EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
among
D.R. HORTON, INC.,
Borrower
BANK OF AMERICA, N.A.,
Administrative Agent and Letter of Credit Issuer
and
LENDERS NAMED HEREIN,
Lenders
$775,000,000
DATED AS OF JANUARY 31, 2002
FLEET NATIONAL BANK
and
CREDIT LYONNAIS NEW YORK BRANCH,
Co-Syndication Agents
WACHOVIA BANK, N.A.
and
CITICORP REAL ESTATE, INC.,
Co-Documentation Agents
BNP PARIBAS
and
COMERICA BANK,
Co-Managing Agents
FLEET SECURITIES LLC
and
CREDIT LYONNAIS NEW YORK BRANCH,
Co-Arrangers
BANC OF AMERICA SECURITIES, LLC
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
<Table>
<Caption>
Page
----
ARTICLE 1 DEFINITIONS............................................................................1
1.1 Defined Terms..........................................................................1
1.2 Other Interpretive Provisions.........................................................16
1.3 Accounting Terms......................................................................17
1.4 References to Agreements and Laws.....................................................17
1.5 Time References.......................................................................17
ARTICLE 2 LOANS AND LETTERS OF CREDIT...........................................................17
2.1 Extension of Credit...................................................................17
2.2 Manner of Borrowing and Disbursement Under Loans......................................18
2.3 Interest on Loans.....................................................................19
2.4 Issuance and Administration of Letters of Credit......................................19
2.5 Fees and Commissions on Loans and Letters of Credit...................................26
2.6 Notes, Loan and Letters of Credit Accounts............................................26
2.7 Repayment of Loans and Letters of Credit..............................................27
2.8 Manner of Payment.....................................................................27
2.9 Application of Payments...............................................................28
2.10 Lenders; Increase in Total Revolving Credit Commitment................................29
2.11 Set-Off...............................................................................30
2.12 Yield Protection......................................................................31
2.13 Maximum Rate..........................................................................32
ARTICLE 3 INVENTORY AND FUNDING AVAILABILITY....................................................33
3.1 Loan Funding Availability.............................................................33
ARTICLE 4 LOAN DISBURSEMENTS AND LETTERS OF CREDIT..............................................35
4.1 Prior to the First Disbursement or Letter of Credit...................................35
4.2 All Disbursements and Letters of Credit...............................................36
ARTICLE 5 REPRESENTATIONS AND WARRANTIES........................................................37
5.1 Existence, Qualification and Power; Compliance with Laws..............................37
5.2 Authorization; No Contravention.......................................................37
5.3 Binding Effect........................................................................37
5.4 No Default............................................................................38
5.5 Taxes.................................................................................38
5.6 Hazardous Materials...................................................................38
5.7 Litigation............................................................................38
5.8 Full Disclosure.......................................................................38
5.9 Financial Statements..................................................................38
5.10 Insurance.............................................................................38
5.11 Compliance with Laws..................................................................39
5.12 Regulation U..........................................................................39
ARTICLE 6 AFFIRMATIVE COVENANTS.................................................................39
6.1 Payment...............................................................................39
6.2 Performance...........................................................................39
6.3 Additional Information................................................................39
</Table>
REVOLVING CREDIT AGREEMENT
-ii-
<Table>
6.4 Quarterly Financial Statements and Other Information..................................39
6.5 Compliance Certificates...............................................................39
6.6 Annual Financial Statements and Information; Certificate of No Default................39
6.7 Financial and Inventory Covenants.....................................................40
6.8 Payment of Contractors................................................................40
6.9 Inspection and Appraisal..............................................................41
6.10 Hazardous Materials...................................................................41
6.11 Insurance.............................................................................41
6.12 Reportable Event......................................................................41
6.13 Notices...............................................................................41
6.14 Preservation of Existence, Etc........................................................42
6.15 Compliance with Applicable Laws.......................................................42
ARTICLE 7 NEGATIVE COVENANTS....................................................................42
7.1 Hazardous Materials...................................................................42
7.2 Secured Indebtedness..................................................................42
7.3 Investments...........................................................................42
7.4 Fundamental Changes...................................................................43
ARTICLE 8 DEFAULT AND REMEDIES..................................................................43
8.1 Defaults..............................................................................43
8.2 Remedies..............................................................................45
8.3 Waivers...............................................................................46
8.4 Cross-Default.........................................................................46
8.5 No Liability of Lenders...............................................................47
8.6 Indemnification.......................................................................47
ARTICLE 9 ADMINISTRATIVE AGENT..................................................................49
9.1 Appointment and Authorization of Administrative Agent.................................49
9.2 Delegation of Duties..................................................................49
9.3 Liability of Administrative Agent.....................................................50
9.4 Reliance by Administrative Agent......................................................50
9.5 Notice of Default.....................................................................50
9.6 Credit Decision; Disclosure of Information by Administrative Agent....................51
9.7 Indemnification of Administrative Agent...............................................51
9.8 Administrative Agent in its Individual Capacity.......................................51
9.9 Successor Administrative Agent........................................................52
9.10 Other Agents; Lead Managers...........................................................52
ARTICLE 10 GENERAL CONDITIONS....................................................................53
10.1 Benefit...............................................................................53
10.2 Successors and Assigns; Assignments and Participations................................53
10.3 Amendment and Waiver..................................................................55
10.4 Additional Obligations................................................................56
10.5 Jurisdiction; Venue; Service of Process; Jury Trial...................................57
10.6 Publicity.............................................................................57
10.7 Foreign Lenders.......................................................................57
10.8 Invalidation of Provisions............................................................58
10.9 Execution in Counterparts.............................................................58
10.10 Captions..............................................................................58
</Table>
REVOLVING CREDIT AGREEMENT
-iii-
<Table>
10.11 Notices...............................................................................58
10.12 Confidentiality.......................................................................59
10.13 ENTIRETY..............................................................................59
10.14 ENTIRE AGREEMENT......................................................................59
</Table>
REVOLVING CREDIT AGREEMENT
EXHIBITS
<Table>
Exhibit A - Form of Acquisition Carve Out Notice
Exhibit B - Form of Inventory Summary Report
Exhibit C - Form of Request for Advance
Exhibit D - Form of Request for Issuance of Letter of Credit
Exhibit E - Form of Quarterly Compliance Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G - Form of Note
Exhibit H - Form of Guaranty
Exhibit I - Form of Letter of Credit Application
</Table>
SCHEDULES
<Table>
Schedule 2.1 - Revolving Credit Commitments, Commitment Ratios, and
Addresses for Notice
Schedule 4.1 - Initial Guarantors
</Table>
-iv-
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") dated as of January
31, 2002, is entered into by and among D.R. HORTON, INC., a Delaware corporation
("BORROWER"), Lenders (hereinafter defined), and BANK OF AMERICA, N.A., a
national banking association ("BANK OF AMERICA"), as Administrative Agent
(hereinafter defined) and Letter of Credit Issuer (hereinafter defined).
R E C I T A L S
A. Borrower has requested that Lenders extend credit to Borrower in the
form of this Agreement, providing for a revolving credit facility with a letter
of credit sub-facility.
B. Upon and subject to the terms and subject to the conditions of this
Agreement, Lenders are willing to extend such credit to Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ACQUISITION" means, whether by purchase, lease, exchange, issuance of
stock or other equity or debt securities, merger, reorganization, or any other
method, (a) any acquisition by Borrower or any of its Restricted Subsidiaries of
Inventory, (b) any acquisition by Borrower or any of its Restricted Subsidiaries
of any other Person, which Person shall then become a Subsidiary of Borrower or
any such Restricted Subsidiary, or (c) any acquisition by Borrower or any of its
Restricted Subsidiaries of all or any substantial part of the assets of any
other Person.
"ACQUISITION CARVE OUT NOTICE" means the written notice by Borrower in
substantially the form of EXHIBIT A, delivered to Administrative Agent and
Lenders not later than the end of the fiscal quarter following the fiscal
quarter in which an Acquisition is consummated notifying such Persons of the
election by Borrower to initiate a Financial Covenant Carve Out as a result of
such Acquisition. Contemporaneously with the delivery of an Acquisition Carve
Out Notice, Borrower shall deliver to Administrative Agent a plan of action
reflecting that Borrower will be in compliance with the covenants set forth in
SECTIONS 6.7(d) and (e) on or prior to the last day of the applicable Financial
Covenant Carve Out and failure to deliver such plan of action shall render such
Acquisition Carve Out Notice ineffective.
"ACQUISITION COST" means, with respect to any Developed Lot or Land
Parcel, (a) if such Developed Lot or Land Parcel was purchased individually, the
actual purchase price and closing costs paid by Borrower or its Restricted
Subsidiaries for the acquisition of such individual Developed Lot or Land Parcel
excluding Administrative Costs, together with all applicable Development Costs,
and (b) if such Developed Lot or Land Parcel was part of a larger group of
Developed Lots or Land Parcels, the pro rata portion of the overall actual
purchase price and closing costs paid by Borrower and its Restricted
Subsidiaries for the acquisition of such larger group of Developed Lots or Land
Parcels allocable to the subject Developed Lot or Land Parcel excluding
Administrative Costs, together with a pro rata portion of all applicable
Development Costs.
REVOLVING CREDIT AGREEMENT
"ACQUISITION SUSPENSION PERIOD" means the period commencing on the date
of delivery by Borrower to Administrative Agent and Lenders of an Acquisition
Carve Out Notice and shall continue until the last day of the third (3rd) fiscal
quarter immediately following the fiscal quarter in which the Acquisition giving
rise to such Acquisition Carve Out Notice was consummated.
"ADJUSTED TANGIBLE NET WORTH" means, with respect to Borrower and its
Restricted Subsidiaries on a consolidated basis, as of any date, the sum of (a)
Tangible Net Worth, and (b) the least of (i) fifty percent (50%) of the
aggregate principal amount of all then outstanding Subordinated Indebtedness of
Borrower and its Restricted Subsidiaries having a maturity date later than one
(1) year following the Maturity Date, (ii) twenty percent (20%) of Tangible Net
Worth, and (iii) $200,000,000.
"ADMINISTRATIVE AGENT" means Bank of America and its permitted
successors as "Administrative Agent" for Lenders under this Agreement.
"ADMINISTRATIVE COSTS" means costs and expenses incurred by Borrower or
its Restricted Subsidiaries in connection with (a) the marketing and selling of
Inventory which is part of the Loan Inventory, and (b) the administration,
management, and operation of Borrower's and its Restricted Subsidiaries'
businesses (excluding, without limitation, Interest Expense and fees payable
hereunder).
"ADVANCE" OR "ADVANCES" means amounts advanced by Lenders to Borrower
pursuant to ARTICLE 2 on the occasion of any borrowing or in connection with
draws under Letters of Credit.
"AFFILIATE" means any Person (other than a Person whose sole
relationship with Borrower is as an employee) directly or indirectly
controlling, controlled by, or under common control with Borrower. For purposes
of this definition, "control" when used with respect to any Person means the
direct or indirect beneficial ownership of more than twenty percent (20%) of the
voting securities or voting equity or partnership interests, of such Person or
the power to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"AGENT-RELATED PERSONS" means Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as Administrative Agent, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"AGREEMENT" is defined in the preamble.
"AGREEMENT DATE" means January 31, 2002.
"APPLICABLE LAW" means, with respect to any Person, all laws and
provisions of constitutions, statutes, rules, regulations, and orders of
governmental bodies or regulatory agencies applicable to such Person, including,
without limitation, all orders and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by which it
is bound.
"APPLICABLE MARGIN" means, on any date of determination, the percentage
per annum set forth in the table below for a Loan, a Letter of Credit, or an
Unused Commitment Fee (as the case may be) that corresponds to the Leverage
Ratio or the Debt Rating, as applicable, at such date of determination, as
calculated based on the quarterly compliance certificate of Borrower most
recently delivered pursuant to SECTION 6.5 or the notice delivered by Borrower
pursuant to SECTION 6.13, as applicable (and in each case as further set forth
in this definition):
REVOLVING CREDIT AGREEMENT
- 2 -
Applicable Margin
<Table>
<Caption>
Pricing Eurodollar Letters of Unused
Level Leverage Ratio Rate Base Rate Credit Commitment Fee
----- -------------- ---- --------- ------ --------------
1 Less than 1.0:1 1.225% 0.00% 1.00% 0.20%
2 Greater than or 1.425% 0.00% 1.25% 0.25%
equal to 1.0:1
but less than
1.25:1
3 Greater than or 1.625% 0.00% 1.25% 0.25%
equal to 1.25:1
but less than
1.50:1
4 Greater than or 1.825% 0.00% 1.50% 0.30%
equal to 1.50:1
but less than
1.75:1
5 Greater than or 2.125% 0.50% 2.00% 0.35%
equal to 1.75:1
</Table>
Initially, the Applicable Margin shall be set at LEVEL 3. Upon delivery of the
compliance certificate pursuant to SECTION 6.5, after the end of each fiscal
quarter (commencing with the compliance certificate delivered for the fiscal
quarter ending March 31, 2002), the Applicable Margin shall automatically be
adjusted to the rate corresponding to the Leverage Ratio set forth in the table
above, such automatic adjustment to take effect on the last day that the
compliance certificate was required to be delivered, and shall remain in effect
until subsequently adjusted in accordance herewith upon the delivery of each
such subsequent compliance certificate. If Borrower fails to deliver such
compliance certificate with respect to any fiscal quarter within the period of
time required by SECTION 6.5, then the Applicable Margin shall automatically be
adjusted to that set forth in LEVEL 5 until Borrower delivers such compliance
certificate with respect to such fiscal quarter. Notwithstanding the foregoing,
(a) for so long as Borrower maintains an Investment Grade Rating from any two
(2) of Moody's, S&P, and Fitch, the Applicable Margin shall be set at LEVEL 1,
and (b) at all times while an Event of Default exists, the Applicable Margin
shall be set at LEVEL 5.
"APPLICABLE RATE" means, as of any date, the sum of (a) the Eurodollar
Rate, and (b) the Applicable Margin; provided that, if Administrative Agent
reasonably determines that no basis exists to determine the Eurodollar Rate,
then the Applicable Rate shall be the sum of (i) the Base Rate, and (ii) the
Applicable Margin.
"ARRANGER" means Banc of America Securities, LLC, in its capacity as
sole lead arranger and sole book manager.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement substantially in the form of EXHIBIT F.
REVOLVING CREDIT AGREEMENT
- 3 -
"AUTHORITY DOCUMENTS" means, as to Borrower or any Restricted
Subsidiary, the bylaws, the limited liability company agreement, or the
partnership agreement (as applicable) of such Person, and all amendments
thereto.
"AUTHORIZED SIGNATORY" means, with respect to Borrower or any
Guarantor, such personnel of Borrower or such Guarantor as set forth in an
incumbency certificate of Borrower or such Guarantor delivered to Administrative
Agent on the Agreement Date (or any duly executed incumbency certificate
delivered after the Agreement Date) and certified therein as being duly
authorized by Borrower or such Guarantor to execute documents, agreements, and
instruments on behalf of Borrower or such Guarantor.
"AVAILABLE LOAN COMMITMENT" means, as of any date of determination, an
amount equal to (a) if Borrower has an Investment Grade Rating from any two (2)
of Moody's, S&P, and Fitch, then the Total Revolving Credit Commitment, and (b)
if Borrower does not have an Investment Grade Rating from any two (2) of
Moody's, S&P, and Fitch, then the lesser of (i) the Total Revolving Credit
Commitment, and (ii) (A) the Loan Funding Availability less (B) the
then-outstanding principal balances of all Senior Unsecured Indebtedness (other
than the Obligations).
"BASE RATE" means for any day a fluctuating rate per annum equal to the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." Such rate is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions, and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"BORROWER" is defined in the preamble.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under Applicable Laws of
the State of Illinois or New York or are in fact closed in Chicago, Illinois or
New York, New York.
"CAPITAL LEASE" means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
"CASH COLLATERALIZE" means to pledge and deposit with or deliver to
Administrative Agent, for the benefit of Letter of Credit Issuer and Lenders, as
collateral for the Letter of Credit Exposure, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to Administrative
Agent and Letter of Credit Issuer (which documents are hereby consented to by
Lenders). Borrower hereby grants Administrative Agent, for the benefit of the
Letter of Credit Issuer and Lenders, a Lien on all such cash and deposit account
balances. Cash collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Administrative Agent.
"CHANGE OF CONTROL" means either: (a) any sale, lease, or other
transfer (in one transaction or a series of transactions) of all or
substantially all of the consolidated assets of Borrower and its Restricted
Subsidiaries to any Person (other than a Restricted Subsidiary of Borrower),
provided that a transaction where the holders of all classes of Common Equity of
Borrower immediately prior to such transaction own, directly or indirectly,
fifty percent (50%) or more of all classes of Common Equity of such Person
immediately after such transaction shall not be a Change of Control; (b) a
"person" or "group" within the meaning of Section 13(d) of the Exchange Act
(other than Borrower or Donald R. Horton, his wife, children, or grandchildren,
or Terrill J. Horton, or any trust or other entity formed or controlled by
Donald
REVOLVING CREDIT AGREEMENT
- 4 -
R. Horton, his wife, children, or grandchildren, or Terrill J. Horton) becomes
the "beneficial owner" (as defined in Rule 13d-8 under the Exchange Act) of
Common Equity of Borrower representing more than fifty percent (50%) of the
voting power of the Common Equity of Borrower; (c) Continuing Directors cease to
constitute at least a majority of the Board of Directors of Borrower; or (d) the
stockholders of Borrower approve any plan or proposal for the liquidation or
dissolution of Borrower, provided that a liquidation or dissolution of Borrower
which is part of a transaction that does not constitute a Change of Control
under the proviso contained in clause (a) above shall not constitute a Change of
Control.
"CLOSED SALES" means, for any calculation period, sales of Developed
Lots containing Dwellings which have been closed by Borrower and all Restricted
Subsidiaries (other than any sale, transfer, or other such disposition between
(x) Borrower and any Subsidiary or (y) any two or more Subsidiaries). Closed
Sales shall include Developed Lots containing Dwellings owned by any Person
which is or becomes a Restricted Subsidiary before or after the Agreement Date
for which sales have closed during the applicable calculation period. Closed
Sales shall include closings attributable to acquisitions by Borrower and/or by
its Restricted Subsidiaries or when substantially all assets owned by any Person
were acquired by Borrower and/or Restricted Subsidiaries before or after the
Agreement Date.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT RATIOS" means, for each Lender, on any date of
determination, the proportion which the portion of the aggregate amount of such
Lender's Revolving Credit Commitment then in effect under this Agreement bears
to the Total Revolving Credit Commitment then in effect.
"COMMITMENT USAGE" means, as of any date of determination thereof and
without duplication, the sum of (a) the outstanding principal amount of all
Loans as of such date, plus (b) the Letter of Credit Exposure as of such date.
"COMMON EQUITY" means, with respect to any Person, capital stock of
such Person that is generally entitled to (a) vote in the election of directors
of such Person, or (b) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers, or
others that will control the management or policies of such Person.
"CONSTRUCTION COSTS" means, as of any date, all costs actually incurred
by Borrower or its Restricted Subsidiaries with respect to the construction of a
Dwelling as of such date, excluding (a) projected costs, (b) costs for materials
or labor not yet delivered to, provided to, or incorporated into such Dwelling,
and (c) Administrative Costs.
"CONTINUING DIRECTOR" means a director who either was a member of the
board of directors of Borrower on the Agreement Date or who became a director of
Borrower subsequent to such date and whose election, or nomination for election
by Borrower's stockholders, was duly approved by a majority of the Continuing
Directors on the board of directors of Borrower at the time of such approval,
either by a specific vote or by approval of the proxy statement issued by
Borrower on behalf of the entire board of directors of Borrower in which such
individual is named as nominee for a director.
"CURRENT FINANCIALS" means, at the time of any determination thereof,
the most recently delivered to Administrative Agent of either (a) the financial
statements for the fiscal year ended September 30, 2001, calculated on a
consolidated basis for Borrower and its Subsidiaries, or (b) the Financial
Statements required to be delivered under SECTIONS 6.4 or 6.6, as the case may
be.
REVOLVING CREDIT AGREEMENT
- 5 -
"CUSTOMARY RECOURSE EXCEPTIONS" means, with respect to any Non-Recourse
Indebtedness, exclusions from the exculpation provisions with respect to such
Non-Recourse Indebtedness for fraud, misapplication of cash, environmental
claims, and other circumstances customarily excluded by institutional lenders
from exculpation provisions and/or included in separate indemnification
agreements in non-recourse financings of real estate.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Applicable Laws from
time to time in effect affecting the rights and remedies of creditors generally.
"DEBT RATING" means, as of any date of determination, the rating as
determined by S&P, Moody's, or Fitch (collectively, the "DEBT RATINGS") of
Borrower's non-credit-enhanced, senior unsecured long-term debt.
"DEFAULT" means any event specified in SECTION 8.1 and any other event
which with any passage of time or giving of notice (or both) would constitute an
Event of Default.
"DEFAULTING LENDER" means, as of any date, any Lender that has (a)
failed to make a Loan required to be made by it hereunder, or (b) given notice
to Administrative Agent or Borrower that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Loan hereunder (unless
such notice is given by all Lenders).
"DEFAULT RATE" means a simple per annum interest rate equal to the sum
of (a) the Applicable Rate, plus (b) two percent (2.00%).
"DEVELOPED LOTS" means subdivision lots wholly-owned by Borrower or its
Restricted Subsidiaries, subject to a recorded plat and which are in substantial
compliance with all Applicable Laws and are suitable for the construction
thereon of foundations for a Dwelling, which Borrower has designated to be
included and are included as "Developed Lots" in the calculation of the Loan
Funding Availability (exclusive of any Dwelling Lot). An individual Developed
Lot is sometimes referred to herein as a "DEVELOPED LOT."
"DEVELOPMENT COSTS" means, as of any date, all costs actually incurred
by Borrower and its Restricted Subsidiaries with respect to the development of a
Land Parcel into a Developed Lot or Developed Lots as of such date, excluding
(a) projected costs, (b) costs for materials or labor not yet delivered to,
provided to or incorporated into such parcel of land, and (c) Administrative
Costs.
"DWELLING" means a house which Borrower or any Restricted Subsidiary
has constructed or is constructing on a Developed Lot which has been designated
as a Dwelling Lot.
"DWELLING LOTS" means Developed Lots with Dwellings which Borrower or
any Restricted Subsidiary has designated to be included and are included as
"Dwelling Lots" in the calculation of the Loan Funding Availability. The term
"Dwelling Lot" includes the Dwelling located thereon. An individual Dwelling Lot
is sometimes referred to herein as a "DWELLING LOT."
"EBITDA" means, for Borrower and its Restricted Subsidiaries for the
twelve (12) month period ending on any date of determination, an amount equal to
(a) consolidated net income for such period, plus (b) cash dividends from
Unrestricted Subsidiaries paid to Borrower during such period, minus (c) gains
from extraordinary items for such period, to the extent included in the
calculation of consolidated net
REVOLVING CREDIT AGREEMENT
- 6 -
income for such period in accordance with GAAP, but without duplication, plus
(d) the sum of (i) any provision for income taxes for such period, (ii) Interest
Expense deducted in the calculation of consolidated net income for such period
in accordance with GAAP (including, without duplication, previously capitalized
Interest Expense which would be included in "cost of goods sold" and deducted
from consolidated revenues in determining consolidated net income), (iii) the
amount of depreciation and amortization for such period, and (iv) the amount of
any item of extraordinary loss not paid in cash in such period, in each case to
the extent included in the calculation of consolidated net income for such
period in accordance with GAAP, but without duplication. In the case of any
Subsidiary of Borrower that becomes a Restricted Subsidiary during any period of
calculation, EBITDA shall, for the purposes of the foregoing calculations, be
adjusted by increasing, if positive, or decreasing, if negative, EBITDA by the
EBITDA of such Subsidiary during such period of calculation occurring prior to
the date such Subsidiary became a Restricted Subsidiary.
"ELIGIBLE ASSIGNEE" means: (a) a Lender; (b) an Affiliate of a Lender;
and (c) any other Person (other than a natural Person) approved by
Administrative Agent, the Letter of Credit Issuer, and, unless an Event of
Default has occurred and is continuing, Borrower (each such approval not to be
unreasonably withheld or delayed).
"ENVIRONMENTAL LAW" means any Applicable Law relating to protection of
the public health and/or the environment, including any Applicable Law relating
to: the generation, processing, treatment, storage, transport, disposal,
investigation, and remediation or other management of Hazardous Materials; the
storage, handling, use, and transport of chemicals and Hazardous Materials; and
protection of areas of particular environmental concern, including wetlands,
areas inhabited by endangered species, historic sites, and areas above protected
aquifers.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect on the Agreement Date and as such Act may be amended thereafter from
time to time.
"ERISA AFFILIATE" means (a) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as is Borrower, (b) any other trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Code) with Borrower, (c) any other corporation, partnership, or other
organization which is a member of an affiliated service group (within the
meaning of Section 414(m) of the Code) with Borrower, or (d) any other entity
required to be aggregated with Borrower pursuant to regulations under Section
414(o) of the Code.
"EURODOLLAR RATE" means, for any date of determination:
(a) the rate of interest per annum equal to the three (3) month London
Interbank Offered Rate for deposits in United States Dollars (rounded to two (2)
decimal places), which interest rate is set forth in the "Money Rates" section
of The Wall Street Journal on the next Business Day following such date of
determination;
(b) if Administrative Agent determines that the rate referenced in the
preceding SUBSECTION (a) is not available, then the rate per annum equal to the
rate determined by Administrative Agent on such date of determination to be the
offered rate that appears on Telerate Page 3747 (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in United States Dollars (for delivery on such date of determination)
with a term equivalent to three (3) months; or
REVOLVING CREDIT AGREEMENT
- 7 -
(c) if Administrative Agent determines that the rates referenced in the
preceding SUBSECTIONS (a) or (b) cease to be available, then the rate per annum
equal to the rate determined by Administrative Agent on such date of
determination to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement Rate for
deposits in United States Dollars (for delivery on such date of determination)
with a term equivalent to three (3) months.
"EVENT OF DEFAULT" means any of the events specified in SECTION 8.1,
provided that any requirement of passage of time or giving of notice (or both)
has been satisfied.
"EVERGREEN LETTER OF CREDIT" is defined in SECTION 2.4(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING AGREEMENT" means that Amended and Restated Master Loan and
Intercreditor Agreement, dated as of July 1, 1999, among D.R. Horton, Inc., as
borrower, Bank of America, N.A., as administrative agent, the Issuing Bank
defined therein, and the Banks defined therein.
"FEE LETTER" means the letter agreement dated October 5, 2001, executed
by Borrower, Administrative Agent, and Arranger, as modified, amended, renewed,
extended, and restated from time to time.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks 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 as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Administrative Agent (in its
individual capacity) on such day on such transactions as determined by
Administrative Agent (which determination shall be conclusive and binding,
absent manifest error).
"FINANCIAL COVENANT CARVE OUT" means that Borrower's compliance with
either SECTIONS 6.7(d) and (e) during any Acquisition Suspension Period shall be
suspended; provided, however, that there shall be no more than one Financial
Covenant Carve Out in any period of twenty-four (24) consecutive calendar months
beginning with the month in which the Financial Covenant Carve Out was elected,
and provided, further, however, that no Financial Covenant Carve Out shall
commence unless Borrower was in compliance with all covenants for not less than
one full fiscal quarter immediately preceding any such Financial Covenant Carve
Out Notice. No covenants other than SECTIONS 6.7(d) and (e) shall be suspended
during a Financial Covenant Carve Out.
"FINANCIAL HEDGES" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and
REVOLVING CREDIT AGREEMENT
- 8 -
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a
"MASTER AGREEMENT"), including any such obligations or liabilities under any
Master Agreement.
"FITCH" means Fitch IBCA, Duff & Phelps, a division of Fitch, Inc., or
any successor thereto.
"FITCH RATING" means at any time, with respect to any Person, the
rating in effect at such time assigned by Fitch.
"FIXED CHARGES" means the aggregate consolidated Interest Incurred by
Borrower and its Restricted Subsidiaries plus scheduled amortization plus
preferred dividends for the most recently completed four (4) fiscal quarters for
which results have been reported to Lenders.
"FORCE MAJEURE DELAY" means a delay to the development of a Lot Under
Development or a delay to the construction of a Dwelling which is caused by
fire, earthquake, or other Acts of God, strike, lockout, acts of public enemy,
riot, insurrection, or governmental regulation of the sale or transportation of
materials, supplies, or labor, provided that Borrower furnishes Administrative
Agent with written notice of any such delay within ten (10) days from the
commencement of any such delay and provided that the period of the Force Majeure
Delay shall not exceed the period of delay caused by such event.
"FRONTING FEE" means, with respect to any Letter of Credit, an amount
equal to the greater of (a) $200, and (b) an amount equal to 0.125% times the
stated amount of such Letter of Credit.
"FUNDING PERIOD" means a period commencing on the day immediately
following the date that the Loan Funding Availability is established pursuant to
SECTION 3.1(c) by Administrative Agent and ending on the date that the Loan
Funding Availability next is established pursuant to SECTION 3.1(c) by
Administrative Agent.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which (a) with respect to the covenants
contained in SECTION 6.7 (and, to the extent used in or relating to such
covenants, any defined terms), are in effect on the date hereof, and (b) for all
other purposes hereunder, are applicable from time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of or pertaining
to government.
"GUARANTORS" means, as of any date, each Restricted Subsidiary of
Borrower that has executed the Subsidiary Guaranty and that has not been
released therefrom in accordance with SECTION 3.1(f). As of the Agreement Date,
the Restricted Subsidiaries listed on SCHEDULE 4.1 are Guarantors that have
executed the Subsidiary Guaranty.
"HAZARDOUS MATERIAL" means "hazardous substance," "pollutant or
contaminant," and "petroleum," and "natural gas liquids" as those terms are
defined or used in Section 101 of CERCLA, and any other substances regulated
because of their effect or potential effect on public health and the environment
including PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials,
putrescible materials, and infectious materials.
