EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
PULTE HOMES, INC.
AS BORROWER,
THE LENDERS IDENTIFIED HEREIN,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT,
AND
CITICORP NORTH AMERICA, INC.,
AS SYNDICATION AGENT
AND
BARCLAYS BANK PLC,
BNP PARIBAS,
COMERICA BANK
DEUTSCHE BANK TRUST COMPANY AMERICAS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
SUNTRUST BANK,
THE ROYAL BANK OF SCOTLAND PLC,
UBS LOAN FINANCE LLC
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
AND
BANK OF AMERICA, N.A.
CALYON NEW YORK BRANCH,
GUARANTY BANK,
MIZUHO CORPORATE BANK, LTD.,
PNC BANK, NATIONAL ASSOCIATION,
AND
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH
AS MANAGING AGENTS
AND
FIFTH THIRD BANK, EASTERN MICHIGAN,
STANDARD FEDERAL BANK N.A.,
AND
WASHINGTON MUTUAL BANK, FA
AS CO-AGENTS
DATED AS OF SEPTEMBER 16, 2004
-------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
Table of Contents
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS............................................................ 1
1.1 DEFINITIONS.................................................................................... 1
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.................................. 21
1.3 ACCOUNTING TERMS............................................................................... 21
1.4 TIME........................................................................................... 22
SECTION 2 CREDIT FACILITIES........................................................................... 22
2.1 REVOLVING LOANS................................................................................ 22
2.2 SWINGLINE LOANS SUBFACILITY.................................................................... 27
2.3 CONTINUATIONS AND CONVERSIONS.................................................................. 28
2.4 MINIMUM AMOUNTS................................................................................ 29
2.5 EXTENSION OF MATURITY DATE..................................................................... 29
2.6 TELEPHONIC NOTICES............................................................................. 31
2.7 LENDING INSTALLATIONS.......................................................................... 31
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS...................................................... 32
3.1 INTEREST....................................................................................... 32
3.2 PLACE AND MANNER OF PAYMENTS................................................................... 33
3.3 PREPAYMENTS.................................................................................... 33
3.4 FEES........................................................................................... 34
3.5 PAYMENT IN FULL AT MATURITY.................................................................... 34
3.6 COMPUTATIONS OF INTEREST AND FEES.............................................................. 35
3.7 PRO RATA TREATMENT............................................................................. 35
3.8 SHARING OF PAYMENTS............................................................................ 36
3.9 CAPITAL ADEQUACY............................................................................... 37
3.10 INABILITY TO DETERMINE INTEREST RATE.......................................................... 37
3.11 ILLEGALITY.................................................................................... 38
3.12 REQUIREMENTS OF LAW........................................................................... 38
3.13 TAXES......................................................................................... 39
3.14 COMPENSATION.................................................................................. 42
3.15 SUBSTITUTION OF LENDER........................................................................ 43
3.16 EVIDENCE OF DEBT.............................................................................. 43
SECTION 4 FACILITY LCS................................................................................ 44
4.1 ISSUANCE....................................................................................... 44
4.2 PARTICIPATIONS................................................................................. 44
4.3 NOTICE......................................................................................... 44
4.4 FEES; REPORTING................................................................................ 45
4.5 ADMINISTRATION; REIMBURSEMENT BY LENDERS....................................................... 46
4.6 REIMBURSEMENT BY BORROWER...................................................................... 46
4.7 OBLIGATIONS ABSOLUTE........................................................................... 47
4.8 ACTIONS OF LC ISSUER........................................................................... 48
4.9 INDEMNIFICATION................................................................................ 48
4.10 LENDERS' INDEMNIFICATION...................................................................... 49
4.11 FACILITY LC COLLATERAL ACCOUNT................................................................ 49
4.12 RIGHTS AS A LENDER............................................................................ 49
SECTION 5 CONDITIONS PRECEDENT........................................................................ 49
5.1 CLOSING CONDITIONS............................................................................. 49
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT......................................................... 54
SECTION 6 REPRESENTATIONS AND WARRANTIES.............................................................. 54
i
Table of Contents
6.1 FINANCIAL CONDITION............................................................................ 54
6.2 NO MATERIAL CHANGE............................................................................. 55
6.3 ORGANIZATION AND GOOD STANDING................................................................. 55
6.4 DUE AUTHORIZATION.............................................................................. 55
6.5 NO CONFLICTS................................................................................... 55
6.6 CONSENTS....................................................................................... 56
6.7 ENFORCEABLE OBLIGATIONS........................................................................ 56
6.8 NO DEFAULT..................................................................................... 56
6.9 LIENS.......................................................................................... 56
6.10 INDEBTEDNESS.................................................................................. 56
6.11 LITIGATION.................................................................................... 56
6.12 TAXES......................................................................................... 57
6.13 COMPLIANCE WITH LAW........................................................................... 57
6.14 ERISA......................................................................................... 57
6.15 SUBSIDIARIES.................................................................................. 58
6.16 USE OF PROCEEDS............................................................................... 58
6.17 GOVERNMENT REGULATION......................................................................... 58
6.18 ENVIRONMENTAL MATTERS......................................................................... 59
6.19 INTELLECTUAL PROPERTY......................................................................... 60
6.20 SOLVENCY...................................................................................... 60
6.21 INVESTMENTS................................................................................... 60
6.22 DISCLOSURE.................................................................................... 61
6.23 LICENSES, ETC................................................................................. 61
6.24 BURDENSOME RESTRICTIONS....................................................................... 61
6.25 LABOR CONTRACTS AND DISPUTES.................................................................. 61
6.26 BROKER'S FEES................................................................................. 61
SECTION 7 AFFIRMATIVE COVENANTS....................................................................... 61
7.1 INFORMATION COVENANTS.......................................................................... 62
7.2 FINANCIAL COVENANTS............................................................................ 65
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES....................................................... 65
7.4 BOOKS AND RECORDS.............................................................................. 65
7.5 COMPLIANCE WITH LAW............................................................................ 66
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS........................................................ 66
7.7 INSURANCE...................................................................................... 66
7.8 MAINTENANCE OF PROPERTY........................................................................ 66
7.9 PERFORMANCE OF OBLIGATIONS..................................................................... 66
7.10 USE OF PROCEEDS............................................................................... 67
7.11 AUDITS/INSPECTIONS............................................................................ 67
7.12 ADDITIONAL CREDIT PARTIES..................................................................... 67
7.13 REIT REQUIREMENTS............................................................................. 67
SECTION 8 NEGATIVE COVENANTS.......................................................................... 68
8.1 INDEBTEDNESS................................................................................... 68
8.2 LIENS.......................................................................................... 69
8.3 NATURE OF BUSINESS............................................................................. 69
8.4 CONSOLIDATION AND MERGER....................................................................... 69
8.5 SALE OR LEASE OF ASSETS........................................................................ 69
8.6 SALE AND LEASEBACK............................................................................. 70
8.7 ADVANCES, INVESTMENTS AND LOANS................................................................ 70
8.8 RESTRICTED PAYMENTS............................................................................ 71
8.9 TRANSACTIONS WITH AFFILIATES................................................................... 71
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS......................................................... 71
8.11 NO LIMITATIONS................................................................................ 71
8.12 NO OTHER NEGATIVE PLEDGES..................................................................... 71
ii
Table of Contents
8.13 OTHER INDEBTEDNESS............................................................................ 72
8.14 RESTRICTIONS ON THE REITS..................................................................... 72
SECTION 9 EVENTS OF DEFAULT........................................................................... 72
9.1 EVENTS OF DEFAULT.............................................................................. 72
9.2 ACCELERATION; REMEDIES......................................................................... 75
9.3 FACILITY LC COLLATERAL ACCOUNT................................................................. 76
9.4 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.................................................. 77
SECTION 10 AGENCY PROVISIONS.......................................................................... 78
10.1 APPOINTMENT; NATURE OF RELATIONSHIP........................................................... 78
10.2 POWERS........................................................................................ 78
10.3 GENERAL IMMUNITY.............................................................................. 78
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.................................................... 79
10.5 ACTION ON INSTRUCTIONS OF LENDERS............................................................. 79
10.6 EMPLOYMENT OF AGENTS AND COUNSEL.............................................................. 80
10.7 RELIANCE ON DOCUMENTS; COUNSEL................................................................ 80
10.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION...................................... 80
10.9 NOTICE OF DEFAULT............................................................................. 80
10.10 RIGHTS AS A LENDER........................................................................... 81
10.11 LENDER CREDIT DECISION....................................................................... 81
10.12 SUCCESSOR ADMINISTRATIVE AGENT............................................................... 81
10.13 ADMINISTRATIVE AGENT AND ARRANGER FEES....................................................... 82
10.14 DELEGATION TO AFFILIATES..................................................................... 82
10.15 AUTHORIZATION OF INTERCREDITOR AGREEMENT..................................................... 82
10.16 DOCUMENTATION AGENT, SYNDICATION AGENT, ETC.................................................. 83
10.17 BENEFITS OF SECTION 10....................................................................... 83
SECTION 11 MISCELLANEOUS.............................................................................. 83
11.1 NOTICES....................................................................................... 83
11.2 RIGHT OF SET-OFF.............................................................................. 83
11.3 BENEFIT OF AGREEMENT.......................................................................... 84
11.4 NO WAIVER; REMEDIES CUMULATIVE................................................................ 87
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.......................................................... 87
11.6 AMENDMENTS, WAIVERS AND CONSENTS.............................................................. 88
11.7 COUNTERPARTS/TELECOPY......................................................................... 89
11.8 HEADINGS...................................................................................... 89
11.9 DEFAULTING LENDER............................................................................. 89
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES............................... 89
11.11 GOVERNING LAW; JURISDICTION.................................................................. 89
11.12 WAIVER OF JURY TRIAL......................................................................... 90
11.13 SEVERABILITY................................................................................. 90
11.14 FURTHER ASSURANCES........................................................................... 90
11.15 ENTIRETY..................................................................................... 91
11.16 CONFIDENTIALITY.............................................................................. 91
11.17 BINDING EFFECT; CONTINUING AGREEMENT......................................................... 91
11.18 NO CONSEQUENTIAL DAMAGES..................................................................... 92
11.19 USA PATRIOT ACT.............................................................................. 92
iii
Table of Contents
SCHEDULES
Schedule 1.1(a) Commitments and Pro Rata Shares
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Permitted Liens
Schedule 6.10 Indebtedness
Schedule 6.11 Litigation
Schedule 6.15 Subsidiaries
Schedule 6.21(a) Investment Policy
Schedule 6.21(b) Investments
Schedule 6.25 Labor Contracts and Disputes
Schedule 11.1 Notices
EXHIBITS
Exhibit 1.1 Form of Guaranty
Exhibit 1.2 Form of Intercreditor Agreement
Exhibit 2.1(e) Form of Commitment and Acceptance
Exhibit 2.1(f) Form of Revolving Note
Exhibit 2.2(e) Form of Swingline Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 11.3(b) Form of Assignment Agreement
i
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement") is
entered into as of September 16, 2004 among PULTE HOMES, INC., a Michigan
corporation (the "Borrower"), the Lenders (as defined herein), and BANK ONE, NA,
as Administrative Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, the Administrative Agent and certain other lenders
are party to a certain Credit Agreement dated as of October 1, 2003 (the
"Original Credit Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the Original
Credit Agreement to extend the Maturity Date, to increase the Revolving
Committed Amount and as otherwise provided herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that the Original Credit Agreement
is amended and restated in its entirety as follows.
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition", by any Person, means the acquisition by such Person
of the Capital Stock or all or substantially all of the assets of another
Person, whether or not involving a merger or consolidation with such
Person.
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date, as provided in Section 7.12 or otherwise.
"Adjusted LIBOR Market Index Rate" means, with respect to an Index
Rate Swingline Loan, the sum of (i) the quotient of (a) the LIBOR Market
Index Rate applicable to such Index Rate Swingline Loan, divided by (b)
one minus the applicable Reserve Requirement (expressed as a decimal) plus
(ii) the Applicable Percentage.
"Administrative Agent" means Bank One, NA. (or any successor
thereto) or any successor administrative agent appointed pursuant to
Section 10.12.
"Administrative Fees" has the meaning set forth in Section 3.4(b).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers (or the equivalent) of such Person), controlled by
or under direct or indirect common control with such Person. A Person
shall be deemed to control an entity if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the ordinary voting power
for the election of directors (or the equivalent) of such entity or (b) to
direct or cause direction of the management and policies of such entity,
whether through the ownership of voting securities, by contract or
otherwise.
"Aggregate Commitment Limit" means One Billion Five Hundred Million
Dollars ($1,500,000,000), less the amount of any reductions of the
Revolving Committed Amount effected pursuant to Section 2.1(d).
"Aggregate LC Commitment" means the lesser of (a) Seven Hundred
Fifty Million Dollars ($750,000,000) or (b) the Revolving Committed
Amount.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the higher of (a) the Prime Rate for such day or (b) the sum of the
Federal Funds Effective Rate plus 0.5%, in each case changing when and as
the Prime Rate and the Federal Funds Effective Rate change.
"Applicable Percentage" means, for Eurodollar Loans, Index Rate
Swingline Loans, Facility LC Fees and Commitment Fees, the appropriate
applicable percentages corresponding to the Debt to Capitalization Ratio
and the Senior Debt Rating of the Borrower as described below:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
------- -------- --------- --------
SENIOR DEBT RATING GREATER THAN OR EQUAL BBB / BAA2 BBB- / BAA3 LESS THAN BBB- / BAA3 OR
TO BBB+ / BAA1 NO SENIOR DEBT RATING
DEBT TO
CAPITALIZATION LESS THAN OR EQUAL TO GREATER THAN 25% BUT GREATER THAN 35% GREATER THAN 45%
RATIO 25% LESS THAN OR EQUAL TO BUT LESS THAN OR
35% EQUAL TO 45%
APPLICABLE 0.625% 0.75% 0.875% 1.125%
PERCENTAGE FOR
EURODOLLAR LOANS,
INDEX RATE
SWINGLINE LOANS
AND FACILITY LC
FEE RATE
APPLICABLE 0.15% 0.175% 0.20% 0.225%
PERCENTAGE FOR
COMMITMENT FEES
2
In the event of a split in ratings between Moody's and S&P, the Senior
Debt Rating of the Borrower shall be (a) the higher rating (i.e., lower
pricing) if they are one level apart and (ii) one level better than the
lower rating if they are more than one level apart. In the event the Debt
to Capitalization Ratio and the Senior Debt Rating of the Borrower are not
at the same level, then the Applicable Percentage shall be at (a) the
lower level (i.e., lower pricing) if they are only one level apart and (b)
one level lower than the higher level if they are more than one level
apart. The Applicable Percentage shall be determined and adjusted, as
necessary, on the date of any change in the Senior Debt Rating of the
Borrower or upon receipt of the officer's certificate required by Section
7.1(c) calculating the then Debt to Capitalization Ratio. The parties
acknowledge that, as of the date hereof, the Applicable Percentage is at
Level III.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Arranger" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole
Bookrunner.
"Assignment Agreement" has the meaning set forth in Section 11.3(b).
"Authorized Officer" means, with respect to any certificate required
to be delivered pursuant to this Credit Agreement, the chief financial
officer, treasurer or corporate controller of the Borrower or any other
person designated in writing by such chief financial officer, treasurer or
corporate controller.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and
its successors and assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.
"Borrower" means Pulte Homes, Inc., a Michigan corporation, together
with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are authorized or
required by law or other governmental action to close in Chicago,
Illinois; provided that in the case of Eurodollar Loans, such day is also
a day on which dealings between banks are carried on in Dollar deposits in
the London interbank market.
"Capital Expenditures" means all expenditures of the Credit Parties
and their Subsidiaries which, in accordance with GAAP, would be classified
as capital expenditures, including, without limitation, Capital Leases.
3
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person and the amount of such obligation
shall be the capitalized amount thereof determined in accordance with
GAAP.
"Capital Stock" means (a) in the case of a corporation, all classes
of capital stock of such corporation, (b) in the case of a partnership,
partnership interests (whether general or limited), (c) in the case of a
limited liability company, membership interests and (d) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Capitalization" means, as of any date, (a) Indebtedness of the
Credit Parties (other than to the REITs) plus (b) the consolidated net
shareholders equity of the Borrower as determined in accordance with GAAP
minus (i) Investments described in clause (f) of the definition of
Permitted Investments and (ii) Investments described in clause (g) of the
definition of Permitted Investments.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than 180 days from the date of acquisition, (b) Dollar
denominated time and demand deposits and certificates of deposit of (i)
any Lender, (ii) any domestic commercial bank having capital and surplus
in excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or from
▇▇▇▇▇'▇ is at least P-2 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 180 days
from the date of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company thereof)
or any variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2
(or the equivalent thereof) or better by Moody's and maturing within 180
days of the date of acquisition, (d) repurchase agreements with a bank or
trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of America
in which the Borrower shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at
least $500,000,000 and the portfolios of which are limited to Investments
of the character described in the foregoing subdivisions (a) through (d),
and (f) Investments consistent with the Pulte Homes, Inc. Investment
Policy as set forth on Schedule 6.21(a).
"Change of Control" means the occurrence of any of the following
events: (a) there shall be consummated any consolidation, share exchange
or merger of the Borrower in
4
which the Borrower is not the continuing or surviving corporation or
pursuant to which the Borrower's Voting Stock would be converted into
cash, securities or other property, other than, in any case, a merger of
the Borrower in which the holders of Voting Stock immediately prior to the
merger have the same or greater proportionate ownership, directly or
indirectly, of the Voting Stock of the surviving corporation immediately
after the merger as they had of the Voting Stock of the Borrower
immediately before the merger; (b) there is a report filed by any Person,
including Affiliates of the Borrower (other than the Borrower, its
Material Subsidiaries, employee stock ownership plans or employee benefit
plans of the Borrower or its subsidiaries, or a Permitted Holder) on
Schedule 13D or 14D-1 (or any successor schedule, form or report under the
Exchange Act) disclosing that such Person (for the purpose of this
definition of "Change in Control" only, the term "Person" shall include a
"person" within the meaning of Section 13(d)(3) and Section 14(d)(2) of
the Exchange Act or any successor provision to either of the foregoing)
has become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3, Rule 13d-5 or any successor rule or regulation
promulgated under the Exchange Act) of 30% or more of the Borrower's
Voting Stock; provided, however, that a Person shall not be deemed the
beneficial owner of, or to own beneficially (i) any securities tendered
pursuant to a tender or exchange offer made on behalf of such Person or
any of such Person's Affiliates until such tendered securities are
accepted for purchase or exchange thereunder or (ii) any securities if
such beneficial ownership (A) arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations
under the Exchange Act, and (B) is not also then reportable on Schedule
13D (or any successor schedule, form or report) under the Exchange Act; or
(c) during any period of two consecutive calendar years, individuals who,
at the beginning of such period constituted the board of directors of the
Borrower cease for any reason to constitute a majority of the directors of
the Borrower then in office unless such new directors were elected by the
directors of the Borrower who constituted the board of directors of the
Borrower at the beginning of such period.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or
replaced from time to time. References to sections of the Code should be
construed also to refer to any successor sections.
