or disposed
of from the Real Properties, or generated, treated, stored or disposed
of at, on or under any of the Real Properties or any other location, in
each case by, or on behalf or with the permission of, a Credit Party in
a manner that would give rise to liability under any applicable
Environmental Laws.
(d) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of a Credit Party, threatened
under any Environmental Law to which a Credit Party is or will be named
as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to a Credit Party, the Real Properties or the Businesses.
(e) There has been no release (including, without limitation,
disposal) or threat of release of Hazardous Materials at or from the
Real Properties, or arising from or related to the operations of a
Credit Party in connection with the Real Properties or otherwise in
connection with the Businesses where such release constituted a
violation of, or would give rise to liability under, any applicable
Environmental Laws.
(f) None of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties
in amounts or concentrations that, if released, constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.
(g) No Credit Party has assumed any liability of any Person
(other than another Credit Party or Subsidiary thereof) under any
Environmental Law.
6.19 INTELLECTUAL PROPERTY.
Each Credit Party owns, or has the legal right to use, all patents,
trademarks, service marks, tradenames, copyrights, licenses, technology,
know-how, processes and other rights (the "Intellectual Property"), free from
burdensome restrictions, that are necessary for the operation of their
respective businesses as presently conducted and as proposed to be conducted
other than those the absence of which would not cause or could not reasonably be
expected to cause a Material Adverse Effect. Except as would not have or could
not be reasonably expected to have a Material Adverse Effect, (a) no holding,
decision or judgment has been rendered by any Governmental Authority which would
limit, cancel or question the
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validity of any Intellectual Property and (b) no action or proceeding is
pending that seeks to limit, cancel or question the validity of any Intellectual
Property or which, if adversely determined, would have a material adverse effect
on the value of any Intellectual Property.
6.20 SOLVENCY.
Each Credit Party is, and after consummation of the transactions
contemplated by this Credit Agreement will be, Solvent.
6.21 INVESTMENTS.
All Investments of each Credit Party are (a) as set forth on Schedule
6.21(b) or (b) Permitted Investments.
6.22 DISCLOSURE.
Neither this Credit Agreement nor any other Credit Document or
financial statement delivered to the Administrative Agent or the Lenders by or
on behalf of any Credit Party in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein or
herein, taken as a whole, not misleading.
6.23 LICENSES, ETC.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect, the Credit Parties have obtained and hold in full force
and effect, all material franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted.
6.24 BURDENSOME RESTRICTIONS.
No Credit Party is a party to any agreement or instrument or subject to
any other obligation or any charter or corporate restriction or any provision of
any Requirement of Law which, individually or in the aggregate, would have or
could be reasonably expected to have a Material Adverse Effect.
6.25 LABOR CONTRACTS AND DISPUTES.
Except as disclosed on Schedule 6.25, (a) there is no collective
bargaining agreement or other labor contract covering employees of any Credit
Party; (b) no union or other labor organization is seeking to organize, or be
recognized as, a collective bargaining unit of employees of any Credit Party;
and (c) there is no pending or, to any Credit Party's knowledge, threatened
strike, work stoppage, material unfair labor practice claim or other material
labor dispute against or affecting any Credit Party or its employees which,
individually or in the aggregate, would have or could be reasonably expected to
have a Material Adverse Effect.
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6.26 BROKER'S FEES.
No Credit Party will pay or agree to pay, or reimburse any other Person
with respect to, any finder's, broker's, investment banking or other similar fee
in connection with any of the transactions contemplated under the Credit
Documents.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest and
fees and other obligations then due and payable hereunder, have been paid in
full (other than any such obligations which by the terms thereof are stated to
survive termination of the Credit Documents) and the Commitments hereunder shall
have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in
any event within 120 days after the close of each fiscal year of the
Borrower, a consolidated and consolidating balance sheet and income
statement of the Borrower and its Subsidiaries, as of the end of such
fiscal year, together with related consolidated and consolidating
statements of operations, retained earnings, shareholders equity and
cash flows for such fiscal year, setting forth in comparative form
consolidated and consolidating figures for the preceding fiscal year,
all such financial information described above to be in reasonable form
and detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except
for changes with which such accountants concur) and shall not be
limited as to the scope of the audit or qualified in any manner, except
for qualifications resulting from changes in GAAP and required or
approved by the Borrower's independent certified public accountants. It
is specifically understood and agreed that failure of the annual
financial statements to be accompanied by an opinion of such
accountants in form and substance as provided herein shall constitute
an Event of Default hereunder.
(b) Quarterly Statements.