REVOLVING CREDIT AGREEMENT
- 9 -
"HONOR DATE" is defined in SECTION 2.4(c).
"INDEBTEDNESS" means (without duplication), for any Person, the sum of
the following: (a) all liabilities, obligations, and indebtedness of such Person
for money borrowed; (b) all liabilities, obligations, and indebtedness of such
Person which are evidenced by bonds, notes, debentures, or other similar
instruments, or by Capital Leases; (c) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts and accruals payable arising in the ordinary course of business
that are not past-due for more than ninety (90) days); (d) the face amount of
all letters of credit and banker's acceptances issued for the account of such
Person, and without duplication, all drafts drawn and unpaid thereunder; (e) all
capital stock of such Person subject to repurchase or redemption other than at
the sole option of such Person; (f) all net obligations under all Financial
Hedges determined in accordance with GAAP; (g) all other liabilities or
obligations of such Person that would be classified as "indebtedness" on the
balance sheet of such Person determined in accordance with GAAP; and (h) all
obligations of the type referred to in CLAUSES (a) through (g) preceding of
other Persons that is either (i) guaranteed in any manner by such Person or (ii)
secured by any Lien on any property or asset of such Person (but only to the
extent of the value of such property or asset if such obligation has not been
assumed by such Person); provided that the amount of Indebtedness as of any date
shall exclude the face amount of all undrawn outstanding Performance Letters of
Credit.
"INDEMNIFIED LIABILITIES" is defined in SECTION 8.6(b).
"INDEMNIFIED PARTIES" is defined in SECTION 8.6(b).
"INTEREST EXPENSE" means, for any period, the interest expense of
Borrower and its Restricted Subsidiaries calculated on a consolidated basis for
such period in accordance with GAAP.
"INTEREST INCURRED" means, for any period, the aggregate amount
(without duplication and determined in each case in accordance with GAAP) of
interest incurred, whether such interest was expensed or capitalized, paid,
accrued, or scheduled to be paid or accrued by Borrower and its Restricted
Subsidiaries during such period, including (a) original issue discount and
non-cash interest payments or accruals on any Indebtedness, (b) the interest
portion of all deferred payment obligations, and (c) all commissions, discounts,
and other fees and charges owed with respect to bankers' acceptances and letter
of credit financings and Financial Hedges, in each case to the extent
attributable to such period. For purposes of this definition, (i) interest on
any obligations arising under Capital Leases shall be deemed to accrue at an
interest rate reasonably determined by Borrower to be the rate of interest
implicit in such obligations in accordance with GAAP, and (ii) interest expense
attributable to any Indebtedness represented by the guaranty of an obligation of
another Person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
"INVENTORY" means all real and personal property, improvements, and
fixtures wholly-owned by Borrower or its Restricted Subsidiaries, including but
not limited to all Land Parcels, Lots Under Development, Development Lots, and
Dwelling Lots (but excluding any of the foregoing that is not owned by Borrower
or a Restricted Subsidiary but is under a purchase option in favor of Borrower
or a Restricted Subsidiary).
"INVENTORY SUMMARY REPORT" means the monthly written summary of the
Loan Inventory, in substantially the form of EXHIBIT B, to be prepared by
Borrower and submitted to Administrative Agent in accordance with SECTION
3.1(b).
REVOLVING CREDIT AGREEMENT
- 10 -
"INVESTMENT GRADE RATING" means a Debt Rating of BBB-, Baa3, or BBB-
(as applicable) (or, if such Debt Ratings are no longer considered "investment
grade" in United States securities markets, then such other ratings at such time
as Administrative Agent shall reasonably determine constitute "investment
grade") from S&P, Moody's, or Fitch, respectively.
"LAND PARCELS" means parcels of land wholly-owned by Borrower or its
Restricted Subsidiaries which are, as of the date of determination, not
scheduled for commencement of development into Developed Lots during the six (6)
calendar months immediately following such date of determination and which
Borrower has designated as "Land Parcels." An individual Land Parcel is
sometimes referred to as a "LAND PARCEL."
"LENDER REPLY PERIOD" is defined in SECTION 10.3(f).
"LENDERS" means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 (as the same may be amended from time to time
by Administrative Agent to reflect the addition of new Lenders pursuant to
SECTION 2.10(b) and to reflect the assignments made in accordance with SECTION
10.2), and subject to the terms and conditions of this Agreement, and their
respective successors and permitted assigns.
"LETTERS OF CREDIT" means the letters of credit issued hereunder in the
form agreed upon among Borrower, Letter of Credit Issuer, and the beneficiary
thereof at the time of issuance thereof and participated in by Lenders pursuant
to the terms and conditions of SECTION 2.4. An individual Letter of Credit is
sometimes referred to as a "LETTER OF CREDIT."
"LETTER OF CREDIT ADVANCE" means, with respect to each Lender, the
funding of such Lender's participation in any Letter of Credit Borrowing in
accordance with its Commitment Ratio.
"LETTER OF CREDIT APPLICATION" means a letter of credit application and
agreement in the form of EXHIBIT I (or otherwise in form and substance
satisfactory to Administrative Agent) submitted by Borrower to Letter of Credit
Issuer for a Letter of Credit for its own account.
"LETTER OF CREDIT BORROWING" means an extension of credit resulting
from a drawing under any Letter of Credit that has not been reimbursed on the
date when made or refinanced by a Loan.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven (7) days
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"LETTER OF CREDIT EXPOSURE" means, at any time and without duplication,
the sum of (a) the aggregate undrawn portion of all uncancelled and unexpired
Letters of Credit, plus (b) the aggregate unpaid reimbursement obligations of
Borrower in respect of drawings of drafts under all Letters of Credit.
"LETTER OF CREDIT ISSUER" means Bank of America and it permitted
successors as "Letter of Credit Issuer" under this Agreement.
"LETTER OF CREDIT SUBFACILITY" means a subfacility for the issuance of
Letters of Credit, as described in and subject to the limitations of SECTION
2.4.
"LETTER OF CREDIT SUBLIMIT" means an amount equal to the lesser of (a)
$125,000,000, and (b) the Total Revolving Credit Commitment. The Letter of
Credit Sublimit is part of, and not in addition to, the Total Revolving Credit
Commitment.
REVOLVING CREDIT AGREEMENT
- 11 -
"LEVERAGE RATIO" means, as of the last day of each fiscal quarter of
Borrower, the ratio of (a) the Net Funded Notes Payable of Borrower and its
Restricted Subsidiaries on a consolidated basis on such date to (b) Adjusted
Tangible Net Worth of Borrower and its Restricted Subsidiaries on a consolidated
basis on such date.
"LIEN" means, with respect to any property, any mortgage, lien, pledge,
assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment, or other encumbrance of any kind in
the nature of any of the foregoing in respect of such property, whether or not
choate, vested, or perfected.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Subsidiary
Guaranty, and any and all other documents evidencing the Notes or the Letters of
Credit or executed in connection therewith as the same may be amended,
substituted, replaced, extended or renewed from time to time.
"LOAN FUNDING AVAILABILITY" means the amount of Senior Unsecured
Indebtedness which Borrower may incur as established pursuant to SECTION 3.1, at
any applicable time, by Administrative Agent based on the Loan Inventory.
"LOAN INVENTORY" means Lots Under Development, Developed Lots, and
Dwelling Lots which are not encumbered by a Lien or Liens (other than any
Permitted Encumbrance) and which have been designated by Borrower as "Loan
Inventory" to be utilized for the purpose of calculating the Loan Funding
Availability.
"LOANS" means, collectively, amounts advanced by Lenders to Borrower
under the Total Revolving Credit Commitment pursuant to the terms of this
Agreement and evidenced by the Notes. An individual Loan is sometimes referred
to as a "LOAN."
"LOTS UNDER DEVELOPMENT" means Land Parcels which are, as of the date
of determination, being developed into Developed Lots or which are scheduled for
the commencement of development into Developed Lots within six (6) calendar
months after the date of determination, and which Borrower has designated to be
included and are included as "Lots Under Development" in the calculation of the
Loan Funding Availability. An individual Lot Under Development is sometimes
referred to as a "LOT UNDER DEVELOPMENT."
"MATERIAL ADVERSE EVENT" means any set of one or more circumstances or
events which, individually or collectively, would result in any (a) material
impairment of the ability of Borrower or any Guarantor to perform any of its
payment or other material obligations under the Loan Documents, (b) material and
adverse effect on the business, properties, condition (financial or otherwise),
results of operations, or prospects of Borrower and its Subsidiaries, taken as a
whole, or (c) material and adverse effect on the validity or enforceability of
any of the Loan Documents or the rights and remedies of Administrative Agent,
Letter of Credit Issuer, or any Lender thereunder.
"MATURITY DATE" means January 31, 2006, or such earlier date as payment
of the Loans and the Letter of Credit Exposure shall be due (whether by
acceleration or otherwise).
"MAXIMUM RATE" means, for each Lender, the maximum non-usurious rate of
interest which, under all Applicable Laws, such Lender is permitted to contract
for, charge, take, reserve, or receive on the Obligations. If the Applicable
Laws of the State of Texas are applicable for purposes of determining the
"Maximum Rate," then such term means the "weekly ceiling" from time to time in
effect under Texas Finance Code Section 303.001, as amended, as limited by Texas
REVOLVING CREDIT AGREEMENT
- 12 -
Finance Code Section 303.009. Borrower agrees that Chapter 346 of the Texas
Finance Code, as amended (which regulates certain revolving credit loan accounts
and revolving tri-party accounts), does not apply to the Obligations, as
amended.
"MODELS" means a Dwelling Lot containing a dwelling unit which is
designated by Borrower as a model unit for use in marketing and promoting the
sale of Dwelling Lots.
"MOODY'S" means Moody's Investors Service, Inc. and any successor
thereto.
"MOODY'S RATING" means, at any time, with respect to any Person, the
rating in effect at such time assigned by Moody's for the long term senior
unsecured debt of such Person.
"NET FUNDED NOTES PAYABLE" means, for Borrower and its Restricted
Subsidiaries as of any date, (a) the aggregate amount of all Indebtedness minus
(b) unrestricted cash and cash equivalents in excess of $50,000,000.
"NON-RECOURSE INDEBTEDNESS" means, for any Person, any Indebtedness of
such Person in which the holder of such Indebtedness may not look to such Person
personally for repayment, other than to the extent of any security therefor or
pursuant to Customary Recourse Exceptions.
"NON-RENEWAL NOTICE DATE" is defined in SECTION 2.4(b).
"NOTES" means the promissory notes executed by Borrower in the form of
EXHIBIT G, one each in favor of each Lender evidencing such Lender's pro rata
share of the Loans, as well as any promissory note or notes issued by Borrower
in substitution, replacement, extension, amendment, or renewal of any such
promissory note or notes.
"OBLIGATIONS" means (a) all payment and performance obligations of
Borrower and all other obligors to Lenders, Letter of Credit Issuer, and
Administrative Agent under this Agreement and the other Loan Documents, as they
may be amended from time to time, or as a result of making the Loans, and (b)
the obligation to pay an amount equal to the amount of any and all damages which
Borrower is obligated to pay pursuant to the Loan Documents to, or on behalf of,
Lenders, Letter of Credit Issuer, Administrative Agent, or any of them, which
they may suffer by reason of a breach by any of Borrower or any other obligor of
any obligation, covenant, or undertaking with respect to this Agreement or any
other Loan Document.
"ORGANIZATIONAL DOCUMENTS" means, as to Borrower or any Restricted
Subsidiary, the articles of incorporation, certificate of incorporation,
articles of organization, certificate of formation, or certificate of limited
partnership (as applicable) of such Person, and all amendments thereto.
"PARTICIPANT" is defined in SECTION 10.2(d).
"PERFORMANCE LETTER OF CREDIT" means any letter of credit issued: (a)
on behalf of a Person in favor of a Governmental Authority, including, without
limitation, any utility, water, or sewer authority, or other similar entity, for
the purpose of assuring such Governmental Authority that such Person or an
Affiliate of such Person will properly and timely complete work it has agreed to
perform for the benefit of such Governmental Authority; (b) in lieu of cash
deposits, including, without limitation, to obtain a license, in place of a
utility deposit, or for land option contracts; or (c) in lieu of other contract
performance, including, without limitation, bid and performance bonds.
REVOLVING CREDIT AGREEMENT
- 13 -
"PERMITTED ENCUMBRANCES" means Liens, encumbrances, easements, and
other matters which are (a) in favor of Administrative Agent, Lenders, or Letter
of Credit Issuer to secure the Obligations, (b) on real estate for real estate
taxes not yet delinquent, (c) for taxes, assessments, judgments, governmental
charges or levies or claims the non-payment of which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves have been set aside on Borrower's books (but only so long as no
foreclosure, distraint sale, or similar proceedings have been commenced with
respect thereto and remain unstayed for a period of thirty (30) days after their
commencement), (d) in favor of carriers, warehousemen, mechanics, laborers, and
materialmen incurred in the ordinary course of business for sums not yet past
due or being diligently contested in good faith (if adequate reserves are being
maintained by Borrower with respect thereto), (e) incurred in the ordinary
course of business in connection with worker's compensation and unemployment
insurance, (f) easements, rights-of-way, restrictions, or similar encumbrances
on the use of real property which does not interfere with the ordinary conduct
of business of Borrower or materially detract from the value of such real
property, or (g) Liens approved in writing by Administrative Agent securing
Indebtedness of Borrower which shall be approved so long as such Liens secure
such Indebtedness and the Obligations on a pari passu basis in a manner
reasonably acceptable to Administrative Agent.
"PERSON" means an individual, corporation, partnership, limited
liability company, trust, or unincorporated organization, or a government or any
agency or political subdivision thereof.
"PLAN" means an employee benefit plan within the meaning of Section
3(3) of ERISA maintained by or contributed to by Borrower or any ERISA
Affiliate.
"RECONCILIATION DATE" means two (2) Business Days after Borrower's
receipt of notice from Administrative Agent pursuant to SECTION 3.1(d) that the
outstanding principal balance of all Senior Unsecured Indebtedness exceeds the
Loan Funding Availability.
"RECOURSE INDEBTEDNESS" means, for any Person, Indebtedness of such
Person that is not Non-Recourse Indebtedness.
"REGISTER" is defined in SECTION 10.2(c).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System.
"REPORTABLE EVENT" has the meaning set forth in Section 4043(b) of
ERISA.
"REQUEST FOR ADVANCE" means any certificate signed by an Authorized
Signatory of Borrower requesting an Advance hereunder which will increase the
aggregate amount of the Loans outstanding, which certificate shall be
denominated a "Request for Advance," and shall be in substantially the form of
EXHIBIT C. Each Request for Advance shall, among other things, (a) specify the
date of the Advance, which shall be a Business Day, (b) specify the amount of
the Advance, (c) state that there shall not exist, on the date of the requested
Advance and after giving effect thereto, a Default or an Event of Default, and
(d) state that all conditions precedent to the making of the Advance have been
satisfied.
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means any certificate signed
by an Authorized Signatory of Borrower requesting that Letter of Credit Issuer
issue a Letter of Credit hereunder, which certificate shall be in substantially
the form of EXHIBIT D. Each Request for Issuance of Letter of Credit shall,
among other things, (a) specify the stated amount of the Letter of Credit, (b)
specify the effective
REVOLVING CREDIT AGREEMENT
- 14 -
date for the issuance of the Letter of Credit (which shall be a Business Day),
(c) specify the date on which the Letter of Credit is to expire (which shall be
a Business Day), (d) specify the Person for whose benefit such Letter of Credit
is to be issued, (e) specify other relevant terms of such Letter of Credit, (f)
be accompanied by a completed Letter of Credit Application, (g) state that there
shall not exist, on the date of issuance of the requested Letter of Credit and
after giving effect thereto, a Default or an Event of Default, and (h) state
that all conditions precedent to the issuance of such Letter of Credit have been
satisfied.
"REQUIRED LENDERS" means (a) on any date of determination prior to
termination of the Total Revolving Credit Commitment, those Lenders (other than
Defaulting Lenders) holding more than sixty-six and two-thirds percent (66-2/3%)
of the Total Revolving Credit Commitment (excluding the Revolving Credit
Commitments of any Defaulting Lenders), and (b) on any date of determination
occurring after the termination of the Total Revolving Credit Commitment, those
Lenders (other than Defaulting Lenders) holding more than sixty-six and
two-thirds percent (66-2/3%) of the outstanding principal amount of all Loans
and the Letter of Credit Exposure (excluding the Loans and Letter of Credit
Exposure of any Defaulting Lenders).
"RESTRICTED SUBSIDIARY" means any Subsidiary of Borrower which has been
designated as a Restricted Subsidiary by Borrower and from which Administrative
Agent is required to receive a duly executed Subsidiary Guaranty, including,
without limitation, the Guarantors.
"REVOLVING CREDIT COMMITMENT" means, for any Lender as of any date of
determination, the amount stated beside such Lender's name on SCHEDULE 2.1 as
its "Revolving Credit Commitment," as such amount may be increased or decreased
in accordance with this Agreement.
"SENIOR UNSECURED INDEBTEDNESS" means, as of any date, all Indebtedness
(other than Subordinated Indebtedness) of Borrower and its Restricted
Subsidiaries which is not secured in whole or in part by any Lien except
Permitted Encumbrances (excluding any obligations arising under Capital Leases,
notes payable for insurance premiums, non-recourse promissory notes for seller
financing, and promissory notes issued as earnest money for contracts).
"S&P" means Standard and Poor's Ratings Group, a division of McGraw
Hill, Inc.
"S&P RATING" means at any time, with respect to any Person, the rating
in effect at such time assigned by S&P.
"SPECULATIVE LOT" means any Dwelling Lots having a fully or partially
constructed dwelling unit thereon which Dwelling Lot is not subject to a bona
fide contract for the sale of such Dwelling Lot to a third party, excluding
Developed Lots containing Dwellings used as Models.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of Borrower or any
of its Restricted Subsidiaries that is subordinated to the Obligations on terms
and conditions reasonably acceptable to Administrative Agent.
"SUBSIDIARY" means, as applied to any Person, (a) any corporation of
which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which fifty percent (50%) or more of the outstanding partnership
interests, is at the time owned by such Person,
REVOLVING CREDIT AGREEMENT
- 15 -
or by one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person, and (b) any other entity which is controlled or
susceptible to being controlled by such Person, or by one or more Subsidiaries
of such Person, or by such Person and one or more Subsidiaries of such Person.
Unless the context otherwise requires, "SUBSIDIARIES" as used herein shall mean
the Subsidiaries of Borrower.
"SUBSIDIARY GUARANTY" means a guaranty agreement in the form of EXHIBIT
H pursuant to which each Restricted Subsidiary guarantees the full and faithful
payment and performance of all of the Obligations.
"TANGIBLE NET WORTH" means, with respect to Borrower and its Restricted
Subsidiaries, the net worth of Borrower and its Restricted Subsidiaries, as
defined under GAAP, less all "intangible assets" (other than intangible assets
existing on the Agreement Date incurred prior to March 31, 1998).
"TAXES" means, for any Person, taxes, assessments, duties, levies,
imposts, deductions, charges, or withholdings, or other governmental charges or
levies imposed upon such Person, its income, or any of its properties,
franchises, or assets.
"TOTAL LIABILITIES" means all items required by GAAP to be set forth as
"liabilities" on Borrower's and its Restricted Subsidiaries' consolidated
balance sheet.
"TOTAL REVOLVING CREDIT COMMITMENT" means, as of any date of
determination, the sum of all Revolving Credit Commitments for all Lenders then
in effect.
"UNREIMBURSED AMOUNT" is defined in SECTION 2.4(c).
"UNRESTRICTED SUBSIDIARIES" means Subsidiaries of Borrower which are
not Restricted Subsidiaries.
"UNUSED COMMITMENT" means, as of any date, the amount by which (a) the
Total Revolving Credit Commitment on such date exceeds (b) the Commitment Usage
as of such date.
"UNUSED COMMITMENT FEE" means those certain fees paid by Borrower to
Lenders pursuant to SECTION 2.5(b).
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.
(ii) Unless otherwise specified herein, ARTICLE, SECTION,
EXHIBIT, and SCHEDULE references are to this Agreement.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements, and other writings, however evidenced.
REVOLVING CREDIT AGREEMENT
- 16 -
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and "the word "through" means "to and
including."
(d) Section headings herein and the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.3 ACCOUNTING TERMS. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, except as
otherwise specifically prescribed herein.
1.4 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements, and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements, and other modifications are not prohibited by any Loan Document;
and (b) references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing, or
interpreting such Applicable Law.
1.5 TIME REFERENCES. Unless otherwise specified in the Loan Documents
time references are to Central Standard Time or Central Daylight Time (as
applicable).
ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 EXTENSION OF CREDIT. Subject to the terms and conditions of, and in
reliance upon the representations and warranties made in this Agreement and the
other Loan Documents, Lenders agree, severally in accordance with their
respective Commitment Ratios, and not jointly, to extend credit to Borrower in
an aggregate principal amount not to exceed the Total Revolving Credit
Commitment and Letter of Credit Issuer agrees to issue Letters of Credit on
behalf of Borrower in an aggregate face amount not to exceed the Letter of
Credit Sublimit, all as provided below:
(a) The Loans. Subject to the terms and conditions of this Agreement
and provided that no Default or Event of Default exists, Lenders agree,
severally in accordance with their Commitment Ratios, and not jointly, upon the
terms and subject to the conditions of this Agreement, to lend and re-lend to
Borrower, prior to the Maturity Date, amounts which in the aggregate do not
exceed the Total Revolving Credit Commitment; provided that (i) the Commitment
Usage may not exceed the Total Revolving Credit Commitment, and (ii) the sum of
the outstanding principal amount of all Loans plus the aggregate unpaid
reimbursement obligations in respect of drawings under all Letters of Credit may
not exceed the Available Loan Commitment. Advances under the Total Revolving
Credit Commitment may be repaid and reborrowed from time to time on a revolving
basis as set forth herein. Each Lender's obligation to lend to Borrower
hereunder shall terminate on the Maturity Date (unless sooner terminated
hereunder).
(b) The Letters of Credit. Subject to the terms and conditions of this
Agreement and provided that no Default or Event of Default exists, Letter of
Credit Issuer agrees to issue Letters of Credit for the account of Borrower
pursuant to SECTION 2.4 in an aggregate amount for Borrower at any
REVOLVING CREDIT AGREEMENT
- 17 -
one time not to exceed the Letter of Credit Sublimit; provided that the
Commitment Usage may not exceed the Total Revolving Credit Commitment.
(c) Use of Loan Proceeds. Administrative Agent, Lenders, and Borrower
agree that the proceeds of the Loans and the Letters of Credit issued under
SECTION 2.4 shall be used for general corporate purposes, including, without
limitation, working capital support, home construction, lot acquisition, lot
development, land acquisition, asset acquisitions, and stock acquisitions.
2.2 MANNER OF BORROWING AND DISBURSEMENT UNDER LOANS.
(a) Advances. Borrower shall give Administrative Agent irrevocable
written notice for Advances under the Loans not later than 12:00 noon on the day
immediately preceding the date of the requested Advance in the form of a Request
for Advance, or notice by telephone or telecopy followed immediately by a
Request for Advance; provided, however, that the failure by Borrower to confirm
any notice by telephone or telecopy with a Request for Advance shall not
invalidate any notice so given. Each Advance hereunder shall be in principal
amounts of not less than $5,000,000 and in integral multiples of $1,000,000.
Subsequent to the initial Advance of the Loans made on the Agreement Date,
Borrower may not request, in the aggregate, more than (i) two (2) Advances in
any calendar month plus (ii) four (4) additional Advances in any twelve (12)
calendar month period. In any event, Borrower may not request, in the aggregate,
more than twenty-eight (28) Advances in any twelve (12) calendar month period.
(b) Notification of Lenders. Upon receipt of a Request for Advance or
notice by telephone or telecopy, Administrative Agent shall promptly (and in any
event, by the close of business on the Business Day immediately preceding the
Business Day on which such Advance is to be made) notify each Lender by
telephone or telecopy of the requested Advance, the date on which the Advance is
to be made, the amount of the Advance, and the amount of such Lender's portion
of the applicable Advance based upon such Lender's Commitment Ratio. Each Lender
shall, not later than 12:00 noon on the date specified in such notice, make
available to Administrative Agent at Administrative Agent's office, or at such
account as Administrative Agent shall designate, the amount of its portion of
the applicable Advance in immediately available funds.
(c) Disbursement. Prior to 2:00 p.m. on the date of an Advance
hereunder, Administrative Agent shall, subject to the satisfaction of the
conditions set forth in this Agreement, disburse the amounts made available to
Administrative Agent by Lenders in immediately available funds by (i)
transferring the amounts so made available by wire transfer pursuant to the
instructions of Borrower, or (ii) in the absence of such instructions, crediting
the amounts so made available to the account of Borrower maintained with
Administrative Agent or an Affiliate of Administrative Agent. Unless
Administrative Agent shall have received notice from a Lender prior to the date
of any Advance that such Lender will not make available to Administrative Agent
such Lender's ratable portion of such Advance, and so long as notice has been
given as provided in SECTION 2.2(b), Administrative Agent may assume that such
Lender has made such portion available to Administrative Agent on the date of
such Advance and Administrative Agent may, in its sole discretion and in
reliance upon such assumption, without any obligation hereunder to do so, make
available to Borrower on such date a corresponding amount. If and to the extent
such Lender shall not have so made such ratable portion available to
Administrative Agent, then such Lender agrees to repay to Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to Borrower until the
date such amount is repaid to Administrative Agent for the first two (2) days
that such amount is not repaid, at the Federal Funds Rate, and, thereafter, at
the Federal Funds Rate plus four percent (4%) per annum. If such Lender shall
repay to Administrative Agent such corresponding amount, then such amount so
repaid shall constitute such
REVOLVING CREDIT AGREEMENT
- 18 -
Lender's portion of the applicable Advance for purposes of this Agreement. If
such Lender does not repay such corresponding amount immediately upon
Administrative Agent's demand therefor, then Administrative Agent may notify
Borrower, and Borrower shall immediately pay such corresponding amount to
Administrative Agent, together with all interest accrued thereon and on the same
terms and conditions that would have applied to such Advance had such Lender
funded its portion thereof. Any payments received by Administrative Agent
following such demand shall be applied in repayment of amounts owed to
Administrative Agent hereunder prior to any other application. The failure of
any Lender to fund its portion of any Advance shall not relieve any other Lender
of its obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be responsible for
any such failure of any other Lender. In the event that, at any time when no
Default or Event of Default exists, a Lender for any reason fails or refuses to
fund its portion of an Advance, then, until such time as such Lender has funded
its portion of such Advance, or all other Lenders have received payment in full
(whether by repayment or prepayment) of the principal and interest due in
respect of such Advance, such non-funding Lender shall (i) be automatically
deemed to have transferred to the Lender serving as Administrative Agent all of
such non-funding Lender's right to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document, and (ii)
not be entitled to receive payments of principal, interest, or fees from
Borrower in respect of such Advances which such Lender failed to make.
2.3 INTEREST ON LOANS.
(a) Prior to Default. Interest on Loans shall be computed on the basis
of a hypothetical year of 360 days for the actual number of days elapsed during
each calendar month and shall be payable at a simple interest rate equal to the
Applicable Rate times the principal balance outstanding from time to time under
the Notes for the number of days such principal amounts are outstanding during
such calendar month. Interest then outstanding shall be due and payable in
arrears as provided in SECTION 2.7.
(b) Upon Default. Upon the occurrence and during the continuance of an
Event of Default, the Required Lenders shall have the option (but shall not be
required to give prior notice thereof to Borrower to accelerate the maturity of
the Loans or to exercise any other rights or remedies hereunder in connection
with the exercise of this right) to charge interest on the outstanding principal
balance of the Loans and any Unreimbursed Amounts (to the extent provided in
SECTION 2.4(c)(iii)) at the Default Rate from the date of such Event of Default.
Such interest shall be payable on the earliest of demand, the first (1st)
Business Day of the next calendar month or the Maturity Date and shall accrue
until the earlier of (i) waiver or cure (to the satisfaction of the Required
Lenders) of such Event of Default, (ii) agreement by the Required Lenders to
rescind the charging of interest at the Default Rate, or (iii) payment in full
of the Obligations.
2.4 ISSUANCE AND ADMINISTRATION OF LETTERS OF CREDIT.
(a) Agreement to Issue Letters of Credit.
(i) Subject to the terms and conditions set forth herein: (A)
Letter of Credit Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this SECTION 2.4, (1) from time to time on
any Business Day during the period from the Agreement Date until the
Letter of Credit Expiration Date, to issue Letters of Credit
(denominated in Dollars) for the account of Borrower, and to amend or
renew Letters of Credit previously issued by it, in accordance with
SUBSECTION (b) below, and (2) to honor drafts under the Letters of
Credit; and (B) Lenders severally agree to participate in Letters of
Credit issued for the account of Borrower; provided that Letter of
Credit Issuer shall not be obligated to issue, and no Lender shall be
obligated to
REVOLVING CREDIT AGREEMENT
- 19 -
participate in, any Letter of Credit if as of the date of issuance of
such Letter of Credit, (x) the Commitment Usage would exceed the Total
Revolving Credit Commitment, (y) such Lender's Commitment Ratio of the
principal amount of all Loans plus such Lender's Commitment Ratio of
the Letter of Credit Exposure would exceed such Lender's Revolving
Credit Commitment, or (z) the Letter of Credit Exposure would exceed
the Letter of Credit Sublimit. Within the foregoing limits, and subject
to the terms and conditions hereof, Borrower's ability to obtain
Letters of Credit shall be fully revolving, and accordingly Borrower
may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and
reimbursed.