"Collateral Shortfall Amount" has the meaning set forth in Section
9.2(c).
"Commitment" means (a) with respect to each Lender, the Revolving
Loan Commitment of such Lender and (b) with respect to the Swingline
Lender, the Swingline Loan Commitment.
"Commitment and Acceptance" has the meaning set forth in Section
2.1(e)(i).
"Commitment Fees" means the fees payable to the Lenders pursuant to
Section 3.4(a).
5
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of (a) Tangible Net Worth and (b) Indebtedness of
the Credit Parties.
"Credit Documents" means this Credit Agreement, the Notes, each
Guaranty, the Intercreditor Agreement, each Facility LC Application and
all other related agreements and documents issued or delivered hereunder
or thereunder or pursuant hereto or thereto.
"Credit Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders, any LC Issuer and the
Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or any other Credit Document to which any Credit Party is a party.
"Debt to Capitalization Ratio" means, as of any date, the ratio of
(a) Indebtedness of the Credit Parties (other than to the REITs, provided
such REIT has complied with Section 8.1(h)) less (i) 50% of Qualified
Subordinated Debt and (ii) all unrestricted cash and Cash Equivalents held
by the Credit Parties in excess of $25,000,000 but not to exceed
$300,000,000 to (b) Capitalization.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a) has
failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased),
(b) has failed to pay to the Administrative Agent or any other Lender an
amount owed by such Lender pursuant to the terms of this Credit Agreement
(but only for so long as such amount has not been paid) or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any assets of
which) a receiver, trustee or similar official has been appointed.
"Dollars" and "$" mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiaries" means all direct and indirect Subsidiaries
of a Credit Party that are domiciled, incorporated or organized under the
laws of any state of the United States or the District of Columbia (or has
any material assets located in the United States).
"EBITDA" means, for any period, the sum of (a) Net Income of the
Credit Parties for such period (excluding the effect of any extraordinary
or other non-recurring gains or losses outside of the ordinary course of
business) plus (b) an amount which, in the determination of such Net
Income for such period has been deducted for (i) interest expense
(including previously capitalized interest included in the cost of goods
sold) of the Credit Parties for
6
such period, (ii) total Federal, state, foreign or other income taxes of
the Borrower for such period and (iii) depreciation and amortization of
the Credit Parties for such period, plus (c) without duplication, Net
Income for such period of those Subsidiaries of the Borrower that are not
Credit Parties, all as determined in accordance with GAAP.
"Effective Date" means the date on which the conditions set forth in
Section 5.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders).
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of a
Lender; (c) any Approved Fund; and (d) any other Person approved by the
Administrative Agent and the Borrower (such approval not to be
unreasonably withheld or delayed); provided that (i) the Borrower's
consent is not required during the existence and continuation of an Event
of Default, (ii) approval by the Borrower shall be deemed given if no
objection is received by the assigning Lender and the Administrative Agent
from the Borrower within two Business Days after notice of such proposed
assignment has been received by the Borrower; and (iii) neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature
arising (a) pursuant to, or in connection with, an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any assessment, abatement, removal, remedial,
corrective, or other response action in connection with an Environmental
Law or other order of a Governmental Authority or (d) from any actual or
alleged damage, injury, threat, or harm to health, safety, natural
resources, or the environment.
"Environmental Laws" means any current or future legal requirement
of any Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the protection
or use of surface water and groundwater or (d) the management,
manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release, abatement,
removal, remediation or handling of, or exposure to, any hazardous or
toxic substance or material or (e) pollution (including any release to
land, surface water and groundwater) and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Hazardous and Solid
Waste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et
seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and
Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of
1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know
Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of
1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42
USC 300(f) et
7
seq., any analogous implementing or successor law, and any amendment,
rule, regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to any Person
of (a) shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants or (c) any shares of its
Capital Stock pursuant to the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules
and regulations thereunder, all as the same may be in effect from time to
time. References to sections of ERISA shall be construed also to refer to
any successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated,
which is under common control with any Credit Party or any of its
Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or is a
member of a group which includes any Credit Party or any of its
Subsidiaries and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Eurodollar Base Rate" means, with respect to a Eurodollar Loan for
the relevant Interest Period, the applicable British Bankers' Association
LIBOR rate for deposits in U.S. Dollars as reported by any generally
recognized financial information service, selected by the Administrative
Agent, as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, if no such British Bankers' Association LIBOR rate
is available to the Administrative Agent, the applicable Eurodollar Base
Rate for the relevant Interest Period shall instead be the rate determined
by the Administrative Agent to be the rate at which Bank One or one of its
Affiliate banks offers to place deposits in U.S. Dollars with first-class
banks in the London interbank market at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, in
the approximate amount of Bank One's Pro Rata Share of the relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan bearing interest based on a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Loan for the
relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period, plus (ii) the Applicable Percentage.
"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as amended,
modified, succeeded or replaced from time to time.
8
"Existing Letters of Credit" means those Letters of Credit listed on
Schedule 1.1(b) hereto issued prior to the date hereof by the Lenders
identified therein for the account of the Borrower.
"Extending Lender" has the meaning set forth in Section 2.5(a).
"Extension of Credit" means, as to any Lender or LC Issuer, the
making of a Loan by such Lender (or a participation therein by a Lender),
including a Swingline Loan by the Swingline Lender, or the issuance of a
Facility LC by such LC Issuer or a Modification that constitutes an
increase of a Facility LC by such LC Issuer.
"Extension Required Lenders" has the meaning set forth in Section
2.5(a).
"Facility Increase" has the meaning set forth in Section 2.1(e)(i).
"Facility LC" has the meaning set forth in Section 4.1.
"Facility LC Application" has the meaning set forth in Section 4.3.
"Facility LC Collateral Account" has the meaning set forth in
Section 4.11.
"Facility LC Fee" has the meaning set forth in Section 4.4(a).
"Facility LC Fee Rate" means a rate per annum equal to the
Applicable Percentage with respect to Eurodollar Loans in effect from time
to time during the term of any Facility LC.
"Facility LC Request" has the meaning set forth in Section 4.3.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent in its sole
discretion.
"Fee Letter" means that certain letter agreement dated as of August
1, 2004 among the Borrower, the Arranger and the Administrative Agent.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
9
"Floating Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Floating Rate.
"Fronting Fee" has the meaning set forth in Section 4.4(b).
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local, provincial
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means each REIT, each of the Material Subsidiaries of
the Borrower and each Additional Credit Party which has executed a
Guaranty, including any Supplemental Guaranty, hereunder, together with
their successors and assigns.
"Guaranty" means the guaranty, in substantially the form of Exhibit
1.1 hereto, executed by the REITs and the Material Subsidiaries of the
Borrower in favor of the Administrative Agent, for the benefit of the
Lenders, as any such guaranty may be amended, restated, supplemented or
otherwise modified from time to time, including by any Supplemental
Guaranty executed by a Guarantor after the Closing Date.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guaranteeing or intending to guarantee any Indebtedness of any other
Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (a) to purchase any
such Indebtedness or other obligation or any property constituting
security therefor, (b) to advance or provide funds or other support for
the payment or purchase of such Indebtedness or obligation or to maintain
working capital, solvency or other balance sheet condition of such other
Person (including, without limitation, maintenance agreements, comfort
letters, take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of such other
Person, (c) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such Indebtedness
against loss in respect thereof or (d) to otherwise assure or hold
harmless the owner of such Indebtedness or obligation against loss in
respect thereof; provided, that a guaranty of Non-Recourse Land Financing
shall not be deemed to be a Guaranty Obligation until, and only to the
extent that, such Non-Recourse Land Financing ceases to be Non-Recourse
Land Financing; and provided further, that a guaranty of performance and
other obligations of a joint venture (other than the guaranty of a joint
venture's obligation to make principal payments of its Indebtedness) shall
not constitute a Guaranty Obligation unless and until the occurrence of a
default in the obligation that is guaranteed. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein)
be deemed to be an amount equal
10
to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation
is made.
"Hazardous Materials" means any substance, material or waste defined
in or regulated under any Environmental Laws.
"Hedging Agreements" means any interest rate protection agreements,
foreign currency exchange agreements, commodity futures agreements or
other interest or exchange rate hedging agreements.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person to the extent of the value
of such property (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations, other than intercompany items, of such
Person issued or assumed as the deferred purchase price of property or
services purchased by such Person which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed,
(f) all Guaranty Obligations of such Person, (g) the principal portion of
all obligations of such Person under (i) Capital Leases and (ii) any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product of such Person where such
transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP, (h) all net
obligations of such Person in respect of Hedging Agreements, (i) all
preferred stock issued by such Person and required by the terms thereof to
be redeemed, or for which mandatory sinking fund payments are due by a
fixed date, (j) the aggregate amount of uncollected accounts receivable of
such Person subject at such time to a sale of receivables (or similar
transaction) regardless of whether such transaction is effected without
recourse to such Person or in a manner that would not be reflected on the
balance sheet of such Person in accordance with GAAP, (k) obligations of
such Person to reimburse the issuer of a Letter of Credit for amounts that
have been paid by such issuer in respect of drawings thereunder, (l)
current liabilities of such Person for unfunded vested pensions, and (m)
all obligations of such Person to repurchase any securities which
repurchase obligation is related to the issuance thereof, including,
without limitation, obligations commonly known as residual equity
appreciation potential shares.
"Index Rate Swingline Loan" means a Swingline Loan bearing interest
at the Adjusted LIBOR Market Index Rate.
"Intellectual Property" has the meaning set forth in Section 6.19.
11
"Intercreditor Agreement" means an Intercreditor and Subordination
Agreement among the Administrative Agent, on behalf of the Lenders,
certain other creditors, and Asset Seven Corp., Pulte Realty Corporation
and any other REITs, as subordinated creditors, substantially in the form
of Exhibit 1.2.
"Interest Coverage Ratio" means, as of the end of each fiscal
quarter of the Borrower for the twelve month period ending on such date,
the ratio of (a) EBITDA for the applicable period to (b) interest incurred
by the Credit Parties, whether such interest was expensed, capitalized,
paid, accrued or scheduled to be paid or accrued.
"Interest Payment Date" means (a) as to Floating Rate Loans, the
last day of each calendar month and the Maturity Date and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and the
Maturity Date and in addition, where the applicable Interest Period for a
Eurodollar Loan is greater than three months, then also the date three
months from the beginning of the Interest Period and each three months
thereafter.
"Interest Period" means, (a) with respect to Eurodollar Loans, a
period of one, two, three or six months' duration, as the Borrower may
elect, commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof) and (b) with respect to Index Rate
Swingline Loans, a period beginning on the date of advance and ending on
the date specified in the applicable Swingline Loan Request, which shall
be between one and seven Business Days in duration; provided, however,
that (i) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in
the next succeeding calendar month, such Interest Period shall end on the
next preceding Business Day), (ii) no Interest Period shall extend beyond
the Maturity Date, and (iii) with respect to Eurodollar Loans, where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to
end, such Interest Period shall end on the last Business Day of such
calendar month.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than assets acquired in the ordinary course of
business), shares of Capital Stock, bonds, notes, debentures, joint
venture, partnership or other ownership interests or other securities of
such other Person or (b) any deposit with, or advance, loan or other
extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the ordinary
course of business) or (c) any other capital contribution to or investment
in such Person, including, without limitation, any Guaranty Obligation
incurred for the benefit of such Person and any support provided for a
Letter of Credit issued on behalf of such Person.
"Issuance Date" means, with respect to a Facility LC, the date on
which such Facility LC is issued.
"LC Issuer" means each of Bank One and such other Lender selected by
the Borrower with the approval of the Administrative Agent (which approval
shall not be
12
unreasonably withheld), to issue such Facility LC, provided such other
Lender consents to act in such capacity. The Lenders that have issued the
Existing Letters of Credit have been selected and approved as LC Issuers.
"LC Obligations" means, at any time, the sum, without duplication,
of (i) the aggregate undrawn stated amount under all Facility LCs
outstanding at such time plus (ii) the aggregate unpaid amount at such
time of all Reimbursement Obligations.
"LC Payment Date" has the meaning set forth in Section 4.5.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Eligible Assignee which may become a
Lender by way of assignment in accordance with the terms hereof, together
with their successors and permitted assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such
Lender or the Administrative Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any
way liable.
"LIBOR Market Index Rate" means, for any day with respect to an
Index Rate Swingline Loan, the applicable British Bankers' Association
week LIBOR rate for deposits in U.S. Dollars having a maturity of one week
as reported by any generally recognized financial information service as
of 11:00 a.m. (London time) on such day, provided that, if no such British
Bankers' Association LIBOR rate is available to the Administrative Agent,
the applicable LIBOR Market Index Rate shall instead be the rate
determined by the Administrative Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. Dollars with
first-class banks in the London interbank market at approximately 11:00
a.m. (London time) on such day, in the approximate amount of the
applicable Index Rate Swingline Loan and having a maturity of one week.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including, without
limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, and any lease in the nature
thereof.
"Loan" or "Loans" means the Revolving Loans and the Swingline Loans
(or a portion of any Revolving Loan or Swingline Loan), individually or
collectively, as appropriate.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Credit Parties
taken as a whole, (b) the ability of the Credit Parties taken as a whole
to perform their obligations under this Credit Agreement or any of the
other Credit Documents,
13
or (c) the validity or enforceability of this Credit Agreement, any of the
other Credit Documents, or the rights and remedies of the Lenders
hereunder or thereunder taken as a whole.
"Material Subsidiary" means any Domestic Subsidiary of the Borrower,
now owned or hereafter acquired, that has assets with a fair market value
of $10,000,000 or greater other than as set forth in clauses (a), (b), (c)
and (d) below; provided that in no event may there exist Domestic
Subsidiaries of the Borrower (other than the Excluded Subsidiaries) that
have assets, in the aggregate, with a fair market value in excess of
$50,000,000 that are not Guarantors hereunder. For purposes of this
definition, the following Subsidiaries (collectively, the "Excluded
Subsidiaries") shall not be considered Material Subsidiaries: (a) Pulte
Mortgage LLC; (b) First Heights Bank; (c) North American Builders
Indemnity Company; (d) Subsidiaries the investment in which was made as
permitted by clause (f) of the definition of Permitted Investments; (e)
any Subsidiary formed for the specific purpose of (i) acquiring mortgages
or other assets from a Credit Party, for cash or Cash Equivalents and at a
value which is comparable to that which would be obtained for such assets
on an arm's length transaction and (ii) entering into a securitization
program (or similar transaction or series of transactions) with respect to
the acquired assets; provided that the sole recourse of such Subsidiary's
creditors is the assets of such Subsidiary or another Person that is not a
Credit Party; and (f) a Domestic Subsidiary whose sole asset is the
ownership of a foreign entity or assets of a foreign entity; provided that
the investment in any such Subsidiary subsequent to the Closing Date must
be a Permitted Investment.
"Maturity Date" means September 15, 2009, as such date may be
extended in accordance with the terms of Section 2.5 (other than with
respect to the Commitments and Loans of any Refusing Lender, in which case
the applicable Maturity Date for such Commitments and Loans shall be the
RL Maturity Date).
"Modify" and "Modification" are defined in Section 4.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Mortgage Banking Subsidiaries" means Pulte Mortgage LLC and any
other Subsidiary of the Borrower engaged primarily in the mortgage banking
business.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA which
is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of
ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA,
other than a Multiemployer Plan, with respect to which any Credit Party or
any of its Subsidiaries or any ERISA Affiliate and at least one employer
other than a Credit Party or any of its Subsidiaries or any ERISA
Affiliate are contributing sponsors.
"Net Income" means, with respect to any Person for any period, the
net income after taxes of such Person for such period, as determined in
accordance with GAAP.
14
"New Lender" means a Lender or an Eligible Assignee, in each case
approved by the Borrower and the Administrative Agent, that agrees to
become a Lender, or to increase its Commitment, pursuant to Section
2.1(e).
"Non-Excluded Taxes" has the meaning set forth in Section 3.13(a).
"Non-Recourse Land Financing" means any Indebtedness of any Credit
Party for which the owner of such Indebtedness has no recourse, directly
or indirectly, to a Credit Party for the principal of, premium, if any,
and interest on such Indebtedness, and for which a Credit Party is not,
directly or indirectly, obligated or otherwise liable for the principal
of, premium, if any, and interest on such Indebtedness, except pursuant to
mortgages, deeds of trust or other security interests or other recourse
obligations or liabilities in respect of specific land or other real
property interests of a Credit Party; provided that recourse obligations
or liabilities of a Credit Party solely for indemnities, covenants or
breach of warranty, representation or covenant in respect of any
Indebtedness will not prevent Indebtedness from being classified as
Non-Recourse Land Financing.
"Non-U.S. Lender" has the meaning set forth in Section 3.13(b)(i).
"Note" or "Notes" means the Revolving Notes and the Swingline Note,
individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a
Revolving Loan delivered pursuant to and in accordance with Section
2.1(b).
"Notice of Continuation/Conversion" means a request by the Borrower
to continue an existing Eurodollar Loan for a new Interest Period or to
convert a Eurodollar Loan to a Floating Rate Loan (other than a Swingline
Loan) or a Floating Rate Loan (other than a Swingline Loan) to a
Eurodollar Loan delivered pursuant to and in accordance with Section 2.3.
"Original Credit Agreement" has the meaning set forth in the
Recitals to this Agreement.
"Outstanding Credit Extensions" has the meaning set forth in Section
2.1(a)(i).
"Participation Interest" means the Extension of Credit by a Lender
by way of a purchase of a participation in any Loans as provided in
Section 2.2 or Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Permitted Holder" means (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (ii) any of his
Affiliates, parents, spouse, descendants and spouses of descendants or
(iii) any trusts or other entities controlled by ▇▇. ▇▇▇▇▇ and his
respective estates, heirs, administrators or personal representatives.
15
"Permitted Investments" means Investments which are (a) cash or Cash
Equivalents, (b) accounts receivable created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance
with customary trade terms, (c) inventory, raw materials and general
intangibles acquired in the ordinary course of business, (d) Investments
by a Credit Party in another Credit Party, (e) loans to directors,
officers, employees, agents, customers or suppliers in the ordinary course
of business, including the financing to purchasers of homes and other
residential properties from a Credit Party, not to exceed, in the
aggregate, $10,000,000 at any one time, (f) Investments in international
home building and related ventures (whether in joint ventures or
otherwise) not to exceed $150,000,000 during the term of this Credit
Agreement, (g) Investments in Mortgage Banking Subsidiaries in an amount
not to exceed at any one time the sum of (i) $130,000,000 plus (ii)
amounts (net of applicable taxes) received by the Credit Parties from any
Mortgage Banking Subsidiaries, as a dividend, subsequent to the Closing
Date, (h) acquisitions of mortgages from any Mortgage Banking Subsidiaries
at market or better than market terms for similar types of loans, (i)
Investments in Capital Expenditures, or (j) other Investments (including
Investments in joint ventures) in addition to those set forth above, not
to exceed, in the aggregate, 10% of Tangible Net Worth at any one time.