As soon as available, and in any event within 60 days after
the close of each fiscal quarter (other than the fourth fiscal quarter,
in which case 120 days after the end thereof) of
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each fiscal year of the Borrower, a consolidated and consolidating
balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such quarter, together with related
consolidated and consolidating statements of operations, retained
earnings, shareholders' equity and cash flow for such quarter, in each
case setting forth in comparative form consolidated and consolidating
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent and
accompanied by a certificate of the chief financial officer of the
Borrower to the effect that such consolidated and consolidating
statements are true and correct and have been prepared in accordance
with GAAP, subject to changes resulting from audit and normal year-end
audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Authorized Officer of the Borrower substantially in
the form of Exhibit 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.2 by calculation thereof as
of the end of each such period, (ii) calculating the Interest Coverage
Ratio of the Borrower and its Subsidiaries for the twelve month period
ending on the date of such financial statements, (iii) demonstrating
compliance with any other terms of this Credit Agreement as requested
by the Administrative Agent and (iv) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto. If necessary, the Borrower shall
deliver financial statements prepared in accordance with GAAP as of the
Closing Date, to the extent GAAP has changed since the Closing Date, in
order to show compliance with the terms of this Credit Agreement,
including Section 7.2. In addition, at the time of any Investment
pursuant to clause (j) of the definition of Permitted Investments in
excess of $10,000,000, a certificate of an Authorized Officer of the
Borrower stating that after giving effect to such Investment on a pro
forma basis no Default or Event of Default will exist or be continuing
as a result of such Investment.
(d) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any public filings and registrations with, and reports to
or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as the Borrower or any of its Subsidiaries shall
send to its shareholders generally and (b) upon the written request of
the Administrative Agent, all reports and written information to and
from the United States Environmental Protection Agency, or any state or
local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(e) Notices. Upon an executive officer of a Credit Party
obtaining knowledge thereof, the Borrower will give written notice to
the Administrative Agent (a) immediately of the occurrence of an event
or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Credit Parties
propose to take with respect thereto, and (b) promptly, but in any
event within five Business Days, after
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the occurrence of any of the following with respect to any Credit
Party: (i) the pendency or commencement of any litigation, arbitral or
governmental proceeding against a Credit Party which if adversely
determined would have or could be reasonably expected to have a
Material Adverse Effect, (ii) the institution of any proceedings
against a Credit Party with respect to, or the receipt of written
notice by such Person of potential liability or responsibility for
violation, or alleged violation, of any federal, state or local law,
rule or regulation (including but not limited to, Environmental Laws),
the violation of which would have or could be reasonably expected to
have a Material Adverse Effect, (iii) the occurrence of an event or
condition which shall constitute a default or event of default under
any Indebtedness of a Credit Party in excess of $10,000,000, other than
Non-Recourse Land Financing, or (iv) any loss of or damage to any
property of a Credit Party or the commencement of any proceeding for
the condemnation or other taking of any property of a Credit Party
having a value of $10,000,000 or more.
(f) ERISA. Upon any of the Credit Parties or any ERISA
Affiliate obtaining knowledge thereof, the Borrower will give written
notice to the Administrative Agent promptly (and in any event within
two Business Days) of: (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably
lead to, a Termination Event; (ii) with respect to any Multiemployer
Plan, the receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against the Credit Parties or any of
their ERISA Affiliates, or of a determination that any Multiemployer
Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before
the due date (including extensions) thereof of all amounts which a
Credit Party or any ERISA Affiliates is required to contribute to each
Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv)
any change in the funding status of any Plan that would have or could
be reasonably expected to have a Material Adverse Effect; together with
a description of any such event or condition or a copy of any such
notice and a statement by the principal financial officer of the
Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, a Credit Party shall furnish
the Administrative Agent and each of the Lenders with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(g) Environmental.
(i) Subsequent to a notice from any Governmental
Authority where the subject matter of such notice would
reasonably cause concern or during the existence of an Event
of Default, and upon the written request of the Administrative
Agent, the Credit Parties will furnish or cause to be
furnished to the Administrative
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Agent, at the Credit Parties' expense, a report of an
environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater
sampling, by a consultant reasonably acceptable to the
Administrative Agent addressing the subject of such notice or,
if during the existence of an Event of Default, regarding any
release or threat of release of Hazardous Materials on any
Real Property and the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to deliver such
an environmental assessment within sixty (60) days after
receipt of such written request, then the Administrative Agent
may arrange for same, and the Credit Parties hereby grant to
the Administrative Agent and its representatives access to the
Real Properties and a license of a scope reasonably necessary
to undertake such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable cost of
any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Credit
Parties on demand.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all
remedial, removal and other actions necessary to address all
Hazardous Materials on, from, or affecting any Real Property
to the extent necessary to be in compliance with all
Environmental Laws and all other applicable federal, state,
and local laws, regulations, rules and policies and with the
orders and directives of all Governmental Authorities
exercising jurisdiction over such Real Property to the extent
any failure would have or could be reasonably expected to have
a Material Adverse Effect.
(h) Other Information. As soon as available and in any event
within 60 days of each fiscal quarter (or within 120 days of the fourth
fiscal quarter), a "Land Report" and a "Consolidated Sales and
Construction Activity Report" and with reasonable promptness upon any
request, such other information regarding the business, properties or
financial condition of the Credit Parties as the Administrative Agent
or the Lenders may reasonably request; provided that the Borrower may
require that prior to distribution of such information to a Lender,
such Lender shall have executed and delivered to the Borrower a
confidentiality agreement in form and substance reasonably satisfactory
to the Borrower and such Lender.
7.2 FINANCIAL COVENANTS.
(a) Debt to Capitalization Ratio. As of the last day of each
fiscal quarter of the Borrower (beginning with the fiscal quarter
ending September 30, 2000), the Debt to Capitalization Ratio shall be
less than or equal to 0.50 to 1.0.