(ii) Letter of Credit Issuer shall be under no obligation to
issue any Letter of Credit if:
(A) any order, judgment, or decree of any
Governmental Authority shall by its terms purport to enjoin or
restrain Letter of Credit Issuer from issuing such Letter of
Credit, or any Applicable Law applicable to Letter of Credit
Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over Letter of Credit Issuer shall prohibit, or
request that Letter of Credit Issuer refrain from, the
issuance of Letters of Credit generally or such Letter of
Credit in particular or shall impose upon Letter of Credit
Issuer with respect to such Letter of Credit any restriction,
reserve, or capital requirement (for which Letter of Credit
Issuer is not otherwise compensated hereunder) not in effect
on the Agreement Date, or shall impose upon Letter of Credit
Issuer any unreimbursed loss, cost, or expense which was not
applicable on the Agreement Date and which Letter of Credit
Issuer in good faith deems material to it;
(B) subject to SECTION 2.4(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve (12) months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all Lenders have approved such expiry date;
(D) such Letter of Credit is in a face amount less
than $10,000; or
(E) such Letter of Credit is not a Performance Letter
of Credit.
(iii) Letter of Credit Issuer shall be under no obligation to
amend any Letter of Credit if (A) Letter of Credit Issuer would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Subject to the satisfaction by Borrower of the conditions
precedent to the issuance of Letters of Credit hereunder (including
those set forth in SECTION 4) and in accordance with SECTION 2.4(b),
letters of credit issued under the Existing Agreement ("EXISTING
LETTERS OF CREDIT") may, at the request of Borrower, be renewed and
extended as Letters of Credit hereunder. In such event, any such
Existing Letters of Credit shall be deemed to be Letters of Credit
hereunder for all purposes.
REVOLVING CREDIT AGREEMENT
- 20 -
(b) Procedures for Issuance and Amendment of Letters of Credit;
Evergreen Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of Borrower delivered to Letter of Credit
Issuer (with a copy to Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by an Authorized
Signatory of Borrower. Such Letter of Credit Application must be
received by Letter of Credit Issuer and Administrative Agent not later
than 10:00 a.m., at least five (5) Business Days (or such later date
and time as Letter of Credit Issuer may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to Letter of Credit Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other
matters as Letter of Credit Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to Letter of Credit Issuer: (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a
Business Day); (3) the nature of the proposed amendment; and (4) such
other matters as Letter of Credit Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, Letter of Credit Issuer will confirm with Administrative
Agent (by telephone or in writing) that Administrative Agent has
received a copy of such Letter of Credit Application from Borrower and,
if not, Letter of Credit Issuer will provide Administrative Agent with
a copy thereof. Upon receipt by Letter of Credit Issuer of confirmation
from Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, Letter of Credit Issuer shall, on the
requested date, issue a Letter of Credit for the account of Borrower or
enter into the applicable amendment or extension, as the case may be.
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from Letter of Credit Issuer a participation in such
Letter of Credit in an amount equal to the product of such Lender's
Commitment Ratio times the amount of such Letter of Credit.
(iii) If Borrower so requests in any applicable Letter of
Credit Application, then Letter of Credit Issuer may, in it sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an "EVERGREEN LETTER OF CREDIT");
provided that any such Evergreen Letter of Credit must permit Letter of
Credit Issuer to prevent any such renewal at least once in each twelve
(12) month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the "NONRENEWAL NOTICE DATE") in each such twelve (12)
month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by Letter of Credit Issuer, Borrower
shall not be required to make a specific request to Letter of Credit
Issuer for any such renewal. Once an Evergreen Letter of Credit has
been issued, Lenders shall be deemed to have authorized (but may not
require) Letter of Credit Issuer to permit the renewal of such Letter
of Credit at any time to a date not later than the Letter of Credit
Expiration Date; provided, however, that Letter of Credit Issuer shall
not permit any such renewal if (A) Letter of Credit Issuer would have
no obligation at such time to issue such Letter of Credit in its
renewed form under the terms hereof, or (B) it has received notice
(which may be by telephone or in writing) on or before the Business Day
immediately preceding the Nonrenewal Notice Date from Administrative
Agent, any Lender, or
REVOLVING CREDIT AGREEMENT
- 21 -
Borrower that one (1) or more of the applicable conditions specified in
SECTION 4.2 is not then satisfied. Notwithstanding anything to the
contrary contained herein, Letter of Credit Issuer shall have no
obligation to permit the renewal of any Evergreen Letter of Credit at
any time.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, Letter of Credit Issuer will
also deliver to Borrower and Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, Letter of
Credit Issuer shall notify Borrower and Administrative Agent thereof.
Not later than 10:00 a.m. on the next Business Day following the date
of notice of any payment by Letter of Credit Issuer under a Letter of
Credit (each such date, an "HONOR DATE"), Borrower shall reimburse
Letter of Credit Issuer through Administrative Agent in an amount equal
to the amount of such drawing, together with interest on the amount of
such drawing from the date of such drawing until reimbursed at the rate
per annum equal to the Applicable Rate. If Borrower fails to so
reimburse Letter of Credit Issuer by such time, then Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing and any interest thereon (the "UNREIMBURSED
AMOUNT"), and such Lender's Commitment Ratio thereof. In such event,
Borrower shall be deemed to have requested an Advance to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in SECTION 2.2,
but subject to the conditions set forth in SECTION 4.2 (other than the
delivery of a Request for Advance). Any notice given by Letter of
Credit Issuer or Administrative Agent pursuant to this SECTION
2.4(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as Letter of
Credit Issuer) shall upon any notice pursuant to SECTION 2.4(c)(i) make
funds available to Administrative Agent for the account of Letter of
Credit Issuer at Administrative Agent's office in an amount equal to
its Commitment Ratio of the Unreimbursed Amount not later than 12:00
noon on the Business Day specified in such notice by Administrative
Agent, whereupon, subject to the provisions of SECTION 2.4(c)(iii),
each Lender that so makes funds available shall be deemed to have made
an Advance to Borrower in such amount. Administrative Agent shall remit
the funds so received to Letter of Credit Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by an Advance because the conditions set forth in
SECTION 4.2 cannot be satisfied, Borrower shall be deemed to have
incurred from Letter of Credit Issuer a Letter of Credit Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which
Letter of Credit Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to Administrative Agent for the account of
Letter of Credit Issuer pursuant to SECTION 2.4(c)(ii) shall be deemed
payment in respect of its participation in such Letter of Credit
Borrowing and shall constitute a Letter of Credit Advance from such
Lender in satisfaction of its participation obligation under this
SECTION 2.4.
(iv) Until each Lender funds its Advance or Letter of Credit
Advance pursuant to this SECTION 2.4(c) to reimburse Letter of Credit
Issuer for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Commitment Ratio of such amount shall be
solely for the account of Letter of Credit Issuer.
REVOLVING CREDIT AGREEMENT
- 22 -
(v) Each Lender's obligation to make Advances or Letter of
Credit Advances to reimburse Letter of Credit Issuer for amounts drawn
under Letters of Credit, as contemplated by this SECTION 2.4(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including: (A) any set-off, counterclaim, recoupment,
defense, or other right which such Lender may have against Letter of
Credit Issuer, Borrower, or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or Event of Default; or
(C) any other occurrence, event, or condition, whether or not similar
to any of the foregoing. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrower to reimburse Letter of
Credit Issuer for the amount of any payment made by Letter of Credit
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to Administrative
Agent, for the account of Letter of Credit Issuer, any amount required
to be paid by such Lender pursuant to the foregoing provisions of this
SECTION 2.4(c) by the time specified in SECTION 2.4(c)(ii), then Letter
of Credit Issuer shall be entitled to recover from such Lender (acting
through Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to Letter of Credit
Issuer for the first two (2) days that such amount is not repaid, at
the Federal Funds Rate, and, thereafter, at the Federal Funds Rate plus
four percent (4%) per annum. A certificate of Letter of Credit Issuer
submitted to any Lender (through Administrative Agent) with respect to
any amounts owing under this CLAUSE (VI) shall be conclusive absent
manifest error.
(vii) Borrower shall pay to Letter of Credit Issuer, promptly
upon demand, the amount of any fees (in addition to the fees described
in SECTION 2.5) which Letter of Credit Issuer customarily charges to a
Person similarly situated in the ordinary course of its business for
amending Letters of Credit and Letter of Credit Applications, for
honoring drafts, and taking similar action in connection with Letters
of Credit, together with all reasonable out-of-pocket expenses of
Letter of Credit Issuer incurred in connection therewith.
(viii) Administrative Agent and Letter of Credit Issuer shall
provide to Lenders periodic information, but not more often than
quarterly, regarding outstanding Letters of Credit (including issue
date, expiry date, beneficiary, Evergreen Letters of Credit, and
amount), the Letter of Credit Exposure, and each Lender's Commitment
Ratio thereof.
(d) Repayment of Participations.
(i) At any time after Letter of Credit Issuer has made a
payment under any Letter of Credit and has received from any Lender
such Lender's Letter of Credit Advance in respect of such payment in
accordance with SECTION 2.4(c), if Administrative Agent receives for
the account of Letter of Credit Issuer any payment related to such
Letter of Credit (whether directly from Borrower or otherwise,
including proceeds of cash collateral applied thereto by Administrative
Agent), or any payment of interest thereon, then Administrative Agent
will distribute to such Lender its Commitment Ratio thereof in the same
funds as those received by Administrative Agent.
(ii) If any payment received by Administrative Agent from any
Lender for the account of Letter of Credit Issuer pursuant to SECTION
2.4(c)(i) is required to be returned, then each Lender shall pay to
Administrative Agent, for the account of Letter of Credit Issuer, its
REVOLVING CREDIT AGREEMENT
- 23 -
Commitment Ratio thereof on demand of Administrative Agent, plus
interest thereon from the date of such demand to the date such amount
is returned by such Lender, for the first two (2) days that such amount
is not repaid, at the Federal Funds Rate, and, thereafter, at the
Federal Funds Rate plus four percent (4%) per annum.
(e) Obligations Absolute. The obligation of Borrower to reimburse
Letter of Credit Issuer for each drawing under each Letter of Credit, and to
repay each Letter of Credit Borrowing and each drawing under a Letter of Credit
that is refinanced by an Advance, shall be absolute, unconditional, and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following: (i) any lack of
validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating hereto or thereto; (ii) the existence of
any claim, counterclaim, set-off, defense, or other right that Borrower may have
at any time against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee may be
acting), Letter of Credit Issuer, or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating hereto or thereto, or any
unrelated transaction; (iii) any draft, demand, certificate, or other document
presented under such Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by Letter of Credit Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by Letter of Credit Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver, or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or (v) any other circumstance
or happening whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, Borrower. Borrower shall promptly examine a
copy of each Letter of Credit and each amendment thereto that is delivered to it
and, in the event of any claim of noncompliance with Borrower's instructions or
other irregularity, Borrower will as soon as practicable notify Letter of Credit
Issuer. Borrower shall be conclusively deemed to have waived any such claim
against Letter of Credit Issuer and its correspondents unless such notice is
given as aforesaid.
(f) Role of Letter of Credit Issuer. Each Lender and Borrower agree
that, in paying any drawing under a Letter of Credit, Letter of Credit Issuer
shall not have any responsibility to obtain any document (other than any sight
draft, certificates, and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document. No
Agent-Related Person nor any of the respective correspondents, participants, or
assignees of Letter of Credit Issuer shall be liable to any Lender for: (i) any
action taken or omitted in connection herewith at the request or with the
approval of Lenders or Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity, or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application.
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude Borrower's
pursuing such rights and remedies as it may have against the beneficiary,
transferee, or any other party (other than Administrative Agent, Letter of
Credit Issuer, or any Lender) at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants, or
assignees of Letter of Credit Issuer, shall be liable or responsible for any of
the matters described in CLAUSES (i) through (v) of SECTION 2.4(e); provided,
however, that anything in such clauses to the contrary
REVOLVING CREDIT AGREEMENT
- 24 -
notwithstanding, Borrower may have a claim against Letter of Credit Issuer, and
Letter of Credit Issuer may be liable to Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by Borrower which were caused by Letter of Credit Issuer's (x) willful
misconduct or gross negligence, (y) willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit, or (z) payment of a letter of credit against the presentation of any
draft or certificate that does not strictly comply with the terms of such Letter
of Credit. In furtherance and not in limitation of the foregoing, Letter of
Credit Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and Letter of Credit Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which, in spite
of such appearance on their face of being in order, may prove to be invalid or
ineffective for any reason.
(g) Cash Collateral. Upon the request of Administrative Agent, if (i)
Letter of Credit Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in a Letter of Credit
Borrowing which has not been paid by an Advance hereunder, or (ii) as of the
Letter of Credit Expiration Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, then Borrower shall immediately
Cash Collateralize the Letter of Credit Exposure (in an amount equal to such
Letter of Credit Exposure).
(h) Applicability of ISP98. Unless otherwise expressly agreed by Letter
of Credit Issuer and Borrower when a Letter of Credit is issued, the rules of
the International Standby Practices 1998 published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Conflict with Letter of Credit Application. Although referenced in
any Letter of Credit, terms of any particular agreement or other obligation to
the beneficiary are not in any manner incorporated herein. The fees and other
amounts payable with respect to each Letter of Credit shall be as provided in
this Agreement, drafts under any Letter of Credit shall be deemed part of the
Obligation, and in the event of any conflict between the terms of this Agreement
and any Letter of Credit Agreement, the terms of this Agreement shall be
controlling.
(j) INDEMNIFICATION. IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE
PROVIDED IN THIS AGREEMENT, BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY, PAY,
AND SAVE ADMINISTRATIVE AGENT, LETTER OF CREDIT ISSUER, AND EACH LENDER HARMLESS
FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR LOSSES
(OTHER THAN LOSS OF PROFITS) OF, OR OWED TO THIRD PARTIES, AND ANY AND ALL
RELATED COSTS, CHARGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES),
WHICH ADMINISTRATIVE AGENT, LETTER OF CREDIT ISSUER, AND EACH LENDER MAY INCUR
OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR INDIRECT, OF (A) THE ISSUANCE OF
ANY LETTER OF CREDIT, OR (B) THE FAILURE OF LETTER OF CREDIT ISSUER TO HONOR A
DRAFT UNDER SUCH LETTER OF CREDIT AS A RESULT OF ANY ACT OR OMISSION, WHETHER
RIGHTFUL OR WRONGFUL, OF ANY PRESENT OR FUTURE GOVERNMENTAL AUTHORITY; PROVIDED
THAT BORROWER SHALL HAVE NO LIABILITY TO INDEMNIFY ADMINISTRATIVE AGENT, LETTER
OF CREDIT ISSUER, OR ANY LENDER IN RESPECT OF ANY LIABILITY ARISING OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ADMINISTRATIVE AGENT, LETTER OF CREDIT
ISSUER, AND EACH LENDER OR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, OR ATTORNEY
IN FACT OF SUCH PERSON OR FROM ANY SUCH LIABILITY ARISING SOLELY OUT OF A
CONTROVERSY AMONG ADMINISTRATIVE AGENT, LETTER OF CREDIT ISSUER, AND LENDERS (OR
ANY OF THEM). THE PROVISIONS OF AND UNDERTAKINGS AND
REVOLVING CREDIT AGREEMENT
- 25 -
INDEMNIFICATIONS SET FORTH IN THIS SECTION 2.4(j) SHALL SURVIVE THE SATISFACTION
AND PAYMENT OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
2.5 FEES AND COMMISSIONS ON LOANS AND LETTERS OF CREDIT.
(a) Fee Letter. Borrower agrees to pay to Administrative Agent the fees
set forth in the Fee Letter. Such fees shall be due and payable on the date
specified in the Fee Letter, and shall be fully earned when due and
non-refundable when paid.
(b) Unused Commitment Fee. Borrower agrees to pay to Administrative
Agent for the benefit of Lenders, in accordance with their respective Commitment
Ratios, an Unused Commitment fee (the "UNUSED COMMITMENT FEE"), payable in
quarterly installments in arrears, on the eighteenth (18th) day (or, if such day
is not a Business Day, then the preceding Business Day) following the last day
of each quarter ending March, June, September, and December, with such payment
commencing April 18, 2002. Each installment shall be in an amount equal to the
product of (a) the rate per annum equal to the Applicable Margin for Commitment
Fees times (b) the daily Unused Commitment, in each case for the fiscal quarter
preceding the payment date for such quarter; provided, however, that the Unused
Commitment Fee determined in accordance with the foregoing calculation shall,
commencing with the calendar quarter ending June 30, 2002, be increased by
one-tenth of one percent (0.10%) for any calendar quarter in which the average
Commitment Usage for that quarter and the immediately preceding calendar quarter
(calculated on a combined basis) is not at least thirty-five percent (35%) of
the Total Revolving Commitments.
(c) Letter of Credit Fees. Borrower agrees to pay to Administrative
Agent (i) for the benefit of Letter of Credit Issuer and Lenders, a fee on the
stated amount of any outstanding Letters of Credit from the date of issuance
through the expiration date of each such Letter of Credit in an amount equal to
the Applicable Margin in respect of such Letter of Credit (the "LETTER OF CREDIT
FEES"), and (ii) for the benefit of Letter of Credit Issuer, the Fronting Fee
(which Fronting Fee shall be due and payable on the date of issuance and
renewal). Borrower shall pay, on the eighteenth (18th) calendar day of each
month, the Letter of Credit Fees, which have accrued as of the first (1st) day
of such month, which Letter of Credit Fees shall be fully earned when due and
non-refundable when paid.
(d) Fees Generally. All fees (except for the Fronting Fee) shall be
calculated on the basis of a hypothetical year of 360 days for the actual number
of days elapsed. Administrative Agent shall, promptly after receipt of the
Unused Commitment Fees and Letter of Credit Fees, distribute such fees to
Lenders in accordance with their respective Commitment Ratios.
2.6 NOTES, LOAN AND LETTERS OF CREDIT ACCOUNTS.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein, and shall be evidenced by the Notes. Each Lender
shall be issued a Note payable to the order of such Lender in accordance with
the Revolving Credit Commitment of such Lender. The Notes shall be issued by
Borrower to all Lenders and shall be duly executed and delivered by Authorized
Signatories.
(b) Each Lender, as the case may be, may open and maintain on its books
in the name of Borrower a loan account with respect to the Loans and interest
thereon and a letter of credit account with respect to its obligations pursuant
to Letters of Credit. Each Lender which opens such accounts in respect of the
Loans shall debit the applicable loan account for the principal amount of each
Advance made by it and accrued interest thereon, and shall credit such loan
account for each payment on account of principal of or interest on the Loans.
Each Lender which opens such accounts in respect of the Letters of Credit
REVOLVING CREDIT AGREEMENT
- 26 -
shall debit the applicable account for the amount of each Advance made by it and
accrued interest thereon, and shall credit such account for each payment on
account of principal and interest of Letter of Credit Advances. The records of
each Lender with respect to the accounts maintained by it shall be prima facie
evidence of the Loans and Letter of Credit Obligations and accrued interest
thereon, but the failure to maintain such records shall not impair the
obligation of Borrower to repay Indebtedness hereunder.
(c) Administrative Agent and Letter of Credit Issuer may maintain in
accordance with their usual practice records of account evidencing the
Indebtedness of Borrower resulting from Advances under the Loans and each
drawing under a Letter of Credit. In any legal action or proceeding in respect
of this Agreement, the entries made in such record shall be prima facie
evidence, absent manifest error, of the existence and amounts of the obligations
of Borrower therein recorded. Failure of Letter of Credit Issuer to maintain any
such record shall not excuse Borrower from the obligation to pay such
Indebtedness. To the extent that the records of Administrative Agent or Letter
of Credit Issuer conflict with the records of Lenders maintained pursuant to
SECTION 2.6(b) above, absent manifest error, the records of Administrative Agent
or Letter of Credit Issuer, as the case may be, shall control.
(d) Each Advance from Lenders under this Agreement shall be made pro
rata on the basis of their respective applicable Commitment Ratios.
(e) Each Advance made on account of drawing under Letters of Credit
shall be made pro rata by Lenders on the basis of their respective Commitment
Ratios.
2.7 REPAYMENT OF LOANS AND LETTERS OF CREDIT.
(a) Interest. Borrower shall pay, on the eighteenth (18th) calendar day
of each month, all interest on the Loans which has accrued as of the first (1st)
calendar day of such month, commencing on the eighteenth (18th) calendar day of
the first (1st) calendar month following the Agreement Date.
(b) Letters of Credit. Borrower shall repay all draws upon the Letters
of Credit as provided in SECTION 2.4.
(c) Reconciliation of Loan Inventory. Borrower shall repay certain
portions of the outstanding principal of the Loans and accrued and unpaid
interest thereon upon the reconciliation of the Loan Funding Availability
against the outstanding principal balance under the Notes and other Senior
Unsecured Indebtedness as provided in SECTION 3.1.
(d) Maturity. In addition to the foregoing, a final payment of all
Obligations then outstanding shall be due and payable by Borrower on the
Maturity Date.
2.8 MANNER OF PAYMENT.
(a) Each payment (including any prepayment) by Borrower on account of
the principal of or interest on the Loans, fees, and any other amount owed to
Lenders or Administrative Agent under this Agreement, the Notes, or the other
Loan Documents shall be made, without condition or deduction for any
counterclaim, defense, recoupment, or setoff, not later than 12:00 noon on the
date specified for payment under this Agreement or such other Loan Document to
Administrative Agent to an account designated by Administrative Agent, for the
account of Lenders, Letter of Credit Issuer or Administrative Agent, as the case
may be, in lawful money of the United States of America in immediately available
funds. Any payment received by Administrative Agent after 12:00 noon shall be
deemed received on the next Business Day for purposes of interest accrual. In
the case of a payment for the account of a Lender
REVOLVING CREDIT AGREEMENT
- 27 -
or Letter of Credit Issuer, then, subject to the provisions of SECTION 2.9 of
this Agreement, Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Lender or Letter of Credit Issuer. If
Administrative Agent shall not have received any payment from Borrower as and
when due, Administrative Agent will promptly notify Lenders and, if appropriate,
Letter of Credit Issuer, accordingly, and Administrative Agent shall not be
obligated to make any distributions under this SECTION 2.8.
(b) Unless Borrower has notified Administrative Agent prior to the date
any payment is required to be made by it to Administrative Agent hereunder that
Borrower will not make such payment, Administrative Agent may assume that
Borrower has timely made such payment and may (but shall not be so required to),
in reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in fact made to
Administrative Agent in immediately available funds, then each Lender shall
forthwith on demand repay to Administrative Agent the portion of such assumed
payment that was made available to such Lender in immediately available funds,
together with interest thereon in respect of each day from and including the
date such amount was made available by Administrative Agent to such Lender to
the date such amount is repaid to Administrative Agent in immediately available
funds, at the Federal Funds Rate from time to time in effect. A notice of
Administrative Agent to any Lender with respect to any amount owing under this
SUBSECTION (b) shall be conclusive, absent manifest error.
(c) If any payment under this Agreement or any of the Notes shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day, and such extension of time
shall in such case be included in computing interest and fees, if any, in
connection with such payment.
(d) Borrower may not make payments, in the aggregate, under this
Agreement (excluding any payments specifically required pursuant to the terms of
this Agreement) more than (i) three (3) times in any calendar month plus (ii)
four (4) additional times in any twelve (12) calendar month period. In any
event, Borrower may not make, in the aggregate, more than forty (40) payments
(excluding any payments specifically required pursuant to the terms of this
Agreement) under this Agreement in any twelve (12) calendar month period.
(e) Borrower agrees to pay principal, interest, fees, and all other
amounts due hereunder or under the Notes and Letter of Credit Obligations
without set-off or counterclaim or any deduction whatsoever.
2.9 APPLICATION OF PAYMENTS. Unless otherwise specifically provided in
this Agreement or the other Loan Documents, payments made to Administrative
Agent or Lenders, or any of them, or otherwise received by Administrative Agent
or Lenders, or any of them (from realization on collateral for the Obligations
or otherwise), shall be applied (subject to SECTION 2.4(c)) in the following
order to the extent such Obligations are then due and payable hereunder: First,
to the costs and expenses, if any, incurred by Administrative Agent or Lenders,
or any of them, in the collection of such amounts under this Agreement or any of
the other Loan Documents, including, without limitation, any reasonable costs
incurred in connection with the sale or disposition of any collateral for the
Obligations; Second, pro rata among Administrative Agent, Letter of Credit
Issuer and Lenders based on the total amount of fees then due and payable
hereunder or under any other Loan Document and to any other fees and commissions
then due and payable by Borrower to Lenders, Letter of Credit Issuer and
Administrative Agent under this Agreement or any Loan Document; Third, to any
due and unpaid interest which may have accrued on the Loans, pro rata among
Lenders based on the outstanding principal amount of the Loans outstanding
immediately prior to such payment; Fourth, to any amounts outstanding with
respect to draws under
REVOLVING CREDIT AGREEMENT
- 28 -
Letters of Credit; Fifth, to any unpaid principal of the Loans, pro rata among
Lenders based on the principal amount of the Loans outstanding immediately prior
to such payment; Sixth, to the extent any Letters of Credit are then
outstanding, to Cash Collateralize the Letters of Credit in an amount equal to
the outstanding Letter of Credit Exposure; Seventh, to any other Obligations not
otherwise referred to in this SECTION 2.9 until all such Obligations are paid in
full; Eighth, to actual damages incurred by Administrative Agent, Letter of
Credit Issuer or Lenders, or any of them, by reason of any breach hereof or of
any other Loan Documents by Borrower or a Restricted Subsidiary; and Ninth, upon
satisfaction in full of all Obligations, to Borrower or as otherwise required by
law. Notwithstanding the foregoing, after the occurrence and during the
continuance of a Default or an Event of Default, payments with respect to items
Fourth, and Fifth in the immediately preceding sentence shall be applied to such
items based upon the ratio of the Obligations under each of such items to the
aggregate Obligations under all of such items. If any Lender shall obtain any
payment (whether involuntary or otherwise) on account of the Loans made by it in
excess of its ratable share of the Loans then outstanding and such Lender's
share of any expenses, fees and other items due and payable to it hereunder,
such Lender shall forthwith purchase a participation in the Loans from the other
Lenders as shall be necessary to cause such purchasing Lender to share the
excess payment ratably based on the applicable Commitment Ratios with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery. Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation so long as the
Obligations are not increased.
2.10 LENDERS; INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT.
(a) The Lenders on the Agreement Date shall be the Lenders set forth on
SCHEDULE 2.1 on the Agreement Date.
(b) After the Agreement Date until the earlier to occur of (i) June 30,
2002, and (ii) thirty (30) days following the closing of Borrower's acquisition
of Schuler Homes, Inc., Administrative Agent may, from time to time at the
request of Borrower, increase the Total Revolving Credit Commitment by (i)
admitting additional Lenders hereunder (each a "SUBSEQUENT LENDER"), or (ii)
increasing the Revolving Credit Commitment of any Lender (each an "INCREASING
LENDER"), subject to the following conditions:
(A) each Subsequent Lender is an Eligible Assignee;
(B) Borrower executes (I) a new Note payable to the order of a
Subsequent Lender, or (II) a replacement Note payable to the order of
an Increasing Lender;
(C) each Subsequent Lender executes a signature page to this
Agreement;
(D) after giving effect to the admission of any Subsequent
Lender or the increase in the Revolving Credit Commitment of any
Increasing Lender, the aggregate of the Total Revolving Credit
Commitment does not exceed $810,000,000;
(E) each increase in the Total Revolving Credit Commitment
shall be in the minimum amount of $5,000,000 or a greater integral
multiple of $1,000,000;
REVOLVING CREDIT AGREEMENT
- 29 -
(F) no admission of any Subsequent Lender shall increase the
Revolving Credit Commitment of any existing Lender without the consent
of such existing Lender;
(G) no Lender shall be an Increasing Lender without the
consent of such Lender; and
(H) no Default or Event of Default exists.
After the admission of any Subsequent Lender or the increase in the Revolving
Credit Commitment of any Increasing Lender, Administrative Agent shall promptly
provide to each Lender a new SCHEDULE 2.1 to this Agreement.
2.11 SET-OFF.
(a) Set-Off. Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its Affiliates) is hereby authorized
at any time and from time to time, to the fullest extent permitted by Applicable
Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender (or any of its Affiliates) to or for the credit or the
account of Borrower against any and all of the obligations of Borrower now or
hereafter existing under this Agreement, irrespective of whether such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. Each Lender agrees promptly to notify Borrower after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this SECTION 2.11(a) are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) Sharing of Payments. If any Lender (a "BENEFITTED LENDER") shall at
any time receive any payment of all or part of the Obligations owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Obligations owing to it, or interest thereon,
then such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Obligations
owing to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with all Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Lender, then such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest except
to the extent that such Benefitted Lender is required to pay interest on such
recovery. Borrower agrees that any Lender so purchasing a participation from a
Lender pursuant to this SECTION 2.11(b) may, to the fullest extent permitted by
Applicable Laws, exercise all of its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Person were the
direct creditor of Borrower in the amount of such participation. Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this SECTION 2.11(b) and will
in each case notify Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this SECTION 2.11(b) shall
from and after such purchase have the right to give all notices, requests,
demands, directions, and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligation purchased.
REVOLVING CREDIT AGREEMENT
- 30 -
2.12 YIELD PROTECTION.
(a) Taxes.
(i) Any and all payments by Borrower to or for the account of
any Lender under any Loan Document shall be made free and clear of and without
deduction for any and all present or future Taxes, excluding, in the case of
each Lender, taxes imposed on or measured by its net income, and franchise taxes
imposed on it (in lieu of net income taxes and withholding related thereto), by
the jurisdiction (or any political subdivision thereof) under the Applicable
Laws of which such Lender is organized or maintains a lending office (such
excluded income and franchise Taxes being "EXCLUDED TAXES"). If Borrower shall
be required by any Applicable Law to deduct any Taxes (other than Excluded
Taxes) from or in respect of any sum payable under any Loan Document to any
Lender, then to the extent permitted under Applicable Law (A) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this SECTION
2.12(a)), such Lender receives an amount equal to the sum it would have received
had no such deductions been made, (B) Borrower shall make such deductions, (C)
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with Applicable Laws, and (D) within thirty
(30) days after the date of such payment, Borrower shall furnish to
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(ii) In addition, to the extent permitted under Applicable Law
Borrower agrees to pay any and all present or future stamp, court, or
documentary Taxes and any other excise or property Taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement, or registration of, or otherwise
with respect to, any Loan Document other than Excluded Taxes (hereinafter
referred to as "OTHER TAXES").