"Permitted Liens" means (a) Liens securing Credit Party Obligations;
(b) Liens for taxes not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the property
subject to any such Lien is not yet subject to foreclosure, sale or loss
on account thereof); (c) Liens in respect of property imposed by law
arising in the ordinary course of business such as materialmen's,
mechanics', warehousemen's, carrier's, landlords' and other nonconsensual
statutory Liens which are not yet due and payable or which are being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as
to which the property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof); (d) pledges or deposits
made in the ordinary course of business to secure payment of worker's
compensation insurance, unemployment insurance, pensions or social
security programs; (e) Liens arising from good faith deposits in
connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money); (f) Liens
arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds; (g)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered property for its intended purposes; (h) judgment
Liens that would not constitute an Event of Default; (i) Liens in
connection with Capital Leases and Liens securing Indebtedness permitted
by Section 8.1(g) and (i); (j) Liens arising by virtue of any statutory or
common law provision relating to banker's liens, rights of setoff or
similar rights as to deposit accounts or other funds maintained with a
creditor depository institution; (k) Liens existing on the Closing Date
and identified on Schedule 1.1(c); (l) mortgage Liens granted to secure
Indebtedness of a Credit Party to a REIT that is permitted under Section
8.1(h), so long as such mortgage
16
Liens are unrecorded and unperfected; and (m) Liens granted to secure any
Indebtedness permitted by Section 8.1(b); provided that (i) no such Lien
shall extend to any property other than the property subject thereto on
the Closing Date and (ii) the principal amount of the Indebtedness secured
by such Liens shall not be increased from that existing as of the Closing
Date (as such Indebtedness has been amortized subsequent to the Closing
Date).
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which any Credit
Party or any of its Subsidiaries or any ERISA Affiliate is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the rate per annum equal to the prime rate of
interest announced by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank from time to time as its "prime
rate" (it being acknowledged that such announced prime rate may not
necessarily be the lowest rate charged by ▇▇ ▇▇▇▇▇▇ Chase Bank to any of
its customers), changing when and as said prime rate changes.
"Pro Rata Share" means, as to any Lender at any time, the ratio of
(a) such Lender's Revolving Loan Commitment to (b) the Revolving Committed
Amount, as such percentage may be increased, reduced or modified at any
time or from time to time pursuant to the terms hereof. The Pro Rata Share
for each Lender on the Closing Date shall be as set forth on Schedule
1.1(a).
"Qualified Subordinated Debt" means Subordinated Debt issued by the
Credit Parties, which (i) matures on or after the first anniversary of the
Maturity Date (and reduced, for purposes of this definition, by any
principal amortization payments of such Subordinated Debt payable prior to
the Maturity Date) and (ii) is in an aggregate amount not to exceed
$300,000,000.
"Quarterly Payment Date" has the meaning set forth in Section
4.4(a).
"Real Properties" means such real properties as the Credit Parties
may own or lease (as lessee or sublessee) from third parties from time to
time.
"Refusing Lender" has the meaning set forth in Section 2.5(a).
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T, U or
X, respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
17
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 4 to reimburse
the LC Issuers for amounts paid by the LC Issuers in respect of any one or
more drawings under Facility LCs.
"REIT" means Asset Seven Corp., Pulte Realty Corporation and any
other Subsidiary of the Borrower that properly elects to be taxed as a
real estate investment trust under Section 856(c) of the Code.
"Reportable Event" means a "reportable event" as defined in Section
4043 of ERISA with respect to which the notice requirements to the PBGC
have not been waived.
"Required Lenders" means Lenders whose aggregate Credit Exposure (as
hereinafter defined) constitutes at least 66-2/3% of the Credit Exposure
of all Lenders at such time; provided, however, that if any Lender shall
be a Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean
(a) at any time prior to the termination of the Commitments, the Pro Rata
Share of such Lender multiplied by the Revolving Committed Amount and (b)
at any time after the termination of the Commitments, the sum of (i) the
principal balance of the outstanding Loans of such Lender plus (ii) such
Lender's Participation Interests in the face amount of the outstanding
Swingline Loans plus (iii) such Lender's Pro Rata Share of the LC
Obligations.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Revolving Committed Amount" means the aggregate of the Revolving
Loan Commitments of all Lenders, as such amount may be increased, reduced
or modified at any time or from time to time pursuant to the terms hereof.
The Revolving Committed Amount on the Closing Date shall be One Billion
Three Hundred Ten Million Dollars ($1,310,000,000).
"Revolving Loan Commitment" means, as to any Lender, the obligation
of such Lender to make Revolving Loans hereunder, to participate in the
Facility LCs issued hereunder and to participate in Swingline Loans made
by the Swingline Lender (to the extent provided for herein), all for the
account of the Borrower in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's name
on
18
Schedule 1.1(a) hereto, as such amount may be increased, reduced or
modified at any time or from time to time pursuant to the terms hereof.
"Revolving Loans" means the Revolving Loans made to the Borrower by
the Lenders pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Revolving
Loans provided pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(f).
"RL Maturity Date" has the meaning set forth in Section 2.5(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, or any successor or assignee of the business of
such division in the business of rating securities.
"Sale and Leaseback Transaction" means a sale or transfer made by a
Credit Party (except a sale or transfer made from one Credit Party to
another Credit Party) of any property which is either (a) a manufacturing
plant, warehouse, office building or model home whose book value
constitutes 1% or more of Consolidated Net Tangible Assets as of the date
of determination or (b) any property which is not a manufacturing plant,
warehouse, office building or model home whose book value constitutes 5%
or more of Consolidated Net Tangible Assets as of the date of
determination, if such sale or transfer is made with the intention of
leasing, or as part of an arrangement involving the lease of, such
property to the Borrower or a Material Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Senior Debt Rating" means, at any date, the rating of the
Borrower's long-term unsecured senior debt by Moody's or S&P. If at any
time neither Moody's nor S&P issues a rating of the Borrower's long-term
unsecured senior debt, no Senior Debt Rating shall exist.
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to each Credit Party as of a
particular date, that on such date (a) such Credit Party is able to pay
its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such
Credit Party does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Credit Party's ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Credit
Party is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Credit Party's
assets would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the
19
industry in which such Credit Party is engaged or is to engage, (d) the
fair value of the assets of such Credit Party is greater than the total
amount of liabilities (excluding (i) letters of credit and surety bonds
issued in the normal course of business in connection with such Credit
Party's development activities and (ii) intercompany indebtedness owed to
other Credit Parties), including, without limitation, contingent
liabilities of such Credit Party and (e) the present fair saleable value
of the assets of such Credit Party is not less than the amount that will
be required to pay the probable liability of such Credit Party on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Debt" means any Indebtedness incurred by a Credit
Party that is subordinated in full to the Credit Party Obligations on
subordination terms acceptable to the Administrative Agent.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture, limited liability company or
other entity in which such person directly or indirectly through
Subsidiaries has more than a 50% equity interest at any time.
"Supplemental Guaranty" means any Supplemental Guaranty (in the form
of Exhibit A to the form of Guaranty attached hereto as Exhibit 1.1)
executed and delivered by a REIT or a Material Subsidiary of the Borrower
after the Closing Date.
"Swingline Committed Amount" means Fifty Million Dollars
($50,000,000).
"Swingline Lender" means Bank One.
"Swingline Loan Commitment" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
available to the Borrower in the principal amount of up to the Swingline
Committed Amount.
"Swingline Loan Request" means a request by the Borrower for a
Swingline Loan pursuant to and in accordance with Section 2.2(b).
"Swingline Loans" means the loans made by the Swingline Lender
pursuant to Section 2.2.
"Swingline Note" means the promissory note of the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans provided pursuant
to Section 2.2, as such
20
promissory note may be amended, modified, supplemented, extended, renewed
or replaced from time to time in and as evidenced by the form of Exhibit
2.2(e).
"Tangible Net Worth" means, as of any date, shareholders' equity or
net worth of the Borrower, as determined in accordance with GAAP minus (i)
intangibles (as determined in accordance with GAAP) and (ii) Investments
described in clause (f) of the definition of Permitted Investments.
"Termination Event" means (a) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was
a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan; (c) the
distribution of a notice of intent to terminate or the actual termination
of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the
institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan; (f) the complete or partial withdrawal of any Credit Party or any of
its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan; or (g)
the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Unused Revolving Committed Amount" means, for any period beginning
on or after the Closing Date and ending on or before the Maturity Date,
the daily average for such period of the amount by which (a) the Revolving
Committed Amount exceeds (b) the sum of the aggregate principal amount of
all Revolving Loans outstanding plus the aggregate amount of all Swingline
Loans outstanding plus the aggregate amount of all LC Obligations
outstanding.
"Upfront Fees" means the fees payable to the Lenders pursuant to
Section 3.4(d).
"Voting Stock" of a corporation means all classes of the Capital
Stock of such corporation then outstanding and normally entitled to vote
in the election of directors.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in this Agreement to "Articles", "Sections", "Schedules"
or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits of or to
this Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters
21
required to be delivered to the Lenders hereunder shall be prepared, in
accordance with GAAP applied on a consistent basis. All calculations made for
the purposes of determining compliance with this Credit Agreement shall (except
as otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 7.1 (or, prior to the delivery of the
first financial statements pursuant to Section 7.1, consistent with the
financial statements described in Section 5.1(d)); provided, however, if (a) the
Borrower shall object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with GAAP as in effect as of the date of the most recent financial statements
delivered by the Borrower to the Lenders to which no such objection shall have
been made.
1.4 TIME.
All references to time herein shall be references to Central Standard Time
or Central Daylight Savings Time, as the case may be, unless specified
otherwise.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Loan Commitment.
(i) Subject to the terms and conditions set forth herein, each
Lender severally agrees to make revolving loans (each a "Revolving
Loan" and collectively the "Revolving Loans") to the Borrower, in
Dollars, at any time and from time to time, during the period from
and including the Effective Date to but not including the Maturity
Date (or such earlier date if the Revolving Committed Amount has
been terminated as provided herein); provided, however, that (A) the
sum of the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of Swingline Loans outstanding plus the aggregate
amount of all LC Obligations outstanding (collectively, the
"Outstanding Credit Extensions") shall not exceed the Revolving
Committed Amount and (B) with respect to each individual Lender
(other than the Swingline Lender), the Lender's Pro Rata Share of
outstanding Revolving Loans plus such Lender's Pro Rata Share of
outstanding Swingline Loans plus such Lender's Pro Rata Share of
outstanding LC Obligations shall not exceed such Lender's
Commitment. Subject to the terms of this Credit Agreement (including
Section 3.3), the Borrower may borrow, repay and reborrow Revolving
Loans.
(ii) Subject to the terms and conditions set forth herein,
each Lender severally agrees to participate in Facility LCs issued
pursuant to Section 4 for the
22
account of the Borrower; provided that in no event may the aggregate
amount of all outstanding LC Obligations exceed the lesser of (A)
the Aggregate LC Commitment or (B) an amount equal to the Revolving
Committed Amount minus the sum of all outstanding Loans.
(b) Method of Borrowing for Revolving Loans. By no later than 11:00
a.m. (i) on the date of the requested borrowing of Revolving Loans that
will be Floating Rate Loans or (ii) three Business Days prior to the date
of the requested borrowing of Revolving Loans that will be Eurodollar
Loans, the Borrower shall telephone the Administrative Agent with the
information described below as well as submit a written Notice of
Borrowing (which may be submitted via telecopy) to the Administrative
Agent setting forth (A) the amount requested, (B) whether such Revolving
Loans shall accrue interest at the Floating Rate or the Eurodollar Rate,
(C) with respect to Revolving Loans that will be Eurodollar Loans, the
Interest Period applicable thereto and (D) certification that the Borrower
has complied in all respects with Section 5.2 and, to the extent that the
Revolving Loan requested is the initial Extension of Credit, Section 5.1.
Revolving Loans made on the Effective Date may be Floating Rate Loans or,
subject to compliance by the Borrower with the terms of this Section
2.1(b) and delivery by the Borrower to the Administrative Agent of a
funding indemnity letter in form and substance satisfactory to the
Administrative Agent, Eurodollar Loans or a combination thereof.
(c) Funding of Revolving Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the Lenders as
to the terms thereof. Each Lender shall make its Pro Rata Share of the
requested Revolving Loans available to the Administrative Agent by 2:00
p.m. on the date specified in the Notice of Borrowing by deposit, in
Dollars, of immediately available funds at its address specified in or
pursuant to Section 11.1.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations hereunder.
Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any Eurodollar Loan or 30 minutes prior to the time
of any Floating Rate Loan that such Lender does not intend to make
available to the Administrative Agent its portion of the Revolving Loans
to be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on the
date of such Revolving Loans, and the Administrative Agent in reliance
upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from the Lender or the Borrower, as the case may be, interest on
such corresponding
23
amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to the Borrower to the date
such corresponding amount is recovered by the Administrative Agent at a
per annum rate equal to (i) from the Borrower at the applicable rate for
such Revolving Loan pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Effective Rate.
(d) Reductions of Revolving Committed Amount.
(i) Upon at least three Business Days' notice, the Borrower
shall have the right to permanently reduce, without premium or
penalty, all or part of the aggregate unused amount of the Revolving
Committed Amount at any time or from time to time; provided that (A)
each partial reduction shall be in an aggregate amount at least
equal to $5,000,000 and in integral multiples of $1,000,000 above
such amount and (B) no reduction shall be made which would reduce
the Revolving Committed Amount to an amount less than the
Outstanding Credit Extensions.
(ii) Any reduction in (or termination of) the Revolving
Committed Amount may not be reinstated without the consent of all
the Lenders; provided, however, the Borrower shall still be entitled
to increase the Revolving Committed Amount in accordance with the
terms of Section 2.1(e). The Administrative Agent shall immediately
notify the Lenders of any reduction in the Revolving Committed
Amount.
(e) Increase of Revolving Committed Amount.
(i) Request for Increase. The Borrower may, at any time and
from time to time, request, by notice to the Administrative Agent,
the Administrative Agent's approval of an increase of the Revolving
Committed Amount ("Facility Increase"), within the limitations
hereafter described, which request shall set forth the amount of
each such requested Facility Increase. The Administrative Agent's
approval of such request shall not be unreasonably withheld. Within
twenty (20) days of such request, the Administrative Agent shall
advise the Borrower of its approval or disapproval of such request;
failure to so advise the Borrower shall constitute approval. If the
Administrative Agent approves any such Facility Increase, then the
Revolving Committed Amount may be so increased (up to the amount of
such approved Facility Increase, in the aggregate) by having one or
more New Lenders increase the amount of their then existing
Revolving Loan Commitments or become Lenders with a new Revolving
Loan Commitment hereunder, subject to and in accordance with the
provisions of this Section 2.1(e). Any Facility Increase shall be
subject to the following limitations and conditions: (A) any
increase (in the aggregate) in the Revolving Committed Amount and
the amount (in the aggregate) of any new Revolving Loan Commitment
of any New Lender or the amount (in the aggregate) of any increase
in the Revolving Loan Commitment of any New Lender, shall (unless
otherwise agreed by the Borrower and the Administrative Agent) not
be less than $5,000,000 (and shall be in
24
integral multiples of $1,000,000 if in excess thereof); (B) no
Facility Increase shall increase the Revolving Committed Amount to
an amount in excess of the Aggregate Commitment Limit; (C) the
Borrower and each New Lender shall have executed and delivered a
commitment and acceptance (the "Commitment and Acceptance")
substantially in the form of Exhibit 2.1(e) hereto, and the
Administrative Agent shall have accepted and executed the same; (D)
the Borrower shall have executed and delivered to the Administrative
Agent such Revolving Notes as the Administrative Agent shall require
to effect such Facility Increase; (E) the Borrower shall have
delivered to the Administrative Agent opinions of counsel
(substantially similar to the forms of opinions delivered pursuant
to Section 5.1(c), modified to apply to the Facility Increase and
each Revolving Note and Commitment and Acceptance executed and
delivered in connection therewith); (F) the Guarantors shall in
writing have consented to the Facility Increase and have agreed that
their Guaranties continue in full force and effect and also apply to
the Facility Increase; and (G) the Borrower and each New Lender
shall otherwise have executed and delivered such other instruments
and documents as the Administrative Agent shall have reasonably
requested in connection with such Facility Increase. The form and
substance of the documents required under clauses (A) through (G)
above shall be reasonably acceptable to the Administrative Agent.
The Administrative Agent shall provide written notice to all of the
Lenders hereunder of any Facility Increase.
(ii) Loans by New Lenders. Upon the effective date of any
increase in the Revolving Committed Amount pursuant to the
provisions hereof, which effective date shall be mutually agreed
upon by the Borrower, each New Lender and the Administrative Agent,
the Borrower shall repay all outstanding Floating Rate Loans and
reborrow a Floating Rate Loan in a like amount from the Lenders
(including the New Lenders), but such New Lenders shall not
participate in any then outstanding Eurodollar Loan. If the Borrower
shall at any time on or after such effective date convert or
continue any Eurodollar Loan that was outstanding on such effective
date, the Borrower shall be deemed to repay such Eurodollar Loan on
the date of the conversion or continuation thereof and then to
reborrow as a new Revolving Loan a like amount on such date so that
each New Lender shall advance on such date the amount of its Pro
Rata Share of such Revolving Loan. Such New Lender shall make its
Pro Rata Share of all Revolving Loans made on or after such
effective date and shall otherwise have all of the rights and
obligations of a Lender hereunder on and after such effective date.
To the extent any Eurodollar Loan is converted or continued after
the effective date of an increase in the Revolving Committed Amount
and prior to the date on which such New Lender holds its Pro Rata
Share of all Revolving Loans, the amount funded by such New Lender
as its Pro Rata Share of such converted or continued Loan shall be
paid ratably to the other Lenders such that all Lenders (including
the New Lender) hold their Pro Rata Share of such converted or
continued Loan. Notwithstanding the foregoing, upon the occurrence
of an Event of Default prior to the date on which such New Lender is
holding its Pro Rata Share of all outstanding Revolving Loans, such
New Lender shall immediately (but not prior
25
to such effective date) pay to the Administrative Agent (for the
account of the other Lenders, to which the Administrative Agent
shall pay their ratable shares thereof upon receipt) a sum equal to
such New Lender's Pro Rata Share of each outstanding Eurodollar Loan
with respect to which such New Lender does not then hold its Pro
Rata Share; such payment by such New Lender shall constitute a
Floating Rate Loan by such New Lender hereunder.