(b) Tangible Net Worth. As of the last day of each fiscal
quarter of the Borrower (beginning with the fiscal quarter ending
September 30, 2000), Tangible Net Worth shall be greater than or equal
to the sum of (i) $800 million, plus (ii) 50% of the cumulative Net
Income (without deduction for losses) earned for each completed fiscal
quarter subsequent to March 31, 2000 to the date of determination.
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7.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as permitted by Section 8.4, each of the Credit Parties will do
all things necessary to preserve and keep in full force and effect its (a)
existence, rights and franchises and (b) authority, unless failure to preserve
and keep in full force and effect its authority would not have or could not be
reasonably expected to have a Material Adverse Effect.
7.4 BOOKS AND RECORDS.
Each of the Credit Parties will keep complete and accurate books and
records of its transactions in accordance with GAAP (including the establishment
and maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will materially comply with all material
laws, rules, regulations and orders, and all applicable material restrictions
imposed by all Governmental Authorities, applicable to it and its property
(including, without limitation, Environmental Laws).
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will pay, settle or discharge (a) all taxes,
assessments and governmental charges or levies imposed upon it, or upon its
income or profits, or upon any of its properties, before they shall become
delinquent, (b) all lawful claims (including claims for labor, materials and
supplies) which, if unpaid, might give rise to a Lien upon any of its
properties, and (c) all of its other Indebtedness as it shall become due (to the
extent such repayment is not otherwise prohibited by this Credit Agreement);
provided, however, that a Credit Party shall not be required to pay any such
tax, assessment, charge, levy, claim or Indebtedness which is being contested in
good faith by appropriate proceedings and as to which adequate reserves therefor
have been established in accordance with GAAP, unless the failure to make any
such payment (i) would give rise to an immediate right to foreclose or collect
on a Lien securing such amounts or (ii) would have or could be reasonably
expected to have a Material Adverse Effect.
7.7 INSURANCE.
Each of the Credit Parties will at all times maintain in full force and
effect insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) from
insurance companies of recognized national standing, in such amounts, covering
such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
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7.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will maintain and preserve its properties,
equipment and other assets in good repair, working order and condition, normal
wear and tear excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses,
unless the failure to do so would not have or could not be reasonably expected
to have a Material Adverse Effect.
7.9 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will perform in all material respects all of
its obligations under the terms of all material agreements, indentures,
mortgages, security agreements or other debt instruments to which it is a party
or by which it or its property is bound, unless the failure to do so would not
have or could not be reasonably expected to have a Material Adverse Effect.
7.10 USE OF PROCEEDS.
The Credit Parties will use the proceeds/availability of the Loans
solely (a) to repay Indebtedness owing under the Existing Credit Agreements, (b)
to provide working capital for the Credit Parties and (c) for general corporate
purposes of the Credit Parties, including money market borrowings and commercial
paper backup.
7.11 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will permit representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents, attorneys and
appraisers, to visit and inspect such Credit Party's property, including its
books and records, its accounts receivable and inventory, its facilities and its
other business assets, and to make photocopies or photographs thereof and to
write down and record any information such representative obtains and shall
permit the Administrative Agent or its representatives to investigate and verify
the accuracy of information provided to the Lenders.
7.12 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Material Subsidiary of a Credit Party,
the Borrower shall so notify the Administrative Agent and promptly thereafter
(but in any event within 30 days after the date thereof or within such longer
period of time as agreed to by the Administrative Agent) shall cause such Person
to (a) execute a Joinder Agreement in substantially the same form as Exhibit
7.12 and (b) deliver to the Administrative Agent such other documentation as the
Administrative Agent may reasonably request, including, without limitation,
certified copies of resolutions and other corporate, limited liability company
or partnership documents and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the Joinder Agreement executed by such Person), all in form,
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content and scope reasonably satisfactory to the Administrative Agent. The
Administrative Agent and the Lenders agree that upon any Subsidiary ceasing to
be a Material Subsidiary, upon receipt by the Administrative Agent of evidence
thereof, the Administrative Agent shall execute, at the Borrower's expense, such
release documentation as is necessary to release such Subsidiary from its
Guaranty Obligations hereunder and such Subsidiary shall no longer be a
Guarantor.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest, fees
and other obligations then due and payable hereunder, have been paid in full
(other than any such obligations which by the terms thereof are stated to
survive termination of the Credit Documents) and the Commitments hereunder shall
have terminated:
8.1 INDEBTEDNESS.
No Credit Party will contract, create, incur, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness existing as of the Closing Date as referenced
in Section 6.10 (and renewals, refinancings, replacements or extensions
thereof on terms and conditions no more favorable, in the aggregate, to
the applicable creditor than such existing Indebtedness and in a
principal amount not in excess of that outstanding as of the date of
such renewal, refinancing, replacement or extension);
(c) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business and to the
extent not current, accounts payable and accrued expenses that are
subject to bona fide dispute;
(d) Indebtedness owing by a Credit Party to another Credit
Party;
(e) Indebtedness arising from Hedging Agreements entered into
in the ordinary course of business and not for speculative purposes;
(f) Indebtedness arising from judgments that do not cause an
Event of Default;
(g) secured Indebtedness in connection with Non-Recourse Land
Financing existing on the Closing Date and Non-Recourse Land Financing
with respect to real property acquired after the Closing Date.