(iii) If Borrower shall be required to deduct or pay any Taxes
(other than Excluded Taxes) or Other Taxes from or in respect of any sum payable
under any Loan Document to any Lender, then to the extent permitted under
Applicable Law Borrower shall also pay to Administrative Agent (for the account
of such Lender) or to such Lender, at the time interest is paid, such additional
amount that such Lender reasonably determines and specifies as necessary to
preserve the after-tax yield (after factoring in all Taxes, including Taxes
imposed on or measured by net income) such Lender would have received if such
Taxes or Other Taxes had not been imposed.
(iv) To the extent permitted under Applicable Law, Borrower
agrees to indemnify each Lender for (A) the full amount of Taxes (other than
Excluded Taxes) and Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this SECTION 2.12(a)) paid
by such Lender, (B) amounts payable under SECTION 2.12(a)(iii), and (C) any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this SECTION 2.12(a)(iv) shall be made within thirty (30) days
after the date any Lender makes a demand therefor. At the request of Borrower
and at Borrower's sole cost and expense, each Lender agrees to take such steps
as Borrower shall reasonably request to recover such Taxes and Other Taxes
including the filing of protests, requests for refunds, and other similar
actions.
(b) Increased Cost and Reduced Return; Capital Adequacy.
(i) If any Lender reasonably determines for the Loans and for
other similar loans made by such Lender to similar borrowers that as a
result of the introduction of or any change in or in the interpretation
of any Applicable Law of the United States, or such Lender's compliance
REVOLVING CREDIT AGREEMENT
- 31 -
therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding, or maintaining Loans at the
Eurodollar Rate or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable
by such Lender in connection with any of the foregoing (excluding for
purposes of this SUBSECTION (i) any such increased costs or reduction
in amount resulting from (i) Taxes or Other Taxes (as to which SECTION
2.12(a) shall govern), and (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any
foreign jurisdiction or any political subdivision of either thereof
under the Applicable Laws of which such Lender is organized or has its
lending office), then from time to time upon demand of such Lender
(with a copy of such demand to Administrative Agent), Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender for such increased cost or reduction.
(ii) If any Lender reasonably determines for the Loans and for
other similar loans made by such Lender to similar borrowers that the
introduction of any Applicable Law of the United States regarding
reserves or capital adequacy or any change therein or in the
interpretation thereof, or compliance by such Lender (or its applicable
lending office) therewith, has the effect of reducing the rate of
return on the capital of such Lender or any Person controlling such
Lender as a consequence of such Lender's obligations hereunder (taking
into consideration its policies with respect to reserves or capital
adequacy and such Lender's desired return on capital), then from time
to time upon demand of such Lender (with a copy of such demand to
Administrative Agent), Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction.
(c) Matters Applicable to all Requests for Compensation. A certificate
of Administrative Agent or any Lender claiming compensation under this SECTION
2.12 and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
(d) Removal of Lenders. Upon any Lender's making a claim for
compensation under SECTION 2.12(a) or SECTION 2.12(b), Borrower may remove or
replace such Lender in accordance with SECTION 10.2(h).
(e) Survival. All of Borrower's obligations under this SECTION 2.12
shall survive termination of the Total Revolving Credit Commitment and payment
in full of all the other Obligations.
2.13 MAXIMUM RATE Regardless of any provision contained in any Loan
Document, no Lender shall ever be entitled to contract for, charge, take,
reserve, receive, or apply, as interest on the Obligations, or any part thereof,
any amount in excess of the Maximum Rate, and if any Lender ever does so, then
such excess shall be deemed a partial prepayment of principal and treated
hereunder as such and any remaining excess shall be refunded to Borrower. In
determining if the interest paid or payable exceeds the Maximum Rate, Borrower
and Lenders shall, to the maximum extent permitted under Applicable Laws, (a)
treat all Advances and Loans as a single extension of credit (and Lenders and
Borrower agree that such is the case and that provision herein for multiple
Advances and Loans is for convenience only), (b) characterize any non-principal
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) amortize, prorate,
allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligations; provided that if the Obligations are paid
and performed in full prior to the end of the full contemplated term thereof,
and if the interest received for the actual period of existence thereof exceeds
the Maximum Rate, then Lenders shall refund such excess and, in such event,
Lenders receiving such excess shall not, to
REVOLVING CREDIT AGREEMENT
- 32 -
the extent permitted by Applicable Laws, be subject to any penalties provided by
any Applicable Laws for contracting, charging, taking, reserving, or receiving
interest in excess of the Maximum Rate. Borrower agrees that Chapter 346 of the
Texas Finance Code (which regulates certain revolving credit loan accounts and
revolving tri-party accounts) does not apply to the Obligations.
ARTICLE 3
INVENTORY AND FUNDING AVAILABILITY
3.1 LOAN FUNDING AVAILABILITY. Unless Borrower has an Investment Grade
Rating from any two (2) of Moody's, S&P, and Fitch, at the designated times set
forth herein, Administrative Agent and Borrower shall establish a Loan Funding
Availability for the Loan Inventory and other Senior Unsecured Indebtedness.
(a) Calculation of Loan Funding Availability. The Loan Funding
Availability shall be equal to the sum of "A" plus "B" plus "C", each as further
described below (and subject to the proviso at the end of this subsection (a)):
A = sixty-five percent (65%) of the sum of all Acquisition Costs for
all Lots Under Development which are included in the Loan Inventory. If, after a
Land Parcel is designated a Lot Under Development, development of such parcel
ceases for thirty (30) calendar days or more (other than by reason of a Force
Majeure Delay), at the discretion of Administrative Agent, the Loan Funding
Availability for such parcel may be reduced to an amount determined by
Administrative Agent (which amount can be zero) until development of such Lot
Under Development is resumed to the satisfaction of the Administrative Agent;
B = sixty-five percent (65%) of the sum of all Acquisition Costs for
all Developed Lots included in the Loan Inventory;
C = eighty-five percent (85%) of the sum of all Acquisition Costs and
Construction Costs for all Dwelling Lots included in the Loan Inventory;
provided that the sum of "A" and "B" may not exceed fifty percent (50%) of the
amount of Loan Funding Availability.
(b) Designation of Land Parcels, Lots Under Development, Developed Lots
and Dwelling Lots. On or before the fifteenth (15th) calendar day of each
calendar month, Borrower shall deliver to Administrative Agent an Inventory
Summary Report in the form of EXHIBIT B and incorporated herein. The Inventory
Summary Report shall reflect Inventory that Borrower desires to have designated
as Loan Inventory. Upon Administrative Agent's receipt of the Inventory Summary
Report, Administrative Agent may conduct inspections or reviews of the subject
Inventory that Administrative Agent deems appropriate, at the expense of
Administrative Agent except as hereinafter expressly provided. Based upon the
information in the Inventory Summary Report and the other information compiled
by Administrative Agent, Administrative Agent shall determine, in its reasonable
discretion, whether a Lot Under Development, Developed Lot or Dwelling Lot not
previously designated as part of the Loan Inventory shall be designated part of
the Loan Inventory and, if so, whether such Lot Under Development, Developed
Lot, or Dwelling Lot shall be designated a Lot Under Development, Developed Lot,
or Dwelling Lot.
(c) Periodic Establishment of Loan Funding Availability. Within two (2)
Business Days of Administrative Agent's receipt of an Inventory Summary Report,
Administrative Agent shall establish the
REVOLVING CREDIT AGREEMENT
- 33 -
Loan Funding Availability based on such Inventory Summary Report delivered to
Administrative Agent and information compiled by Administrative Agent. In the
event Borrower does not submit the Inventory Summary Report in the time and
manner set forth above or furnish sufficient information to Administrative Agent
to enable Administrative Agent to establish a new Loan Funding Availability,
Administrative Agent will establish a Loan Funding Availability based on some or
all of the previous information submitted to Administrative Agent by Borrower in
the immediately preceding Inventory Summary Report and the information compiled
by Administrative Agent, as required hereunder, in connection therewith, as the
case may be, or other information available to Administrative Agent.
(d) Reconciliation. In the event that the Loan Funding Availability for
a particular Funding Period is less than the then outstanding principal amount
of all Senior Unsecured Indebtedness, Administrative Agent shall promptly notify
Borrower and Lenders thereof. On or before the Reconciliation Date, Borrower
shall (i) (A) pay to Administrative Agent a principal payment to be applied to
the Loans and any unpaid draws under Letters of Credit and/or (B) provide to
Administrative Agent evidence that the principal amount of other Senior
Unsecured Indebtedness has been reduced in an aggregate amount sufficient to
eliminate the excess of the outstanding principal amount of all Senior Unsecured
Indebtedness over the Loan Funding Availability, together with any accrued and
unpaid interest on such excess or (ii) provide a revised Inventory Summary
Report designating sufficient additional Inventory (which shall be acceptable to
Administrative Agent, in its reasonable discretion) as Loan Inventory to cause
the Loan Funding Availability to equal or exceed the outstanding principal of
all Senior Unsecured Indebtedness.
(e) Removal/Disapproval of Inventory for Loan Funding Availability. If,
at any time Borrower does not have an Investment Grade Rating from any two (2)
of Moody's, S&P, and Fitch, Administrative Agent determines, in its reasonable
discretion, that any part of the Loan Inventory is not acceptable for inclusion
in the calculation of the Loan Funding Availability as a result of an unforeseen
material adverse change in the condition of such portion of the Loan Inventory
or as a result of the existence of Hazardous Materials in or on any Inventory
which are in violation of any warranty, representation, or covenant of the Loan
Documents regarding such Hazardous Materials, Administrative Agent may exclude
such portion of the Loan Inventory from the calculation of the Loan Funding
Availability. If, after such exclusion, the then outstanding principal amount
under Senior Unsecured Indebtedness would exceed the Loan Funding Availability,
Borrower shall pay to Administrative Agent on the Reconciliation Date
immediately following the exclusion of such Loan Inventory, a principal payment
on the Loans (or provide to Administrative Agent evidence satisfactory to
Administrative Agent that other Senior Unsecured Indebtedness has been reduced)
or unpaid draws under Letters of Credit in an amount sufficient to eliminate
such excess of the aggregate outstanding principal balance of the Senior
Unsecured Indebtedness over the Loan Funding Availability, together with accrued
and unpaid interest on such excess.
(f) Release of Guaranties. Borrower may request the release of any
Restricted Subsidiary from the Subsidiary Guaranty and Administrative Agent
shall release such Restricted Subsidiary from the Subsidiary Guaranty subject to
the following conditions precedent: (i) if Borrower does not have an Investment
Grade Rating from at least two (2) of Moody's, S&P, and Fitch, then (A) Borrower
has delivered to Administrative Agent an Inventory Summary Report and (B) the
Loan Funding Availability established by Administrative Agent pursuant to
SECTION 3.1(e), without consideration of any Inventory owned by such Restricted
Subsidiary, is equal to or greater than the amount otherwise required pursuant
to this Agreement; (ii) Borrower delivers a certificate to Administrative Agent
certifying that no Default or Event of Default exists before and after giving
effect to such release; and (iii) no Default or Event of Default exists before
and after giving effect to such release. Upon any such release, such Subsidiary
shall no longer be deemed a "Restricted Subsidiary."
REVOLVING CREDIT AGREEMENT
- 34 -
ARTICLE 4
LOAN DISBURSEMENTS AND LETTERS OF CREDIT
4.1 PRIOR TO THE FIRST DISBURSEMENT OR LETTER OF CREDIT. Prior to
requesting the first disbursement under the Loans or Letter of Credit hereunder,
Borrower shall deliver all of the following items to Administrative Agent, in
form and substance reasonably satisfactory to Administrative Agent.
Administrative Agent and Lenders shall have no obligation to make the first
disbursement hereunder and Letter of Credit Issuer shall have no obligation to
issue the first Letter of Credit hereunder until all of these items have been so
executed and/or delivered to Administrative Agent.
(a) The Agreement. This Agreement (together with all schedules and
exhibits hereto), executed by Borrower, Administrative Agent, Letter of Credit
Issuer, and Lenders.
(b) Notes. A Note executed by Borrower and payable to the order of each
Lender.
(c) Subsidiary Guaranty. A Subsidiary Guaranty from Guarantors in favor
of Administrative Agent, Letter of Credit Issuer, and Lenders.
(d) Taxpayer Identification Number. Borrower's federal taxpayer
identification number.
(e) Documents of Borrower.
(i) Organizational Documents of Borrower certified by the
office of the Secretary of State in which Borrower is incorporated;
(ii) Bylaws of Borrower certified by an officer of Borrower;
(iii) Certificate of Existence of Borrower issued by the state
in which Borrower is incorporated;
(iv) Incumbency Certificate of Borrower reflecting the
Authorized Signatories;
(v) Corporate resolutions of Borrower certified by an officer
of Borrower and authorizing Borrower to enter into this Agreement and
execute all related documents and Loan Documents applicable to the
Loans and the Letters of Credit; and
(vi) Documentation evidencing Borrower's qualification to do
business for each state in which any part of the Loan Inventory owned
by Borrower is located certified by the office of the Secretary of
State of such state.
(f) Documents of Guarantors.
(i) Organizational Documents of each Guarantor certified by an
officer of such Guarantor;
(ii) Authority Documents of each Guarantor certified by an
officer of such Guarantor;
REVOLVING CREDIT AGREEMENT
- 35 -
(iii) Incumbency Certificate of each Guarantor reflecting the
Authorized Signatories; and
(iv) Resolutions of each Guarantor certified by an officer of
such Guarantor and authorizing such Guarantor to enter into the
Subsidiary Guaranty and execute all related documents and Loan
Documents applicable to such Guarantor.
(g) Compliance Certificate. A certificate signed by an Authorized
Signatory of Borrower in the form of EXHIBIT E showing compliance by Borrower
with SECTION 6.7.
(h) Payment of Existing Indebtedness. Payment of all outstanding
Indebtedness under the Existing Agreement on the date hereof, termination of
such Existing Agreement and release of Borrower from all liabilities and
obligations thereunder, except with respect to letters of credit issued
thereunder and outstanding on the Agreement Date until such letters of credit
expire according to their respective terms or are replaced with Letters of
Credit issued hereunder.
(i) Attorney's Opinions. The written opinions of counsel to (i)
Administrative Agent that the Loan Documents are legal, valid, and binding
obligations of Borrower and each Guarantor (as applicable) and are enforceable
in accordance with their terms, and (ii) Borrower and Guarantors in form and
content acceptable to Administrative Agent and which address the following
matters:
(A) Existence, Due Authorization and Execution. Each of
Borrower and each Guarantor is duly organized and existing as a
corporation, a limited liability company, or a partnership (as the case
may be) and is in good standing and qualified to do business under the
laws of Borrower's or such Guarantor's (as the case may be) state of
organization and that the Loan Documents evidencing the Loans and the
Subsidiary Guaranty (as applicable) have been properly executed and
delivered by the persons authorized to do so; and
(B) Miscellaneous. As to such other matters as Administrative
Agent, counsel to Administrative Agent or Lenders may reasonably
request.
(j) Other Documents. Other documents that Administrative Agent may
reasonably require.
(k) Fees. Payment of all fees and expenses payable on the Agreement
Date to Lenders, Letter of Credit Issuer, and Administrative Agent.
(l) Insurance. Certificate(s) of insurance required pursuant to SECTION
6.11.
In addition, Administrative Agent and Lenders shall have no obligation to make
the first disbursement hereunder and Letter of Credit Issuer shall have no
obligation to issue the first Letter of Credit hereunder if, as of such first
disbursement or Letter of Credit, a Material Adverse Event has occurred.
4.2 ALL DISBURSEMENTS AND LETTERS OF CREDIT. Administrative Agent and
Lenders shall have no obligation to make any disbursements and Letter of Credit
Issuer shall have no obligation to issue any Letters of Credit until all of the
following conditions precedent are satisfied:
(a) Inventory Summary Report. Borrower shall have executed and
delivered to Administrative Agent the Inventory Summary Report that Borrower is
required to deliver pursuant to SECTION 3.1(b).
REVOLVING CREDIT AGREEMENT
- 36 -
(b) Request for Advance. Borrower shall have executed and delivered to
Administrative Agent the Request for Advance that Borrower is required to
deliver pursuant to SECTION 2.2 or the Request for Issuance of Letter of Credit
that Borrower is required to deliver pursuant to SECTION 2.4 in connection with
any issuance of a Letter of Credit hereunder, as the case may be.
(c) Representations and Warranties; Performance of Agreements. As of
the date of the requested disbursement or issuance of a Letter of Credit, as the
case may be, the representations and warranties in Loan Documents are true,
correct, and complete in all material respects as if made on and as of such date
(unless they speak to a specific date or are based on facts which have changed
by transactions expressly contemplated or permitted by this Agreement).
(d) No Default. No Default or Event of Default exists or would be
caused by the making of the requested disbursement or issuance of a Letter of
Credit, as the case may be.
(e) No Injunction or Restraining Order. No order, judgment, or decree
of any Governmental Authority shall purport to enjoin or restrain any Lender or
Letter of Credit Issuer from making the requested disbursement or issuance of a
Letter of Credit, as the case may be.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties with
respect to the Loan Documents and the obligations thereunder to Administrative
Agent, Letter of Credit Issuer, and Lenders:
5.1 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each of
Borrower and each Guarantor (a) is a corporation, partnership, or limited
liability company duly organized or formed, validly existing, and in good
standing under the Applicable Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all governmental
licenses, authorizations, consents, and approvals to own its assets, carry on
its business, and to execute, deliver, and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and is licensed and
in good standing under the Applicable Laws of each jurisdiction where its
ownership, lease, or operation of properties or the conduct of its business
requires such qualification or license, and (d) is in compliance with all
Applicable Laws, except in each case referred to in clause (c) or this clause
(d), to the extent that failure to do so would not individually or in the
aggregate result in a Material Adverse Event.
5.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery, and
performance by each of Borrower and each Guarantor of each Loan Document to
which such Person is party have been duly authorized by all necessary corporate
or other organizational action, and do not and will not (a) contravene the terms
of any of such Person's Organizational Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, any
contractual obligation to which such Person is a party or any order, injunction,
writ, or decree of any Governmental Authority to which such Person or its
property is subject; or (c) violate any Applicable Law.
5.3 BINDING EFFECT. Each Loan Document has been duly executed and
delivered by Borrower and each Guarantor that is party thereto. Each Loan
Document constitutes the legal, valid, and binding obligation of Borrower and
each Guarantor that is a party thereto, enforceable against Borrower and each
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable Debtor Relief Laws and general principles of equity.
REVOLVING CREDIT AGREEMENT
- 37 -
5.4 NO DEFAULT. Neither Borrower nor any Subsidiary is in default under
or with respect to any obligation which would result in a Material Adverse
Event. No Default or Event of Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.5 TAXES. Borrower and its Subsidiaries have filed all Federal, state,
and other material Tax returns and reports required to be filed, and have paid
all Federal, state, and other material Taxes levied or imposed upon them or
their properties, income, or assets otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed Tax assessment against Borrower or any Subsidiary that would, if made,
result in a Material Adverse Event.
5.6 HAZARDOUS MATERIALS. To the best of Borrower's knowledge and belief
and based on environmental assessments of the Inventory obtained by Borrower,
except to the extent disclosed to Administrative Agent in environmental
assessments or other writings or to the extent that it would not materially and
adversely affect the use and marketability of any Inventory, (a) the Inventory
has not been and is not now being used in violation of any federal, state or
local Environmental Law, (b) no proceedings have been commenced, or notice(s)
received, concerning any alleged violation of any such Environmental Law, and
(c) the Inventory is free of Hazardous Materials the removal of which is
required or the maintenance of which is restricted, prohibited, or penalized by
any federal, state, or local Governmental Authority except as set forth in the
site assessments.
5.7 LITIGATION. As of the Agreement Date, neither Borrower nor any
Restricted Subsidiary is a party to any litigation having a reasonable
probability of being adversely determined against Borrower or any Restricted
Subsidiary which, if adversely determined, would result in a Material Adverse
Event.
5.8 FULL DISCLOSURE. There is no material fact or condition relating to
the Loan Documents or the financial condition, business, or property of Borrower
or any Restricted Subsidiary which would be a Material Adverse Event and which
has not been related, in writing, to Administrative Agent and Lenders. All
information heretofore furnished by or on behalf of Borrower or any Restricted
Subsidiary to any Lender or Administrative Agent in connection with the Loan
Documents was, and all such information hereafter furnished by Borrower or any
Restricted Subsidiary to any Lender or Administrative Agent will be, true and
accurate in all material respects or, with respect to projections, based on
reasonable estimates on the date as of which such projections are stated or
certified.
5.9 FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of
Borrower and its Subsidiaries as of and for the portion of the fiscal year
ending on the date or dates thereof (subject only to normal year-end audit
adjustments). There were no material liabilities, direct or indirect, fixed or
contingent, of Borrower and its Subsidiaries as of the date or dates of the
Current Financials which are required under GAAP to be reflected therein or in
the notes thereto, and are not so reflected. Except for the transaction
evidenced by the Loan Documents, there have been no changes in the consolidated
financial condition of Borrower and its Subsidiaries from that shown in the
Current Financials after the date or dates thereof which would be a Material
Adverse Event.
5.10 INSURANCE. Borrower and each Restricted Subsidiary maintains, with
financially sound, responsible, and reputable insurance companies or
associations, insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses.
REVOLVING CREDIT AGREEMENT
- 38 -
5.11 COMPLIANCE WITH LAWS. Neither Borrower nor any of its Restricted
Subsidiaries is in violation of any Applicable Laws (including ERISA), other
than such violations which would not, individually or collectively, be a
Material Adverse Event. Neither Borrower nor any of its Restricted Subsidiaries
has received notice alleging any non-compliance with any Applicable Laws, except
for such non-compliance which no longer exists or which would not be a Material
Adverse Event.
5.12 REGULATION U. Neither Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any "margin stock"
within the meaning of Regulation U. No part of the proceeds of any Loan or
Letter of Credit will be used, directly or indirectly, for a purpose which
violates any Applicable Law, including the provisions of Regulation U or
Regulation X. "Margin Stock" (as defined in Regulation U) constitutes less than
twenty-five percent (25%) of those assets of Borrower and its Subsidiaries that
are subject to any limitation on sale, pledge, or similar restrictions
hereunder.
ARTICLE 6
AFFIRMATIVE COVENANTS
Borrower makes the following affirmative covenants with respect to the
Loan Documents and the obligations thereunder to Administrative Agent, Letter of
Credit Issuer, and Lenders:
6.1 PAYMENT. Borrower shall pay when due all sums owing under this
Agreement, the Notes, and the other Loan Documents executed by Borrower.
6.2 PERFORMANCE. Borrower shall perform all Obligations under this
Agreement, the Notes, and the other Loan Documents executed by Borrower.
6.3 ADDITIONAL INFORMATION. On request of Administrative Agent and
subject to SECTION 10.12, Borrower shall deliver to Administrative Agent and/or
Letter of Credit Issuer any reports prepared in the ordinary course of business
or provide other information with respect to the business, assets (including the
Inventory), and liabilities of Borrower and its Subsidiaries within the
possession or control of Borrower that Administrative Agent and/or Letter of
Credit Issuer may reasonably request including, without limitation, surveys, if
available, and acquisition closing documentation.
6.4 QUARTERLY FINANCIAL STATEMENTS AND OTHER INFORMATION. Within
forty-five (45) days after the last day of each quarter in each fiscal year of
Borrower, except the last quarter in each such fiscal year of Borrower, Borrower
shall deliver to Administrative Agent the Form 10-Q of Borrower as filed with
the Securities and Exchange Commission. Within ten (10) days from the date of
filing, Borrower shall provide to Administrative Agent a copy of every other
report filed by Borrower with the Securities and Exchange Commission under the
Exchange Act and a copy of each registration statement filed by Borrower with
the Securities and Exchange Commission pursuant to the Securities Act of 1933.
6.5 COMPLIANCE CERTIFICATES. Borrower shall, within forty-five (45)
days from the end of each fiscal quarter of Borrower, provide to Administrative
Agent a certificate signed by an Authorized Signatory of Borrower in the form of
EXHIBIT E setting forth such calculations required to establish whether Borrower
was in compliance with SECTION 6.7 and setting forth a list of all Guarantors as
of the last day of such fiscal quarter.
6.6 ANNUAL FINANCIAL STATEMENTS AND INFORMATION; CERTIFICATE OF NO
DEFAULT. Within one hundred (100) days after the end of each fiscal year of
Borrower, Borrower shall deliver to
REVOLVING CREDIT AGREEMENT
- 39 -
Administrative Agent the Form 10-K of Borrower as filed with the Securities and
Exchange Commission, together with the audited consolidated financial statements
of Borrower (which shall be prepared by an independent accounting firm of
recognized standing).
6.7 FINANCIAL AND INVENTORY COVENANTS. Until the Obligations are repaid
in full and the expiration or termination of all Letters of Credit and the Total
Revolving Credit Commitment, Borrower shall adhere to the following financial
covenants (after giving effect to any Financial Covenant Carve Out), all on a
consolidated basis with the Restricted Subsidiaries and determined as of the
last day of each fiscal quarter of Borrower:
(a) Borrower shall maintain at all times a Leverage Ratio of not more
than 2.25 to 1.
(b) Borrower shall at all times maintain a ratio of (i) EBITDA to (ii)
Fixed Charges of not less than 2.50 to 1.0.
(c) Borrower shall maintain at all times Tangible Net Worth of not less
than the sum of (i) $943,400,000, plus (ii) fifty percent (50%) of annual net
profits (with no deduction for any annual net loss) for each fiscal year ending
after September 30, 2001, plus (iii) fifty percent (50%) of the aggregate
increase in shareholders' equity of Borrower after the date hereof by reason of
the issuance of capital stock of Borrower (including upon conversion of
Indebtedness into such capital stock but excluding (x) stock issued in
connection with an employee stock ownership plan, an employee stock option plan,
or an employee stock purchase plan, and (y) any portion of such increase in
shareholders' equity attributable to goodwill recognized in connection with an
Acquisition).
(d) The total number of Speculative Lots owned by Borrower and its
Restricted Subsidiaries at any given time shall not exceed forty percent (40%)
of all Closed Sales during the immediately preceding twelve (12) calendar
months; provided, however, that this total amount shall not be operative during
any period in which Borrower maintains an Investment Grade Rating by at least
two (2) of Moody's, S&P, and Fitch. Models shall not be considered "Speculative
Lots" for purposes of this SECTION 6.7(d).
(e) The costs determined in accordance with GAAP of Developed Lots,
Lots Under Development, and Land Parcels owned by Borrower and its Restricted
Subsidiaries as of the date of determination shall not exceed one hundred fifty
percent (150%) of the Adjusted Tangible Net Worth.
6.8 PAYMENT OF CONTRACTORS. Borrower shall pay in a timely manner, and
shall cause its Restricted Subsidiaries to pay in a timely manner, any and all
contractors and subcontractors who conduct work in or on the Inventory, subject
to the right of Borrower to contest any amount in dispute, so long as the
contesting of such amount is pursued diligently and in good faith. Borrower will
advise Administrative Agent in writing immediately if Borrower or any of its
Restricted Subsidiaries receives any written notice from any contractor(s),
subcontractor(s) or material furnisher(s) to the effect that said contractor(s),
subcontractor(s) or material furnisher(s) have not been paid for any labor or
materials furnished to or in the Inventory and such outstanding payment or
payments are individually or collectively equal to or greater than $1,000,000
per subdivision or $14,000,000 in the aggregate. Borrower will further make
available to Administrative Agent, for inspection and copying, on demand, any
contracts, bills of sale, statements, receipted vouchers, or agreements, under
which Borrower or any Restricted Subsidiary claims title to any materials,
fixtures, or articles used in the development of the Loan Inventory or
construction of improvements on the Loan Inventory including, without
limitation, the Dwellings.
REVOLVING CREDIT AGREEMENT
- 40 -
6.9 INSPECTION AND APPRAISAL. Upon the reasonable request of
Administrative Agent and subject to SECTION 10.12, Borrower shall, and shall
cause each of its Restricted Subsidiaries to, upon reasonable notice, allow
Administrative Agent and Lenders and their authorized agents to inspect any of
their properties, to review reports, files, and other records maintained in the
ordinary course of business, from time to time, during reasonable business
hours; provided that unless an Event of Default has occurred and is continuing,
(a) there shall not be more than four (4) such inspections in any calendar year,
(b) each such inspection shall not exceed two (2) Business Days in length, and
(c) such inspections shall be at each Lender's sole cost and expense. Without
limiting the foregoing, Borrower shall permit Administrative Agent and Lenders
and their authorized agents to enter upon the Inventory during normal working
hours and as often as they desire, for the purpose of inspecting or appraising
the Loan Inventory or the construction of the Dwellings.
6.10 HAZARDOUS MATERIALS. Borrower shall promptly transmit to
Administrative Agent and Lenders copies of any citations, orders, notices, or
other material governmental or other communications received with respect to any
Hazardous Materials affecting the Inventory which would materially and adversely
affect the use and marketability of such Inventory. Notwithstanding the
foregoing, there shall not be a default of this provision should Borrower store
or use minimal quantities of Hazardous Materials, provided that such substances
are of a type and are held only in a quantity normally used in connection with
the construction, occupancy, or operation of comparable buildings or residential
developments (such as cleaning fluids and supplies normally used in the day to
day operation of residential developments), such substances are being held,
stored, and used in complete and strict compliance with all Environmental Laws,
and the indemnity set forth below shall always apply to such substances, and it
shall continue to be the responsibility of Borrower to take all remedial actions
required under and in accordance with this Agreement in the event of any
unlawful release of any such substance.