(iii) New Lenders' Participation in Facility LCs. Upon the
effective date of any increase in the Revolving Committed Amount in
accordance with the provisions of Section 2.1(e)(ii), each New
Lender shall also be deemed to have irrevocably and unconditionally
purchased and received, without recourse or warranty, from the
Lenders party to this Agreement immediately prior to the effective
date of such increase, an undivided interest and participation in
all Facility LCs and Reimbursement Obligations (if any) then
outstanding, ratably, such that each Lender (including each New
Lender) holds a participation interest in each Facility LC and all
Reimbursement Obligations (if any) in proportion to the ratio that
such Lender's Commitment (upon the effective date of such increase
in the Revolving Committed Amount) bears to the Revolving Committed
Amount as so increased.
(iv) No Obligation to Increase Commitment. Nothing contained
herein shall constitute, or otherwise be deemed to be, a commitment
or agreement on the part of the Borrower or the Administrative Agent
to give or grant any Lender the right to increase any Commitment
hereunder at any time or a commitment or agreement on the part of
any Lender to increase its Commitment hereunder at any time, and no
Commitment of a Lender shall be increased without its prior written
approval.
(f) Revolving Notes. The Revolving Loans made by each Lender shall
be evidenced by a duly executed promissory note of the Borrower to such
Lender in an original principal amount equal to such Lender's Revolving
Loan Commitment and in substantially the form of Exhibit 2.1(f).
26
2.2 SWINGLINE LOANS SUBFACILITY.
(a) Swingline Loans. The Swingline Lender hereby agrees, on the
terms and subject to the conditions set forth herein and in the other
Credit Documents, to make revolving loans to the Borrower, in Dollars, at
any time and from time to time during the period from and including the
Effective Date to but not including the Maturity Date (each such loan, a
"Swingline Loan" and collectively, the "Swingline Loans"); provided that
(i) the aggregate principal amount of the Swingline Loans outstanding at
any one time shall not exceed the Swingline Committed Amount, and (ii) the
aggregate amount of Swingline Loans outstanding plus the aggregate amount
of Revolving Loans outstanding plus the aggregate amount of LC Obligations
outstanding shall not exceed the Revolving Committed Amount. Prior to the
Maturity Date, Swingline Loans may be repaid and reborrowed by the
Borrower in accordance with the provisions hereof.
(b) Method of Borrowing and Funding Swingline Loans. By no later
than 1:00 p.m. on the date of the requested borrowing of Swingline Loans,
the Borrower shall provide telephonic notice to the Swingline Lender,
followed promptly by a written Swingline Loan Request (which may be
submitted via telecopy), each of such telephonic notice and such written
Swingline Loan Request setting forth (i) the amount of the requested
Swingline Loan (which shall not be less than $100,000 and in integral
multiples of $50,000 in excess thereof), (ii) the date of the requested
Swingline Loan, (iii) certification that the Borrower has complied in all
respects with Section 5.2 and, to the extent that the Swingline Loan
requested is the initial Extension of Credit, Section 5.1 and (iv) whether
such Swingline Loan is to be a Floating Rate Loan or an Index Rate
Swingline Loan and, if such Swingline Loan is to be an Index Rate
Swingline Loan, the applicable Interest Period. If the Borrower has
requested an Index Rate Swingline Loan, the Swingline Lender shall provide
to the Borrower no later than 1:30 p.m. on the date of such request the
Adjusted LIBOR Market Index Rate. The Borrower shall notify the Swingline
Lender by 2:00 p.m. on such date whether it wishes to accept the Adjusted
LIBOR Market Index Rate. Failure of the Borrower to timely accept the
Adjusted LIBOR Market Index Rate shall make the request for the Adjusted
LIBOR Market Index Rate void, and such Swingline Loan shall be made as a
Floating Rate Loan. The Swingline Lender shall initiate the transfer of
funds representing the Swingline Loan advance to the Borrower by 3:00 p.m.
on the Business Day of the requested borrowing.
(c) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay all Swingline Loans that are Floating Rate Loans within
one Business Day of demand therefor by the Swingline Lender and all
Swingline Loans that are Index Rate Swingline Loans at the end of the
applicable Interest Period; provided that each Swingline Loan shall be
repaid within seven Business Days from the date of advance. Each repayment
of a Swingline Loan may be accomplished by requesting Revolving Loans,
which request is not subject to the conditions set forth in Section 5.2.
In the event that the Borrower shall fail to timely repay any Swingline
Loan, and in any event upon (i) the request of the Swingline Lender, (ii)
the occurrence of an Event of Default described in Section 9.1(f) or (iii)
the acceleration of any Loan or termination of any Commitment pursuant to
Section 9.2, each other Lender shall irrevocably and unconditionally
purchase
27
from the Swingline Lender, without recourse or warranty, an undivided
interest and participation in such Swingline Loan in an amount equal to
such other Lender's Pro Rata Share thereof, by directly purchasing a
participation in such Swingline Loan in such amount (regardless of whether
the conditions precedent thereto set forth in Section 5.2 hereof are then
satisfied (provided the Swingline Lender believed in good faith that the
conditions precedent set forth in Section 5.2 were satisfied at the time
of funding of such Swingline Loan), whether or not the Borrower has
submitted a Notice of Borrowing and whether or not the Commitments are
then in effect, any Event of Default exists or all the Loans have been
accelerated) and paying the proceeds thereof to the Swingline Lender at
its address specified in or pursuant to Section 11.1, in Dollars and in
immediately available funds. If such amount is not in fact made available
to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon (to the extent the Borrower fails to pay accrued
interest with respect to such amount) for each day from the date of demand
thereof, at the Federal Funds Effective Rate. If such Lender does not pay
such amount forthwith upon the Swingline Lender's demand therefor, and
until such time as such Lender makes the required payment, the Swingline
Lender shall be deemed to continue to have outstanding Swingline Loans in
the amount of such unpaid participation obligation for all purposes of the
Credit Documents other than those provisions requiring the other Lenders
to purchase a participation therein. Further, such Lender shall be deemed
to have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due to it hereunder to the Swingline
Lender to fund Swingline Loans in the amount of the participation in
Swingline Loans that such Lender failed to purchase pursuant to this
Section 2.2(c) until such amount has been purchased (as a result of such
assignment or otherwise). On the date the Lenders are required to purchase
participations in outstanding Swingline Loans pursuant to this Section
2.2(c), the outstanding principal amount, including the Swingline Lender's
Pro Rata Share, of such Swingline Loans shall be deemed to be a Revolving
Loan accruing interest at the Floating Rate.
(d) Interest on Swingline Loans. Subject to the provisions of
Section 3.1, each Swingline Loan shall bear interest at a per annum rate
equal to the Floating Rate or the Adjusted LIBOR Market Index Rate, as
applicable.
(e) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in the
original principal amount of the Swingline Committed Amount and in
substantially the form of Exhibit 2.2(e).
2.3 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Floating
Rate Loans (other than Swingline Loans) into Eurodollar Loans or to convert
Eurodollar Loans into Floating Rate Loans (other than Swingline Loans);
provided, however, that (a) each such continuation or conversion must be
requested by the Borrower pursuant to a written Notice of
Continuation/Conversion in compliance
28
with the terms set forth below, (b) except as provided in Section 3.11,
Eurodollar Loans may only be continued or converted into Floating Rate Loans on
the last day of the Interest Period applicable thereto, (c) Eurodollar Loans may
not be continued nor may Floating Rate Loans be converted into Eurodollar Loans
during the existence and continuation of a Default or an Event of Default and
(d) any request to continue a Eurodollar Loan that fails to comply with the
terms hereof or any failure to request a continuation of a Eurodollar Loan at
the end of an Interest Period shall constitute a conversion to a Floating Rate
Loan on the last day of the applicable Interest Period. Each continuation or
conversion must be requested by the Borrower no later than 11:00 a.m. (i) on the
date for a requested conversion of a Eurodollar Loan to a Floating Rate Loan or
(ii) three Business Days prior to the date for a requested continuation of a
Eurodollar Loan or conversion of a Floating Rate Loan to a Eurodollar Loan, in
each case pursuant to a written Notice of Continuation/Conversion submitted to
the Administrative Agent which shall set forth (A) whether the Borrower wishes
to continue or convert such Loans and (B) if the request is to continue a
Eurodollar Loan or convert a Floating Rate Loan to a Eurodollar Loan, the
Interest Period applicable thereto.
2.4 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be subject
to the requirements that (a) each Eurodollar Loan shall be in a minimum amount
of $5,000,000 (and in integral multiples of $1,000,000 in excess thereof), (b)
each Floating Rate Loan shall be in a minimum amount of the lesser of $1,000,000
(and integral multiples of $100,000 in excess thereof) or the remaining amount
available under the Revolving Committed Amount and (c) each Swingline Loan shall
be in a minimum amount of $100,000 (and in integral multiples of $50,000 in
excess thereof) or the remaining amount of the Swingline Committed Amount. For
the purposes of this Section, all Eurodollar Loans with the same Interest
Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered as separate Eurodollar Loans.
2.5 EXTENSION OF MATURITY DATE.
(a) Not more than once each fiscal year of the Borrower, the
Borrower may, by delivering a written notice to the Administrative Agent,
request that the Maturity Date be extended for one additional year,
provided the requested Maturity Date is not more than five (5) years from
the date of such request. The Administrative Agent shall notify each
Lender of such request promptly upon its receipt of such notice and shall
request that each Lender respond to such request by the Borrower within
sixty (60) days of the Administrative Agent's notice to the Lenders. If
any Lender does not consent in writing or respond to the Borrower's
request then such Lender (a "Refusing Lender") shall be deemed to have
rejected such request. If Lenders whose combined Pro Rata Shares equal at
least 66-2/3% (the "Extension Required Lenders"; each Lender agreeing to
extend its Revolving Loan Commitment is referred to herein as an
"Extending Lender") agree in writing within such 60-day period to extend
their Revolving Loan Commitments, and provided that, on the last day of
such 60-day period (x) the representations and warranties made by the
Credit Parties in any Credit Document are true and correct in all material
respects at and as if made as of such date except to the extent they
expressly relate to an
29
earlier date and (y) no Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto and the Borrower
deliver to the Administrative Agent a certificate so stating, then (i)
effective on the last day of such 60-day period the Revolving Loan
Commitments of the Extending Lenders shall without further action be
extended for an additional one-year period, (ii) the term "Maturity Date"
shall thenceforth mean, (A) as to the Commitments and Loans of the
Extending Lenders, the last day of such additional one-year period and (B)
as to the Commitments and Loans of the Refusing Lenders, the Maturity Date
in effect prior to such extension (each a "RL Maturity Date"), (iii)
subject to the terms of subsection (b) below, the Revolving Loan
Commitments of the Refusing Lenders shall terminate on the applicable RL
Maturity Date and the Loans and other amounts owed to such Lenders shall
be due and payable on such date, (iv) subject to the terms of subsection
(b) below, on such RL Maturity Date (A) the Revolving Committed Amount
shall be reduced by an amount equal to the sum of the Revolving Loan
Commitments of the applicable Refusing Lenders and (B) the Pro Rata Shares
of the Extending Lenders shall be reallocated so that the sum of such Pro
Rata Shares equals one hundred percent (100%) and (v) if the Outstanding
Credit Extensions, after the payment provided for in clause (iii) above,
exceed the Revolving Committed Amount (as so reduced) (A) the Borrower
shall pay on such RL Maturity Date Loans in the amount necessary to cause
the Outstanding Credit Extensions to equal but not exceed the Revolving
Committed Amount and (B) if the outstanding LC Obligations exceed the
Revolving Committed Amount (as so reduced), the Borrower shall pay to the
Administrative Agent on such RL Maturity Date an amount in immediately
available funds equal to the amount by which the outstanding LC
Obligations exceed the Revolving Committed Amount, which funds shall be
held in the Facility LC Collateral Account in accordance with and subject
to the terms of Section 9.3(e). If such extension is not approved in
writing by the Extension Required Lenders within such 60-day period, the
Maturity Date then in effect will be retained.
(b) So long as the Extension Required Lenders consent to the
extension of the Maturity Date in accordance with the terms of Section
2.5(a):
(i) with respect to any Refusing Lender, the Borrower may
request, in its own discretion and at its own expense, such Refusing
Lender to transfer and assign (and such Refusing Lender shall be
required to transfer and assign upon such request) in whole (but not
in part), without recourse, representation or warranty (except as
provided in Section 11.3(b)) and otherwise in accordance with and
subject to the terms of Section 11.3(b), all of its interests,
rights and obligations under this Credit Agreement to one or more
Eligible Assignees (which may be one or more existing Lenders if any
existing Lender accepts such assignment); provided that (A) such
assignment or assignments shall not conflict with any law, rule,
regulation or order of any court or other Governmental Authority,
(B) the Borrower or such Eligible Assignee or Eligible Assignees
shall pay to such Refusing Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the
portion of the Loans hereunder held by such Refusing Lender and all
other amounts owed to such Refusing Lender hereunder, as well as any
processing fee owing to the Administrative
30
Agent under Section 11.3(b), (C) the maturity date of the Loans
transferred to such Eligible Assignee shall be the Maturity Date as
extended in accordance with Section 2.5(a) above and (D) such
transfer and assignment must occur on or prior to the applicable RL
Maturity Date; or
(ii) the Borrower may (A) notify the Administrative Agent and
the Extending Lenders in writing that it wishes to (and each such
Extending Lender shall agree to) reduce the Revolving Loan Committed
Amount by an amount equal to the sum of the Revolving Loan
Commitments of the Refusing Lenders, (B) pay all outstanding Loans
of the Refusing Lenders and any other amounts owing to the Refusing
Lenders, and terminate the Revolving Loan Commitments of the
Refusing Lenders (at which time their participations in all Facility
LCs and LC Obligations shall also terminate) and (C) reallocate the
Pro Rata Share of the Extending Lenders, on a pro rata basis, so
that the sum of such Pro Rata Shares equals one hundred percent
(100%).
(c) The Borrower shall indemnify each Lender (whether an Extending
Lender or Refusing Lender) for any loss or expense payable to such Lender
pursuant to Section 3.14 as a result of any extension of the Maturity Date
pursuant to this Section 2.5 and any assignment of such Lender's
Commitments and Loans or any reallocation of such Lender's Pro Rata Share
in connection with such extension.
(d) Each of the Lenders hereby authorizes the Administrative Agent,
on its behalf, to enter into an amendment to this Credit Agreement (and
the Borrower hereby agrees to enter into any such amendment on terms
reasonably acceptable to the Credit Parties and the Administrative Agent)
to effectuate any extension of the Maturity Date, reduction of the
Revolving Committed Amount, repayment of Loans or reallocation of the Pro
Rata Shares, in each case as expressly contemplated by the terms of this
Section 2.5.
2.6 TELEPHONIC NOTICES.
The Borrower hereby authorizes the Lenders and the Administrative Agent to
extend, convert or continue Loans, effect selections of Floating Rate Loans,
Eurodollar Loans and Index Rate Swingline Loans and to transfer funds based on
telephonic notices made by any person or persons the Administrative Agent or any
Lender in good faith believes to be acting on behalf of the Borrower, it being
understood that the foregoing authorization is specifically intended to allow
Notices of Borrowing, Notices of Continuation/Conversion and Swingline Loan
Requests to be given telephonically. The Borrower agrees to deliver promptly to
the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an authorized officer of the Borrower. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
2.7 LENDING INSTALLATIONS.
31
Each Lender may book its Loans and its participation in any LC
Obligations and each LC Issuer may book the Facility LCs issued by it at any
Lending Installation selected by such Lender or the LC Issuer, as the case may
be, and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility
LCs, participations in LC Obligations and any Notes issued hereunder shall be
deemed held by each Lender or LC Issuer, as the case may be, for the benefit of
any such Lending Installation. Each Lender and LC Issuer may, by written notice
to the Administrative Agent and the Borrower in accordance with Section 11.1,
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect to Facility LCs are to be made.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
3.1 INTEREST.
(a) Interest. Subject to the provisions of Section 3.1(b):
(i) Floating Rate Loans. During such periods as Loans shall be
comprised in whole or in part of Floating Rate Loans, such Floating
Rate Loans shall bear interest at a per annum rate equal to the
Floating Rate.
(ii) Eurodollar Loans. During such periods as Loans shall be
comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate.
(iii) Swingline Loans. Swingline Loans shall bear interest in
accordance with the terms of Section 2.2(d).
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, upon notice from the Administrative
Agent at the direction of the Required Lenders (or, in the case of an
Event of Default under Section 9.1(f), automatically without notice or any
action) (i) the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other
Credit Documents (including without limitation fees and expenses) shall
bear interest, payable on demand, at a per annum rate equal to two percent
(2%) plus the rate which would otherwise be applicable (or if no rate is
applicable, then the rate for Revolving Loans that are Floating Rate Loans
plus two percent (2%) per annum) and (ii) the Facility LC Fee Rate shall
be increased to a per annum rate equal to two percent (2%) plus the
Facility LC Fee Rate which would otherwise be applicable.
(c) Interest Payments. Interest on Loans shall be due and payable in
arrears on each Interest Payment Date. If an Interest Payment Date falls
on a date which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding
32
Business Day, except that in the case of Eurodollar Loans where the next
succeeding Business Day falls in the next succeeding calendar month, then
such Interest Payment Date shall be deemed to be the next preceding
Business Day.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts to
be made by a Credit Party under this Credit Agreement shall be made without
setoff, deduction or counterclaim and received not later than 1:00 p.m. on the
date when due, in Dollars and in immediately available funds, by the
Administrative Agent at its address specified in or pursuant to Section 11.1.
Payments received after such time shall be deemed to have been received on the
next Business Day. The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Administrative Agent the Loans, fees or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails to specify, or if such application would
be inconsistent with the terms hereof, the Administrative Agent shall, subject
to Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may deem appropriate). The Administrative Agent will
distribute such payments to the applicable Lenders on the same Business Day if
any such payment is received prior to 1:00 p.m.; otherwise the Administrative
Agent will distribute such payment to the applicable Lenders not later than the
next succeeding Business Day. Whenever any payment hereunder shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest and
fees for the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next preceding
Business Day.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid
on three Business Days' prior written notice to the Administrative Agent
and (ii) each such partial prepayment of Loans shall be in the minimum
principal amount of (A) $5,000,000 and integral multiples of $1,000,000 in
excess thereof for Revolving Loans and (B) $100,000 and integral multiples
of $50,000 in excess thereof for Swingline Loans. All prepayments under
this Section shall be subject to Section 3.14 and be accompanied by
interest on the principal amount prepaid through the date of prepayment.
(b) Mandatory Prepayments. If, at any time, the sum of the aggregate
amount of Revolving Loans outstanding plus Swingline Loans outstanding
plus the aggregate amount of all LC Obligations exceeds the Revolving
Committed Amount, the Borrower shall immediately make a principal payment
to the Administrative Agent in the manner and in an amount such that the
sum of the aggregate amount of Revolving Loans outstanding plus Swingline
Loans outstanding plus the aggregate amount of all LC Obligations
outstanding is less than or equal to the Revolving Committed Amount (to be
applied as set forth in Section 3.3(c) below).