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(h) other secured Indebtedness up to $200,000,000, in the
aggregate, at any one time outstanding; provided that for each dollar
of secured Indebtedness incurred in excess of $100,000,000, as
permitted under this Section 8.1(h), availability under the Revolving
Committed Amount shall be reduced by one dollar; and
(i) other unsecured Indebtedness so long as, after giving
effect thereto, the Borrower is in compliance with the financial
covenants set forth in Section 7.2.
8.2 LIENS.
No Credit Party will contract, create, incur, assume or permit to exist
any Lien with respect to any of its property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or after acquired,
except for Permitted Liens.
8.3 NATURE OF BUSINESS.
No Credit Party will materially alter the character of its business
from that conducted as of the Closing Date or engage in any business other than
the business conducted as of the Closing Date and activities which are
substantially similar or related thereto or logical extensions thereof.
8.4 CONSOLIDATION AND MERGER.
No Credit Party will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself; provided that a Credit
Party may merge or consolidate with or into another Person if the following
conditions are satisfied:
(a) the Administrative Agent is given prior written notice of
such action;
(b) the Person formed by such consolidation or into which such
Credit Party is merged shall either (i) be a Credit Party or (ii)
expressly assume in writing all of the obligations of a Credit Party
under the Credit Documents; provided that if the transaction is between
the Borrower and another Person, the Borrower must be the surviving
entity;
(c) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(d) the Borrower delivers to the Administrative Agent an
opinion of counsel stating that such consolidation or merger and any
written agreement entered into in connection therewith, comply with
this Section 8.4.
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will convey, sell, lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business or assets whether now owned or hereafter
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acquired, including, without limitation, inventory, receivables, equipment, real
property interests (whether owned or leasehold), and securities, other than (a)
any inventory sold or otherwise disposed of in the ordinary course of business;
(b) the sale, lease, transfer or other disposal by a Credit Party of any or all
of its assets to another Credit Party; (c) obsolete, slow-moving, idle or
worn-out assets no longer used or useful in its business; (d) the transfer of
assets which constitute a Permitted Investment; (e) any Equity Issuance by the
Borrower; (f) the sale, lease or sublease of real property interests in the
ordinary course of business; (g) the sale, transfer or other disposal for fair
market value of all or substantially all of the Capital Stock or assets of a
Guarantor to a Person that is not a Credit Party; provided that (i) after giving
effect to any such sale, transfer or other disposal, the Credit Parties shall be
in compliance with all of the terms and conditions of this Credit Agreement and
the other Credit Documents, including, without limitation, the terms of Section
7.12 and the definition of Material Subsidiary, (ii) the net cash proceeds from
any such sale, transfer or other disposal shall be (A) first, applied to all
outstanding Revolving Loans (first to Base Rate Loans and then to Eurodollar
Loans and Index Rate Swingline Loans in direct order of Interest Period
maturities) and (B) second, reinvested in the business of the Credit Parties or
used by the Credit Parties in the ordinary course of business within 90 days
after the closing of such transfer, sale or other disposal and (iii) promptly
after the net cash proceeds from any such sale, transfer or other disposal have
been so utilized, the Borrower shall deliver to the Administrative Agent a
certificate executed by an Authorized Officer certifying on behalf of the
Borrower (A) as to the amount of such net cash proceeds and (B) that such net
cash proceeds have been reinvested in accordance with the terms of the foregoing
clause (ii), and (h) other sales of assets in the ordinary course of business so
long as, after giving effect thereto, the Borrower is in compliance with the
financial covenants set forth in Section 7.2.
8.6 SALE AND LEASEBACK.
No Credit Party will enter into any Sale and Leaseback Transaction,
unless each of the following conditions is satisfied: (a) such Credit Party
shall promptly give notice of such sale or transfer to the Administrative Agent;
(b) the net proceeds of such sale or transfer are at least equal to the fair
value (as determined in good faith by a resolution of such Credit Party's board
of directors, a copy of which has been delivered by the Credit Party to the
Administrative Agent) of the property which is the subject of such sale or
transfer; and (c) such Credit Party shall apply, within 365 days after the
effective date of such sale or transfer, or shall have committed within one year
after such effective date to apply, an amount at least equal to the net proceeds
of the sale or transfer of the property which is the subject of such sale or
transfer to (A) the repayment of the Loans or (B) the repayment of other
Indebtedness owing by any Credit Party or (C) the purchase of property by such
Credit Party substantially similar to the property that was the subject of such
sale or transfer or (D) in part to such repayment and in part to such purchase
or property; provided, however, that if such Credit Party commits to apply an
amount at least equal to the net proceeds of a sale or transfer to the repayment
of the Loans, the repayment of other Indebtedness or the purchase of property,
such commitment shall be made in a written instrument delivered by such Credit
Party to the Administrative Agent and shall require such Credit Party to so
apply said amount within 18 months after the effective date of such sale or
transfer, and it shall constitute a breach of the provisions of this Section 8.6
if such Credit Party shall fail so to apply said amount in satisfaction of such
commitment.
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8.7 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will make any Investments except for Permitted
Investments.