6.11 INSURANCE. Borrower shall keep the Inventory comprising the Loan
Inventory insured by responsible insurance companies in such amounts and against
such risks as is customary for owners of similar businesses and properties in
the same general areas in which Borrower and its Restricted Subsidiaries operate
or, to the customary extent (and in a manner approved by Administrative Agent)
Borrower may be self insured. All insurance herein provided for shall be in form
and with companies reasonably approved by Administrative Agent. Borrower shall
also maintain general liability insurance, workman's compensation insurance,
automobile insurance for all vehicles owned by them and any other insurance
reasonably required by Administrative Agent, to the extent commercially
available at a reasonable cost. On the Agreement Date, Borrower shall deliver to
Administrative Agent a copy of a certificate of insurance evidencing the
insurance required hereunder. In addition, on the date of delivery of each
report required by SECTION 3.1(b), Borrower shall certify to Administrative
Agent that all insurance policies required to be maintained hereunder remain in
full force and effect.
6.12 REPORTABLE EVENT. Promptly after Borrower receives notice or
otherwise becomes aware thereof, Borrower shall notify Administrative Agent of
the occurrence of any Reportable Event with respect to any Plan as to which the
Pension Benefit Guaranty Corporation has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days of the occurrence of such event (provided that Borrower shall give
Administrative Agent notice of any failure to meet the minimum funding standards
of Section 412 of the Code or Section 302 of ERISA, regardless of the issuance
of any waivers in accordance with Section 412(d) of the Code.
6.13 NOTICES. Borrower shall promptly notify Administrative Agent and
each Lender: (a) of the occurrence of any unremedied Default or Event of Default
of which Borrower has actual knowledge; (b) of any litigation, investigation, or
proceeding affecting Borrower or any Guarantor, which, if adversely determined,
would result in a Material Adverse Event; (c) of any material change in
accounting
REVOLVING CREDIT AGREEMENT
- 41 -
policies or financial reporting practices by Borrower or any of its
Subsidiaries; and (d) of any announcement by Moody's, S&P, or Fitch (as the case
may be) of any change or possible change in a Debt Rating.
6.14 PRESERVATION OF EXISTENCE, ETC.. Borrower shall, and shall cause
each of its Restricted Subsidiaries to, preserve, renew, and maintain in full
force and effect its legal existence and good standing under the Applicable Laws
of the jurisdiction of its organization; take all reasonable action to maintain
all rights, privileges, permits, licenses, and franchises necessary or desirable
in the normal conduct of its business, and preserve or renew all of its
registered patents, trademarks, trade names, and service marks, the
non-preservation of which would result in a Material Adverse Event.
6.15 COMPLIANCE WITH APPLICABLE LAWS. Borrower shall, and shall cause
each of its Restricted Subsidiaries to, comply in all material respects with the
requirements of all Applicable Laws applicable to it or to its business or
property, except where the failure to comply therewith would not result in a
Material Adverse Event.
ARTICLE 7
NEGATIVE COVENANTS
Borrower makes the following negative covenants with respect to the
Loan Documents and the obligations thereunder to Administrative Agent, Letter of
Credit Issuer, and Lenders:
7.1 HAZARDOUS MATERIALS. Borrower shall neither permit any Hazardous
Materials to be brought on to the Inventory, nor shall it acquire real property
to be added to the Loan Inventory upon which any such Hazardous Materials exist,
except to the extent disclosed to Administrative Agent in environmental
assessments or other writings or to the extent that it would not materially and
adversely affect the use and marketability of any Inventory; and if such
Hazardous Materials are so brought or found located thereon, such Hazardous
Materials shall be immediately removed, with proper disposal, to the extent
required by applicable Environmental Laws, and all required environmental
cleanup procedures shall be diligently undertaken pursuant to all such
Environmental Laws.
7.2 SECURED INDEBTEDNESS. Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, incur or permit to exist any Indebtedness
which (a) is secured in whole or in part by any of the Inventory or any capital
stock or other ownership interests in any of the Restricted Subsidiaries (other
than Permitted Encumbrances) or (b) except for provisions in documents
evidencing Indebtedness that prohibit the granting of Liens unless such Liens
secure such Indebtedness on a pari passu basis with the Obligations, contains
any provision requiring Borrower or any Restricted Subsidiary to grant to the
lender thereunder any Lien (other than Permitted Encumbrances) at a future date
or upon the occurrence of any subsequent event; except that Borrower and its
Restricted Subsidiaries may incur (i) Indebtedness in favor of a seller of
Inventory to Borrower which is secured solely by the Inventory contemporaneously
acquired from such seller, (ii) Indebtedness secured solely by Borrower's
headquarters building located in Arlington, Texas or any other office building
owned by Borrower or any Restricted Subsidiary, and (iii) Indebtedness secured
by any clubhouse located in any development of Borrower or any Restricted
Subsidiary.
7.3 INVESTMENTS. Borrower shall not permit the aggregate amount of
assets (as determined in accordance with GAAP) held by Subsidiaries that are not
Restricted Subsidiaries to exceed twenty percent (20%) of the assets (as
determined in accordance with GAAP) of Borrower and its Subsidiaries, on a
consolidated basis.
REVOLVING CREDIT AGREEMENT
- 42 -
7.4 FUNDAMENTAL CHANGES. Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, merge, consolidate with or into, or convey,
transfer, lease, or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default or Event of Default exists at the time thereof or would result
therefrom: (a) Borrower may merge or consolidate with any other Person so long
as Borrower is the continuing or surviving Person and no Event of Default exists
before or after giving effect to such merger or consolidation; (b) any
Restricted Subsidiary may merge with Borrower (provided that Borrower shall be
the continuing or surviving Person) or any one or more Restricted Subsidiaries;
(c) any Restricted Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to Borrower or to another Restricted
Subsidiary; and (d) any Restricted Subsidiary may merge, consolidate with or
into, or convey, transfer, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person in
the ordinary course of business.
ARTICLE 8
DEFAULT AND REMEDIES
8.1 DEFAULTS. Each of the following shall constitute an Event of
Default, whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment or
order of any court or any order, rule, or regulation of any governmental or
non-governmental body:
(a) Any representation or warranty made under this Agreement shall
prove incorrect or misleading in any material respect when made or deemed to
have been made; or
(b) Borrower shall default in the payment of any principal, interest or
other monetary amounts payable hereunder or under the Notes, or any of them, or
under the other Loan Documents which payment default (other than payment due on
the Maturity Date) is not cured within five (5) calendar days of Borrower's
receipt of notice from Administrative Agent; or
(c) Borrower shall default in the performance or observance of any
other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this SECTION 8.1, and such default shall not be cured
to the Required Lenders' satisfaction within a period of forty-five (45) days
from the date Borrower receives notice from Administrative Agent with respect
thereto; or
(d) There shall occur any default in the performance or observance of
any agreement or covenant or breach of any representation or warranty contained
in any of the Loan Documents (other than this Agreement or as otherwise provided
in this SECTION 8.1 of this Agreement) or the Subsidiary Guaranty, which shall
not be cured to the Required Lenders' satisfaction within the applicable cure
period, if any, provided for in such Loan Document or forty-five (45) days from
the date Borrower receives notice from Administrative Agent with respect thereto
if no cure period is provided in such Loan Document; or
(e) There shall be entered a decree or order for relief in respect of
Borrower or any of its Restricted Subsidiaries under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other applicable
federal or state bankruptcy law or other similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator, or similar official of
Borrower or any of its Restricted Subsidiaries, or of any substantial part of
their respective properties, or ordering the
REVOLVING CREDIT AGREEMENT
- 43 -
winding-up or liquidation of the affairs of Borrower or any of its Restricted
Subsidiaries, or an involuntary petition shall be filed against Borrower or any
of its Restricted Subsidiaries, and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of thirty (30) consecutive
days; or
(f) Borrower or any of its Restricted Subsidiaries shall file a
petition, answer, or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, make an assignment for the benefit
of creditors, or Borrower or any of its Restricted Subsidiaries shall consent to
the institution of proceedings thereunder or to the filing of any such petition
or to the appointment or taking of possession of a receiver, liquidator,
assignee, trustee, custodian, sequestrator, or other similar official of
Borrower or any of its Restricted Subsidiaries, or of any substantial part of
their respective properties, or Borrower or any of its Restricted Subsidiaries
shall fail generally to pay their respective debts as they become due, or
Borrower or any of its Restricted Subsidiaries shall take any corporate or
partnership action to authorize any such action; or
(g) A final judgment shall be entered by any court against Borrower or
any of its Restricted Subsidiaries for the payment of money which exceeds
$1,000,000, which judgment is not covered by insurance or a warrant of
attachment or execution or similar process shall be issued or levied against
property of Borrower or any of its Restricted Subsidiaries which, together with
all other such property of Borrower or any of its Restricted Subsidiaries
subject to other such process, exceeds in value $1,000,000 in the aggregate, and
if, within thirty (30) days after the entry, issue, or levy thereof, such
judgment, warrant, or process shall not have been paid or discharged or bonded
or stayed pending appeal, or if, after the expiration of any such stay, such
judgment, warrant, or process shall not have been paid or discharged; or
(h) (1) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan; or (2) a trustee shall be appointed by a United States District Court
to administer any Plan; or the Pension Benefit Guaranty Corporation shall
institute proceedings to terminate any Plan; or (3) any of Borrower and its
ERISA Affiliates shall incur any liability to the Pension Benefit Guaranty
Corporation in connection with the termination of any Plan; or (4) any Plan or
trust created under any Plan of any of Borrower and its ERISA Affiliates shall
engage in a non-exempt "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject Borrower
or any ERISA Affiliate to the tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code; and by reason of
any or all of the events described in clauses (1) through (4), as applicable,
Borrower or any of its Restricted Subsidiaries shall have incurred or is likely
to incur liability in excess of $2,000,000 in the aggregate; or
(i) All or any portion of any Loan Document shall at any time and for
any reason be declared by a court of competent jurisdiction in a suit with
respect to such Loan Document to be null and void, or a proceeding shall be
commenced by any Governmental Authority having jurisdiction over Borrower or any
of its Restricted Subsidiaries or by Borrower or any of its Restricted
Subsidiaries, seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or Borrower
or any of its Restricted Subsidiaries shall assert that any Loan Document is
null and void or deny or attempt to revoke any liability or obligation for the
payment of principal or interest purported to be created under any Loan
Document; or
(j) There shall occur any Change of Control; or
REVOLVING CREDIT AGREEMENT
- 44 -
(k) Except for conveyances of all or any part of the Loan Inventory
between Borrower and the Guarantors there occurs any sale, lease, conveyance,
assignment, pledge, encumbrance, or transfer of all or any part of the Loan
Inventory or any interest therein, voluntarily or involuntarily, whether by
operation of law or otherwise, except (i) in accordance with the terms of this
Agreement, (ii) for execution of contracts with prospective purchasers, (iii)
for Permitted Encumbrances, or (iv) in the ordinary course of business; or
(l) Except in the normal course of Borrower's and its Restricted
Subsidiaries' development of Inventory into Developed Lots and construction of
Dwellings thereon, without the prior written consent of Administrative Agent,
Borrower or any of its Restricted Subsidiaries grants any easement or
dedication, files any plat, condominium declaration, or restriction or otherwise
encumbers all or any portion of the Loan Inventory, or seeks or permits any
zoning reclassification or variance, unless such action is expressly permitted
by the Loan Documents or does not affect any Inventory which is part of the Loan
Inventory; or
(m) Borrower or any of its Restricted Subsidiaries fails to pay when
due (after lapse of any applicable grace periods) any Recourse Indebtedness of
Borrower or such Restricted Subsidiary (other than the Obligations) in excess
(individually or collectively) of $20,000,000; or
(n) The acceleration of any Recourse Indebtedness of Borrower or any of
its Restricted Subsidiaries in excess (individually or collectively) of
$20,000,000 and such acceleration does not cease to exist or such Recourse
Indebtedness is not satisfied, in either case within five (5) days after such
acceleration occurred.
Notwithstanding anything contained herein to the contrary, the occurrence of any
of the foregoing shall not be a Default or an Event of Default hereunder if: (i)
the occurrence pertains only to specific parcel(s) within the Loan Inventory;
and (ii) the affected parcel(s) is (are) removed from the Loan Inventory on or
before ten (10) days in the case of a monetary occurrence and thirty (30) days
in the case of a non-monetary occurrence after the occurrence or, if Borrower is
entitled to notice and cure, within the applicable notice and cure period. In
the event that any such parcel is a Lot Under Development, Developed Lot, or
Dwelling Lot, then the Loan Funding Availability shall be immediately calculated
excluding such parcel. If, as the result of such removal, the outstanding
principal balance under all Senior Unsecured Indebtedness would exceed the Loan
Funding Availability, Borrower shall pay (X) to Administrative Agent on the
Reconciliation Date immediately following the removal of such Inventory from the
Loan Inventory, a principal payment on the Loans in an amount sufficient to
eliminate such excess of the aggregate outstanding principal balance of all
Senior Unsecured Indebtedness over the Loan Funding Availability, together with
any due and unpaid interest on such excess or (Y) add additional Inventory to
the Loan Inventory (which is acceptable to Administrative Agent) in an amount
sufficient to cause the Loan Funding Availability to equal or exceed all Senior
Unsecured Indebtedness.
8.2 REMEDIES. If an Event of Default shall have occurred and shall be
continuing:
(a) With the exception of an Event of Default specified in SECTIONS
8.1(e) or (f), Administrative Agent shall at the request, or may with the
consent, of the Required Lenders, by notice to Borrower (i) declare the Notes,
all interest thereon, and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest, notice of intention to
accelerate, notice of acceleration, or further notice of any kind, all of which
are hereby expressly waived by Borrower, (ii) terminate the Total Revolving
Credit Commitment, and
REVOLVING CREDIT AGREEMENT
- 45 -
(iii) require Borrower to, and Borrower shall thereupon, Cash Collateralize the
Letters of Credit in an amount equal to the outstanding Letter of Credit
Exposure.
(b) Upon the occurrence of an Event of Default under SECTIONS 8.1(e) or
(f), the Total Revolving Credit Commitment shall automatically terminate and
such principal, interest (including without limitation, interest which would
have accrued but for the commencement of a case or proceeding under the federal,
state, or other bankruptcy laws), Letter of Credit Exposure, and other amounts
payable under this Agreement or the Notes shall thereupon and concurrently
therewith become due and payable, all without any action by Administrative
Agent, Letter of Credit Issuer, or Lenders or the holders of the Notes, and
Borrower shall thereupon Cash Collateralize the Letters of Credit in an amount
equal to the outstanding Letter of Credit Exposure, all without presentment,
demand, protest, notice of intention to accelerate, notice of acceleration, or
other notice of any kind, all of which are expressly waived, anything in this
Agreement or in the Notes to the contrary notwithstanding.
(c) Administrative Agent, with the concurrence of the Required Lenders,
shall exercise all of the post-default rights granted to it and to them under
the Loan Documents or under Applicable Law.
(d) The rights and remedies of Administrative Agent, Letter of Credit
Issuer, and Lenders hereunder shall be cumulative, and not exclusive.
8.3 WAIVERS. Neither a waiver of any Default or Event of Default by
Borrower hereunder nor any representation by a Lender or Lenders as to the
nonoccurrence or nonexistence thereof shall be implied from any delay or
omission by any one or all of Lenders to notify Borrower thereof or to take
action on account of such Default or Event of Default, and no express waiver
shall affect any Default or Event of Default other than the matter specified in
the waiver and it shall be operative only for the time and to the extent therein
stated. Waivers of any covenants, terms, or conditions contained herein must be
in writing and shall not be construed as a waiver of any subsequent breach of
the same covenant, term, or condition. Any one or all of Lenders' consent or
approval to or of any act by Borrower requiring further consent or approval
shall not be deemed to waive or render unnecessary the consent or approval to or
of any subsequent or similar act. Any one or all of Lenders' exercise of any
right or remedy hereunder shall not in any way constitute a cure or waiver of a
Default or an Event of Default, or invalidate any act done pursuant to any
notice of the occurrence of a Default or an Event of Default, or prejudice
Lenders in the exercise of any of their rights or remedies hereunder or under
the Notes or any other Loan Documents, unless, in the exercise of such rights or
remedies, Lenders realize all amounts owed to them under the Notes and other
Loan Documents.
8.4 CROSS-DEFAULT. All of the Notes and other Loan Documents are "cross
defaulted" such that (a) the occurrence of an Event of Default under any one of
the Loan Documents shall constitute an Event of Default under this Agreement and
all of the Loan Documents, and (b) the occurrence of a Default under any one of
the Loan Documents shall constitute a Default under this Agreement and all of
the other Loan Documents.
REVOLVING CREDIT AGREEMENT
- 46 -
8.5 NO LIABILITY OF LENDERS.
(a) Construction and/or Development. None of Lenders, Administrative
Agent, or Letter of Credit Issuer shall be liable to any party for (i) the
development of or construction upon any of the Inventory, (ii) the failure to
develop or construct or protect improvements on the Inventory, (iii) the payment
of any expense incurred in connection with the development of or construction
upon the Inventory, (iv) the performance or nonperformance of any other
obligation of Borrower or any Restricted Subsidiary, or (v) Lenders' or
Administrative Agent's exercise of any remedy available to them. In addition,
Lenders shall not be liable to Borrower or any third party for the failure of
Lenders or their authorized agents to discover or to reject materials or
workmanship during the course of Lenders' inspections of the Inventory.
(b) Dwelling Lots. In addition to SECTION 8.5(a) above, none of
Lenders, Administrative Agent, or Letter of Credit Issuer shall be liable to any
party for (i) the construction or completion of the Dwellings, (ii) the failure
to construct, complete, or protect the Dwellings, (iii) the payment of any
expense incurred in connection with the construction of the Dwellings, (iv) the
performance or nonperformance of any other obligation of Borrower or any
Restricted Subsidiary, or (v) Lenders' or Administrative Agent's exercise of any
remedy available to them. In addition, Lenders shall not be liable to Borrower
or any third party for the failure of Lenders or their authorized agents to
discover or to reject materials or workmanship during the course of Lenders'
inspections of the Dwelling Lots.
(c) Other Lenders. The obligations of each Lender under this Agreement
are separate and independent such that no action, inaction, or responsibility of
one Lender shall be imputed to the remaining Lenders. Borrower hereby waives any
claim or demand against each Lender as to the action, inaction, or
responsibility of another.
8.6 INDEMNIFICATION.
(a) Expenses. Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of Administrative Agent in connection with the
syndication, development, preparation, execution, delivery, modification,
waiver, and amendment of this Agreement, the other Loan Documents, and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for Administrative Agent with respect
thereto and with respect to advising Administrative Agent as to its rights and
responsibilities under the Loan Documents. Borrower further agrees to pay on
demand all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) of the Administrative Agent, each Agent-Related
Person, Letter of Credit Issuer, and Lenders (and their respective officers,
directors, employees, representatives, agents, attorneys, and
attorneys-in-fact), if any, in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
(b) Indemnity. Whether or not the transactions contemplated hereby are
consummated, Borrower agrees to indemnify, save, and hold harmless
Administrative Agent, each Agent-Related Person, Letter of Credit Issuer, and
Lenders and their respective Affiliates, representatives, officers, directors,
employees, attorneys, attorneys-in-fact, and agents. (each, an "INDEMNIFIED
PARTY" and collectively, the "INDEMNIFIED PARTIES") from and against: (i) any
and all claims, demands, actions, or causes of action that are asserted against
any Indemnified Party as a result of the Loan Documents by any Person (other
than an Indemnified Party) relating directly or indirectly to a claim, demand,
action, or cause of action that such Person asserts or may assert against
Borrower or any Guarantor, any Affiliate of Borrower or any Guarantor, or any of
their respective representatives, officers, directors, employees, attorneys,
attorneys-in-fact, and agents; (ii) any and all claims, demands, actions, or
causes of action that
REVOLVING CREDIT AGREEMENT
- 47 -
may at any time (including at any time following repayment of the Obligations
and the resignation or removal of Administrative Agent or the replacement of any
Lender) be asserted or imposed against any Indemnified Party, arising out of or
relating to, the Loan Documents, any predecessor loan documents, the Total
Revolving Credit Commitment, the use or contemplated use of the proceeds of any
Advance or Letter of Credit, or the relationship of Borrower and Administrative
Agent, each Agent-Related Person, Letter of Credit Issuer, and Lenders under
this Agreement or any other Loan Document; (iii) any administrative or
investigative proceeding by any Governmental Authority arising out of or related
to a claim, demand, action, or cause of action described in CLAUSE (i) or (ii)
above; and (iv) any and all liabilities (including liabilities under
indemnities), losses, costs, or expenses (including attorneys' fees and
expenses) that any Indemnified Party suffers or incurs as a result of the
assertion of any foregoing claim, demand, action, cause of action, or
proceeding, or as a result of the preparation of any defense in connection with
any foregoing claim, demand, action, cause of action, or proceeding, in all
cases, WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNIFIED PARTY, and
whether or not an Indemnified Party is a party to such claim, demand, action,
cause of action, or proceeding (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); provided that no Indemnified Party shall be entitled
to indemnification for any claim caused by its own gross negligence or willful
misconduct or for any loss, demand, action, cause of action or proceeding
asserted against it by another Indemnified Party. Borrower shall also indemnify,
protect, and hold each Indemnified Party harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, proceedings, costs, expenses (including without limitation all
reasonable attorneys' fees and legal expenses whether or not suit is brought),
and disbursements of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against such Indemnified Party, with
respect to or as a direct or indirect result of the violation or non-compliance
by Borrower or any of its Subsidiaries of any Environmental Law and arising as a
result of such Indemnified Party's being a party to any of the Loan Documents;
or with respect to or as a direct or indirect result of Borrower's or any of its
Subsidiaries' use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal, or presence of a Hazardous material on,
under, from, or about real property owned by Borrower or any of its
Subsidiaries.
(c) Waiver. No Indemnified Party shall be liable for any error of
judgment or act done in good faith, or be otherwise liable or responsible under
any circumstances whatsoever (INCLUDING SUCH PERSON'S NEGLIGENCE), except to the
extent found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Person's gross negligence or willful
misconduct. No Indemnified Party shall have any liability with respect to, and
Borrower hereby waives, releases, and agrees not to sue any of them upon, any
claim for any special, indirect, incidental, or consequential damage suffered or
incurred by Borrower, any of its Subsidiaries, or any of its Affiliates in
connection with, arising out of, or in any way related to this Agreement or any
of the other Loan Documents, or any of the transactions contemplated by this
Agreement or any of the other Loan Documents.
(d) Punitive Damages. Borrower hereby waives, releases, and agrees not
to sue any Indemnified Party for exemplary or punitive damages in respect of any
claim in connection with, arising out of, or in any way related to this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. Each
Indemnified Party hereby waives, releases, and agrees not to sue Borrower or any
Guarantor for exemplary or punitive damages in respect of any claim in
connection with, arising out of, or in any way related to this Agreement or any
of the other Loan Documents, or any of the transactions contemplated by this
Agreement or any of the other Loan Documents.
(e) Survival. Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements and obligations of Borrower contained in
this SECTION 8.6 shall survive the payment in full of the Obligations.
REVOLVING CREDIT AGREEMENT
- 48 -
ARTICLE 9
ADMINISTRATIVE AGENT
9.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to SECTION 9.9) appoints
designates, and authorizes Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Administrative Agent agrees to: (i)
timely distribute to each Lender all material information, requests, documents,
and items received from Borrower under the Loan Documents; (ii) promptly
distribute to each Lender its ratable part of each payment or prepayment
(whether voluntary, as proceeds of collateral upon or after foreclosure, as
proceeds of insurance thereon, or otherwise) in accordance with the terms of the
Loan Documents; (iii) deliver to the appropriate Persons requests, demands,
approvals, and consents received from Lenders; (iv) make requests for additional
information pursuant to SECTION 6.3; and (v) make requests for inspections
pursuant to SECTION 6.9; provided, however, Administrative Agent shall not be
required to take any action which exposes Administrative Agent to personal
liability or which is contrary to the Loan Documents or Applicable Law.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or Participant, and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Administrative
Agent. Without limiting the generality of the foregoing sentence, the use of the
term "agent" herein and in the other Loan Documents with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any Applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Letter of Credit Issuer shall act on behalf of Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time (and except for so long) as Administrative Agent may agree at
the request of the Required Lenders to act for Letter of Credit Issuer with
respect thereto; provided, however, that Letter of Credit Issuer shall have all
of the benefits and immunities (i) provided to Administrative Agent in this
SECTION 9 with respect to any acts taken or omissions suffered by Letter of
Credit Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and the application and agreements for letters of credit
pertaining to the Letter of Credit as fully as if the term "Administrative
Agent" as used in this SECTION 9 included Letter of Credit Issuer with respect
to such acts or omissions, and (ii) as additionally provided herein with respect
to Letter of Credit Issuer.
9.2 DELEGATION OF DUTIES. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees, or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
REVOLVING CREDIT AGREEMENT
- 49 -
9.3 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall be
(a) liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (INCLUDING ANY ACTION OR OMISSION CONSTITUTING ORDINARY
NEGLIGENCE BY AN AGENT-RELATED PERSON) (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) responsible in any manner to any Lender or Participant for any recital,
statement, representation, or warranty made by Borrower, any of its
Subsidiaries, or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement, or other document referred
to or provided for in, or received by Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability, or sufficiency of this Agreement or
any other Loan Document, or for any failure of Borrower, any Guarantor, or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or Participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books, or records of Borrower
or any Affiliate thereof.
9.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex, or telephone message, statement or other document or
conversation 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 counsel to Borrower), independent accountants, and
other experts selected by Administrative Agent. Administrative Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by 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. Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all Lenders and Participants.
Where this Agreement expressly permits or prohibits an action unless the
Required Lenders or all Lenders otherwise determine, Administrative Agent shall,
and in all other instances, Administrative Agent may, but shall not be required
to, initiate any solicitation for the consent or a vote of Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 4.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved, or accepted or to be satisfied with, each
document or other matter either sent by Administrative Agent to such Lender for
consent, approval, acceptance, or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.5 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest, and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be directed by the Required Lenders in accordance with SECTION 8; provided,
however, that unless and until Administrative Agent has received any such
direction, Administrative Agent may (but shall not be obligated to) take such
REVOLVING CREDIT AGREEMENT
- 50 -
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders.
9.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of Borrower or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial, and other condition and
creditworthiness of Borrower and its Affiliates, and all Applicable Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person 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 Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition, and creditworthiness of Borrower. Except for
notices, reports, and other documents expressly required to be furnished to
Lenders by Administrative Agent herein, Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition, or creditworthiness of Borrower or any Affiliate thereof
which may come into the possession of any Agent-Related Person.
9.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Agent-Related Person (to the extent not reimbursed by or on behalf
of Borrower and without limiting the obligation of Borrower to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this SECTION 9.7. Without
limitation of the foregoing, each Lender shall reimburse Administrative Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including attorneys' fees and expenses) incurred by Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment, or enforcement (whether through negotiations, legal
proceedings, or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that Administrative Agent
is not reimbursed for such expenses by or on behalf of Borrower. The undertaking
in this SECTION 9.7 shall survive termination of the Revolving Credit
Commitments, the payment of all Obligations hereunder, and the resignation or
replacement of Administrative Agent.
9.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in, and generally engage in
any kind of banking, trust, financial advisory, underwriting, or other business
with Borrower or any Affiliate thereof as though Bank of America were not
Administrative Agent or Letter of Credit Issuer hereunder and without notice to
or consent of any other Lender. Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
Borrower or its Affiliates (including information that may be subject to
confidentiality
REVOLVING CREDIT AGREEMENT
- 51 -
obligations in favor of Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights
under this Agreement as any other Lender and may exercise such rights as though
it were not Administrative Agent or Letter of Credit Issuer, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may and, at
the request of either Borrower or the Required Lenders (if Borrower or the
Required Lenders reasonably determines that Administrative Agent has failed and
is continuing to fail to perform its obligations under this Agreement) shall,
resign as Administrative Agent upon thirty (30) days' notice to Lenders. If
Administrative Agent resigns under this Agreement, then the Required Lenders
shall appoint from among Lenders a successor administrative agent for Lenders
which successor administrative agent shall be consented to by Borrower at all
times other than during the existence of an Event of Default (which consent of
Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of Administrative Agent, then Administrative Agent may appoint, after consulting
with Lenders and Borrower, a successor administrative agent from among Lenders.
Upon the acceptance of its appointment as successor administrative agent
hereunder, such successor administrative agent shall succeed to all the rights,
powers, and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers, and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
SECTION 9 and SECTION 8.6 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is thirty (30) days following a retiring
Administrative Agent's notice of resignation, then the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and Lenders
shall perform all of the duties of Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.
9.10 OTHER AGENTS; LEAD MANAGERS. No Lender identified on the facing
page or signature pages of this Agreement as a "syndication agent,"
"documentation agent, "co-agent," "co-arranger," or "lead manager" shall have
any right, power, obligation, liability, responsibility, or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, no Lender so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any Lender so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
REVOLVING CREDIT AGREEMENT
- 52 -
ARTICLE 10
GENERAL CONDITIONS
10.1 BENEFIT. This Agreement is made and entered into for the sole
protection and benefit of Administrative Agent, Letter of Credit Issuer,
Lenders, and Borrower, their successors and permitted assigns, and no other
person or persons other than Borrower shall have any right of action hereon or
rights to proceeds of the Loans at any time. None of Administrative Agent,
Letter of Credit Issuer, or Lenders shall (a) owe any duty whatsoever to any
claimant for labor performed or material furnished in connection with the
construction of any Dwelling or improvement on any Inventory, or (b) owe any
duty to apply any undisbursed portion of the Loans to the payment of any claim,
or (c) owe any duty to exercise any right or power of Lenders hereunder or
arising from any Default or Event of Default by Borrower.