33
(c) Application of Prepayments. All amounts required to be paid
pursuant to Section 3.3(b) shall be applied first to Swingline Loans and
second to Revolving Loans. Within the parameters of the applications set
forth above, prepayments shall be applied first to Floating Rate Loans and
then to Eurodollar Loans (or Index Rate Swingline Loans, as applicable) in
direct order of Interest Period maturities. All prepayments hereunder
shall be subject to Section 3.14 and shall be accompanied by interest on
the principal amount prepaid through the date of prepayment.
3.4 FEES.
(a) Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the pro rata benefit of the Lenders commitment
fees ("Commitment Fees") at a rate per annum equal to the Applicable
Percentage (for Commitment Fees) of the Unused Revolving Committed Amount,
payable in arrears on each Quarterly Payment Date and upon the Maturity
Date and any earlier date on which the Commitments are terminated
hereunder, provided, however, that the Swingline Loans shall constitute
usage only of the Revolving Credit Commitment of the Swingline Lender.
(b) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, administrative fees (the
"Administrative Fees") in accordance with the terms of the Fee Letter.
(c) Extension Fees. The Borrower agrees to pay to the Administrative
Agent for the pro rata benefit of each Extending Lender, at the time of
any extension of the Maturity Date pursuant to Section 2.5, such extension
fees as are agreed upon among the Borrower, the Administrative Agent and
such Extending Lenders.
(d) Upfront Fees. In consideration of the Revolving Committed Amount
being made available by the Lenders hereunder, the Borrower agrees to pay
to each Lender an upfront fee in accordance with the terms of the
Arranger's invitation letter to prospective Lenders dated August 3, 2004
(the "Upfront Fees"). The Upfront Fees shall be due and payable on or
prior to the Effective Date.
3.5 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans and Swingline Loans, together with accrued but unpaid interest
and all other sums owing with respect thereto, shall be due and payable in full,
unless accelerated sooner pursuant to Section 9.2.
34
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Floating Rate Loans and Swingline Loans, in which
case interest shall be computed on the basis of a 365 or 366 day year as
the case may be, all computations of interest and fees hereunder shall be
made on the basis of the actual number of days elapsed over a year of 360
days. Interest shall accrue from and include the date of borrowing (or
continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrower are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event
or contingency (including but not limited to prepayment or acceleration of
the maturity of any obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit Agreement, under
the Notes or otherwise, exceed the maximum nonusurious amount permissible
under applicable law. If, from any possible construction of any of the
Credit Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any such construction
shall be subject to the provisions of this paragraph and such documents
shall be automatically reduced to the maximum nonusurious amount permitted
under applicable law, without the necessity of execution of any amendment
or new document. If any Lender shall ever receive anything of value which
is characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal
amount of the Loans. The right to demand payment of the Loans or any other
Indebtedness evidenced by any of the Credit Documents does not include the
right to accelerate the payment of any interest which has not otherwise
accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the
Loans shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term (including
any renewal or extension) of the Loans so that the amount of interest on
account of such Indebtedness does not exceed the maximum nonusurious
amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, each Revolving Loan
borrowing, each payment or prepayment of principal of any Revolving Loan, each
payment of fees (other than the Administrative Fees retained by the
Administrative Agent for its own account and fees payable to a LC Issuer), each
reduction of the Revolving Committed Amount, and each conversion or continuation
of any Revolving Loan, shall (except as otherwise provided in Section 3.11) be
allocated pro rata among the relevant Lenders in accordance with the respective
Pro Rata Shares of
35
such Lenders (or, if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal amounts of the
outstanding Loans and Participation Interests of such Lenders); provided that,
if any Lender shall have failed to pay its applicable pro rata share of any
Revolving Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this Section 3.7 shall instead be payable to the Administrative
Agent until the share of such Revolving Loan not funded by such Lender has been
repaid; provided further, that in the event any amount paid to any Lender
pursuant to this Section 3.7 is rescinded or must otherwise be returned by the
Administrative Agent, each Lender shall, upon the request of the Administrative
Agent, repay to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned by the
Administrative Agent until the date the Administrative Agent receives such
repayment at a rate per annum equal to, during the period to but excluding the
date two Business Days after such request, the Federal Funds Effective Rate, and
thereafter, the Floating Rate plus two percent (2%) per annum.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other Lenders a participation in
such Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by payment in cash or a
repurchase of a participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Administrative Agent shall fail to remit
to the Administrative Agent or any other Lender an amount payable by such Lender
or such Administrative Agent to such Administrative Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to such
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Effective Rate. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 3.8 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
36
consistent with the rights of the Lenders under this Section 3.8 to share in the
benefits of any recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
If, after the date hereof, any Lender or LC Issuer has determined that the
adoption or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender or LC Issuer, or the parent corporation of such Lender
or LC Issuer, with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or LC Issuer's (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender or LC Issuer, or the parent corporation of such Lender or LC
Issuer, could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or LC Issuer's (or parent
corporation's) policies with respect to capital adequacy), then, upon written
notice from such Lender or LC Issuer to the Borrower, the Borrower shall be
obligated to pay to such Lender or LC Issuer such additional amount or amounts
as will compensate such Lender or LC Issuer on an after-tax basis (after taking
into account applicable deductions and credits in respect of the amount
indemnified) for such reduction. Each such written notice of a determination by
any such Lender or LC Issuer of amounts owing under this Section 3.9 shall set
forth and certify in reasonable detail the basis for such determination and the
calculation of amounts so owing, which certification shall, absent manifest
error, be conclusive and binding on the parties hereto. Notwithstanding anything
to the contrary contained herein, the Borrower shall not be required to make any
payments to any Lender or LC Issuer or the Administrative Agent pursuant to this
Section 3.9 relating to any period of time which is greater than 90 days prior
to such Person's request for additional payment except for retroactive
application of such law, rule or regulation, in which case the Borrower is
required to make such payments so long as such Person makes a request therefor
within 90 days after the public announcement of such retroactive application.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative Agent
shall have determined in good faith (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Base Rate for such Interest Period, the Administrative Agent shall
give telecopy or telephonic notice thereof to the Borrower and the Lenders as
soon as practicable thereafter, and will also give prompt written notice to the
Borrower when such conditions no longer exist. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Floating Rate Loans and (b) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Floating Rate Loans. Until such
notice is withdrawn by
37
the Administrative Agent, no further Eurodollar Loans shall be made or continued
as such, nor shall the Borrower have the right to convert Floating Rate Loans to
Eurodollar Loans.
3.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Floating
Rate Loan to Eurodollar Loans shall forthwith be canceled and, until such time
as it shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Floating Rate
Loan when a Eurodollar Loan is requested and (c) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Floating Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 3.14.
3.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender or LC Issuer, or
compliance by any Lender or LC Issuer with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender or LC Issuer to any tax of any kind
whatsoever with respect to any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans or with respect to any Facility LCs or
its participation therein, or change the basis of taxation of payments to
such Lender or LC Issuer in respect thereof (except for Non-Excluded Taxes
covered by Section 3.13 (including Non-Excluded Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations under
Section 3.13(b)) and changes in taxes measured by or imposed upon the
overall net income, or franchise tax (imposed in lieu of such net income
tax), of such Lender or LC Issuer or its applicable lending office,
branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender or LC Issuer which is not otherwise included in the
determination of the Eurodollar Base Rate hereunder; or
38
(c) shall impose on such Lender or LC Issuer any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender or
LC Issuer, by an amount which such Lender or LC Issuer deems to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or issuing
or participating in any Facility LC or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, upon notice to the Borrower from
such Lender or LC Issuer, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender or LC
Issuer , upon its demand, any additional amounts necessary to compensate such
Lender or LC Issuer on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such increased
cost or reduced amount receivable, provided that, in any such case, the Borrower
may elect to convert the Eurodollar Loans made by such Lender hereunder to
Floating Rate Loans by giving the Administrative Agent at least one Business
Day's notice of such election, in which case the Borrower shall promptly pay to
such Lender or LC Issuer, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.14. If any Lender or LC Issuer
becomes entitled to claim any additional amounts pursuant to this Section 3.12,
it shall provide prompt written notice thereof to the Borrower, through the
Administrative Agent, certifying (x) that one of the events described in this
Section 3.12 has occurred and describing in reasonable detail the nature of such
event, (y) as to the increased cost or reduced amount resulting from such event
and (z) as to the additional amount demanded by such Lender or LC Issuer and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this Section 3.12 submitted by
such Lender or LC Issuer, through the Administrative Agent, to the Borrower
shall be conclusive and binding on the parties hereto in the absence of manifest
error. This covenant shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to make any payments to any Lender or LC Issuer or the
Administrative Agent pursuant to this Section relating to any period of time
which is greater than 90 days prior to such Person's request for additional
payment except for retroactive application of such law, rule or regulation, in
which case the Borrower is required to make such payments so long as such Person
makes a request therefor within 90 days after the public announcement of such
retroactive application.
3.13 TAXES.
(a) Withholding. Except as provided below in this Section 3.13, all
payments made by the Borrower under this Credit Agreement and any Notes
shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any court,
or governmental body, agency or other official, excluding taxes measured
by or imposed upon the net income of any Lender or its applicable lending
office, or any branch or affiliate thereof, and all franchise taxes,
branch taxes, taxes on doing business or taxes on the capital or net worth
of any Lender or its applicable lending office, or any branch or affiliate
thereof, in each case imposed in lieu of net income taxes: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or
39
affiliate is organized or is located, or in which its principal executive
office is located, or any nation within which such jurisdiction is located
or any political subdivision thereof; or (ii) by reason of any connection
between the jurisdiction imposing such tax and such Lender, applicable
lending office, branch or affiliate other than a connection arising solely
from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes.
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Administrative Agent or any
Lender hereunder or under any Notes, (A) the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrower shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender if such Lender
fails to comply with the requirements of paragraph (b) of this Section
3.13 whenever any Non-Excluded Taxes are payable by the Borrower, (B) as
promptly as possible after requested the Borrower shall send to such
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof and (C) with
respect to any withholding of United States federal income tax, the
Borrower shall apply to the payments the required withholding tax rates
provided by the applicable United States withholding tax rules, including
but not limited to Internal Revenue Code Section 1441, 1442, 3406 and
6049. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and any Lender for any
incremental Non-Excluded Taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination
of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) U.S. and Non-U.S. Lenders
(i) Each Lender, including each Lender that is not
incorporated under the laws of the United States of America or a
state thereof (each a "Non-U.S. Lender"), agrees that it will, not
more than ten (10) Business Days after the date of this Agreement,
(i) deliver to the Administrative Agent two duly completed copies of
the applicable United States Internal Revenue Service Form W-8 or
W-9, including but not limited to United States Internal Revenue
Service Form W-8BEN or W-8ECI or (ii) in the case of a Non-U.S.
Lender claiming exemption from the withholding of United States
federal income tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," deliver two duly
completed copies of the applicable United States Internal Revenue
Service Form W-8, including but not limited to a United States
Internal Revenue Service Form W-8BEN and a certificate representing
that such Lender is not (A) a "bank"
40
for purposes of Section 881(c) of the Code, (B) a ten-percent
shareholder of the Borrower (within the meaning of Section
871(h)(3)(B) of the Code) or (C) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of
the Code), certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender
further undertakes to deliver to each of the Borrower and the
Administrative Agent (x) renewals or additional copies of such form
(or any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to
it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
(ii) For any period during which a Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (i)
above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under this Section
3.13 with respect to Taxes imposed by the United States; provided
that, should a Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of
its failure to deliver a form required under clause (i) above, the
Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(iii) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(iv) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the
Administrative Agent or the Borrower, as applicable, did not
properly withhold tax from amounts paid to or for the account
41
of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the
Administrative Agent or the Borrower, as applicable, of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify
the Administrative Agent or the Borrower, as applicable, fully for
all amounts paid, directly or indirectly, by the Administrative
Agent or the Borrower, as applicable, as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative
Agent or the Borrower, as applicable, under this subsection,
together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative
Agent or the Borrower, as applicable, which attorneys may be
employees of the Administrative Agent or the Borrower, as
applicable). The obligations of the Lenders under this clause (iv)
shall survive the payment of the Obligations and termination of this
Agreement.
(v) Notwithstanding the above, if any change in treaty, law or
regulation has occurred after the date such Person becomes a Lender
hereunder which renders all such forms (or successor forms)
inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent, then such Lender
shall be exempt from such requirements. Each Person that shall
become a Lender or a participant of a Lender pursuant to Section
11.3 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the case
of a participant of a Lender, the obligations of such participant of
a Lender pursuant to this subsection (b) shall be determined as if
the participant of a Lender were a Lender except that such
participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the related
participation shall have been purchased.
3.14 COMPENSATION.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement and (c) the making of a prepayment of Eurodollar Loans on
a day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loans provided for herein
(excluding,
42
however, the Applicable Percentage included therein, if any) minus (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
agreements in this Section shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable hereunder.
3.15 SUBSTITUTION OF LENDER.
If (a) the obligation of any Lender to make Eurodollar Loans has been
suspended pursuant to Section 3.11 or (b) any Lender has demanded compensation
under Section 3.9, 3.11, 3.12, 3.13 or 3.14, the Borrower shall have the right,
with the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders. Any substitution under this Section 3.15 may be
accomplished, at the Borrower's option, either (i) by the replaced Lender
assigning its rights and obligations hereunder to a replacement lender or
lenders pursuant to Section 11.3(b) at a mutually agreeable price or (ii) by the
Borrower's prepaying all outstanding Loans from the replaced Lender and
terminating such Lender's Commitment on a date specified in a notice delivered
to the Administrative Agent and the replaced Lender at least three Business Days
before the date so specified (and compensating such Lender for any resulting
funding losses as provided in Section 3.14 but otherwise without premium or
penalty) and concurrently a replacement Lender or Lenders assuming a Commitment
in an amount equal to the Commitment being terminated and making Loans in the
same aggregate amount and having the same maturity date or dates, respectively,
as the Loans being prepaid, all pursuant to documents reasonably satisfactory to
the Administrative Agent (and in the case of any document to be signed by the
replaced Lender, reasonably satisfactory to such Lender). No such substitution
shall relieve the Borrower of its obligations to compensate and/or indemnify the
replaced Lender as required by Section 3.9, 3.11, 3.12, 3.13 or 3.14 with
respect to the period before it is replaced and to pay all accrued interest,
accrued fees and other amounts owing to the replaced Lender hereunder.
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including
the amounts of principal and interest payable and paid to such Lender from
time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to
promptly update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each
Lender hereunder, and (iii) the amount of any sum received by the
Administrative Agent hereunder from or for the account of the Borrower and
each Lender's share thereof, if any. The Administrative Agent will make
reasonable efforts to maintain the accuracy of the subaccounts referred to
in the preceding sentence and to promptly update such subaccounts from
time to time, as necessary.
43
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if
consistent with the entries of the Administrative Agent, subsection (a))
shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such
account, such Register, or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to
repay the Loans made by such Lender in accordance with the terms hereof.
SECTION 4
FACILITY LCs
4.1 ISSUANCE.
Each LC Issuer hereby agrees, on the terms and conditions set forth in
this Agreement, to issue standby Letters of Credit (each such Letter of Credit
and each Existing Letter of Credit, a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify," and each such
action a "Modification"), from time to time from and including the date of this
Agreement and not later than five (5) Business Days prior to the Maturity Date
upon the request of the Borrower; provided that immediately after each such
Facility LC is issued or Modified, (i) the aggregate amount of the outstanding
LC Obligations shall not exceed the Aggregate LC Commitment and (ii) the sum of
the aggregate amount of Revolving Loans outstanding plus the aggregate amount of
Swingline Loans outstanding plus the aggregate amount of all LC Obligations
outstanding shall not exceed the Revolving Committed Amount. No Facility LC
shall have an expiry date later than the fifth (5th) Business Day prior to the
Maturity Date.
4.2 PARTICIPATIONS.
Upon the Effective Date (in the case of the Existing Letters of Credit)
and upon issuance or Modification by an LC Issuer of a Facility LC in accordance
with this Section 4, such LC Issuer shall be deemed, without further action by
any party hereto, to have unconditionally and irrevocably sold to each Lender,
and each Lender shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably purchased from such LC Issuer, a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share.
4.3 NOTICE.
Subject to Section 4.1, the Borrower shall give the LC Issuer notice prior
to 10:00 a.m. (Chicago time) at least one (1) Business Day prior to the proposed
date of issuance or Modification of each Facility LC, specifying the
beneficiary, the proposed date of issuance (or Modification) and the expiry date
of such Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby (the "Facility
LC
44
Request"). Upon receipt of such Facility LC Request, the LC Issuer shall
promptly (and in any event prior to the issuance (or Modification) of such
Facility LC) notify the Administrative Agent, and the Administrative Agent shall
promptly notify each Lender, of the contents thereof and of the amount of such
Lender's participation in such proposed Facility LC, which notices to and by the
Administrative Agent may be given by fax or e-mail. The issuance or Modification
by an LC Issuer of any Facility LC shall, in addition to the conditions
precedent set forth in Section 5 (the satisfaction of which the LC Issuer shall
have no duty to ascertain), be subject to the conditions precedent that (a) the
LC Issuer shall have received confirmation (which may be given by fax or e-mail)
from the Administrative Agent that the issuance (or Modification) of such
Facility LC is in compliance with the limitations set forth in Sections
2.1(a)(i) and 4.1, (b) such Facility LC shall be satisfactory to such LC Issuer,
(c) the Borrower shall have executed and delivered such application agreement
and/or such other instruments and agreements relating to such Facility LC as
such LC Issuer shall have reasonably requested (each, a "Facility LC
Application") and (d) the LC Issuer shall not have received a written notice
from the Administrative Agent that any of the conditions precedent set forth in
Section 5.2 has not been satisfied. In the event of any conflict between the
terms of this Agreement and the terms of any Facility LC Application, the terms
of this Agreement shall control.
4.4 FEES; REPORTING.
(a) Facility LC Fee. The Borrower shall pay to the Administrative
Agent, solely for the account of the Lenders, a fee (the "Facility LC
Fee") with respect to each Facility LC for the period from the Issuance
Date thereof (or, in the case of the Existing Letters of Credit, the
Effective Date) to and including the final expiration date thereof, in a
per annum amount equal to the product, calculated on a daily basis for
each day during such period, of (A) the undrawn amount of such Facility LC
for such day multiplied by (B) the Facility LC Fee Rate for such day, less
0.125% per annum. The Facility LC Fees shall be due and payable quarterly
in arrears not later than the day ("Quarterly Payment Date") that is five
(5) Business Days following Administrative Agent's delivery to Borrower of
the quarterly statement of Facility LC Fees and, to the extent any such
fees are then due and unpaid, on the Maturity Date. The Administrative
Agent shall promptly remit such Facility LC Fees, when received by the
Administrative Agent, to the Lenders (including the LC Issuers) in
accordance with their Pro Rata Shares thereof. The Facility LC Fees, once
paid, shall not be refundable for any reason.