8.8 RESTRICTED PAYMENTS.
No Credit Party will, directly or indirectly, use proceeds of Loans to
pay dividends or make any other distribution (excluding repurchases of shares of
Capital Stock) upon any shares of its Capital Stock of any class.
8.9 TRANSACTIONS WITH AFFILIATES.
No Credit Party will enter into any material transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will (a) change its fiscal year or (b) in any manner
that would reasonably be likely to adversely affect the rights of the Lenders,
change its articles or certificate of incorporation or its bylaws, except as
permitted by Section 8.4.
8.11 NO LIMITATIONS.
No Credit Party will directly or indirectly, create or otherwise cause,
incur, assume, suffer or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Person to (a)
pay dividends or make any other distribution on any of such Person's Capital
Stock, (b) pay any Indebtedness owed to any other Credit Party, (c) make loans
or advances to any other Credit Party or (d) transfer any of its property to any
other Credit Party, except for encumbrances or restrictions existing under or by
reason of (i) customary non-assignment or net worth provisions in any lease
governing a leasehold interest, (ii) any agreement or other instrument of a
Person existing at the time it becomes a Subsidiary of a Credit Party; provided
that such encumbrance or restriction is not applicable to any other Person, or
any property of any other Person, other than such Person becoming a Subsidiary
of a Credit Party and was not entered into in contemplation of such Person
becoming a Subsidiary of a Credit Party, and (iii) this Credit Agreement and the
other Credit Documents.
8.12 NO OTHER NEGATIVE PLEDGES.
No Credit Party will enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether
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now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation except as set forth in
the Credit Documents.
8.13 OTHER INDEBTEDNESS.
No Credit Party will, if any Event of Default has occurred and is
continuing or would be directly or indirectly caused as a result thereof, (a)
with respect to any Indebtedness (other than the Indebtedness under the Credit
Documents) of such Credit Party, shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto or change any subordination
provision thereof or (b) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment, redemption, acquisition for value
or defeasance of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Indebtedness (other than
the Indebtedness under the Credit Documents) of such Credit Party.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence, and during the
continuation, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the payment (i)
when due of any principal of any of the Loans or (ii) within five
Business Days of when due of any interest on the Loans or any fees or
other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.10 or 8.1 through 8.13 inclusive;
(ii) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.1,
7.3, 7.5 or 7.11 and such default shall continue unremedied
for a period of five Business Days after the earlier of a
Credit
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Party becoming aware of such default or notice thereof given
by the Administrative Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) of this Section
9.1) contained in this Credit Agreement and such default shall
continue unremedied for a period of at least 30 days after the
earlier of a Credit Party becoming aware of such default or
written notice thereof given by the Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of a
Credit Party becoming aware of such default or written notice thereof
given by the Administrative Agent, or (ii) any Credit Document shall
fail to be in full force and effect or any Credit Party shall so assert
or any Credit Document shall fail to give the Administrative Agent and
the Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby.
(e) Guaranties. The guaranty given by any Credit Party
hereunder or by any Additional Credit Party hereafter or any provision
thereof shall cease to be in full force and effect, or any Guarantor
thereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following:
(i) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit Party
or any of its Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of its affairs; or (ii) an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect is commenced against any Credit Party or any
of its Subsidiaries and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its
Subsidiaries shall admit in writing its inability to pay its debts
generally as they become due or any action shall be taken by such
Person in furtherance of any of the aforesaid purposes.
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(g) Defaults under Other Agreements.
(i) A Credit Party shall default in the due
performance or observance (beyond the applicable grace period
with respect thereto) of any material obligation or condition
of any contract or lease material to the Credit Parties taken
as a whole to which it is a party or by which it or its
property is bound; or
(ii) With respect to any Indebtedness of a Credit
Party the principal amount of which is in excess of $10
million (other than Indebtedness outstanding under this Credit
Agreement and Non-Recourse Land Financing), (A) any such
Credit Party shall (x) default in any payment (beyond the
applicable grace period with respect thereto, if any) with
respect to any such Indebtedness, or (y) default (after giving
effect to any applicable grace period) in the observance or
performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders)
to cause (determined without regard to whether any notice or
lapse of time is required) any such Indebtedness to become due
prior to its stated maturity; (B) any such Indebtedness shall
be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment prior to the
stated maturity thereof; or (C) any such Indebtedness shall
mature and remain unpaid.
(h) Judgments. Any judgment, order, or decree (including,
without limitation, any judgment, order, or decree with respect to any
litigation disclosed pursuant to the Credit Documents) shall be entered
against any one or more of the Credit Parties involving a liability of
$25 million or more (to the extent not paid or covered by insurance
provided by a carrier who has acknowledged coverage and in any event
not including any Non-Recourse Land Financing), and such judgment,
order or decree (i) is the subject of any enforcement proceeding
commenced by any creditor or (ii) shall continue unsatisfied,
undischarged and unstayed for a period ending on the first to occur of
(A) the last day on which such judgment, order or decree becomes final
and unappealable or (B) 30 days.