10.2 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, and, to the
extent expressly contemplated hereby, Indemnified Parties) any legal or
equitable right, remedy, or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights under this Agreement (including all or a portion of its
Revolving Credit Commitment, Notes, and Loans (including for purposes of this
SECTION 10.2(b) participations in the Letter of Credit Exposure) at the time
owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Revolving Credit Commitment,
Notes, and Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender, the aggregate amount of the Revolving Credit
Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and
Acceptance Agreement with respect to such assignment is delivered to
Administrative Agent, shall not be less than $5,000,000 unless each of
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights under
this Agreement with respect to the Revolving Credit Commitment, Notes, and Loans
assigned, (iii) the parties to each assignment shall execute and deliver to
Administrative Agent an Assignment and Acceptance Agreement, together with a
processing and recordation fee of $3,500, and (iv) the assignee Lender, if it is
not a Lender prior to the effectiveness of such assignment, shall deliver an
administrative questionnaire to Administrative Agent. Subject to acceptance and
recording thereof by Administrative Agent pursuant to SECTION 10.2(c), from and
after the effective date specified in each Assignment and Acceptance Agreement,
the Eligible Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance Agreement, have the
rights of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance
Agreement, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance Agreement covering all of the assigning
Lender's rights under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of SECTION 8.6). Upon
request, Borrower shall execute and deliver new or replacement Notes to the
assigning Lender and the assignee Lender. Any assignment or transfer by a Lender
of rights under
REVOLVING CREDIT AGREEMENT
- 53 -
this Agreement that does not comply with this SECTION 10.2(b) shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights in accordance with SECTION 10.2(d).
(c) Administrative Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at Administrative Agent's office a copy of each
Assignment and Acceptance Agreement delivered to it and a register for the
recordation of the names and addresses of Lenders, and the Revolving Credit
Commitments of, and principal amount of the Loans and Letter of Credit Exposure
owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and Borrower,
Administrative Agent, Letter of Credit Issuer, and Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by Borrower,
Administrative Agent, Letter of Credit Issuer, and Lenders, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, Borrower or
Administrative Agent, sell participations to one (1) or more banks or other
entities (a "PARTICIPANT") in all or a portion of such Lender's rights under
this Agreement (including all or a portion of its Revolving Credit Commitment,
Notes, and Loans (including such Lender's participations in the Letter of Credit
Exposure) owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
and (iii) Borrower, Administrative Agent, Letter of Credit Issuer, and Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights under this Agreement. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification, or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver, or other
modification that would (A) postpone any date upon which any payment of money is
scheduled to be paid to such Participant, (B) reduce the principal, interest,
fees, or other amounts payable to such Participant, or (C) release any
guarantor, except as expressly provided herein. To the extent permitted by
Applicable Law, each Participant also shall be entitled to the benefits of
SECTION 2.11(a) as though it were a Lender, provided that such Participant
agrees to be subject to SECTION 2.11(b) as though it were a Lender.
(e) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto, provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (iii) Borrower,
Administrative Agent, Letter of Credit Issuer, and Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights under this Agreement.
(f) If the consent of Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in CLAUSE (i) of the proviso
to the first sentence of SECTION 10.2(b)), Borrower shall be deemed to have
given its consent five (5) Business Days after the date notice thereof has been
delivered by the assigning Lender (through Administrative Agent) unless such
consent is expressly refused by Borrower prior to such fifth (5th) Business Day.
REVOLVING CREDIT AGREEMENT
- 54 -
(g) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Revolving Credit Commitment, Notes,
and Loans pursuant to SECTION 10.2(b), then Bank of America may, upon thirty
(30) days' notice to Borrower and Lenders, resign as Letter of Credit Issuer. In
the event of any such resignation as Letter of Credit Issuer, Borrower shall be
entitled to appoint from among Lenders a successor Letter of Credit Issuer
hereunder; provided, however, that no failure by Borrower to appoint any such
successor shall affect the resignation of Bank of America as Letter of Credit
Issuer. Bank of America shall retain all the rights of the Letter of Credit
Issuer hereunder with respect to all Loans outstanding as of the effective date
of its resignation as Letter of Credit Issuer and all Letter of Credit Exposure
with respect thereto (including the right to require Lenders to make Advances or
fund participations in unreimbursed amounts pursuant to SECTION 2.4(c)).
(h) Under any circumstances set forth herein providing that Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
Borrower may, upon notice to such Lender and Administrative Agent, (i) remove
such Lender by terminating such Lender's Revolving Credit Commitment, or (ii)
replace such Lender by causing such Lender to assign its Revolving Credit
Commitment (without payment of any assignment fee) pursuant to SECTION 10.2(b)
to one or more other Lenders or Eligible Assignees procured by Borrower;
provided, however, that if Borrower elects to exercise such right with respect
to any Lender pursuant to SECTION 2.12(d), it shall be obligated to remove or
replace, as the case may be, all Lenders that have made similar requests for
compensation pursuant to SECTION 2.12(a) or SECTION 2.12(b). Borrower shall (A)
pay in full all principal, interest, fees, and other amounts owing to such
Lender through the date of termination or assignment, (B) provide appropriate
assurances and indemnities (which may include letters of credit) to Letter of
Credit Issuer as Letter of Credit Issuer may reasonably require with respect to
any continuing obligation to purchase participation interests in any Letter of
Credit Exposure then outstanding, and (C) release such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Acceptance Agreement with respect to such Lender's
Revolving Credit Commitment and outstanding Loans. Administrative Agent shall
distribute an amended SCHEDULE 2.1, which shall be deemed incorporated into this
Agreement, to reflect changes in the identities of any Lenders and adjustments
of their respective Revolving Credit Commitments and/or Commitment Ratios
resulting from any such removal or replacement. In order to make all Lenders'
interests in any outstanding Loans ratable in accordance with any revised
Commitment Ratio after giving effect to the removal or replacement of a Lender,
Borrower shall pay or prepay, if necessary, on the effective date thereof, all
outstanding Loans of all Lenders. Borrower may then request Advances from
Lenders in accordance with their revised Commitment Ratios. Borrower may net any
payments required hereunder against any funds being provided by any Lender or
Eligible Assignee replacing a terminating Lender. The effect for purposes of
this Agreement shall be the same as if separate transfers of funds had been made
with respect thereto.
10.3 AMENDMENT AND WAIVER.
(a) Except as otherwise specifically provided, (i) this Agreement may
only be amended, modified or waived by an instrument in writing executed jointly
by Borrower and the Required Lenders, and, in the case of any matter affecting
Administrative Agent, by Administrative Agent, and may only be supplemented by
documents delivered or to be delivered in accordance with the express terms
hereof, and (ii) the other Loan Documents may only be the subject of an
amendment, modification, or waiver if Borrower and the Required Lenders, and, in
the case of any matter affecting Administrative Agent, Administrative Agent,
have approved same.
(b) Any amendment to or consent or waiver under any Loan Document which
purports to accomplish any of the following must be approved by Borrower and by
Administrative Agent, Letter of
REVOLVING CREDIT AGREEMENT
- 55 -
Credit Issuer, and all Lenders: (i) extends, postpones, or delays any date fixed
by the Loan Documents for any payment of all or any part of the Obligations
payable to such Lender (including, without limitation, the Maturity Date); (ii)
reduces the rate or decreases the amount of any payment of principal, interest,
fees, or other sums payable to Administrative Agent, Letter of Credit Issuer, or
any such Lender hereunder (except such reductions as are contemplated by this
Agreement); (iii) changes the definition of "REQUIRED LENDERS" or amends or
modifies SECTION 10.3(b) or any other provisions of the Loan Documents that
require the unanimous consent of all Lenders; (iv) except as otherwise permitted
by any Loan Document, releases (A) any guaranty, (B) all or substantially all of
any collateral, or (C) Borrower; or (v) amend or modify SECTION 2.9 in a manner
that would alter the pro rata sharing of payments required thereby. Without the
consent of such Lender, no Lender's "REVOLVING CREDIT COMMITMENT" may be
increased.
(c) Any amendment to or consent or waiver under any Loan Document which
would affect the rights, obligations, or duties of Administrative Agent must be
approved by Administrative Agent. Any amendment to or consent or waiver under
any Loan Document which would affect the rights, obligations, or duties of
Letter of Credit Issuer must be approved by Letter of Credit Issuer.
(d) Any conflict or ambiguity between the terms and provisions herein
and terms and provisions in any other Loan Document shall be controlled by the
terms and provisions herein.
(e) No course of dealing or any failure or delay by Administrative
Agent, Letter of Credit Issuer, or any Lender or any of their respective
representatives, officers, directors, employees, attorneys, attorneys-in-fact,
and agents with respect to exercising any right or remedy of any Administrative
Agent, Letter of Credit Issuer, or any Lender hereunder shall operate as a
waiver thereof. A waiver must be in writing and signed by Administrative Agent
and the Required Lenders (or the affected Lenders or by all Lenders, if required
hereunder) to be effective, and such waiver will be effective only in the
specific instance and for the specific purpose for which it is given.
(f) All communications from Administrative Agent to Lenders requesting
Lenders' determination, consent, approval, or disapproval (i) shall be given in
the form of a written notice to each Lender, (ii) shall be accompanied by a
description of the matter or thing as to which such determination, approval,
consent, or disapproval is requested, or shall advise each Lender where such
matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a Lender
and to the extent not previously provided to such Lender, written materials and
a summary of all oral information provided to Administrative Agent by Borrower
in respect of the matter or issue to be resolved, and (iv) shall include
Administrative Agent's recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event within ten (10)
Business Days after such Lender's actual receipt (as determined by
Administrative Agent) of the request from Administrative Agent (in either event,
the "LENDER REPLY PERIOD"). If the Lender Reply Period is conspicuously set
forth in a written notice from Administrative Agent to a Lender, then unless
such Lender shall give written notice to Administrative Agent that it objects to
the recommendation or determination of Administrative Agent within the Lender
Reply Period, such Lender shall be deemed to have approved of or consented to
such recommendation or determination if such written notice from Administrative
Agent shall conspicuously state that such approval or consent shall be deemed
given unless a response is received within the Lender Reply Period.
10.4 ADDITIONAL OBLIGATIONS . Lenders shall be under no obligation to
extend any loans to Borrower other than as specifically set forth in this
Agreement.
REVOLVING CREDIT AGREEMENT
- 56 -
10.5 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF TEXAS; PROVIDED THAT ADMINISTRATIVE AGENT, LETTER OF CREDIT ISSUER,
AND LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. EACH PARTY
HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (A)
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY TEXAS STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN DALLAS, TEXAS, AND ANY
APPELLATE COURT OF ANY OF THE FOREGOING, AND AGREES AND CONSENTS THAT SERVICE OF
PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATIONS BY SERVICE OF PROCESS AS
PROVIDED BY APPLICABLE LAWS OF THE STATE OF TEXAS, (B) IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY ALL APPLICABLE LAWS, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR
IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATIONS BROUGHT IN ANY SUCH
COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) AGREES (IN THE CASE OF
BORROWER) TO DESIGNATE AN AGENT FOR SERVICE OF PROCESS IN TEXAS IN CONNECTION
WITH ANY SUCH LITIGATION (AND BORROWER HEREBY DESIGNATES AND IRREVOCABLY
APPOINTS SUCH AGENT AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT IN THE NAME, PLACE,
AND STEAD OF BORROWER TO ACCEPT SERVICE OF ALL WRITS, PROCESS, AND SUMMONSES IN
ANY SUCH LITIGATION) AND TO DELIVER TO ADMINISTRATIVE AGENT EVIDENCE THEREOF,
(E) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET
FORTH HEREIN, (F) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY
HERETO ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
OBLIGATIONS SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND (G)
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.5 WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
10.6 PUBLICITY. Subject to Borrower's approval, Administrative Agent
shall have the right to incorporate the names of Lenders into signage placed
upon the Loan Inventory. Each Lender shall have the right to secure printed
publicity through newspaper and other media concerning the Inventory and source
of financing.
10.7 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership, or trust" within the meaning of the Code (a "FOREIGN LENDER") shall
deliver to Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two (2) duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding Tax on all payments to be made to such Person
by Borrower pursuant to this Agreement or any other Loan Document) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Person by Borrower pursuant to this Agreement or any other Loan Document) or
such other evidence satisfactory to Borrower and Administrative Agent that such
Person is entitled to an exemption from, or
REVOLVING CREDIT AGREEMENT
- 57 -
reduction of, United States withholding Tax. Thereafter and from time to time,
each such Person shall (a) promptly submit to Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and Administrative Agent of any available exemption from or reduction
of, United States withholding Taxes in respect of all payments to be made to
such Person by Borrower pursuant to this Agreement or any other Loan Document,
(b) promptly notify Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (c) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its applicable lending office) to avoid any requirement of
Applicable Laws that Borrower make any deduction or withholding for Taxes from
amounts payable to such Person. If such Person fails to deliver the above forms
or other documentation, then Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding Tax
imposed by Sections 1441 and 1442 of the Code, without reduction. If any
Governmental Authority asserts that Administrative Agent did not properly
withhold any Tax or other amount from payments made in respect of such Person as
a result of such Person's failure to deliver the necessary forms or other
documentation as set forth in this SECTION 10.7, then such Person shall
indemnify Administrative Agent therefor, including all penalties and interest,
any Taxes imposed by any jurisdiction on the amounts payable to Administrative
Agent under this SECTION 10.7, and costs and expenses (including attorneys' fees
and expenses) of Administrative Agent. Should a Lender, which is otherwise
exempt from or subject to a reduced withholding Tax which arises from any
payment made under this Agreement or any other Loan Document, become subject to
Taxes because of its failure to deliver any form, documentation, or notification
required in this SECTION 10.7, Borrower and Administrative Agent shall take such
steps as such Lender shall reasonably request, at such Lender's sole cost and
expense, to assist such Lender to recover such Taxes. The obligation of Lenders
under this SECTION 10.7 shall survive the payment of all of the Obligations and
the resignation or replacement of Administrative Agent.
10.8 INVALIDATION OF PROVISIONS. In the event that any one or more of
the provisions of this Agreement is deemed invalid by a court having
jurisdiction over this Agreement or other similar authority, Administrative
Agent, Letter of Credit Issuer and Lenders may, in their sole discretion,
terminate this Agreement in whole or in part.
10.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same instrument.
10.10 CAPTIONS. The captions herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement or the intent of any provision hereof.
10.11 NOTICES. All notices, requests, consents, demands, and other
communications required or which any party desires to give hereunder or under
any other Loan Document shall, unless otherwise specifically provided in such
other Loan Document, be deemed sufficiently given or furnished if (a) in writing
and delivered by personal delivery, by courier, or by registered or certified
United States mail, postage prepaid, addressed to the party to whom directed,
(b) by telex with confirmation thereof in writing by sender pursuant to
SUBSECTION (a) above, (c) by facsimile with confirmation thereof in writing by
sender pursuant to SUBSECTION (a) above, or (d) by oral communication with
confirmation thereof in writing by the notifying party pursuant to SUBSECTION
(a) above within three (3) Business Days after such oral communication. Any such
notice or communication shall be deemed to have been given and to be
REVOLVING CREDIT AGREEMENT
- 58 -
effective either at the time of personal delivery or, in the case of courier or
mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or, in the case of telex, when transmitted (answerback
confirmed), or, in the case of facsimile, upon receipt or, in the case of oral
communication, upon the effectiveness of written confirmation as hereinabove
provided. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon receipt. This SECTION 10.11 shall not be construed in any
way to affect or impair any waiver of notice or demand provided in any Loan
Document or to require giving of notice or demand to or upon any person in any
situation or for any reason. Until changed by notice pursuant hereto, the
address (and telex and facsimile numbers, if any) for Borrower, Administrative
Agent, Letter of Credit Issuer, and each Lender is set forth on SCHEDULE 2.1.
10.12 CONFIDENTIALITY. Each of Administrative Agent, Letter of Credit
Issuer, and Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees, representatives, and agents
including accountants, legal counsel, and other advisers (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed and required to keep such
Information confidential), (b) to the extent requested by any Governmental
Authority (including, without limitation, any bank regulatory agency or
representative thereof), (c) to the extent required by Applicable Laws or by any
subpoena or other similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action, or proceeding related to this Agreement or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this SECTION 10.12, to any Eligible Assignee
of or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
Borrower, or (h) to the extent such Information (i) becomes publicly available
other than as a result of breach of this SECTION 10.12, or (ii) becomes
available to Administrative Agent, Letter of Credit Issuer, or any Lender on a
non-confidential basis from a source other than Borrower. In connection with any
proposed disclosure contemplated in (b) or (c) above, Administrative Agent,
Letter of Credit Issuer, and Lenders agree to exercise their reasonable best
efforts unless prohibited by Applicable Laws or legal process to provide
Borrower prompt notice of any such request or requirement in order to enable
Borrower to seek an appropriate protective order and to reasonably cooperate
with Borrower at Borrower's sole cost and expense to obtain such order. For
purposes of this SECTION 10.12, "INFORMATION" means all confidential or
proprietary information received from Borrower related to Borrower or its
business, assets, or liabilities, other than any such information that is
available to or known by Administrative Agent, Letter of Credit Issuer, or any
Lender on a non-confidential basis prior to disclosure by Borrower; provided
that, in the case of information received from Borrower after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this SECTION 10.12 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord its
own confidential information.
10.13 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL
BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND
ANY PRIOR ORAL AGREEMENTS AMONG SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO
SUCH WRITINGS.
10.14 ENTIRE AGREEMENT. THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME
TO TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY BORROWER AND/OR ANY
OTHER PARTY HERETO (TOGETHER WITH ALL COMMITMENT LETTERS AND FEE LETTERS AS THEY
MAY RELATE TO THE
REVOLVING CREDIT AGREEMENT
- 59 -
PAYMENT OF FEES AFTER THE AGREEMENT DATE) REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGES FOLLOW.]
REVOLVING CREDIT AGREEMENT
- 60 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
BORROWER:
D.R. HORTON, INC.
By: /s/ SAMUEL R. FULLER
---------------------------------
Samuel R. Fuller
Executive Vice President, Chief
Financial Officer, and Treasurer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ MARK W. LARIVIERE
---------------------------------
Mark W. Lariviere
Managing Director
LETTER OF CREDIT ISSUER:
BANK OF AMERICA, N.A.
By: /s/ MARK W. LARIVIERE
----------------------------------
Mark W. Lariviere
Managing Director
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ MARK W. LARIVIERE
----------------------------------
Mark W. Lariviere
Managing Director
FLEET NATIONAL BANK
By: /s/ STEVEN P. SELBO
----------------------------------
Steven P. Selbo
Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ATTILA KOC
----------------------------------
Attila Koc
Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ JEFFREY S. HOZA
----------------------------------
Jeffrey S. Hoza
Vice President
CITICORP REAL ESTATE, INC.
By: /s/ DAVID BOUTON
----------------------------------
David Bouton
Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ KEVIN A. DELOZIER
----------------------------------
Kevin A. Delozier
Vice President
AMSOUTH BANK
By: /s/ RONNY HUDSPETH
----------------------------------
Ronny Hudspeth
Senior Vice President
BNP PARIBAS
By: /s/ JEFF TEBEAUX
----------------------------------
Jeff Tebeaux
Associate
By: /s/ HANK SETINA
----------------------------------
Hank Setina
Vice President
CALIFORNIA BANK & TRUST
By: /s/ J. PESCATORE
----------------------------------
J. Pescatore
Vice President
COMERICA BANK
By: /s/ CASEY L. OSTRANDER
----------------------------------
Casey L. Ostrander
Account Officer
COMPASS BANK
By: /s/ JOHANNA DUKE PALEY
----------------------------------
Johanna Duke Paley
Senior Vice President
BANKERS TRUST COMPANY
By: /s/ GREGORY SHEFRIN
----------------------------------
Gregory Shefrin
Director
HARRIS TRUST & SAVINGS BANK
By: /s/ THOMAS C. WALLACE
----------------------------------
Thomas C. Wallace
Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ DOUGLAS G. PAUL
----------------------------------
Douglas G. Paul
Senior Vice President
SUN TRUST BANK
By: /s/ DONALD L. GAUDETTE, JR.
----------------------------------
Donald L. Gaudette, Jr.
Director
UBS AG, STAMFORD BRANCH
By: /s/ WILFRED V. SAINT
----------------------------------
Wilfred V. Saint
Associate Director, Banking
Products Services
By: /s/ LYNNE B. ALFARONE
----------------------------------
Lynne B. Alfarone
Associate Director, Banking
Products Services
U.S. BANK NATIONAL ASSOCIATION
By: /s/ MICHAEL RAARUP
----------------------------------
Michael Raarup
Vice President
WASHINGTON MUTUAL BANK, FA
By: /s/ THOMAS S. GRIFFIN
----------------------------------
Thomas S. Griffin
Vice President
SCHEDULE 2.1
REVOLVING CREDIT COMMITMENTS, COMMITMENT RATIOS, AND
ADDRESSES FOR NOTICE
<Table>
<Caption>
BORROWER: ADDRESS
D.R. Horton, Inc. 1901 Ascension Boulevard
Suite 100
Arlington, Texas 76006
Attn: Samuel R. Fuller
Tel: 817-856-8200
Fax: 817-856-8259
E-mail: sfuller@drhorton.com
With a copy to:
1901 Ascension Boulevard
Suite 100
Arlington, Texas 76006
Attn: Ted I. Harbour, Esq.
Tel: 817-856-8200
Fax: 817-856-8252
E-mail: tharbour@drhorton.com
ADMINISTRATIVE ADDRESS
AGENT:
Bank of America, N.A. 231 South LaSalle Street, 12th Floor
Mail Code IL1-231-12-18
Chicago, IL 60697
Attn: Mark Lariviere
Tel: 312-828-2513
Fax: 312-974-4970
E-mail: mark.lariviere@
bankofamerica.com
LETTER OF CREDIT
ISSUER: ADDRESS
Bank of America, N.A. 231 South LaSalle Street, 12th Floor
Mail Code IL1-231-12-18
Chicago, IL 60697
Attn: Mark Lariviere
Tel: 312-828-2513
Fax: 312-974-4970
E-mail: mark.lariviere@
bankofamerica.com
</Table>
LENDERS:
<Table>
<Caption>
LENDER ADDRESS COMMITMENT COMMITMENT
RATIO
Bank of America, N.A. 231 South LaSalle Street $100,000,000 12.903225806%
12th Floor
Mail Code IL1-231-12-18
Chicago, IL 60697
Attn: Mark Lariviere
Tel: 312-828-2513
Fax: 312-974-4970
E-mail: mark.lariviere@
bankofamerica.com
Fleet National Bank 115 Perimeter Center $85,000,000 10.967741935%
Suite 500
Atlanta, GA 30346
Attn: Steven P. Selbo
Tel: 770-390-6522
Fax: 770-390-8434
E-mail: Steven_Selbo@Fleet.com
Credit Lyonnais New York 2200 Ross Avenue
Branch Suite 4400 West $75,000,000 9.677419355%
Dallas, TX 75201
Attn: Robert Nelson
Tel: 214-220-2333
Fax: 214-220-2323
E-mail: robert.nelson@clamericas.com
Citicorp Real Estate, Inc. 390 Greenwich Street $65,000,000 8.387096774%
1st Floor
New York, NY 10013
Attn: Michael Chlopak
Tel: 212-723-5899
Fax: 212-723-8380
E-mail: Michael.Chlopak@ssmb.com
Attn: Blake Gronich
Tel: 212-723-6590
Fax: 212-723-8380
E-mail: Blake.R.Gronich@ssmb.com
</Table>
2
<Table>
<Caption>
LENDER ADDRESS COMMITMENT COMMITMENT
RATIO
Wachovia Bank, N.A. 106 West Maple Street $65,000,000 8.387096774%
Cumming, GA 30040
Attn: Jeffrey S. Hoza
Tel: 770-781-6430
Fax: 770-781-6461
E-mail: jeff.hoza@Wachovia.com
With a copy to:
Real Estate Financial Services
191 Peachtree Street, 21st Floor
Atlanta, GA 30303
Attn: Charles Edwards
Tel: 404-332-4144
Fax: 404-332-1450
E-mail: charles.Edwards@Wachovia.com
BNP Paribas 12201 Merit Drive $50,000,000 6.451612903%
Suite 860
Dallas, TX 75251
Attn: Jeff Tebeaux
Tel: 972-788-9191
Fax: 972-788-9140
E-mail: jeff.tebeaux@
americas.bnpparibas.com
Comerica Bank Overnight: $50,000,000 6.451612903%
500 Woodward Avenue
7th Floor
MC 3256
Detroit, MI 48226
U.S. Mail:
P.O. Box 75000
Detroit, MI 48275-3256
Attn: Casey L. Ostrander
Tel: 313-222-5286
Fax: 313-222-9295
E-mail: casey_ostrander@comerica.com
Sun Trust Bank 303 Peachtree Street NE $35,000,000 4.516129032%
10th Floor
Atlanta, GA 30308
Attn: Don Gaudette
Tel: 404-658-4925
Fax: 404-658-4905
E-mail: don.gaudette@suntrust.com
</Table>
3
<Table>
<Caption>
LENDER ADDRESS COMMITMENT COMMITMENT
RATIO
Washington Mutual Bank, FA 5950 La Place Ct. $35,000,000 4.516129032%
Suite 205
Carlsbad, CA 92008
Attn: Thomas S. Griffin
Tel: 760-804-8595
Fax: 760-804-8590
E-mail: GriffT@bankunited.com
AmSouth Bank 1900 5th Avenue N. $25,000,000 3.225806452%
AST10/RCL
Birmingham, AL 35203
Attn: Ronny Hudspeth
Tel: 205-307-4227
Fax: 205-801-0138
E-mail: rhudspeth@amsouth.com
Bankers Trust Company 31 W. 52nd Street $25,000,000 3.225806452%
7th Floor
New York, NY 10019
Attn: Gregory Shefrin
Tel: 646-324-2185
Fax: 646-324-7460
E-mail: gregory.shefrin@db.com
California Bank & Trust 3101 N. Central Avenue $25,000,000 3.225806452%
Suite 500
Phoenix, AZ 85012
Attn: Jennifer Pescatore
Tel: 602-212-8835
Fax: 602-230-1345
E-mail: pescatorej@calbt.com
Harris Trust & Savings 111 W. Monroe Street $25,000,000 3.225806452%
Bank Fifth Floor West
Chicago, IL 60603
Attn: Thomas C. Wallace
Tel: 312-461-2200
Fax: 312-461-2968
E-mail:
KeyBank National 14643 Dallas Parkway $25,000,000 3.225806452%
Association Ste. 230, LB No. 4
Dallas, TX 75254-8816
Attn: Kevin Delozier
Tel: 972-716-9307
Fax: 972-716-9321
E-mail: Kevin_delozier@keybank.com
</Table>
4
<Table>
<Caption>
LENDER ADDRESS COMMITMENT COMMITMENT
RATIO
PNC Bank, National Two Tower Center $25,000,000 3.225806452%
Association 18th Floor
East Brunswick, NJ 08816
Attn: Douglas Paul
Tel: 732-220-3566
Fax: 732-220-3744
E-mail: douglas.paul@pnc.com
With a copy to:
1600 Market Street, 30th Floor
Philadelphia, PA 19103
Attn: Eugenia Barnett
Tel: 215-585-8582
Fax: 215-585-8532
E-mail: Eugenia.Barnett@pnc.com
UBS AG, Stamford Branch 677 Washington Blvd. $25,000,000 3.225806452%
Stamford, CT 06901
Attn: Juan Zuniga
Tel: 203-719-5993
Fax: 203-719-3888
E-mail: Juan.Zuniga@ubsw.com
U.S. Bank National 601 Second Avenue S. $25,000,000 3.225806452%
Association EP-MN-M5RE
Minneapolis, MN 55402
Attn: Michael Raarup
Tel: 612-973-2102
Fax: 612-973-0830
E-mail: michael.raarup@usbank.com
Compass Bank 15 So. 20th Street $15,000,000 1.935483871%
15th Floor
Birmingham, AL 35233
Attn: Johanna Duke Paley
Tel: 205-297-3851
Fax: 205-297-7994
E-mail: mjd@compassbnk.com
</Table>
5
SCHEDULE 4.1
INITIAL GUARANTORS
C. Richard Dobson Builders, Inc., a Virginia corporation
CH Investments of Texas, Inc., a Delaware corporation
CHI Construction Company, an Arizona corporation
CHTEX of Texas, Inc., a Delaware corporation
Continental Homes, Inc., a Delaware corporation
Continental Homes of Florida, Inc., a Florida corporation
Continental Homes of Texas, L.P., a Texas limited partnership
Continental Residential, Inc., a California corporation
D.R. Horton - Emerald, Ltd., a Texas limited partnership
D.R. Horton, Inc. - Birmingham, an Alabama corporation
D.R. Horton, Inc. - Chicago, a Delaware corporation
D.R. Horton, Inc. - Denver, a Delaware corporation
D.R. Horton, Inc. - Dietz-Crane, a Delaware corporation
D.R. Horton, Inc. - Greensboro, a Delaware corporation
D.R. Horton, Inc. - Jacksonville, a Delaware corporation
D.R. Horton, Inc. - Louisville, a Delaware corporation
D.R. Horton, Inc. - Minnesota, a Delaware corporation
D.R. Horton, Inc. - New Jersey, a Delaware corporation
D.R. Horton, Inc. - Portland, a Delaware corporation
D.R. Horton, Inc. - Sacramento, a California corporation
D.R. Horton, Inc. - Torrey, a Delaware corporation
D.R. Horton Los Angeles Holding Company, Inc., a California corporation
D.R. Horton Management Company, Ltd., a Texas limited partnership
D.R. Horton San Diego Holding Company, Inc., a California corporation
D.R. Horton - Texas, Ltd., a Texas limited partnership
DRH Cambridge Homes, Inc., a California corporation
DRH Cambridge Homes, LLC, a Delaware limited liability company
DRH Construction, Inc., a Delaware corporation
DRH Regrem II, Inc., a Delaware corporation
DRH Regrem III, Inc., Delaware corporation
DRH Regrem IV, Inc., a Delaware corporation
DRH Regrem V, Inc., a Delaware corporation
DRH Regrem VII, LP, a Texas limited partnership
DRH Regrem VIII, LLC, a Delaware limited liability company
DRH Southwest Construction, Inc., California corporation
DRH Title Company of Colorado, Inc., Colorado corporation
DRH Tucson Construction, Inc., a Delaware corporation
DRHI, Inc., a Delaware corporation
KDB Homes, Inc., a Delaware corporation
Meadows I, Ltd., a Delaware corporation
Meadows II, Ltd., a Delaware corporation
Meadows VIII, Ltd., a Delaware corporation
Meadows IX, Inc., a New Jersey corporation
Meadows X, Inc., a New Jersey corporation
SGS Communities at Grande Quay, LLC, a New Jersey limited liability company
EXHIBIT A
FORM OF ACQUISITION CARVE OUT NOTICE
Reference is hereby made to that certain Revolving Credit Agreement
dated as of January 31, 2002 (as modified, amended, renewed, extended,
supplemented, or restated from time to time, the "CREDIT AGREEMENT") among D. R.