(b) Fronting Fee. The Borrower shall also pay to the Administrative
Agent, solely for the account of each LC Issuer, as a Fronting Fee
("Fronting Fee"), with respect to each Facility LC issued by such LC
Issuer for the period from the Issuance Date thereof (or, in the case of
the Existing Letters of Credit, the Effective Date) to and including the
final expiration date thereof, in an amount equal to the product,
calculated on a daily basis for each day during such period, of (x) the
undrawn amount of such Facility LC for such day multiplied by (y) 0.125%
per annum. The Fronting Fees shall also be due and payable quarterly in
arrears on the date on which Facility LC Fees are payable and, to the
extent any Fronting Fees are then due and unpaid, on the Maturity Date.
The Administrative Agent shall promptly remit such Fronting Fee, when
received by the Administrative Agent, to the applicable LC Issuer. The
Fronting Fees, once paid,
45
shall not be refundable for any reason. The Borrower shall also pay to the
LC Issuer for its own account documentary and processing charges in
connection with the issuance or Modification of and draws under Facility
LCs in accordance with the LC Issuer's standard schedule for such charges
as in effect from time to time.
(c) LC Issuer Reports; Quarterly Statements. Each LC Issuer shall,
no later than the third (3rd) Business Day following the last day of each
month, provide to the Administrative Agent a schedule of the Facility LCs
issued by it, in form and substance reasonably satisfactory to the
Administrative Agent, showing the Issuance Date, account party, original
face amount (if any) paid thereunder, expiration date and the reference
number of each Facility LC outstanding at any time during such month (and
whether such Facility LC is a performance Letter of Credit or financial
Letter of Credit) and the aggregate amount (if any) payable by the
Borrower to such LC Issuer during the month pursuant to Sections 3.9 and
3.12 . Copies of such reports shall be provided promptly to each Lender
and the Borrower by the Administrative Agent. The reporting requirements
hereunder are in addition to those set forth in Section 4.3. The
Administrative Agent shall, with reasonable promptness following receipt
from all LC Issuers of the reports provided for in this Section 4.4(c) for
the months of March, June, September and December, respectively, deliver
to the Borrower a quarterly statement of the Facility LC Fees and Fronting
Fees then due and payable.
4.5 ADMINISTRATION; REIMBURSEMENT BY LENDERS.
Upon receipt by an LC Issuer from the beneficiary of any Facility LC of
any demand for payment under a Facility LC issued by such LC Issuer, such LC
Issuer shall notify the Administrative Agent and the Administrative Agent shall
promptly notify the Borrower and each other Lender as to the amount to be paid
by the LC Issuer as a result of such demand and the proposed payment date (the
"LC Payment Date"). The responsibility of the LC Issuer to the Borrower and each
Lender shall be only to determine that the documents (including each demand for
payment) delivered under each Facility LC in connection with such presentment
shall be in conformity in all material respects with such Facility LC. An LC
Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs as it does with respect to Letters of Credit
in which no participations are granted, it being understood that in the absence
of any gross negligence or willful misconduct by an LC Issuer, each Lender shall
be unconditionally and irrevocably liable without regard to the occurrence of
any Default or any condition precedent whatsoever, to reimburse such LC Issuer
on demand for (i) such Lender's Pro Rata Share of the amount of each payment
made by such LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 4.6 below, plus (ii) interest on
the foregoing amount to be reimbursed by such Lender, for each day from the date
of such LC Issuer's demand for such reimbursement (or, if such demand is made
after 11:00 a.m. on such date, from the next succeeding Business Day) to the
date on which such Lender pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Effective Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
4.6 REIMBURSEMENT BY BORROWER.
46
The Borrower shall be irrevocably and unconditionally obligated to
reimburse the LC Issuer on or before the applicable LC Payment Date for any
Reimbursement Obligations in respect of any Facility LC upon any drawing under
such Facility LC, without presentment, demand, protest or other formalities of
any kind; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. Each LC
Issuer shall use commercially reasonable efforts to notify the Borrower and the
Administrative Agent of its receipt of any draft received with respect to any
Facility LC issued by such LC Issuer, but the failure to give (or any delay in
giving) such notice shall not affect the obligations of the Borrower hereunder.
All Reimbursement Obligations remaining unpaid by the Borrower after notice
thereof has been given to the Borrower shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to (x) the rate applicable to
Floating Rate Advances for such day if such day falls on or before the
applicable LC Payment Date and (y) a per annum rate equal to two percent (2%)
plus the Floating Rate for such day if such day falls after such LC Payment
Date. Each LC Issuer will pay to the Administrative Agent, for payment to each
Lender ratably in accordance with its Pro Rata Share, all amounts received by it
from the Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by such LC Issuer,
but only to the extent such Lender has made payment to the Administrative Agent
for payment to the LC Issuer in respect of such Facility LC pursuant to Section
4.5. Subject to the terms and conditions of this Agreement (including without
limitation the submission of a Borrowing Notice in compliance with Section
2.1(b) and the satisfaction of the applicable conditions precedent set forth in
Section 5), the Borrower may request a Loan hereunder for the purpose of
satisfying any Reimbursement Obligation.
4.7 OBLIGATIONS ABSOLUTE.
The Borrower's obligations under this Section 4 shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any LC Issuer, any Lender or any beneficiary of a Facility LC. The
Borrower further agrees with each LC Issuer and the Lenders that the LC Issuer
and the Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrower, any
of its Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred or any
claims or defenses whatsoever of the Borrower or of any of its Affiliates
against the beneficiary of any Facility LC or any such transferee. The LC Issuer
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by any LC Issuer or Lender under or in connection with
each Facility LC and
47
the related drafts and documents, if done without gross negligence or willful
misconduct, shall be binding upon the Borrower and shall not put any LC Issuer
or Lender under any liability to the Borrower. Nothing in this Section 4.7 is
intended to limit the right of the Borrower to make a claim against an LC Issuer
for damages as contemplated by the proviso to the first sentence of Section 4.6.
4.8 ACTIONS OF LC ISSUER.
Each LC Issuer shall be entitled to rely, and shall be fully protected in
relying, upon any Facility LC, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document 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, independent accountants and
other experts selected by such LC Issuer. Each LC Issuer shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first have received such advice or concurrence of the Required Lenders
as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 4, each LC Issuer
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon the Lenders and any future holders of a participation in any
Facility LC.
4.9 INDEMNIFICATION.
The Borrower hereby agrees to indemnify and hold harmless each Lender and
LC Issuer and the Administrative Agent, and their respective directors,
officers, agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Lender, LC Issuer or the
Administrative Agent may incur (or which may be claimed against such Lender, LC
Issuer or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the issuance, execution and delivery or transfer of or payment
or failure to pay under any Facility LC or any actual or proposed use of any
Facility LC, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which an LC Issuer may incur by reason of or on
account of such LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any drawing by
any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to such LC Issuer, evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be required to indemnify any
Lender, LC Issuer or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(x) the willful misconduct or gross negligence of an LC Issuer in determining
whether a request presented under any Facility LC complied with the terms of
such Facility LC or (y) an LC Issuer's failure to pay under any Facility LC
after the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. Nothing in this Section 4.9 is intended to limit
the obligations of the Borrower under any other provision of this Agreement.
48
4.10 LENDERS' INDEMNIFICATION.
Each Lender shall, ratably in accordance with its Pro Rata Share,
indemnify each LC Issuer, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct or such LC Issuer's failure
to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such
indemnitees may suffer or incur in connection with this Section 4 or any action
taken or omitted by such indemnitees hereunder.
4.11 FACILITY LC COLLATERAL ACCOUNT.
The Borrower agrees that it will, upon the request of the Administrative
Agent or the Required Lenders and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to any LC Issuer or
Lender in respect of any Facility LC, maintain a special collateral account
pursuant to arrangements reasonably satisfactory to the Administrative Agent
(the "Facility LC Collateral Account") at the Administrative Agent's office at
the address specified in or pursuant to Section 11.1, in the name of the
Borrower but under the sole dominion and control of the Administrative Agent,
for the benefit of the Lenders and in which Borrower shall have no interest
other than as set forth in Section 9.3. The Borrower hereby pledges, assigns and
grants to the Administrative Agent, on behalf of and for the ratable benefit of
the Lenders and LC Issuers, a security interest in all of the Borrower's right,
title and interest in and to all funds which may from time to time be on deposit
in the Facility LC Collateral Account to secure the prompt and complete payment
and performance of the Credit Party Obligations. The Administrative Agent will
invest any funds on deposit from time to time in the Facility LC Collateral
Account in certificates of deposit of the Administrative Agent having a maturity
not exceeding 30 days. Nothing in this Section 4.11 shall obligate the
Administrative Agent to require the Borrower to deposit any funds in the
Facility LC Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Facility LC Collateral Account or obligate the
Borrower to deposit any funds in the Facility LC Collateral Account, in each
case other than as required by Section 2.5(a)(v)(B), 9.2, 9.3 or 9.4 (as
applicable).
4.12 RIGHTS AS A LENDER.
In its capacity as a Lender, each LC Issuer shall have the same rights and
obligations as any other Lender.
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
49
The obligation of the Lenders to enter into this Credit Agreement and make
the initial Extension of Credit is subject to satisfaction (or waiver by each of
the Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent
of duly executed copies of: (i) this Credit Agreement; (ii) the Notes,
(iii) the Guaranty (executed by all of the REITs and the Material
Subsidiaries), (iv) the Intercreditor Agreement (executed by all of the
REITs and any other creditor of Borrower party thereto) and (v) all other
Credit Documents, each in form and substance reasonably acceptable to the
Administrative Agent and the Lenders; provided that receipt by the
Administrative Agent of an executed signature page to this Credit
Agreement from a Lender shall be deemed approval by such Lender of the
form and substance of the Credit Documents.
(b) Authority Documents.
(i) Partnership Documents. With respect to each Credit Party
that is a partnership or limited liability partnership (for the
purposes hereof, each a "Partnership"), receipt by the
Administrative Agent of the following:
(A) Authorization. Authorization of the general
partner(s) of such Partnership, as of the Closing Date,
approving and adopting the Credit Documents to be executed by
such Partnership and authorizing the execution and delivery
thereof.
(B) Partnership Agreements. Subject to the provisions of
the last paragraph of this Section 5.1(b), certified copies of
the partnership agreement of such Partnership, together with
all amendments thereto.
(C) Certificates of Good Standing or Existence.
Certificate of good standing or existence for such
Partnership, issued as of a recent date by its state of
organization and each other state where the failure to qualify
or be in good standing would have or could be reasonably
expected to have a Material Adverse Effect.
(D) Incumbency. An incumbency certificate of the general
partner(s) of such Partnership certified by a secretary or
assistant secretary of such general partner to be true and
correct as of the Closing Date.
(ii) Corporate Documents. With respect to each Credit Party
that is a corporation, (for the purposes hereof, each a
"Corporation"), and with respect to each corporate entity acting,
directly or indirectly, on behalf of a Credit Party that is a
partnership, limited liability partnership or limited liability
company (for the purposes of this clause (ii), each a "Managing
Person"), receipt by the Administrative Agent of the following:
(A) Charter Documents. Subject to the provisions of the
last paragraph of this Section 5.1(b), copies of the articles
or certificates of
50
incorporation or other charter documents of each such
Corporation or Managing Person, as applicable, certified to be
true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of
its incorporation and certified by a secretary or assistant
secretary of such Corporation or Managing Person, as
applicable, to be true and correct as of the Closing Date.
(B) Bylaws. Subject to the provisions of the last
paragraph of this Section 5.1(b), a copy of the bylaws of each
such Corporation or Managing Person, as applicable, certified
by a secretary or assistant secretary of such Corporation or
Managing Person, as applicable, to be true and correct as of
the Closing Date.
(C) Resolutions. Copies of resolutions of such
Corporation's or Managing Person's board of directors
approving and adopting the Credit Documents to which it or the
Person for whom it is acting is a party and the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Corporation or Managing Person, as applicable, to be true
and correct and in full force and effect as of the Closing
Date.
(D) Good Standing. Copies of (A) certificates of good
standing, existence or their equivalent with respect to such
Corporation or Managing Person, as applicable, certified as of
a recent date by the appropriate Governmental Authorities of
the state or other jurisdiction of incorporation and each
other jurisdiction in which the failure to so qualify and be
in good standing would have or could be reasonably expected to
have a Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(E) Incumbency. An incumbency certificate of such
Corporation or Managing Person, as applicable, certified by an
officer of such Corporation or Managing Person, as applicable,
to be true and correct as of the Closing Date.
(iii) Limited Liability Company Documents. With respect to
each Credit Party that is a limited liability company (for the
purposes hereof, each an "LLC") and with respect to any limited
liability company acting, directly or indirectly, on behalf of a
Credit Party (for the purposes of this clause (iii), each a
"Managing Person"), receipt by the Administrative Agent of the
following:
(A) Certificate of Formation. Subject to the provisions
of the last paragraph of this Section 5.1(b), a copy of the
certificate of formation of such LLC or Managing Person, as
applicable, certified to be true and complete by the
appropriate Governmental Authority of the state or
jurisdiction of its formation and certified by the sole or
managing member
51
of such LLC or Managing Person, as applicable, to be true and
correct as of the Closing Date.
(B) LLC Agreement. Subject to the provisions of the last
paragraph of this Section 5.1(b), a copy of the LLC Agreement
of such LLC or Managing Person, as applicable, certified by
the sole or managing member of such LLC or Managing Person, as
applicable, to be true and correct as of the Closing Date.
(C) Resolutions. Copies of resolutions of the sole or
managing member of such LLC or Managing Person approving and
adopting the Credit Documents to which it or the Person for
whom it is acting is a party and the transactions contemplated
therein and authorizing execution and delivery thereof.
(D) Good Standing. Copies of certificates of good
standing, existence or their equivalent with respect to such
LLC or Managing Person, as applicable, certified as of a
recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of formation and each other
jurisdiction in which the failure to so qualify and be in good
standing would have or could be reasonably expected to have a
Material Adverse Effect.
(E) Incumbency. An incumbency certificate of such LLC or
Managing Person certified by an officer of such LLC or
Managing Person to be true and correct as of the Closing Date.
Notwithstanding the foregoing, the parties hereto acknowledge and
agree that the Administrative Agent, at its election, may waive, with
respect to the Credit Parties and Managing Persons (other than the
Borrower) the requirement for delivery of the documents identified in
subsections (i)(B), (ii)(A) and (B) and (iii)(A) and (B) of this Section
5.1(b) above, provided and to the extent that the Borrower delivers or
causes the applicable Credit Parties and Managing Persons to deliver to
the Administrative Agent a certificate that such documents, as most
recently delivered to the Administrative Agent pursuant to the Original
Credit Agreement, have not been modified or amended and remain in full
force and effect.
(c) Opinion of Counsel. Receipt by the Administrative Agent of an
opinion or opinions from legal counsel to the Credit Parties (which shall
cover, among other things, authority, legality, validity, binding effect,
and enforceability of the Credit Documents), reasonably satisfactory to
the Administrative Agent, addressed to the Administrative Agent and the
Lenders and dated as of the Closing Date.
(d) Financial Statements. Receipt by the Lenders of such financial
information regarding the Credit Parties required to be delivered pursuant
to Section 7.1 of the Original Credit Agreement prior to the Closing Date.
52
(e) Litigation. There shall not exist (i) any order, decree,
judgment, ruling or injunction which prohibits or restrains the
consummation of the transactions contemplated hereby or (ii) any pending
(except as set forth on Schedule 6.11) or, to the knowledge of any Credit
Party, threatened action, suit, investigation or proceeding against a
Credit Party that would have or could be reasonably expected to have a
Material Adverse Effect.
(f) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by an Authorized Officer
of the Borrower as of the Closing Date stating that (i) the Borrower and
each of its Subsidiaries are in compliance with all existing material
financial obligations after giving effect to this Credit Agreement, (ii)
no action, suit, investigation or proceeding is pending or, to the
knowledge of any Credit Party, threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect the
Borrower, any of its Subsidiaries or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding would
have or could be reasonably expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered to the
Administrative Agent on or before the Closing Date were prepared in good
faith and in accordance with GAAP and (iv) immediately after giving effect
to this Credit Agreement, the other Credit Documents and all the
transactions contemplated herein and therein, including the initial
Extensions of Credit hereunder (if any), to occur on such date, (A) no
Default or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct in
all material respects, (C) the Credit Parties are in compliance with each
of the financial covenants set forth in Section 7.2 (with calculations
demonstrating same) and (D) each Credit Party is Solvent.
(g) Material Adverse Effect. There shall not have occurred a
Material Adverse Effect since December 31, 2003.
(h) Fees and Expenses. Payment by the Credit Parties of the fees and
expenses owed by them to the Administrative Agent, the Lenders and
Arranger pursuant to the terms of Section 3.4 and of the Fee Letter.
(i) Original Credit Agreement. All amounts owing in connection with
the Original Credit Agreement shall have been paid in full on or before
the Effective Date.
(j) Market Disruption. There shall not have occurred any material
disruption of or a material adverse change in conditions in the financial,
banking or capital markets which the Administrative Agent and Arranger, in
their reasonable discretion, deem material in connection with the
syndication of this Credit Agreement.
(k) Other. Receipt and satisfactory review by the Administrative
Agent and its counsel of such other documents, instruments, agreements or
information as reasonably and timely requested by the Administrative
Agent, its counsel or any Lender, including, but not limited to,
shareholder agreements, management agreements and information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
53
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, contingent liabilities and management of
the Borrower and its Subsidiaries.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, no Lender
or LC Issuer shall be obligated to make new Extensions of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in the case of any
new Revolving Loan, a Notice of Borrowing, duly executed and completed, by
the time specified in Section 2.1, (ii) in the case of any new Swingline
Loan, a Swingline Loan Request, duly executed and completed, by the time
specified in Section 2.2 and (iii) in the case of the issuance or
Modification of a Facility LC, the documentation required under Section 4.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true and
correct in all material respects at and as if made as of such date except
to the extent they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the making of
such Loan (and the application of the proceeds thereof and the issuance or
Modification of such Facility LC), the sum of the Revolving Loans
outstanding plus Swingline Loans outstanding plus the aggregate amount of
all LC Obligations outstanding shall not exceed the Revolving Committed
Amount.
The delivery of each Notice of Borrowing and each Swingline Loan Request and
each Facility LC Request shall constitute a representation and warranty by the
Borrower of the correctness of the matters specified in subsections (b), (c) and
(d) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
6.1 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders prior to the
Effective Date and pursuant to Section 7.1(a) and (b): (i) have been
prepared in accordance with GAAP and (ii) present fairly the consolidated
and consolidating (as applicable) financial
54
condition, results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such periods.