(i) ERISA. The occurrence of any of the following events or
conditions: (A) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall
arise on the assets of any Credit Party, any of its Subsidiaries or any
ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination Event
shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (C) a
Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) any Credit Party, any
of its Subsidiaries or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or
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insolvency (within the meaning of Section 4245 of ERISA) of such Plan;
or (D) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit Party, any of
its Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Credit
Party, any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
and at any time thereafter unless and until such Event of Default has been
waived in writing by the Required Lenders (or the Lenders as may be required
hereunder), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Borrower, take the following
actions without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by a Credit
Party to any of the Lenders hereunder to be due whereupon the same
shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to the Lenders hereunder shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders, which notice or other action
is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
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9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent or any of the Lenders in connection with
enforcing the rights of the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent or any Lender;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder and all other obligations (other than those
obligations to be paid pursuant to clause "FOURTH" below) which shall
have become due and payable under the Credit Documents and not repaid
pursuant to clauses "FIRST" and "SECOND" above;
FOURTH, to the payment of the outstanding principal amount of
the Loans, pro rata as set forth below; and
FIFTH, to the payment of the surplus, if any, to whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints Bank of America as
Administrative Agent of such Lender to act as specified herein and in the other
Credit Documents, and each such Lender hereby authorizes the Administrative
Agent, as the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Administrative
Agent shall not have any duties or responsibilities except those expressly set
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forth herein and therein or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any of the other Credit
Documents, or shall otherwise exist against the Administrative Agent. The
provisions of this Section are solely for the benefit of the Administrative
Agent and the Lenders and none of the Credit Parties shall have any rights as a
third party beneficiary of the provisions hereof. In performing its functions
and duties under this Credit Agreement and the other Credit Documents, the
Administrative Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Party or any of its Subsidiaries.
10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct) or
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by the Administrative Agent under or in connection herewith
or in connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure of
the Borrower to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower or any of its Subsidiaries in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Lenders or by or on behalf
of the Credit Parties to the Administrative Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default or to inspect the properties, books
or records of the Credit Parties. The Administrative Agent is not a trustee for
the Lenders and owes no fiduciary duty to the Lenders.
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10.4 RELIANCE ON COMMUNICATIONS.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation reasonably believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to any of the Credit Parties,
independent accountants and other experts selected by the Administrative Agent
with reasonable care). The Administrative Agent may deem and treat each Lender
as the owner of its interests hereunder for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 11.3(b). The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Credit Agreement or under any of the other Credit Documents unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or, to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Credit Party
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders and as is permitted by the Credit Documents.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent, BAS nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or any affiliate thereof hereinafter
taken, including any review of the affairs of any Credit Party or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent and BAS that it has, independently and without reliance
upon the Administrative Agent or BAS or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other conditions, prospects and creditworthiness of the Credit Parties and
made its own decision to make its Loans
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hereunder and enter into this Credit Agreement. Each Lender also represents that
it will, independently and without reliance upon the Administrative Agent or BAS
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Credit
Agreement, and to make such investigation as it deems necessary to inform itself
as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent and BAS
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Credit
Parties which may come into the possession of the Administrative Agent, BAS or
any of their officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitments (or if the Commitments have expired or been terminated, in
accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following payment in full of the
Credit Party Obligations) be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as such in any way relating to or arising
out of this Credit Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative
Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section shall survive the payment of the Credit Party Obligations and all other
amounts payable hereunder and under the other Credit Documents.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower or
any of its Subsidiaries as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to the Loans made and all
obligations owing to it, the Administrative Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though they were
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not the Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
10.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 60 days after the notice of
resignation, then the retiring Administrative Agent shall select a successor
Administrative Agent, provided such successor is an Eligible Assignee. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations as the Administrative Agent, as appropriate,
under this Credit Agreement and the other Credit Documents and the provisions of
this Section 10.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrative Agent under this Credit
Agreement. If no successor Administrative Agent has accepted appointment as
Administrative Agent within 75 days after the retiring Administrative Agent's
giving notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless become effective and the Lenders shall perform all duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor Administrative Agent as provided for above. Subject
to the foregoing terms of this Section 10.9, there shall at all times be a
Person or Persons serving as Administrative Agent hereunder.
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered in writing, (b) when transmitted via telecopy (or other facsimile
device) to the number set out below, (c) the Business Day following the day on
which the same has been delivered prepaid (or on an invoice basis) to a
reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth on Schedule 11.1, or at such other address as such
party may specify by written notice to the other parties hereto.
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the
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commencement of remedies described in Section 9.2, each Lender is authorized at
any time and from time to time, without presentment, demand, protest or other
notice of any kind (all of which rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits (general or special)
and any other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of any Credit Party or any of its
Subsidiaries against the Credit Party Obligations of such Credit Party,
irrespective of whether the Administrative Agent or the Lenders shall have made
any demand hereunder and although such Credit Party Obligations may be
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. The Credit
Parties hereby agree that any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 11.3(e) or 3.8 may exercise all rights
of set-off with respect to its participation interest as fully as if such Person
were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests (except as
permitted by Section 8.4 or 8.5) without the prior written consent of
the Lenders; and provided further that the rights of each Lender to
transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitments); provided, however, that:
(i) except in the case of an assignment to another
Lender, any such partial assignment shall be in an amount at
least equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(ii) unless the assigning Lender is assigning all of
its rights and obligations under this Credit Agreement, the
assigning Lender shall retain a Commitment of not less than
$10,000,000;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
assignment agreement in substantially
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the form of Exhibit 11.3(b) (each an "Assignment Agreement"),
together with a processing fee from the assignor or assignee
of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of taxes in accordance with Section 3.13.