Horton, Inc., a Delaware corporation ("BORROWER"), Bank of America, N.A., a
national banking association, as administrative agent (in such capacity,
"ADMINISTRATIVE AGENT"), the Letter of Credit Issuer defined therein, and the
Lenders defined therein. Capitalized terms used herein shall, unless otherwise
indicated, have the respective meanings set forth in the Credit Agreement.
Borrower hereby gives notice (this "NOTICE") to Lenders and Administrative Agent
that:
1. On _________________, Borrower consummated the Acquisition of
_____________________ and hereby elects to initiate a Financial Covenant Carve
Out with respect to such Acquisition.
2. Borrower has delivered evidence satisfactory to Administrative Agent
demonstrating that for the fiscal quarter prior to the date of this Notice,
Borrower will be in compliance with all the covenants set forth in the Credit
Agreement.
3. A plan of action has been delivered to Administrative Agent
demonstrating that on or prior to the final day of such Financial Covenant Carve
Out, Borrower will be in compliance with all the covenants set forth in the
Credit Agreement.
4. Borrower has not initiated a Financial Covenant Carve Out with
respect to any other Acquisition at any time during the twenty-four (24) months
prior to the date of this Notice.
IN WITNESS WHEREOF, Borrower, acting through an Authorized Signatory,
has signed this Acquisition Carve Out Notice as of the _________ day of
___________________,________.
D. R. HORTON, INC., a Delaware corporation
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
FORM OF INVENTORY SUMMARY REPORT
FOR MONTH ENDED _________________, _______
DATE: _________________, _______
ADMINISTRATIVE AGENT: Bank of America, N.A., a national banking association
BORROWER: D. R. Horton, Inc., a Delaware corporation
- --------------------------------------------------------------------------------
This certificate is delivered under the Revolving Credit Agreement dated as of
January 31, 2002 (as modified, amended, renewed, extended, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower,
Administrative Agent, the Letter of Credit Issuer defined therein, and the
Lenders defined therein. Capitalized terms used herein shall, unless otherwise
indicated, have the respective meanings set forth in the Credit Agreement.
I certify to Lenders that:
(a) I am an Authorized Officer of Borrower in the position(s) set forth
under my signature below; and
(b) the financial details set forth on the attached Annex I were
prepared in accordance with GAAP, and present accurately in all material
respects the Loan Inventory for Borrower as of, and for the month ended on,
___________________________,_______.
D. R. HORTON, INC., a Delaware corporation
By
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Annex I
to Inventory Summary Report
For Month Ended _______, ___
<Table>
<Caption>
COST BASIS TOTAL LESS UNENCUMBERED ADVANCE
(000S) INVENTORY SELLER-FINANCED INVENTORY RATE AMOUNT
(A) Lots Under
Development(1) 65%
--------- ------------ -------
(B) Developed
Lots(2) 65%
--------- ------------ -------
(C) Dwelling
Lots(3) 85%
--------- ------------ -------
(D) AGGREGATE PERMITTED BORROWING
[=(A)+(B)+(C)]
-------
(E) BORROWING LIMITATION
[= (D) x (0.50)]
-------
[Less: Senior Unsecured Indebtedness
(other than the Obligations)]
-------
[Less: the Obligations outstanding
under the Credit Agreement]
-------
LOAN FUNDING AVAILABILITY
-------
</Table>
1. "Lots under Development" means Land Parcels which are, as of the date hereof,
being developed into Developed Lots or which are scheduled for the commencement
of development into Developed Lots within six (6) calendar months from the date
hereof, and which Borrower has designated and are included as "Lots Under
Development" in the foregoing calculation on the date hereof.
2. "Developed Lots" means subdivision lots wholly-owned by Borrower or its
Restricted Subsidiaries, subject to a recorded plat and which are in substantial
compliance with all Applicable Laws and are suitable for the construction
thereon of foundations for a Dwelling, which Borrower has designated and are
included as "Developed Lots" in the foregoing calculation on the date hereof
(exclusive of any Dwelling Lot).
3. "Dwelling Lots" means Developed Lots with Dwellings which Borrower or any
Restricted Subsidiary has designated and are included as "Dwelling Lots" in the
calculation of the Loan Funding Availability. The term "Dwelling Lot" includes
the Dwelling located thereon.
4. (sigma symbol)(A)+(B) < or = to (E).
[FORM TO BE AGREED TO BY
ADMINISTRATIVE AGENT AND BORROWER]
EXHIBIT C
FORM OF REQUEST FOR ADVANCE
(Dated: ______________ __, ____)
Bank of America, N.A., a national banking association
as Administrative Agent for the Lenders
as defined in the Credit Agreement
referred to below
Mail Code IL1-231-12-12
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Pamela Quebbeman
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of January
31, 2002 (as modified, amended, renewed, extended, supplemented, or restated
from time to time, the "CREDIT AGREEMENT"), among Borrower, Bank of America,
N.A., a national banking association, as Administrative Agent, the Letter of
Credit Issuer defined therein, and the Lenders defined therein. Capitalized
terms used herein shall, unless otherwise indicated, have the respective
meanings set forth in the Credit Agreement. Borrower hereby gives you notice
pursuant to the Credit Agreement that it requests an Advance under the Credit
Agreement, and in that connection sets forth below the terms on which such
Advance is requested to be made:
(1) Borrower requests an Advance in the amount(1) of ____________, to
be made and deposited on [DATE](2) ("ADVANCE DATE") into account no. _______.
(2) Borrower hereby certifies that the following statements are true
and correct on the date hereof, and will be true and correct on the Advance Date
after giving effect to such Advance:
(a) The requested Advance will not cause the amount of Senior
Unsecured Indebtedness and unreimbursed draws under Letters of Credit
to exceed the Loan Funding Availability;
(b) The requested Advance will not cause the Commitment Usage
to exceed the Total Revolving Credit Commitment;
(c) All of the representations and warranties of Borrower and
Guarantors set forth in the Loan Documents are true and correct in all
material respects (except to the extent that the representations and
warranties speak to a specific date or are based on facts which have
changed by transactions expressly contemplated or permitted by the Loan
Documents);
(d) No Default or Event of Default has occurred and is
continuing or will arise after giving effect to the requested Advance.
(e) All conditions precedent to Borrower's right to receive
the requested Advance have been met in accordance with the terms and
conditions of the Credit Agreement.
Very truly yours,
D. R. HORTON, INC., a Delaware corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(1) Not less than $5,000,000 or a greater integral multiple of $1,000,000.
(2) For any Advance, must be a Business Day occurring prior to the Maturity
Date and be at least one Business Day following receipt by
Administrative Agent of this Request for Advance.
EXHIBIT D
FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
______________ __, ______
<Table>
Bank of America, N.A., a national banking Proposed Date of Issuance(1):
association, as Administrative Agent for the --------------------------------
Lenders as defined in the Credit Agreement Stated Amount of Letter of Credit(2):
referred to below ------------------------
Mail Code: IL1-231-12-12 Expiration Date(3):
231 South LaSalle Street ------------------------------------------
Chicago, Illinois 60697 Name/Address of Beneficiary:
Attn: Pamela Quebbeman ---------------------------------
Attn:
--------------------------------------------------------
</Table>
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of January
31, 2002 (as modified, amended, renewed, extended, supplemented, or restated
from time to time, the "CREDIT AGREEMENT"), among Borrower, Bank of America,
N.A., a national banking association, as Administrative Agent, the Letter of
Credit Issuer defined therein, and the Lenders defined therein. Capitalized
terms used herein shall, unless otherwise indicated, have the respective
meanings set forth in the Credit Agreement. Borrower hereby gives you notice
pursuant to the Credit Agreement that it requests the issuance of a Letter of
Credit under the Letter of Credit Subfacility.
Accompanying this notice is a duly executed and properly completed
Letter of Credit Application in the form requested by Administrative Agent,
together with the payment of any fronting fee or other amount, if any, due and
payable in respect of such Letter of Credit pursuant to SECTION 2.5 of the
Credit Agreement.
Borrower hereby certifies that the following statements are true and
correct on the date hereof, and will be true and correct on the date specified
herein for issuance of the Letter of Credit, after giving effect to the issuance
of such Letter of Credit:
(a) The issuance of the requested Letter of Credit will not cause the
Commitment Usage to exceed the Total Revolving Credit Commitment;
(b) The issuance of the requested Letter of Credit will not cause the
Letter of Credit Exposure to exceed $125,000,000;
(c) All of the representations and warranties of Borrower and
Guarantors set forth in the Loan Documents are true and correct in all material
respects (except to the extent that the representations and warranties speak to
a specific date or are based on facts which have changed by transactions
expressly contemplated or permitted by the Loan Documents); and
(d) No Default or Event of Default has occurred and is continuing or
will arise after giving effect to the requested Letter of Credit.
Remainder of Page Intentionally Blank;
Signature Page Follows.
Very truly yours,
D. R. HORTON, INC., a Delaware corporation
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Rate:
-------------------------------------------
Confirmed by:
-----------------------------------
(1) Must be a Business Day at least five (5) Business Days (or such later
date as Letter of Credit Issuer may agree) following receipt by
Administrative Agent of this Letter of Credit Request.
(2) Amount of requested Letter of Credit plus the Letter of Credit Exposure
shall not exceed $125,000,000 (as the maximum amount of such Letter of
Credit Subfacility may be reduced or canceled in accordance with the
Loan Documents).
(3) Not later than the earlier of twelve (12) months from the date of
issuance or 7 days prior to the Maturity Date.
EXHIBIT E
FORM OF QUARTERLY COMPLIANCE CERTIFICATE
FOR __________ ENDED ______________, ______
DATE: ______________, ______
ADMINISTRATIVE AGENT: Bank of America, N.A., a national banking association
BORROWER: D. R. Horton, Inc., a Delaware corporation
- --------------------------------------------------------------------------------
This certificate is delivered under the Revolving Credit Agreement
dated as of January 31, 2002 (as modified, amended, renewed, extended,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among
Borrower, Administrative Agent, the Letter of Credit Issuer defined therein, and
the Lenders defined therein. Capitalized terms used herein shall, unless
otherwise indicated, have the respective meanings set forth in the Credit
Agreement.
I certify to Administrative Agent and Lenders that:
(a) I am an Authorized Officer of Borrower and its Restricted
Subsidiaries (for purposes hereof "COMPANIES") in the position(s) set forth
under my signature below;
(b) the consolidated Financial Statements of Borrower and its
Subsidiaries delivered to Administrative Agent concurrently with the delivery
hereof were prepared in accordance with GAAP; present fairly in all material
respects the consolidated financial condition and results of operations of
Borrower and its Subsidiaries; and serve as the basis for the status of
compliance by Borrower with certain covenants in the Credit Agreement set forth
on Annex I as of, and for the (three, six, or nine months, or fiscal year) ended
on, ________________, _______ (the "SUBJECT PERIOD"); and
(c) the status of compliance by Borrower with SECTIONS 6.7(a), (b),
(c), (d) and (e) of the Credit Agreement at the end of the Subject Period is as
set forth on ANNEX I to this certificate.
D. R. HORTON, INC., a Delaware corporation
By:
--------------------------------------
Name:
-------------------------------
Title:
------------------------------
ANNEX I TO COMPLIANCE CERTIFICATE
Status of Compliance with
SECTIONS 6.7(a), (b), (c), (d) and (e)
of the Credit Agreement
[(Unless otherwise indicated, all calculations are made on a consolidated basis
for Borrower and its Restricted Subsidiaries at the date of determination
with respect to the most recently-ended fiscal quarter)]
[Form to be Agreed to by Administrative Agent and Borrower]
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Revolving Credit Agreement dated as of January
31, 2002 (as modified, amended, renewed, extended, supplemented, or restated
from time to time, the "CREDIT AGREEMENT"), among D. R. Horton, Inc., as
Borrower, Bank of America, N.A., a national banking association, as
Administrative Agent, the Letter of Credit Issuer defined therein, and the
Lenders defined therein. Capitalized terms used herein shall, unless otherwise
indicated, have the respective meanings set forth in the Credit Agreement.
RECITALS
A. "ASSIGNOR" and "ASSIGNEE" shall mean the parties referred to on the
signature page hereof.
B. Assignor's Revolving Credit Commitment (the "ASSIGNOR COMMITMENT")
is the amount specified in ITEM 1 of SCHEDULE 1 attached hereto. The aggregate
principal amount of outstanding Loans made by Assignor to Borrower under the
Assignor Commitment is specified in ITEM 2 of SCHEDULE 1 attached hereto (the
"ASSIGNOR Loans"). The aggregate Letter of Credit Exposure of Assignor is
specified in ITEM 3 of SCHEDULE 1 attached hereto (the "ASSIGNOR LETTER OF
CREDIT EXPOSURE").
C. Assignor wishes to sell and assign to Assignee, and Assignee wishes
to purchase and assume from Assignor, (i) the portion of the Assignor Commitment
specified in ITEM 4 of SCHEDULE 1 attached hereto, which is equivalent to the
percentage of the Total Revolving Credit Commitment specified in ITEM 5 of
SCHEDULE 1 attached hereto (the "ASSIGNED COMMITMENT"), (ii) the portion of the
Assignor's Loans under the Assignor Commitment specified in ITEM 6 of SCHEDULE 1
attached hereto (the "ASSIGNED LOANS"), and (iii) the portion of the Assignor
Letter of Credit Exposure specified in ITEM 7 of SCHEDULE 1 attached hereto (the
"ASSIGNED LETTER OF CREDIT EXPOSURE").
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein and
in the Credit Agreement, Assignor hereby sells and assigns without recourse to
Assignee, and Assignee purchases, accepts, and assumes from Assignor on the date
first set forth above (the "ASSIGNMENT DATE"), (a) all right, title, and
interest of Assignor to the Assigned Loans, and (b) all obligations of Assignor
under the Credit Agreement with respect to the Assigned Commitment and the
Assigned Letter of Credit Exposure. As full consideration for the sale of the
Assigned Loans, the Assigned Letter of Credit Exposure, and the Assigned
Commitment, Assignee shall pay to Assignor on the Assignment Date the principal
amount of the Assigned Loans (the "PURCHASE PRICE").
2. Representations and Warranties. Each of Assignor and Assignee
represents and warrants to the other that: (a) it has full power and legal right
to execute and deliver this Agreement and to perform the provisions of this
Agreement; (b) the execution, delivery, and performance of this Agreement have
been authorized by all necessary action, corporate or otherwise, and do not
violate any provisions of its charter or by-laws or any contractual obligations
or requirement of law binding on it; and (c) this Agreement constitutes its
legal, valid, and binding obligation, enforceable against it in accordance with
its terms.
3. Condition Precedent. The obligations of Assignor and Assignee
hereunder shall be subject to the fulfillment of the condition that Assignor
shall have (a) received payment in full of the Purchase Price, and (b) complied
with other applicable provisions of SECTION 10.2 of the Credit Agreement.
Assignor and
Assignee further agree, pursuant to SECTION 10.2 of the Credit Agreement, to pay
(as determined between themselves) to Administrative Agent for its account on
the Effective Date in federal funds a processing fee of $3,500.
4. Notice of Assignment. Assignor hereby instructs Administrative Agent
and Borrower to make all payments with respect to the Assigned Loans and the
Assigned Commitment directly to Assignee at the offices specified in ITEM 8 on
SCHEDULE 1 attached hereto (which shall also be Assignee's address for notices
pursuant to SECTION 10.11 of the Credit Agreement). From and after the date (the
"EFFECTIVE DATE") on which Administrative Agent shall notify Borrower and
Assignor that all consents (if any) required shall have been given, Assignee
shall be deemed to be a party to the Credit Agreement and, to the extent that
rights and obligations thereunder shall have been assigned to Assignee as
provided herein, shall have the rights and obligations of a Lender under the
Credit Agreement. After the Effective Date, and with respect to all such amounts
accrued from the Assignment Date, (i) all interest, principal, fees, and other
amounts that would otherwise be payable to Assignor in respect of the Assigned
Loans and the Assigned Commitment shall be paid to Assignee, and (ii) if
Assignor receives any payment on account of the Assigned Loans or the Assigned
Commitment, then Assignor shall promptly deliver such payment to Assignee.
Assignee agrees to deliver to Borrower and Administrative Agent, on or prior to
the Assignment Date, such Internal Revenue Service forms as may be required to
establish that Assignee is entitled to receive payments under the Credit
Agreement without deduction or withholding of tax.
5. Independent Investigation. Assignee acknowledges that it is
purchasing the Assigned Loans and the Assigned Commitment from Assignor totally
without recourse and, except as provided in SECTION 2 hereof, without
representation or warranty. Assignee further acknowledges that it has made its
own independent investigation and credit evaluation of Borrower in connection
with its purchase of the Assigned Loans and the Assigned Commitment. Except for
the representations or warranties set forth in SECTION 2, Assignee acknowledges
that it is not relying on any representation or warranty of Assignor, expressed
or implied, including without limitation, any representation or warranty
relating to the legality, validity, genuineness, enforceability, collectibility,
interest rate, repayment schedule, or accrual status of the Assigned Loans or
the Assigned Commitment, the legality, validity, genuineness, or enforceability
of the Credit Agreement, the related Notes, or any other Loan Document referred
to in or delivered pursuant to the Credit Agreement, or the financial condition
or creditworthiness of Borrower. Assignor has not and will not be acting as
either the representative, agent, or trustee of Assignee with respect to matters
arising out of or relating to the Credit Agreement or this Agreement. From and
after the Effective Date, Assignor shall have no rights or obligations with
respect to the Assigned Loans or the Assigned Commitment.
6. Method of Payment. All payments to be made by either party hereunder
shall be in funds available at the place of payment on the same day and shall be
made by wire transfer to the account designated by the party to receive payment.
7. Integration. This Agreement shall supersede any prior agreement or
understanding between the parties (other than the Credit Agreement) as to the
subject matter hereof.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon both parties, their successors and assigns.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized signatories as of the date first above written.
ASSIGNOR: [ASSIGNOR]
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
ASSIGNEE: [ASSIGNEE]
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Acknowledged and Agreed to as of
this ______ day of ______________, _____.
BANK OF AMERICA, N.A., a national banking association
as Administrative Agent
By:
-----------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
SIGNATURE PAGE TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
relating to
Revolving Credit Agreement
among D. R. Horton, Inc., a Delaware corporation, as Borrower,
Bank of America, N.A., a national banking association, as Administrative Agent,
the Letter of Credit Issuer defined therein, and
the Lenders defined therein
dated as of ____________ ___, 200____
<Table>
(1) Assignor's Commitment:(1) $
-----------------
(2) Assignor's Loans:(2) $
-----------------
(3) Assignor's Letter of Credit Exposure:(3) $
----------------
(4) Amount of Assigned Loan Commitment:(4) $
----------------
(5) Percentage of Loan Commitment Assigned:(5) %
----------------
(6) Amount of Assigned Loans:(6) $
----------------
(7) Amount of Letter of Credit Exposure:(7) $
----------------
(8) Applicable Lending Office of Assignee and Address for Notices under
the Credit Agreement(8)
</Table>
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
1. Insert the dollar amount of Assignor's Commitment prior to assignment.
2. Insert the total amount of outstanding Loans of Assignor.
3. Insert the total amount of the Letter of Credit Exposure of Assignor.
4. Insert the dollar amount of the Assignor's Commitment, including
outstanding Loans, being assigned.
5. Loan Commitment assigned, as a percentage of the total Revolving Credit
Commitment.
6. Insert the total amount of outstanding Loans of Assignor being assigned
to Assignee.
7. Insert the sum of undrawn Letters of Credit plus unpaid reimbursement
obligations for drawn Letters of Credit being assigned to Assignee.
8. Insert the name and address of the applicable lending office of
Assignee.
EXHIBIT G
FORM OF NOTE
REVOLVING CREDIT NOTE
$____________ Chicago, Illinois As of January 31, 2002
1. FOR VALUE RECEIVED, D. R. HORTON, INC., a Delaware corporation
("MAKER"), hereby unconditionally promises to pay to the order of
__________________ ("PAYEE"), at the address of Administrative Agent (defined
below) set forth in the Credit Agreement defined below, the sum of
_____________________ Dollars ($_______________) (or, if less, so much thereof
as may be advanced), in lawful money of the United States of America.
Capitalized terms used herein shall, unless otherwise indicated, have the
respective meanings set forth in the Credit Agreement.
2. The unpaid principal amount of, and accrued unpaid interest on, this
Note is payable in accordance with the Credit Agreement.
3. The unpaid principal balance advanced and outstanding hereunder
shall bear interest from the date of advance until maturity at the rate per
annum provided in the Credit Agreement. The interest rate specified in this
section is subject to adjustment under the circumstances described in the Credit
Agreement. Interest shall be computed in the manner provided in the Credit
Agreement.
4. Notwithstanding any provision contained in this Note or any other
document executed or delivered in connection with this Note or in connection
with the Credit Agreement, Payee shall never be deemed to have contracted for or
be entitled to receive, collect, or apply as interest on this Note, any amount
in excess of the maximum rate of interest permitted to be charged by applicable
law, and, if Payee ever receives, collects, or applies as interest any such
excess, then the amount that would be excessive interest shall be applied to
reduce the unpaid principal balance of this Note, and, if the principal balance
of this Note is paid in full by that application, then any remaining excess
shall promptly be paid to Maker. In determining whether the interest paid or
payable under any specific contingency exceeds the highest lawful rate, Maker
and Payee shall, to the maximum extent permitted under applicable law, (a)
characterize any non-principal payment (other than payments expressly designated
as interest payments hereunder) as an expense or fee rather than as interest,
(b) exclude voluntary prepayments and the effect thereof, and (c) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout that term.
5. This Note has been executed and delivered pursuant to that certain
Revolving Credit Agreement (as amended, modified, or restated from time to time,
the "CREDIT AGREEMENT") dated as of January 31, 2002, executed by and between
Maker, Bank of America, N.A., a national banking association, as Administrative
Agent ("ADMINISTRATIVE AGENT"), the Letter of Credit Issuer defined therein, and
the Lenders defined therein, and is one of the "Notes" referred to therein, and
the holder of this Note is entitled to the benefits provided in the Credit
Agreement. Reference is hereby made to the Credit Agreement for a statement of
(a) the obligation of Payee to advance funds hereunder, (b) the prepayment
rights and obligations of Maker, and (c) the events upon which the maturity of
this Note may be accelerated.
6. If the principal of, or any installment of interest on, this Note
becomes due and payable on a day other than a Business Day, then the maturity
thereof shall be extended to the next succeeding Business Day. If this Note, or
any installment or payment due hereunder, is not paid when due, whether at
maturity or by acceleration, or if it is collected through a bankruptcy,
probate, or other court, whether before or after maturity, then Maker shall pay
all costs of collection, including, but not limited to, reasonable attorneys'
fees incurred by the holder of this Note. All past due principal of, and to the
extent permitted by applicable law, interest on this Note shall bear interest
until paid at the rate provided in the Credit Agreement.
7. Maker and all sureties, endorsers, guarantors, and other parties
ever liable for payment of any sums payable pursuant to the terms of this Note,
jointly and severally waive demand, presentment for payment, protest, notice of
protest, notice of acceleration, notice of intent to accelerate, diligence in
collection, the bringing of any suit against any party, and any notice of or
defense on account of any extensions, renewals, partial payments, or changes in
any manner of or in this Note or in any of its terms, provisions, and covenants,
or any releases or substitutions of any security, or any delay, indulgence, or
other act of any trustee or any holder hereof, whether before or after maturity.
8. All Advances made by Payee and all repayments of the principal
thereof may be recorded by Payee and, before any transfer hereof, endorsed by
Payee on a schedule attached hereto, or on a continuation of such schedule,
provided that the failure of Payee to record any endorsement shall not affect
the obligation of Maker hereunder or under the Credit Agreement.
9. THIS NOTE IS BEING EXECUTED AND DELIVERED, AND IS INTENDED TO BE
PERFORMED IN THE STATE OF TEXAS. EXCEPT TO THE EXTENT THAT THE LAWS OF THE
UNITED STATES MAY APPLY TO THE TERMS HEREOF, THE SUBSTANTIVE LAWS OF THE STATE
OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION OF THIS NOTE.
D. R. HORTON, INC., a Delaware corporation
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT H
FORM OF GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is executed as of January 31, 2002, by EACH OF
THE SUBSIDIARIES OF D. R. HORTON, INC., a Delaware corporation ("BORROWER"),
LISTED ON SCHEDULE 1 ATTACHED HERETO or who become a party hereto pursuant to
SECTION 5.11 below (each a "GUARANTOR" and collectively, "GUARANTORS") for the
benefit of the Credit Parties defined below.
RECITALS:
1. Borrower may from time to time be indebted to the Credit Parties
pursuant to that certain Revolving Credit Agreement dated as of January 31, 2002
(as modified, amended, renewed, extended, supplemented, or restated from time to
time, the "CREDIT AGREEMENT"), by and between Borrower, Bank of America, N.A., a
national banking association, as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT"), the Letter of Credit Issuer defined therein, and the
Lenders defined therein (Administrative Agent, Letter of Credit Issuer, and the
Lenders, together with their respective successors and assigns, are herein
called the "CREDIT PARTIES").
2. Capitalized terms used herein shall, unless otherwise indicated,
have the respective meanings set forth in the Credit Agreement.
3. The Credit Parties are not willing to make loans under the Credit
Agreement or otherwise extend credit to Borrower unless Guarantors
unconditionally guarantee payment of all present and future indebtedness and
obligations of Borrower to the Credit Parties under the Credit Agreement and the
Loan Documents.
4. Each Guarantor will, directly or indirectly, benefit from the Credit
Parties' extension of credit to Borrower.
NOW, THEREFORE, as an inducement to the Credit Parties to enter into
the Credit Agreement and to make loans to Borrower thereunder, and to extend
such credit to Borrower as the Credit Parties may from time to time agree to
extend, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Guarantors hereby jointly and
severally guarantee payment of the Guaranteed Debt (hereinafter defined) as more
specifically described hereinbelow in SECTION 1.3 and hereby agree as follows:
SECTION 1
NATURE AND SCOPE OF GUARANTY
1.1 DEFINITION OF GUARANTEED DEBT. As used herein, the term "GUARANTEED
DEBT" means:
(a) All principal, interest, fees, reasonable attorneys' fees,
commitment fees, liabilities for costs and expenses, and other indebtedness,
obligations, and liabilities of Borrower to the Credit Parties at any time
created or arising in connection with the Credit Agreement including, but not
limited to, all indebtedness,
obligations and liabilities of Borrower to the Credit Parties arising under the
Notes and the other Loan Documents; and
(b) All costs, expenses, and fees including, but not limited to, court
costs and reasonable attorneys' fees, arising in connection with the collection
of any or all amounts, indebtedness, obligations, and liabilities of Borrower to
the Credit Parties described in ITEM (a) of this SECTION 1.1.
1.2 GUARANTEED DEBT NOT REDUCED BY OFFSET. The indebtedness,
liabilities, obligations, and other Guaranteed Debt guaranteed hereby, and the
liabilities and obligations of Guarantors to the Credit Parties hereunder, shall
not be reduced, discharged, or released because or by reason of any existing or
future offset, claim, or defense of Borrower, or any other party, against any
Credit Party or against payment of the Guaranteed Debt, whether such offset,
claim or defense arises in connection with the Guaranteed Debt (or the
transactions creating the Guaranteed Debt) or otherwise. Without limiting the
foregoing or Guarantors' liability hereunder, to the extent that any Credit
Party advances funds or extends credit to Borrower, and does not receive
payments or benefits thereon in the amounts and at the times required or
provided by applicable agreements or laws, Guarantors are absolutely liable,
jointly and severally, to make such payments to (and confer such benefits on)
such Credit Party, on a timely basis.
1.3 GUARANTY OF OBLIGATION. Guarantors hereby irrevocably and
unconditionally guarantee, jointly and severally, to the Credit Parties (a) the
due and punctual payment of the Guaranteed Debt, and (b) the timely performance
of all other obligations now or hereafter owed by Borrower to the Credit Parties
under the Credit Agreement. Each Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable for the Guaranteed Debt
as primary obligor.