(b) Since December 31, 2003, there has been no sale, transfer or
other disposition by any Credit Party of any material part of the business
or property of the Credit Parties taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including
any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Credit Parties taken as a whole,
in each case which is not (i) reflected in the most recent financial
statements delivered to the Lenders pursuant to Section 7.1 or in the
notes thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent.
6.2 NO MATERIAL CHANGE.
Since December 31, 2003, there has been no development or event relating
to or affecting a Credit Party which has had or could be reasonably expected to
have a Material Adverse Effect.
6.3 ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
the state (or other jurisdiction) of its organization, (b) is duly qualified and
in good standing as a foreign entity and authorized to do business in every
jurisdiction unless the failure to be so qualified, in good standing or
authorized would not have or could not be reasonably expected to have a Material
Adverse Effect and (c) has the requisite power and authority to own its
properties and to carry on its business as now conducted and as proposed to be
conducted.
6.4 DUE AUTHORIZATION.
Each Credit Party (a) has the requisite power and authority to execute,
deliver and perform this Credit Agreement and the other Credit Documents to
which it is a party and to incur the obligations herein and therein provided for
and (b) is duly authorized, and has been authorized by all necessary action, to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational documents, (b) violate,
contravene or materially conflict with any Requirement of Law or any other law,
regulation (including, without limitation, Regulation D, O, T, U or X), order,
writ, judgment, injunction, decree or permit applicable to it, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it may be
bound, the violation of which would have or could be
55
reasonably expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien (other than those contemplated in or created in
connection with the Credit Documents) upon or with respect to its properties.
6.6 CONSENTS.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by such Credit Party.
6.7 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or moratorium laws or similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
6.8 NO DEFAULT.
No Credit Party is in default in any respect under any contract, lease,
loan agreement, indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its properties is bound
which default would have or could be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Lenders.
6.9 LIENS.
The assets of the Credit Parties are not subject to any Liens other than
Permitted Liens, which, individually or in the aggregate, would have or could be
reasonably expected to have a Material Adverse Effect.
6.10 INDEBTEDNESS.
The Credit Parties have no Indebtedness except (a) as disclosed in the
financial statements referenced in Section 6.1, (b) as set forth on Schedule
6.10, and (c) as otherwise permitted by this Credit Agreement.
6.11 LITIGATION.
Except as set forth on Schedule 6.11, there are no actions, suits or
legal, equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Credit Party, threatened against any Credit Party which, if
adversely determined, would have or could be reasonably expected to have a
Material Adverse Effect.
56
6.12 TAXES.
Each Credit Party has filed, or caused to be filed, all material tax
returns (federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due and payable (including interest and
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) that are due and payable by it, except for such taxes (i)
which are not yet delinquent or (ii) that are being contested in good faith and
by proper proceedings, and against which adequate reserves are being maintained
in accordance with GAAP. To the knowledge of the Credit Parties, there are no
material tax assessments (including interest and penalties) claimed to be due
against any of them by any Governmental Authority.
6.13 COMPLIANCE WITH LAW.
Each Credit Party is in material compliance with all material Requirements
of Law and all other material laws, rules, regulations, orders and decrees
(including without limitation Environmental Laws) applicable to it, or to its
properties. No Requirement of Law would cause or could be reasonably expected to
cause a Material Adverse Effect.
6.14 ERISA.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has
occurred, and, to the knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan;
(ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived,
has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or
a Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (within
the meaning of Section 4001 of ERISA) under each Single Employer Plan
(determined utilizing the actuarial assumptions used to fund such Plans),
whether or not vested, did not, as of the last annual valuation date prior
to the date on which this representation is made or deemed made, exceed
the fair market current value as of such date of the assets of such Plan
allocable to such accrued liabilities.
(c) Neither the Borrower, nor any of its Subsidiaries, nor any ERISA
Affiliate has incurred, or, to the knowledge of such parties, are
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower, nor
any of its Subsidiaries, nor any ERISA Affiliate has received
57
any notification pursuant to ERISA that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and, to the best knowledge of
such parties, no Multiemployer Plan is reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected or
is reasonably expected to subject the Borrower or any of its Subsidiaries
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i),
or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which the Borrower or any of its Subsidiaries
or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) The present value of the liability of the Borrower and its
Subsidiaries and each ERISA Affiliate for post-retirement welfare benefits
to be provided to their current and former employees under Plans which are
welfare benefit plans (as defined in Section 3(1) of ERISA), net of all
assets under all such Plans allocable to such benefits, are reflected on
the Financial Statements in accordance with FASB 106.
(f) Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been administered in material compliance with such sections.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party and whether each such Person is a Material
Subsidiary. Schedule 6.15 shall be updated by the Borrower within 120 days after
the end of each calendar year and may be, but need not be, updated at any other
time and from time to time by the Borrower by giving written notice thereof to
the Administrative Agent.
6.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 7.10. No proceeds of the Loans hereunder have been or will
be used for the Acquisition of another Person unless the board of directors (or
other comparable governing body) or stockholders, as appropriate, of such Person
has approved such Acquisition.
6.17 GOVERNMENT REGULATION.
(a) No proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the
58
Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in
Regulation U. No Indebtedness being reduced or retired out of the proceeds
of the Loans was or will be incurred for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U or any
"margin security" within the meaning of Regulation T. "Margin stock"
within the meaning of Regulation U does not constitute more than 25% of
the value of the consolidated assets of the Credit Parties and their
Subsidiaries. None of the transactions contemplated by the Credit
Documents (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of (i)
the Securities Act or (ii) the Exchange Act.
(b) No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, no Credit
Party is (i) an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, and is
not controlled by an "investment company", or (ii) a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any
Credit Party is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director", "executive
officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O.
6.18 ENVIRONMENTAL MATTERS.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Credit Parties (the
"Businesses"), and there are no conditions relating to the Businesses or
Real Properties that would reasonably be expected to give rise to
liability under any applicable Environmental Laws.
(b) No Credit Party has received any written notice of, or inquiry
from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
Hazardous Materials or compliance with Environmental Laws with regard to
any of the Real Properties or the Businesses, nor, to the knowledge of a
Credit Party, is any such notice being threatened.
(c) Hazardous Materials have not been transported or disposed of
from the Real Properties, or generated, treated, stored or disposed of at,
on or under any of the
59
Real Properties or any other location, in each case by, or on behalf or
with the permission of, a Credit Party in a manner that would give rise to
liability under any applicable Environmental Laws.
(d) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of a Credit Party, threatened under any
Environmental Law to which a Credit Party is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to a
Credit Party, the Real Properties or the Businesses.
(e) There has been no release (including, without limitation,
disposal) or threat of release of Hazardous Materials at or from the Real
Properties, or arising from or related to the operations of a Credit Party
in connection with the Real Properties or otherwise in connection with the
Businesses where such release constituted a violation of, or would give
rise to liability under, any applicable Environmental Laws.
(f) None of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties in
amounts or concentrations that, if released, constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws.
(g) No Credit Party has assumed any liability of any Person (other
than another Credit Party or Subsidiary thereof) under any Environmental
Law.
6.19 INTELLECTUAL PROPERTY.
Each Credit Party owns, or has the legal right to use, all patents,
trademarks, service marks, tradenames, copyrights, licenses, technology,
know-how, processes and other rights (the "Intellectual Property"), free from
burdensome restrictions, that are necessary for the operation of their
respective businesses as presently conducted and as proposed to be conducted
other than those the absence of which would not cause or could not reasonably be
expected to cause a Material Adverse Effect. Except as would not have or could
not be reasonably expected to have a Material Adverse Effect, (a) no holding,
decision or judgment has been rendered by any Governmental Authority which would
limit, cancel or question the validity of any Intellectual Property and (b) no
action or proceeding is pending that seeks to limit, cancel or question the
validity of any Intellectual Property or which, if adversely determined, would
have a material adverse effect on the value of any Intellectual Property.
6.20 SOLVENCY.
Each Credit Party is, and after consummation of the transactions
contemplated by this Credit Agreement will be, Solvent.
6.21 INVESTMENTS.
60
All Investments of each Credit Party are (a) as set forth on Schedule
6.21(b) or (b) Permitted Investments.
6.22 DISCLOSURE.
Neither this Credit Agreement nor any other Credit Document or financial
statement delivered to the Administrative Agent or the Lenders by or on behalf
of any Credit Party in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein,
taken as a whole, not misleading.
6.23 LICENSES, ETC.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect, the Credit Parties have obtained and hold in full force
and effect, all material franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted.
6.24 BURDENSOME RESTRICTIONS.
No Credit Party is a party to any agreement or instrument or subject to
any other obligation or any charter or corporate restriction or any provision of
any Requirement of Law which, individually or in the aggregate, would have or
could be reasonably expected to have a Material Adverse Effect.
6.25 LABOR CONTRACTS AND DISPUTES.
Except as disclosed on Schedule 6.25, (a) there is no collective
bargaining agreement or other labor contract covering employees of any Credit
Party; (b) no union or other labor organization is seeking to organize, or be
recognized as, a collective bargaining unit of employees of any Credit Party;
and (c) there is no pending or, to any Credit Party's knowledge, threatened
strike, work stoppage, material unfair labor practice claim or other material
labor dispute against or affecting any Credit Party or its employees which,
individually or in the aggregate, would have or could be reasonably expected to
have a Material Adverse Effect.
6.26 BROKER'S FEES.
No Credit Party has paid, will pay or agree to pay, or reimburse any other
Person with respect to, any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents or has taken or will take any action that would obligate the
Administrative Agent or any Lender to do any of the foregoing.
61
SECTION 7
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest and fees and
other obligations then due and payable hereunder, have been paid in full (other
than any such obligations which by the terms thereof are stated to survive
termination of the Credit Documents) and the Commitments hereunder shall have
terminated:
7.1 INFORMATION COVENANTS.
The Borrower will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of the Borrower,
a consolidated and consolidating balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year, together
with related consolidated and consolidating statements of operations,
retained earnings, shareholders equity and cash flows for such fiscal
year, setting forth in comparative form consolidated and consolidating
figures for the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and audited by
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and whose opinion shall
be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or qualified
in any manner, except for qualifications resulting from changes in GAAP
and required or approved by the Borrower's independent certified public
accountants. It is specifically understood and agreed that failure of the
annual financial statements to be accompanied by an opinion of such
accountants in form and substance as provided herein shall constitute an
Event of Default hereunder.
(b) Quarterly Statements. As soon as available, and in any event
within 60 days after the close of each -------------------- fiscal quarter
(other than the fourth fiscal quarter, in which case 120 days after the
end thereof) of each fiscal year of the Borrower, a consolidated and
consolidating balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such quarter, together with related
consolidated and consolidating statements of operations, retained
earnings, shareholders' equity and cash flow for such quarter, in each
case setting forth in comparative form consolidated and consolidating
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent and
accompanied by a certificate of the chief financial officer of the
Borrower to the effect that such consolidated and consolidating statements
are true and correct and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of an Authorized Officer of
62
the Borrower substantially in the form of Exhibit 7.1(c), (i)
demonstrating compliance with the financial covenants contained in Section
7.2 by calculation thereof as of the end of each such period, (ii)
calculating the Interest Coverage Ratio of the Borrower and its
Subsidiaries for the twelve month period ending on the date of such
financial statements, (iii) demonstrating compliance with any other terms
of this Credit Agreement as requested by the Administrative Agent and (iv)
stating that no Default or Event of Default exists, or if any Default or
Event of Default does exist, specifying the nature and extent thereof and
what action the Borrower proposes to take with respect thereto. If
necessary, the Borrower shall deliver financial statements prepared in
accordance with GAAP as of the Closing Date, to the extent GAAP has
changed since the Closing Date, in order to show compliance with the terms
of this Credit Agreement, including Section 7.2. In addition, at the time
of any Investment pursuant to clause (j) of the definition of Permitted
Investments in excess of $10,000,000, a certificate of an Authorized
Officer of the Borrower stating that after giving effect to such
Investment on a pro forma basis no Default or Event of Default will exist
or be continuing as a result of such Investment.
(d) Reports. Promptly upon transmission or receipt thereof, (a)
copies of any public filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency, and
copies of all financial statements, proxy statements, notices and reports
as the Borrower or any of its Subsidiaries shall send to its shareholders
generally and (b) upon the written request of the Administrative Agent,
all reports and written information to and from the United States
Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and
Safety Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(e) Notices. Upon an executive officer of a Credit Party obtaining
knowledge thereof, the Borrower will give written notice to the
Administrative Agent (a) immediately of the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose to
take with respect thereto, and (b) promptly, but in any event within five
Business Days, after the occurrence of any of the following with respect
to any Credit Party: (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against a Credit Party which if
adversely determined would have or could be reasonably expected to have a
Material Adverse Effect, (ii) the institution of any proceedings against a
Credit Party with respect to, or the receipt of written notice by such
Person of potential liability or responsibility for violation, or alleged
violation, of any federal, state or local law, rule or regulation
(including but not limited to, Environmental Laws), the violation of which
would have or could be reasonably expected to have a Material Adverse
Effect, (iii) the occurrence of an event or condition which shall
constitute a default or event of default under any Indebtedness of a
Credit Party in excess of $10,000,000, other than Non-Recourse Land
Financing, or (iv) any loss of or damage to any property of a Credit Party
or the commencement of any proceeding for the
63
condemnation or other taking of any property of a Credit Party having a
value of $10,000,000 or more.
(f) ERISA. Upon any of the Credit Parties or any ERISA Affiliate
obtaining knowledge thereof, the Borrower will give written notice to the
Administrative Agent promptly (and in any event within two Business Days)
of: (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, a
Termination Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Credit Parties or any of their ERISA
Affiliates, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which a Credit Party or any
ERISA Affiliates is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) any change in the funding
status of any Plan that would have or could be reasonably expected to have
a Material Adverse Effect; together with a description of any such event
or condition or a copy of any such notice and a statement by the principal
financial officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action, if any, which
has been or is being taken or is proposed to be taken by the Credit
Parties with respect thereto. Promptly upon request, a Credit Party shall
furnish the Administrative Agent and each of the Lenders with such
additional information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return (Form
5500 series), as well as all schedules and attachments thereto required to
be filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year" (within
the meaning of Section 3(39) of ERISA).
(g) Environmental.
(i) Subsequent to a notice from any Governmental Authority
where the subject matter of such notice would reasonably cause
concern or during the existence of an Event of Default, and upon the
written request of the Administrative Agent, the Credit Parties will
furnish or cause to be furnished to the Administrative Agent, at the
Credit Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth, including, where appropriate,
invasive soil or groundwater sampling, by a consultant reasonably
acceptable to the Administrative Agent addressing the subject of
such notice or, if during the existence of an Event of Default,
regarding any release or threat of release of Hazardous Materials on
any Real Property and the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to deliver such an
environmental assessment within sixty (60) days after receipt of
such written request, then the Administrative Agent may arrange for
same, and the Credit Parties hereby grant to the Administrative
Agent and its representatives access to the Real Properties and a
license of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment
arranged for
64
by the Administrative Agent pursuant to this provision will be
payable by the Credit Parties on demand.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all remedial,
removal and other actions necessary to address all Hazardous
Materials on, from, or affecting any Real Property to the extent
necessary to be in compliance with all Environmental Laws and all
other applicable federal, state, and local laws, regulations, rules
and policies and with the orders and directives of all Governmental
Authorities exercising jurisdiction over such Real Property to the
extent any failure would have or could be reasonably expected to
have a Material Adverse Effect.
(h) Other Information. As soon as available and in any event within
60 days of each fiscal quarter (or within 120 days of the fourth fiscal
quarter), a "Land Report" and a "Consolidated Sales and Construction
Activity Report" and with reasonable promptness upon any request, such
other information regarding the business, properties or financial
condition of the Credit Parties as the Administrative Agent or any Lender
(through the Administrative Agent) may reasonably request.
7.2 FINANCIAL COVENANTS.
(a) Debt to Capitalization Ratio. As of the last day of each fiscal
quarter of the Borrower (beginning with the fiscal quarter ending June 30,
2004), the Debt to Capitalization Ratio shall be less than or equal to
0.50 to 1.0.
(b) Tangible Net Worth. As of the last day of each fiscal quarter of
the Borrower (beginning with the fiscal quarter ending June 30, 2004),
Tangible Net Worth shall be greater than or equal to the sum of (i)
$2,600,000,000, plus (ii) 50% of the cumulative Net Income of the Borrower
and its Subsidiaries (without deduction for losses) earned for each
completed fiscal quarter subsequent to June 30, 2004 to the date of
determination.
(c) Interest Coverage Ratio. As of the last day of each fiscal
quarter of the Borrower (beginning with the fiscal quarter ending June 30,
2004), the Interest Coverage Ratio shall be greater than 2.0 to 1.0.
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as permitted by Section 8.4, each of the Credit Parties will do all
things necessary to preserve and keep in full force and effect its (a)
existence, rights and franchises and (b) authority, unless failure to preserve
and keep in full force and effect its authority would not have or could not be
reasonably expected to have a Material Adverse Effect.
7.4 BOOKS AND RECORDS.
65
Each of the Credit Parties will keep complete and accurate books and
records of its transactions in accordance with GAAP (including the establishment
and maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will materially comply with all material laws,
rules, regulations and orders, and all applicable material restrictions imposed
by all Governmental Authorities, applicable to it and its property (including,
without limitation, Environmental Laws).
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will pay, settle or discharge (a) all taxes,
assessments and governmental charges or levies imposed upon it, or upon its
income or profits, or upon any of its properties, before they shall become
delinquent, (b) all lawful claims (including claims for labor, materials and
supplies) which, if unpaid, might give rise to a Lien upon any of its
properties, and (c) all of its other Indebtedness as it shall become due (to the
extent such repayment is not otherwise prohibited by this Credit Agreement);
provided, however, that a Credit Party shall not be required to pay any such
tax, assessment, charge, levy, claim or Indebtedness which is being contested in
good faith by appropriate proceedings and as to which adequate reserves therefor
have been established in accordance with GAAP, unless the failure to make any
such payment (i) would give rise to an immediate right to foreclose or collect
on a Lien securing such amounts or (ii) would have or could be reasonably
expected to have a Material Adverse Effect.
7.7 INSURANCE.
Each of the Credit Parties will at all times maintain in full force and
effect insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) from
insurance companies of recognized national standing, in such amounts, covering
such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
7.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will maintain and preserve its properties,
equipment and other assets in good repair, working order and condition, normal
wear and tear excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses,
unless the failure to do so would not have or could not be reasonably expected
to have a Material Adverse Effect.
66
7.9 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will perform in all material respects all of
its obligations under the terms of all material agreements, indentures,
mortgages, security agreements or other debt instruments to which it is a party
or by which it or its property is bound, unless the failure to do so would not
have or could not be reasonably expected to have a Material Adverse Effect.
7.10 USE OF PROCEEDS.
The Credit Parties will use the proceeds/availability of the Loans solely
to provide working capital for the Credit Parties and for general corporate
purposes of the Credit Parties.