By executing and delivering an Assignment Agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (A) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and the assignee
warrants that it is an Eligible Assignee; (B) except as set forth in
clause (A) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of this Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto or
the financial condition of any Credit Party or any of its Subsidiaries
or the performance or observance by any Credit Party of any of its
obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto
or thereto; (C) such assignee represents and warrants that it is
legally authorized to enter into such Assignment Agreement; (D) such
assignee confirms that it has received a copy of this Credit Agreement,
the other Credit Documents and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment Agreement; (E) such assignee will
independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Credit Agreement and the other Credit Documents; (F) such assignee
appoints and authorizes the Administrative Agent to take such action on
its behalf and to exercise such powers under this Credit Agreement or
any other Credit Document as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (G) such assignee agrees that it
will perform in accordance with their terms all the obligations which
by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
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(c) Register. The Administrative Agent shall maintain a copy
of each Assignment Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Credit Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b) hereto, (i) accept such
Assignment Agreement, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties
thereto.
(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitments and its Loans); provided, however, that (i)
such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection
provisions contained in Sections 3.9 through 3.14, inclusive, and the
right of set-off contained in Section 11.2, (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and such Lender shall retain the sole right to enforce the obligations
of the Borrower relating to its Loans and its Notes and to approve any
amendment, modification, or waiver of any provision of this Credit
Agreement (other than amendments, modifications, or waivers decreasing
the amount of principal of or the rate at which interest is payable on
such Loans or Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or Notes (other
than as a result of the extension of the Maturity Date in accordance
with the terms of Section 2.5), extending its Commitments or releasing
all or substantially all of the Guarantors) and (v) such Lender shall
provide written notice of any participation to the Borrower and the
Administrative Agent.
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
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(g) Information. Any Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.16.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower or any of its
Subsidiaries and the Administrative Agent or any Lender shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Administrative Agent or
any Lender would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) the Administrative Agent and BAS in connection with (A) the
negotiation, preparation, execution and delivery and administration of this
Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of Moore & Van Allen, PLLC, special counsel to the
Administrative Agent), and (B) any amendment, waiver or consent relating hereto
and thereto including, but not limited to, any such amendments, waivers or
consents resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Credit Parties under this Credit Agreement
and (ii) the Administrative Agent and the Lenders in connection with (A)
enforcement of the Credit Documents and the documents and instruments referred
to therein, including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party or any of its Subsidiaries and (b)
indemnify the Administrative Agent, BAS, each Lender and each of their officers,
directors, employees, representatives, Affiliates and agents from and hold each
of them harmless against any and all losses, liabilities, claims, damages or
expenses (including, without limitation, the reasonable fees and expenses of
legal counsel (including the allocated cost of internal counsel) and settlement
costs incurred by any of them as a result of, or arising out of, or in any way
related to, or by reason of, any investigation, litigation or other proceeding
(whether or not the Administrative Agent, BAS or any Lender is a party thereto)
related to (i) the entering into and/or performance of any Credit Document or
the use of proceeds of any Loans (including other Extensions of Credit)
hereunder or the consummation of any other transactions contemplated in any
Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding, (ii) any Environmental Claim, (iii) any claims
for Non-Excluded Taxes (but
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excluding in the case of (i), (ii) and (iii) above, any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
gross negligence or willful misconduct on the part of the Person to be
indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Subject to Section 11.16(b), neither this Credit Agreement nor any
other Credit Document nor any of the terms hereof or thereof may be amended,
changed, waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing and signed by the Required Lenders and
the then Credit Parties; provided that no such amendment, change, waiver,
discharge or termination shall without the consent of each Lender affected
thereby:
(a) extend the Maturity Date (other than with the consent of
the Extension Required Lenders pursuant to Section 2.5);
(b) reduce the rate or extend the time of payment of interest
thereon or fees hereunder (it being understood and agreed that a waiver
of the applicability of any post-default increase in interest rates
shall not constitute a reduction in the rate of interest for purposes
of this clause (b));
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend any Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments or any
increase in the Revolving Committed Amount pursuant to Section 2.1(e)
shall not constitute a change in the terms of any Commitment of any
Lender);
(e) except as the result of or in connection with a merger or
other disposition of a Credit Party permitted under Section 8.4, (i)
release the Borrower from its obligations under the Credit Documents or
(ii) release any Credit Party that individually or, together with any
other Credit Party previously released or to be released simultaneously
therewith, cumulatively accounts for more than 5% of Tangible Net Worth
from its obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.4(a), 3.4(b), 3.7, 3.8, 5.2, 9.1(a), 11.2, 11.3 or 11.5;
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders set forth in Section 1.1; or
(h) consent to the assignment or transfer by a Borrower or all
or substantially all of the other Credit Parties of any of its or their
rights and obligations under (or in respect of) the Credit Documents
except as permitted thereby.