1.4 NATURE OF GUARANTY. This Guaranty Agreement is intended to be an
irrevocable, absolute, continuing guaranty of payment and is not a guaranty of
collection. This Guaranty Agreement may not be revoked by any Guarantor;
provided, however, if, according to applicable law, it shall ever be determined
or held that a guarantor under a continuing guaranty such as this Guaranty
Agreement shall have the absolute right, notwithstanding the express agreement
of such a guarantor otherwise, to revoke such guaranty as to Guaranteed Debt
which has then not yet arisen, then any Guarantor may deliver to Administrative
Agent written notice, in addition to giving such notice as provided in SECTION
5.2 hereof, that such Guarantor will not be liable hereunder for any Guaranteed
Debt created, incurred, or arising after the giving of such notice, and such
notice will be effective as to such Guarantor from and after (but not before)
such times as said written notice is actually delivered to, in addition to
giving such notice as provided in SECTION 5.2 hereof, and received by and
receipted for in writing by Administrative Agent (unless such notice is refused
by Administrative Agent in which case such notice shall be effective when
delivered to, and rejected by, Administrative Agent); provided that such notice
shall not in anywise affect, impair, or limit the liability and responsibility
of any other person or entity with respect to any Guaranteed Debt theretofore
existing or thereafter existing, arising, renewed, extended, or modified;
provided, further, that such notice shall not affect, impair, or release the
liability and responsibility of such Guarantor with respect to Guaranteed Debt
created, incurred, or arising (or in respect of any Guaranteed Debt agreed or
contemplated, in any respect, to be created, whether advanced or not and whether
committed to by the Credit Parties or not, including, without limitation, any
discretionary advances or extensions of credit which may be made by any Credit
Party at its option in the future under any type of loan or credit agreement,
arrangement or undertaking) prior to the receipt of such notice by
Administrative Agent as aforesaid, or in respect of any renewals, extensions, or
modifications of such Guaranteed Debt, or in respect of interest or costs of
collection thereafter accruing on or with respect to such Guaranteed Debt, or
with respect to attorneys' fees thereafter becoming payable hereunder with
respect to such Guaranteed Debt, and shall continue to be effective with respect
to any
2
Guaranteed Debt arising or created after any attempted revocation by any
Guarantor. The fact that at any time or from time to time the Guaranteed Debt
may be increased, reduced, or paid in full shall not release, discharge, or
reduce the obligation of Guarantors with respect to indebtedness or obligations
of Borrower to the Credit Parties thereafter incurred (or other Guaranteed Debt
thereafter arising) under the Credit Agreement, the Notes, or otherwise. This
Guaranty Agreement may be enforced by the Credit Parties and any subsequent
holder of the Guaranteed Debt and shall not be discharged by the assignment or
negotiation of all or part of the Guaranteed Debt.
1.5 PAYMENT BY GUARANTORS. If all or any part of the Guaranteed Debt
shall not be punctually paid when due, whether at maturity or earlier by
acceleration or otherwise, then Guarantors shall, immediately upon demand by
Administrative Agent, and without presentment, protest, notice of protest,
notice of nonpayment, notice of intention to accelerate or acceleration, or any
other notice whatsoever, pay in lawful money of the United States of America,
the amount due on the Guaranteed Debt to Administrative Agent, for the benefit
of the Credit Parties, at Administrative Agent's office set forth in the Credit
Agreement. Such demand(s) may be made at any time coincident with or after the
time for payment of all or part of the Guaranteed Debt, and may be made from
time to time with respect to the same or different items of Guaranteed Debt.
Such demand shall be deemed made, given, and received in accordance with SECTION
5.2 hereof.
1.6 PAYMENT OF EXPENSES. In the event that any Guarantor should breach
or fail to timely perform any provisions of this Guaranty Agreement, then
Guarantors shall, immediately upon demand by Administrative Agent, pay to
Administrative Agent, for the benefit of the Credit Parties, all reasonable
costs and expenses (including court costs and reasonable attorneys' fees)
incurred by the Credit Parties in the enforcement hereof or the preservation of
the Credit Parties' rights hereunder. The covenant contained in this SECTION 1.6
shall survive the payment of the Guaranteed Debt.
1.7 NO DUTY TO PURSUE OTHERS. It shall not be necessary for any Credit
Party (and Guarantors hereby waive any rights which Guarantors may have to
require any Credit Party), in order to enforce such payment by any Guarantor,
first to (a) institute suit or exhaust its remedies against Borrower or others
liable on the Guaranteed Debt or any other person, (b) enforce the Credit
Parties' rights against any security which shall ever have been given to secure
the Guaranteed Debt, (c) enforce the Credit Parties' rights against any other
Guarantor or any other guarantors of the Guaranteed Debt, (d) join Borrower, any
other Guarantor, or any others liable on the Guaranteed Debt in any action
seeking to enforce this Guaranty Agreement, (e) exhaust any remedies available
to the Credit Parties against any security which shall ever have been given to
secure the Guaranteed Debt, or (f) resort to any other means of obtaining
payment of the Guaranteed Debt. The Credit Parties shall not be required to
mitigate damages or take any other action to reduce, collect, or enforce the
Guaranteed Debt. Further, each Guarantor expressly waives each and every right
to which any Guarantor may be entitled by virtue of the suretyship law of the
State of Texas, including without limitation, any rights pursuant to Rule 31,
Texas Rules of Civil Procedure, Articles 1986 and 1987, Revised Civil Statutes
of Texas and Chapter 34 of the Texas Business and Commerce Code.
1.8 WAIVER OF NOTICES, ETC. Each Guarantor agrees to the provisions of
the Credit Agreement, the Notes, and the other Loan Documents, and hereby waives
notice of (a) any loans or advances made by any Credit Party to Borrower, (b)
acceptance of this Guaranty Agreement, (c) any amendment, waiver, supplement, or
extension of the Credit Agreement, the Notes, the other Loan Documents, or any
other instrument or document pertaining to all or any part of the Guaranteed
Debt, (d) the execution and delivery by Borrower and any Credit Party of any
other loan or credit agreement or of Borrower's execution and delivery of any
promissory notes or other documents in connection therewith, (e) the occurrence
of any
3
Default or Event of Default, (f) any Credit Party's transfer or disposition of
the Guaranteed Debt, or any part thereof, (g) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed Debt,
(h) protest, proof of nonpayment, or default by Borrower, (i) the release of any
other Guarantor, or (j) any other action at any time taken or omitted by any
Credit Party, and, generally, all demands and notices of every kind in
connection with this Guaranty Agreement, the Credit Agreement, the Notes, the
other Loan Documents, and any documents or agreements evidencing, securing, or
relating to any of the Guaranteed Debt and the obligations hereby guaranteed.
1.9 EFFECT OF BANKRUPTCY, OTHER MATTERS. In the event that, pursuant to
any insolvency, bankruptcy, reorganization, receivership, or other debtor relief
law, or any judgment, order, or decision thereunder, or for any other reason,
(a) any Credit Party must rescind or restore any payment, or any part thereof,
received by such Credit Party in satisfaction of the Guaranteed Debt, as set
forth herein, any prior release or discharge from the terms of this Guaranty
Agreement given to any Guarantor by such Credit Party shall be without effect,
and this Guaranty Agreement shall remain in full force and effect, or (b)
Borrower shall cease to be liable to the Credit Parties for any of the
Guaranteed Debt (other than by reason of the indefeasible payment in full
thereof by Borrower), then the obligations of each Guarantor under this Guaranty
Agreement shall remain in full force and effect. It is the intention of the
Credit Parties and Guarantors that Guarantors' obligations hereunder shall not
be discharged except by Guarantor's performance of such obligations and then
only to the extent of such performance. Without limiting the generality of the
foregoing, it is the intention of the Credit Parties and Guarantors that the
filing of any bankruptcy or similar proceeding by or against Borrower or any
other person or party obligated on any portion of the Guaranteed Debt shall not
affect the obligations of Guarantors under this Guaranty Agreement or the rights
of the Credit Parties under this Guaranty Agreement, including, without
limitation, the right or ability of the Credit Parties to pursue or institute
suit against any Guarantor for the entire Guaranteed Debt.
1.10 LIMITATION. It is the intention of Guarantors and the Credit
Parties that the amount of the Guaranteed Debt shall be in, but not in excess
of, the maximum amount permitted by fraudulent conveyance, fraudulent transfer,
or other similar laws applicable to Guarantors. Accordingly, notwithstanding
anything to the contrary contained in this Guaranty Agreement or any other
agreement or instrument executed in connection with the payment of any of the
Guaranteed Debt, the amount of the Guaranteed Debt shall be limited to that
amount which after giving effect thereto would not (a) render any Guarantor
insolvent, (b) result in the fair saleable value of the assets of any Guarantor
being less than the amount required to pay its debts and other liabilities
(including contingent liabilities) as they mature, or (c) leave any Guarantor
with unreasonably small capital to carry out its business as now conducted and
as proposed to be conducted, including its capital needs, as such concepts
described in (a), (b), and (c) herein are determined under applicable law, if
the obligations of such Guarantor hereunder would otherwise be set aside,
terminated, annulled, or avoided for such reason by a court of competent
jurisdiction in a proceeding actually pending before such court.
1.11 SET-OFF. Upon the occurrence and during the continuance of any
Event of Default, each Credit Party (and each of its Affiliates) is hereby
authorized at any time and from time to time, to the fullest extent permitted by
Applicable Laws, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Credit Party (or any of its Affiliates) to or for the
credit or the account of any Guarantor against any and all of the obligations of
any Guarantor now or hereafter existing under this Guaranty Agreement,
irrespective of whether such Credit Party shall have made any demand under this
Guaranty Agreement and although such obligations may be unmatured.
4
SECTION 2
ADDITIONAL EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTORS' OBLIGATIONS
Guarantors hereby consent and agree to each of the following, and agree
that Guarantors' obligations under this Guaranty Agreement shall not be
released, diminished, impaired, reduced, or adversely affected by any of the
following, and waives any common law, equitable, statutory, or other rights
(including without limitation rights to notice) which Guarantors might otherwise
have as a result of or in connection with any of the following:
2.1 MODIFICATIONS, ETC. Any renewal, extension, increase, modification,
waiver, alteration, or rearrangement of all or any part of the Guaranteed Debt,
or of the Credit Agreement, the Notes, or any other Loan Document;
2.2 ADJUSTMENT, ETC. Any adjustment, indulgence, forbearance, waiver,
or compromise that might be granted or given by any Credit Party to Borrower or
any Guarantor;
2.3 CONDITION, COMPOSITION OR STRUCTURE OF BORROWER OR GUARANTORS. The
insolvency, bankruptcy, arrangement, adjustment, composition, structure,
liquidation, disability, dissolution, or lack of power of Borrower, any
Guarantor, or any other party at any time liable for the payment of all or part
of the Guaranteed Debt; or any dissolution of Borrower or any Guarantor, or any
sale, lease, or transfer of any or all of the assets of Borrower or any
Guarantor, or any changes in name, business, location, composition, structure,
or changes in the shareholders, partners, or members (whether by accession,
secession, cessation, death, dissolution, transfer of assets, or other matter)
of Borrower or any Guarantor; or any reorganization of Borrower or any
Guarantor;
2.4 INVALIDITY OF GUARANTEED DEBT. The invalidity, illegality, or
unenforceability of all or any part of the Guaranteed Debt, or any document or
agreement executed in connection with the Guaranteed Debt, for any reason
whatsoever, including without limitation the fact that (a) the Guaranteed Debt,
or any part thereof, exceeds the amount permitted by law, (b) the act of
creating the Guaranteed Debt or any part thereof is ultra vires, (c) the
officers or representatives executing the Credit Agreement, the Notes, the other
Loan Documents, or other documents or otherwise creating the Guaranteed Debt
acted in excess of their authority, (d) the Guaranteed Debt violates applicable
usury laws, (e) Borrower has valid defenses, claims, or offsets (whether at law,
in equity, or by agreement) which render the Guaranteed Debt wholly or partially
uncollectible from Borrower, (f) the creation, performance, or repayment of the
Guaranteed Debt (or the execution, delivery, and performance of any document or
instrument representing part of the Guaranteed Debt or executed in connection
with the Guaranteed Debt, or given to secure the repayment of the Guaranteed
Debt) is illegal, uncollectible, or unenforceable, or (g) the Credit Agreement,
the Notes, the other Loan Documents, or other documents or instruments
pertaining to the Guaranteed Debt have been forged or otherwise are irregular or
not genuine or authentic.
2.5 RELEASE OF OBLIGORS. Any full or partial release of the liability
of Borrower on the Guaranteed Debt or any part thereof, or of any co-guarantors,
or any other person or entity now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee, or assure the payment of the Guaranteed Debt or any part thereof, it
being recognized, acknowledged and agreed by Guarantors that Guarantors may be
required to pay the Guaranteed Debt in full without assistance or support of any
other party, and Guarantors have not been induced to enter into this Guaranty
Agreement
5
on the basis of a contemplation, belief, understanding, or agreement that other
parties will be liable to perform the Guaranteed Debt, or that the Credit
Parties will look to other parties to perform the Guaranteed Debt;
notwithstanding the foregoing, Guarantors do not hereby waive or release
(expressly or impliedly) any rights of subrogation, reimbursement, or
contribution which they may have, after payment in full of the Guaranteed Debt,
against others liable on the Guaranteed Debt; Guarantors' rights of subrogation
and reimbursement are, however, subordinate to the rights and claims of the
Credit Parties;
2.6 OTHER SECURITY. The taking or accepting of any other security,
collateral, or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Debt;
2.7 RELEASE OF COLLATERAL, ETC. Any release, surrender, exchange,
subordination, deterioration, waste, loss, or impairment (including without
limitation negligent, willful, unreasonable, or unjustifiable impairment) of any
collateral, property, or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Debt;
2.8 CARE AND DILIGENCE. The failure of any Credit Party or any other
party to exercise diligence or reasonable care or act, fail to act, or comply
with any duty in the administration, preservation, protection, enforcement, sale
application, disposal, or other handling or treatment of all or any part of the
Guaranteed Debt or any collateral, property, or security at any time securing
any portion thereof, including, without limiting the generality of the
foregoing, the failure to conduct any foreclosure or other remedy fairly, in a
commercially reasonable manner, or in such a way so as to obtain the best
possible price or a favorable price or otherwise act or fail to act;
2.9 STATUS OF LIENS. The fact that any collateral, security, security
interest, or lien contemplated or intended to be given, created, or granted as
security for the repayment of the Guaranteed Debt shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to any
other security interest or lien, it being recognized and agreed by Guarantors
that Guarantors are not entering into this Guaranty Agreement in reliance on, or
in contemplation of the benefits of, the validity, enforceability,
collectibility, or value of any of the collateral for the Guaranteed Debt;
notwithstanding the foregoing, Guarantors do not hereby waive or release
(expressly or impliedly) any right to be subrogated to the rights of the Credit
Parties in any collateral or security for the Guaranteed Debt after payment in
full of the Guaranteed Debt; Guarantors' rights of subrogation are, however,
subordinate to the rights, claims, liens, and security interests of the Credit
Parties;
2.10 OFFSET. Any existing or future right of offset, claim, or defense
of Borrower against the Credit Parties, or any other party, or against payment
of the Guaranteed Debt, whether such right of offset, claim, or defense arises
in connection with the Guaranteed Debt (or the transactions creating the
Guaranteed Debt) or otherwise;
2.11 MERGER. The reorganization, merger, or consolidation of Borrower
or any Guarantor into or with any other corporation or entity;
2.12 PREFERENCE. Any payment by Borrower to any Credit Party is held to
constitute a preference under bankruptcy laws, or for any reason any Credit
Party is required to refund such payment or pay such amount to Borrower or
someone else; or
2.13 OTHER ACTIONS TAKEN OR OMITTED. Any other action taken or omitted
to be taken with respect to the Credit Agreement, the Guaranteed Debt, or the
security and collateral therefor, whether or not
6
such action or omission prejudices Guarantors or increases the likelihood or
risk that Guarantors will be required to pay the Guaranteed Debt pursuant to the
terms hereof; it is the unambiguous and unequivocal intention of Guarantors that
Guarantors shall be obligated to pay the Guaranteed Debt when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, except for the full and final payment and
satisfaction of the Guaranteed Debt.
SECTION 3
REPRESENTATIONS AND WARRANTIES
To induce the Credit Parties to enter into the Credit Agreement and
extend credit to Borrower, each Guarantor represents and warrants to the Credit
Parties that:
3.1 BENEFIT. Each Guarantor has received, or will receive, direct or
indirect benefit from the making of this Guaranty and the Guaranteed Debt;
3.2 FAMILIARITY AND RELIANCE. Each Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
Borrower and is familiar with the value of any and all collateral intended to be
created as security for the payment of the Guaranteed Debt; however, no
Guarantor is relying on such financial condition or the collateral as an
inducement to enter into this Guaranty Agreement;
3.3 NO REPRESENTATION BY THE CREDIT PARTIES. No Credit Party or any
other party has made any representation, warranty, or statement to any Guarantor
in order to induce any Guarantor to execute this Guaranty Agreement;
3.4 GUARANTORS' FINANCIAL CONDITION. As of the date hereof, and after
giving effect to this Guaranty Agreement and the contingent obligation evidenced
hereby, each Guarantor is, and will be, solvent;
3.5. DETERMINATION OF BENEFIT. The Board of Directors, partners,
members, or other managers or owners of each Guarantor, acting pursuant to a
duly called and constituted meeting, after proper notice, or pursuant to a valid
unanimous consent, has determined that this Guaranty directly or indirectly
benefits such Guarantor and is in the best interests of such Guarantor;
3.6 LEGALITY. The execution, delivery, and performance by each
Guarantor of this Guaranty Agreement and the consummation of the transactions
contemplated hereunder (a) have been duly authorized by all necessary action of
each Guarantor, and (b) do not, and will not, contravene or conflict with any
law, statute, or regulation whatsoever to which any Guarantor is subject or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or result in the breach of, any indenture,
mortgage, deed of trust, charge, lien, or any contract, agreement, or other
instrument to which any Guarantor is a party or which may be applicable to any
Guarantor or any of its assets, or violate any provisions of its Constituent
Documents; this Guaranty Agreement is a legal and binding obligation of each
Guarantor and is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights;
3.7 CREDIT AGREEMENT. The representations and warranties in the Credit
Agreement with respect to each Guarantor are true and correct; and
3.8 SURVIVAL. All representations and warranties made by Guarantors
herein shall survive the execution hereof.
SECTION 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 SUBORDINATION OF GUARANTOR CLAIMS. As used herein, the term
"GUARANTOR CLAIMS" shall mean all debts and liabilities of Borrower to any
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by any Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of each Guarantor against Borrower (arising as
a result of subrogation or otherwise) as a result of any Guarantor's payment of
all or a portion of the Guaranteed Debt. Until the Guaranteed Debt shall be
indefeasibly paid and satisfied in full, the termination or expiration of all
Letters of Credit and the Total Revolving Credit Commitment, and Guarantors
shall have performed all of their obligations hereunder, if a Default or Event
of Default exists, then Guarantors shall not receive or collect , directly or
indirectly, from Borrower or any other party any amount upon the Guarantor
Claims (other than payments in the ordinary course of business).
4.2 CLAIMS IN BANKRUPTCY. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Borrower as debtor, the Credit Parties shall have the right to prove
its claim in any such proceeding so as to establish its rights hereunder and
receive directly from the receiver, trustee, or other court custodian dividends
and payments which would otherwise be payable upon Guarantor Claims. Each
Guarantor hereby assigns such dividends and payments to the Credit Parties.
Should any Credit Party receive, for application upon the Guaranteed Debt, any
such dividend or payment which is otherwise payable to any Guarantor, and which,
as between Borrower and such Guarantor, shall constitute a credit upon the
Guarantor Claims, then upon indefeasible payment to the Credit Parties in full
of the Guaranteed Debt, and the termination or expiration of all Letters of
Credit and the Total Revolving Credit Commitment, such Guarantor shall become
subrogated to the rights of the Credit Parties to the extent that such payments
to the Credit Parties on the Guarantor Claims have contributed toward the
liquidation of the Guaranteed Debt, and such subrogation shall be with respect
to that proportion of the Guaranteed Debt which would have been unpaid if the
Credit Parties had not received dividends or payments upon the Guarantor Claims.
4.3 PAYMENTS HELD IN TRUST. In the event that, notwithstanding SECTIONS
4.1 and 4.2 above, any Guarantor should receive any funds, payment, claim or
distribution which is prohibited by such SECTIONS, such Guarantor agrees to hold
in trust for the Credit Parties, in kind, all funds, payments, claims, or
distributions so received, and agrees that it shall have absolutely no dominion
over such funds, payments, claims, or distributions so received except to pay
them promptly to Administrative Agent, for the benefit of the Credit Parties,
and such Guarantor covenants promptly to pay the same to Administrative Agent,
for the benefit of the Credit Parties.
4.4 LIENS SUBORDINATE. Each Guarantor agrees that any liens, security
interests, judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of the Guarantor Claims shall
8
be and remain inferior and subordinate to any liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets securing
payment of the Guaranteed Debt, regardless of whether such encumbrances in favor
of such Guarantor or the Credit Parties presently exist or are hereafter created
or attached. Without the prior written consent of Administrative Agent, no
Guarantor shall (a) exercise or enforce any creditor's right it may have against
Borrower, or (b) foreclose, repossess, sequester, or otherwise take steps or
institute any action or proceedings (judicial or otherwise, including, without
limitation, the commencement of, or joinder in, any liquidation, bankruptcy,
rearrangement, debtor's relief, or insolvency proceeding) to enforce any liens,
mortgages, deeds of trust, security interest, collateral rights, judgments, or
other encumbrances on assets of Borrower held by any Guarantor.
SECTION 5
MISCELLANEOUS
5.1 WAIVER. No failure to exercise, and no delay in exercising, on the
part of any Credit Party, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right. The rights of the Credit
Parties hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty Agreement, nor consent
to departure therefrom, shall be effective unless in writing and no such consent
or waiver shall extend beyond the particular case and purpose involved. No
notice or demand given in any case shall constitute a waiver of the right to
take other action in the same, similar, or other instances without such notice
or demand.
5.2 NOTICES. Any notices or other communications required or permitted
to be given by this Guaranty Agreement must be (a) given in writing and
personally delivered or mailed by prepaid certified or registered mail, return
receipt requested, or (b) made by tested telex delivered or transmitted, to the
party to whom such notice or communication is directed, to the address of such
party as follows:
GUARANTOR:
c/o D. R. Horton, Inc.
1901 Ascension Boulevard, Suite 100
Arlington, Texas 76006
Attention: Samuel R. Fuller
Fax: 817-856-8259
Phone: 817-856-8200
with a copy to:
Ted I. Harbour, Esq.
1901 Ascension Boulevard, Suite 100
Arlington, Texas 76006
Fax: 817-856-8252
Phone: 817-856-8200
9
CREDIT PARTIES:
Bank of America, N.A., as Administrative Agent
231 South LaSalle Street
Mail Code IL1-231-12-18
Chicago, Illinois 60697
Attention: Mark Lariviere
Fax: 312-974-4970
Phone: 312-828-2513
Any such notice or other communication shall be deemed to have been given
(whether actually received or not) on the day it is personally delivered as
aforesaid or, if mailed, on the day it is mailed as aforesaid, or, if
transmitted by telex, on the day that such notice is transmitted as aforesaid.
Any party may change its address for purposes of this Guaranty Agreement by
giving notice of such change to the other party pursuant to this SECTION 5.2.
5.3 GOVERNING LAW. THIS GUARANTY AGREEMENT HAS BEEN PREPARED, AND IS
INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, AND THE SUBSTANTIVE LAWS OF SUCH
STATE SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION
OF THIS GUARANTY AGREEMENT. FOR PURPOSES OF THIS GUARANTY AGREEMENT AND THE
RESOLUTION OF DISPUTES HEREUNDER, EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS AND
CONSENTS TO, AND WAIVES ANY OBJECTION TO, THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF TEXAS LOCATED IN DALLAS, TEXAS AND OF THE FEDERAL COURT
LOCATED IN THE NORTHERN DISTRICT OF TEXAS.
5.4 INVALID PROVISIONS. If any provision of this Guaranty Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Guaranty Agreement, such provision shall be
fully severable and this Guaranty Agreement shall be construed and enforced as
if such illegal, invalid, or unenforceable provision had never comprised a part
of this Guaranty Agreement, and the remaining provisions of this Guaranty
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Guaranty Agreement, unless such continued effectiveness of this Guaranty
Agreement, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
5.5 ENTIRETY AND AMENDMENTS. This Guaranty Agreement embodies the
entire agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the subject matter hereof, and this Guaranty
Agreement may be amended only by an instrument in writing executed by an
authorized officer of the party against whom such amendment is sought to be
enforced.
5.6 PARTIES BOUND; ASSIGNMENT. This Guaranty Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns, and legal representatives; provided, however, that no
Guarantor may, without the prior written consent of Administrative Agent, assign
any of its rights, powers, duties, or obligations hereunder.
5.7 HEADINGS. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Guaranty Agreement.
10
5.8 MULTIPLE COUNTERPARTS. This Guaranty Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Guaranty
Agreement by signing any such counterpart.
5.9 RIGHTS AND REMEDIES. If any Guarantor becomes liable for any
indebtedness owing by Borrower to the Credit Parties, by endorsement or
otherwise, other than under this Guaranty Agreement, then such liability shall
not be in any manner impaired or affected hereby and the rights of the Credit
Parties hereunder shall be cumulative of any and all other rights that the
Credit Parties (or any of them) may ever have against such Guarantor. The
exercise by the Credit Parties of any right or remedy hereunder or under any
other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
5.10 WAIVER OF TRIAL BY JURY. EACH GUARANTOR HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS GUARANTY AGREEMENT. THIS WAIVER IS IRREVOCABLE AND SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, MODIFICATIONS, RENEWALS, EXTENSIONS, OR
SUPPLEMENTS TO THIS GUARANTY AGREEMENT. IN THE EVENT OF LITIGATION, THIS
GUARANTY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
5.11 ADDITIONAL GUARANTORS. The initial Guarantors hereunder shall be
each of the Subsidiaries of Borrower that are signatories hereto and that are
listed on SCHEDULE 1 attached hereto. From time to time subsequent to the time
hereof, additional Subsidiaries of Borrower may become parties hereto as
additional Guarantors (each an "ADDITIONAL GUARANTOR") by executing a
counterpart of this Guaranty Agreement in the form of EXHIBIT A attached hereto.
Upon delivery of any such counterpart to Administrative Agent, notice of which
is hereby waived by Guarantors, each such Additional Guarantor shall be a
Guarantor and shall be a party hereto as if such Additional Guarantor were an
original signatory hereof. Each Guarantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or release
of any other Guarantor hereunder, or by any election by Administrative Agent not
to cause any Subsidiary of Borrower to become an Additional Guarantor hereunder.
This Guaranty Agreement shall be fully effective as to any Guarantor that is or
becomes a party hereto regardless of whether any such person becomes or fails to
become or ceases to be a Guarantor hereunder.
5.12 RELEASE OF GUARANTORS. Pursuant to SECTION 3.1(f) of the Credit
Agreement, any Guarantor may be released from its obligations under this
Guaranty Agreement by Administrative Agent's execution of a Release of Guaranty
in the form of EXHIBIT B attached hereto. Each Guarantor expressly agrees that
its obligations arising hereunder shall not be affected or diminished by the
release of any other Guarantor hereunder.
Remainder of Page Intentionally Blank;
Signature Page Follows.
11
EXECUTED as of the day and year first above written.
GUARANTORS:
SIGNATURE PAGE TO
GUARANTY
SCHEDULE 1 [TO FORM OF SUBSIDIARY GUARANTY]
INITIAL GUARANTORS
C. Richard Dobson Builders, Inc., a Virginia corporation
CH Investments of Texas, Inc., a Delaware corporation
CHI Construction Company, an Arizona corporation
CHTEX of Texas, Inc., a Delaware corporation
Continental Homes, Inc., a Delaware corporation
Continental Homes of Florida, Inc., a Florida corporation
Continental Homes of Texas, L.P., a Texas limited partnership
Continental Residential, Inc., a California corporation
D.R. Horton - Emerald, Ltd., a Texas limited partnership
D.R. Horton, Inc. - Birmingham, an Alabama corporation
D.R. Horton, Inc. - Chicago, a Delaware corporation
D.R. Horton, Inc. - Denver, a Delaware corporation
D.R. Horton, Inc. - Dietz-Crane, a Delaware corporation
D.R. Horton, Inc. - Greensboro, a Delaware corporation
D.R. Horton, Inc. - Jacksonville, a Delaware corporation
D.R. Horton, Inc. - Louisville, a Delaware corporation
D.R. Horton, Inc. - Minnesota, a Delaware corporation
D.R. Horton, Inc. - New Jersey, a Delaware corporation
D.R. Horton, Inc. - Portland, a Delaware corporation
D.R. Horton, Inc. - Sacramento, a California corporation
D.R. Horton, Inc. - Torrey, a Delaware corporation
D.R. Horton Los Angeles Holding Company, Inc., a California corporation
D.R. Horton Management Company, Ltd., a Texas limited partnership
D.R. Horton San Diego Holding Company, Inc., a California corporation
D.R. Horton - Texas, Ltd., a Texas limited partnership
DRH Cambridge Homes, Inc., a California corporation
DRH Cambridge Homes, LLC, a Delaware limited liability company
DRH Construction, Inc., a Delaware corporation
DRH Regrem II, Inc., a Delaware corporation
DRH Regrem III, Inc., Delaware corporation
DRH Regrem IV, Inc., a Delaware corporation
DRH Regrem V, Inc., a Delaware corporation
DRH Regrem VII, LP, a Texas limited partnership
DRH Regrem VIII, LLC, a Delaware limited liability company
DRH Southwest Construction, Inc., California corporation
DRH Title Company of Colorado, Inc., Colorado corporation
DRH Tucson Construction, Inc., a Delaware corporation
DRHI, Inc., a Delaware corporation
KDB Homes, Inc., a Delaware corporation
Meadows I, Ltd., a Delaware corporation
Meadows II, Ltd., a Delaware corporation
Meadows VIII, Ltd., a Delaware corporation
Meadows IX, Inc., a New Jersey corporation
Meadows X, Inc., a New Jersey corporation
SGS Communities at Grande Quay, LLC, a New Jersey limited liability company
EXHIBIT A [TO FORM OF SUBSIDIARY GUARANTY]
COUNTERPART TO SUBSIDIARY GUARANTY
In witness whereof, the undersigned Additional Guarantor has caused
this Guaranty Agreement to be executed and delivered by its officer thereunto
duly authorized as of _____________, 200__.
---------------------------------
[NAME OF ADDITIONAL GUARANTOR]
By:
------------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT B [TO FORM OF SUBSIDIARY GUARANTY]
FORM OF RELEASE OF GUARANTOR
In witness whereof, the undersigned Administrative Agent, for itself
and on behalf of each of the Credit Parties (defined below), hereby releases and
discharges ___________________ from any and all obligations and liabilities of
______________________ to the Credit Parties under that certain Guaranty
Agreement dated as of January 31, 2002, executed by the Subsidiaries of D. R.
Horton, Inc., a Delaware corporation, described therein in favor of the Credit
Parties defined therein.
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------