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Notwithstanding the above, no provisions of Section 10 may be amended or
modified without the consent of the Administrative Agent. No provision of
Section 2.2 affecting the Swingline Loans may be amended without the consent of
Bank of America.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, and the repayment of the Loans and other obligations
and the termination of the Commitments hereunder.
11.11 GOVERNING LAW; JURISDICTION.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding
with respect to this Credit Agreement or any other Credit Document may
be brought in the courts of the State of North
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Carolina or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement, each
Credit Party hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of such
courts. Each Credit Party further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address for notices
pursuant to Section 11.1, such service to become effective 20 days
after such mailing. Nothing herein shall affect the right of a Lender
to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against a Credit Party in any
other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents, the Fee
Letter and the Mandate Letter dated June 19, 2000 from Bank of America and BAS
to the Borrower represent the entire agreement of the parties hereto and
thereto, and supersede all prior agreements and
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understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Credit Documents or the transactions contemplated
herein and therein.
11.16 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the
Borrower, the Guarantors and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrower, the Guarantors, the
Administrative Agent and each Lender and their respective successors
and assigns. Upon this Credit Agreement becoming effective the Existing
Credit Agreements shall be deemed terminated and the Credit Parties and
the lenders party to the Existing Credit Agreements shall no longer
have any obligations thereunder (other than those obligations of the
Credit Parties in the Existing Credit Agreements that expressly survive
the termination of the Existing Credit Agreements).
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, interest, fees
and other Credit Party Obligations have been paid in full and all
Commitments have been terminated. Upon termination, the Credit Parties
shall have no further obligations (other than the indemnification
provisions that survive) under the Credit Documents; provided that
should any payment, in whole or in part, of the Credit Party
Obligations be rescinded or otherwise required to be restored or
returned by the Administrative Agent or any Lender, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, then
the Credit Documents shall automatically be reinstated and all amounts
required to be restored or returned and all costs and expenses incurred
by the Administrative Agent or Lender in connection therewith shall be
deemed included as part of the Credit Party Obligations.
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
PULTE CORPORATION,
a Michigan corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
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GUARANTORS:
ABACOA HOMES, INC.,
a Florida corporation
DIVOSTA AND COMPANY, INC.,
a Florida corporation
DIVOSTA BUILDING CORPORATION,
a Florida corporation
DIVOSTA HOMES, INC.,
a Florida corporation
FLORIDA BUILDING PRODUCTS, INC.,
a Florida corporation
FLORIDA CLUB HOMES, INC.,
a Florida corporation
HAMMOCK RESERVE DEVELOPMENT
COMPANY, a Florida corporation
HOMESITE SOLUTIONS CORPORATION,
a Michigan corporation
ISLAND WALK DEVELOPMENT COMPANY,
a Florida corporation
PB VENTURE L.L.C.,
a Michigan limited liability company
PN II, INC.,
a Nevada corporation
PULTE DEVELOPMENT CORPORATION,
a Michigan corporation
PULTE DIVERSIFIED COMPANIES, INC.,
a Michigan corporation
PULTE FINANCIAL COMPANIES, INC.,
a Michigan corporation
PULTE HOME CORPORATION,
a Michigan corporation
89
PULTE HOME CORPORATION OF NEW
ENGLAND, a Michigan corporation
PULTE HOME CORPORATION OF THE
DELAWARE VALLEY, a Michigan corporation
PULTE HOMES OF GREATER KANSAS CITY,
INC., a Michigan corporation
PULTE HOMES OF MICHIGAN
CORPORATION, a Michigan corporation
PULTE HOMES OF MINNESOTA
CORPORATION, a Minnesota corporation
PULTE HOMES OF OHIO CORPORATION,
an Ohio corporation
PULTE HOMES OF SOUTH CAROLINA, INC.,
a Michigan corporation
PULTE HOMES OF TEXAS, L.P.,
a Texas limited partnership
By: PNI, INC., a Nevada corporation,
its general partner
PULTE LAND DEVELOPMENT
CORPORATION, a Michigan corporation
PULTE LIFESTYLE COMMUNITIES, INC.,
a Michigan corporation
PULTE - IN CORPORATION,
a Michigan corporation
RADNOR HOMES, INC.,
a Michigan corporation
RIVERWALK OF THE PALM BEACHES
DEVELOPMENT COMPANY, INC.,
a Florida corporation
RN ACQUISITION 2 CORP.,
a Nevada corporation
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SEAN/CHRISTOPHER HOMES, INC.,
a Michigan corporation
VILLAGE WALK DEVELOPMENT COMPANY,
INC., a Florida corporation
WIL CORPORATION, a Michigan corporation
By:
--------------------------------------
Name:
Title:
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LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and
in its capacity as the Administrative Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
92
BANK ONE, NA,
individually in its capacity as a Lender and
in its capacity as the Syndication Agent
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
93
COMERICA BANK,
individually in its capacity as a Lender and
in its capacity as the Co-Agent
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
94
SUNTRUST BANK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
95
MICHIGAN NATIONAL BANK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
96
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
97
THE FUJI BANK, LIMITED
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
98
CITICORP REAL ESTATE, INC.,
individually in its capacity as a Lender and
in its capacity as the Documentation Agent
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
99
COMPASS BANK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
100
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------