7.11 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit Party
will permit representatives appointed by the Administrative Agent, including,
without limitation, independent accountants, agents, attorneys and appraisers,
to visit and inspect such Credit Party's property, including its books and
records, its accounts receivable and inventory, its facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit the
Administrative Agent or its representatives to investigate and verify the
accuracy of information provided to the Lenders. The Borrower shall pay the
Administrative Agent's reasonable costs of any inspections or investigations
conducted following the occurrence and during the continuance of an Event of
Default.
7.12 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Material Subsidiary of a Credit Party,
the Borrower shall so notify the Administrative Agent and promptly thereafter
(but in any event within 30 days after the date thereof or within such longer
period of time as agreed to by the Administrative Agent) shall cause such Person
to (a) execute a Supplemental Guaranty and (b) deliver to the Administrative
Agent such other documentation as the Administrative Agent may reasonably
request, including, without limitation, certified copies of resolutions and
other corporate, limited liability company or partnership documents and
favorable opinions of counsel to such Person, all in form, content and scope
reasonably satisfactory to the Administrative Agent. The Administrative Agent
and the Lenders agree that upon any Subsidiary (other than a REIT) ceasing to be
a Material Subsidiary, upon receipt by the Administrative Agent of evidence
thereof, the Administrative Agent shall, upon the Borrower's written request,
execute, at the Borrower's expense, such release documentation as is necessary
to release such Subsidiary from its Guaranty Obligations hereunder and such
Subsidiary shall no longer be a Guarantor.
7.13 REIT REQUIREMENTS.
Notwithstanding anything to the contrary contained in Section 7.12, (i)
each REIT will at all times be a Guarantor and will not be released from its
obligations under its Guaranty if it shall cease to be a Material Subsidiary and
(ii) each REIT shall enter into the Intercreditor Agreement as a subsidiary
creditor.
67
SECTION 8
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations then due and payable hereunder, have been paid in full (other
than any such obligations which by the terms thereof are stated to survive
termination of the Credit Documents) and the Commitments hereunder shall have
terminated:
8.1 INDEBTEDNESS.
No Credit Party will contract, create, incur, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness existing as of the Closing Date as referenced in
Section 6.10 (and renewals, refinancings, replacements or extensions
thereof on terms and conditions no more favorable, in the aggregate, to
the applicable creditor than such existing Indebtedness and in a principal
amount not in excess of that outstanding as of the date of such renewal,
refinancing, replacement or extension);
(c) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business and to the extent not
current, accounts payable and accrued expenses that are subject to bona
fide dispute;
(d) Indebtedness owing by a Credit Party to another Credit Party;
(e) Indebtedness arising from Hedging Agreements entered into in the
ordinary course of business and not for speculative purposes;
(f) Indebtedness arising from judgments that do not cause an Event
of Default;
(g) secured Indebtedness in connection with Non-Recourse Land
Financing existing on the Closing Date and Non-Recourse Land Financing
with respect to real property acquired after the Closing Date;
(h) Indebtedness owing by a Credit Party to a REIT; provided that
(i) such REIT shall be a Guarantor, (ii) such REIT shall have entered into
the Intercreditor Agreement, (iii) such REIT shall be in compliance with
the terms of Section 8.14 and (iv) such REIT shall qualify as a real
estate investment trust under applicable tax laws;
68
(i) other secured Indebtedness up to $200,000,000, in the aggregate,
at any one time outstanding; and
(j) other unsecured Indebtedness so long as, after giving effect
thereto, the Borrower is in compliance with the financial covenants set
forth in Section 7.2.
8.2 LIENS.
No Credit Party will contract, create, incur, assume or permit to exist
any Lien with respect to any of its property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or after acquired,
except for Permitted Liens.
8.3 NATURE OF BUSINESS.
No Credit Party will materially alter the character of its business from
that conducted as of the Closing Date or engage in any business other than the
business conducted as of the Closing Date and activities which are substantially
similar or related thereto or logical extensions thereof.
8.4 CONSOLIDATION AND MERGER.
No Credit Party will enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself; provided that a Credit Party may merge
or consolidate with or into another Person if the following conditions are
satisfied:
(a) the Administrative Agent is given prior written notice of such
action;
(b) the Person formed by such consolidation or into which such
Credit Party is merged shall either (i) be a Credit Party or (ii)
expressly assume in writing all of the obligations of a Credit Party under
the Credit Documents; provided that if the transaction is between the
Borrower and another Person, the Borrower must be the surviving entity;
(c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(d) the Borrower delivers to the Administrative Agent an opinion of
counsel stating that such consolidation or merger and any written
agreement entered into in connection therewith, comply with this Section
8.4.
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will convey, sell, lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business or assets whether now owned or hereafter acquired, including, without
limitation, inventory, receivables, equipment, real property interests (whether
owned or leasehold), and securities, other than (a) any inventory sold or
otherwise disposed of in the ordinary course of business; (b) the sale, lease,
transfer or other disposal by a Credit Party
69
of any or all of its assets to another Credit Party; (c) obsolete, slow-moving,
idle or worn-out assets no longer used or useful in its business; (d) the
transfer of assets which constitute a Permitted Investment; (e) any Equity
Issuance by the Borrower; (f) the sale, lease or sublease of real property
interests in the ordinary course of business; (g) the sale, transfer or other
disposal for fair market value of all or substantially all of the Capital Stock
or assets of a Guarantor to a Person that is not a Credit Party; provided that
(i) after giving effect to any such sale, transfer or other disposal, the Credit
Parties shall be in compliance with all of the terms and conditions of this
Credit Agreement and the other Credit Documents, including, without limitation,
the terms of Section 7.12 and the definition of Material Subsidiary, (ii) the
net cash proceeds from any such sale, transfer or other disposal shall be (A)
first, applied to all outstanding Reimbursement Obligations, (B) second, applied
to all outstanding Swingline Loans (first to Floating Rate Loans and then to
Index Rate Swingline Loans in direct order of Interest Period maturities), (C)
third, applied to all outstanding Revolving Loans (first to Floating Rate Loans
and then to Eurodollar Loans in direct order of Interest Period maturities) and
(D) fourth, reinvested in the business of the Credit Parties or used by the
Credit Parties in the ordinary course of business within 90 days after the
closing of such transfer, sale or other disposal and (iii) promptly after the
net cash proceeds from any such sale, transfer or other disposal have been so
utilized, the Borrower shall deliver to the Administrative Agent a certificate
executed by an Authorized Officer certifying on behalf of the Borrower (A) as to
the amount of such net cash proceeds and (B) that such net cash proceeds have
been reinvested in accordance with the terms of the foregoing clause (ii), and
(h) other sales of assets in the ordinary course of business so long as, after
giving effect thereto, the Borrower is in compliance with the financial
covenants set forth in Section 7.2.
8.6 SALE AND LEASEBACK.
No Credit Party will enter into any Sale and Leaseback Transaction, unless
each of the following conditions is satisfied: (a) such Credit Party shall
promptly give notice of such sale or transfer to the Administrative Agent; (b)
the net proceeds of such sale or transfer are at least equal to the fair value
(as determined in good faith by a resolution of such Credit Party's board of
directors, a copy of which has been delivered by the Credit Party to the
Administrative Agent) of the property which is the subject of such sale or
transfer; and (c) such Credit Party shall apply, within 365 days after the
effective date of such sale or transfer, or shall have committed within one year
after such effective date to apply, an amount at least equal to the net proceeds
of the sale or transfer of the property which is the subject of such sale or
transfer to (A) the repayment of the Loans or (B) the repayment of other
Indebtedness owing by any Credit Party or (C) the purchase of property by such
Credit Party substantially similar to the property that was the subject of such
sale or transfer or (D) in part to such repayment and in part to such purchase
or property; provided, however, that if such Credit Party commits to apply an
amount at least equal to the net proceeds of a sale or transfer to the repayment
of the Loans, the repayment of other Indebtedness or the purchase of property,
such commitment shall be made in a written instrument delivered by such Credit
Party to the Administrative Agent and shall require such Credit Party to so
apply said amount within 18 months after the effective date of such sale or
transfer, and it shall constitute a breach of the provisions of this Section 8.6
if such Credit Party shall fail so to apply said amount in satisfaction of such
commitment.
70
8.7 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will make any Investments except for Permitted
Investments.
8.8 RESTRICTED PAYMENTS.
No Credit Party will, directly or indirectly, use proceeds of Loans to pay
dividends or make any other distribution (excluding repurchases of shares of
Capital Stock) upon any shares of its Capital Stock of any class.
8.9 TRANSACTIONS WITH AFFILIATES.
No Credit Party will enter into any material transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will (a) change its fiscal year or (b) in any manner that
would reasonably be likely to adversely affect the rights of the Lenders, change
its articles or certificate of incorporation or its bylaws, except as permitted
by Section 8.4.
8.11 NO LIMITATIONS.
No Credit Party will directly or indirectly, create or otherwise cause,
incur, assume, suffer or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Person to (a)
pay dividends or make any other distribution on any of such Person's Capital
Stock, (b) pay any Indebtedness owed to any other Credit Party, (c) make loans
or advances to any other Credit Party or (d) transfer any of its property to any
other Credit Party, except for encumbrances or restrictions existing under or by
reason of (i) customary non-assignment or net worth provisions in any lease
governing a leasehold interest, (ii) any agreement or other instrument of a
Person existing at the time it becomes a Subsidiary of a Credit Party; provided
that such encumbrance or restriction is not applicable to any other Person, or
any property of any other Person, other than such Person becoming a Subsidiary
of a Credit Party and was not entered into in contemplation of such Person
becoming a Subsidiary of a Credit Party, and (iii) this Credit Agreement and the
other Credit Documents.
8.12 NO OTHER NEGATIVE PLEDGES.
No Credit Party will enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any security for such obligation if security is given for some
other obligation except as set forth in (a) the Credit Documents and (b) any
bond indenture or equivalent instrument (or any amendment or supplement thereto)
to which such Credit Party is now or hereafter a party.
71
8.13 OTHER INDEBTEDNESS.
No Credit Party will, if any Event of Default has occurred and is
continuing or would be directly or indirectly caused as a result thereof, (a)
with respect to any Indebtedness (other than the Indebtedness under the Credit
Documents) of such Credit Party, shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto or change any subordination
provision thereof or (b) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment, redemption, acquisition for value
or defeasance of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Indebtedness (other than
the Indebtedness under the Credit Documents) of such Credit Party.
8.14 RESTRICTIONS ON THE REITS.
No REIT will engage in any activities or operations whatsoever other than
(a) general administrative and other functions permitted by law, (b) possessing
any promissory notes that evidence the Indebtedness permitted by Section 8.1(h)
and receiving payments of principal and interest on such promissory notes, (c)
possessing any other "real estate assets" within the meaning of Section
856(c)(5) of the Code for purposes of satisfying the requirements for a real
estate investment trust under applicable tax laws, (d) making or consenting to
dividends and distributions to a Credit Party and (e) notwithstanding the
foregoing, any other functions or other activities that are now or may become
required or permitted of a REIT for purposes of satisfying the requirements for
a real estate investment trust under applicable tax laws. Notwithstanding the
terms of Sections 8.1 and 8.2, (i) no REIT will incur any Indebtedness other
than (A) its obligations under the Guaranty, (B) accounts payable incurred for
general administrative and other functions of such REIT permitted by law in an
amount not to exceed $100,000 at any time outstanding, and (C) Indebtedness to
the Borrower or any other Credit Party and (ii) no REIT will contract, create,
incur, assume or permit to exist any Lien with respect to any of its property or
assets of any kind (whether real or personal, tangible or intangible), whether
now owned or after acquired, except for Liens in favor of the Administrative
Agent and Permitted Liens relating to the possession and operation of its real
property and other assets.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence, and during the
continuation, of any of the following specified events (each an "Event of
Default"):
(a) Payment. The Borrower shall default in the payment (i) when due
of any principal of any of the Loans or any Reimbursement Obligations or
(ii) within five Business Days of when due of any interest on the Loans or
any Reimbursement
72
Obligations or any fees or other amounts owing hereunder, under any of the
other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement made
or deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made or deemed to have
been made.
(c) Covenants. The Borrower shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.10 or 8.1 through
8.14 inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1, 7.3, 7.5 or 7.11
and such default shall continue unremedied for a period of five
Business Days after the earlier of the Borrower becoming aware of
such default or notice thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or (c)(ii) of this Section 9.1)
contained in this Credit Agreement and such default shall continue
unremedied for a period of at least 30 days after the earlier of the
Borrower becoming aware of such default or written notice thereof
given by the Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in
any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of a Credit
Party becoming aware of such default or written notice thereof given by
the Administrative Agent, or (ii) any Credit Document shall fail to be in
full force and effect or any Credit Party shall so assert or any Credit
Document shall fail to give the Administrative Agent and the Lenders the
security interests, liens, rights, powers and privileges purported to be
created thereby.
(e) Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force and effect, or any Guarantor thereunder or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such Guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following: (i) a
court or governmental agency having jurisdiction shall enter a decree or
order for relief in respect of any Credit Party or any of its Subsidiaries
in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of any Credit Party or any of its Subsidiaries or for any substantial part
of its property or
73
ordering the winding up or liquidation of its affairs; or (ii) an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect is commenced against any Credit
Party or any of its Subsidiaries and such petition remains unstayed and in
effect for a period of 60 consecutive days; or (iii) any Credit Party or
any of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person or any substantial part of
its property or make any general assignment for the benefit of creditors;
or (iv) any Credit Party or any of its Subsidiaries shall admit in writing
its inability to pay its debts generally as they become due or any action
shall be taken by such Person in furtherance of any of the aforesaid
purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party shall default in the due performance or
observance (beyond the applicable grace period with respect thereto)
of any material obligation or condition of any contract or lease
material to the Credit Parties taken as a whole to which it is a
party or by which it or its property is bound; or
(ii) With respect to any Indebtedness of a Credit Party the
principal amount of which is in excess of $10,000,000 (other than
Indebtedness outstanding under this Credit Agreement and
Non-Recourse Land Financing), (A) any such Credit Party shall (x)
default in any payment (beyond the applicable grace period with
respect thereto, if any) with respect to any such Indebtedness, or
(y) default (after giving effect to any applicable grace period) in
the observance or performance relating to such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause the holder or holders of such Indebtedness (or
trustee or agent on behalf of such holders) to cause (determined
without regard to whether any notice or lapse of time is required)
any such Indebtedness to become due prior to its stated maturity;
(B) any such Indebtedness shall be declared due and payable, or
required to be prepaid other than by a regularly scheduled required
prepayment prior to the stated maturity thereof, or required to be
repurchased; or (C) any such Indebtedness shall mature and remain
unpaid.
(h) Judgments. Any judgment, order, or decree (including, without
limitation, any judgment, order, or decree with respect to any litigation
disclosed pursuant to the Credit Documents) shall be entered against any
one or more of the Credit Parties involving a liability of $25,000,000 or
more (to the extent not paid or covered by insurance provided by a carrier
who has acknowledged coverage and in any event not including any
Non-Recourse Land Financing), and such judgment, order or decree (i) is
the subject of any enforcement proceeding commenced by any creditor or
(ii) shall continue unsatisfied, undischarged and unstayed for a period
ending on the first to occur
74
of (A) the last day on which such judgment, order or decree becomes final
and unappealable or (B) 30 days.
(i) ERISA. The occurrence of any of the following events or
conditions: (A) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall arise
on the assets of any Credit Party, any of its Subsidiaries or any ERISA
Affiliate in favor of the PBGC or a Plan; (B) a Termination Event shall
occur with respect to a Single Employer Plan, which is, in the reasonable
opinion of the Administrative Agent, likely to result in the termination
of such Plan for purposes of Title IV of ERISA; (C) a Termination Event
shall occur with respect to a Multiemployer Plan or Multiple Employer
Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in (i) the termination of such Plan for purposes of Title
IV of ERISA, or (ii) any Credit Party, any of its Subsidiaries or any
ERISA Affiliate incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan; or
(D) any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject any Credit Party, any of its Subsidiaries or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which any Credit Party, any of its
Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default, and
at any time thereafter unless and until such Event of Default has been waived in
writing by the Required Lenders (or the Lenders as may be required hereunder),
the Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrower, take the following actions without
prejudice to the rights of the Administrative Agent or any Lender or LC Issuer
to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments and the obligation and power of the LC Issuers
to issue Facility LCs shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by a Credit Party
to any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
75
(c) Facility LC Collateral Account. Demand that the Borrower pay,
and the Borrower shall be and become thereby unconditionally obligated to
pay, to the Administrative Agent an amount in immediately available funds,
which funds shall be held in the Facility LC Collateral Account, equal to
the difference of (x) the amount of LC Obligations at such time, less (y)
the amount (if any) on deposit in the LC Collateral Account at such time
which is free and clear of all rights and claims of third parties and has
not been applied against the Credit Party Obligations (such difference,
the "Collateral Shortfall Amount").
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without
limitation, all rights and remedies against a Guarantor and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then (i) the Commitments and the obligation and power of the
LC Issuers to issue Facility LCs shall automatically terminate, (ii) all Loans,
all accrued interest in respect thereof, all accrued and unpaid fees and other
Credit Party Obligations shall immediately become due and payable and (iii) the
Borrower will also forthwith, and without any notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account, all without the giving of any
notice or other action by the Administrative Agent or the Lenders, which notice
or other action is expressly waived by the Borrower.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 FACILITY LC COLLATERAL ACCOUNT.
(a) If at any time while any Event of Default is continuing, the
Administrative Agent determines that the Collateral Shortfall Amount at
such time is greater than zero, the Administrative Agent may, and at the
direction of the Required Lenders shall, make demand on the Borrower to
pay, and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(b) Subject to the provision of subsection (e) of this Section 9.3
the Administrative Agent may, at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Credit Party Obligations and any other amounts as shall
from time to time have become due and payable by the Borrower to the
Lenders or LC Issuers under the Credit Documents.
(c) At any time while any Event of Default is continuing, neither
the Borrower nor any Person claiming on behalf of or through the Borrower
shall have any right to withdraw any of the funds held in the Facility LC
Collateral Account. After all of the Credit Party Obligations have been
indefeasibly paid in full and the Commitments
76
have been terminated and no Facility LCs remain outstanding, any funds
remaining in the Facility LC Collateral Account shall be returned by the
Administrative Agent to the Borrower or paid to whomever may be legally
entitled thereto at such time.
(d) Subject to the provision of subsection (e) of this Section 9.3
if at any time at which funds are being held in the Facility LC Collateral
Account there exists no Event of Default, or the Required Lenders (or the
Lenders as may be required hereunder) have waived in writing any such
Event of Default, the Administrative Agent shall, upon written request of
the Borrower, return such funds to the Borrower.
(e) As long as no Event of Default has occurred that is continuing
funds deposited in the Facility LC Collateral Account pursuant to Section
2.5(a)(v) may be applied by the Administrative Agent solely to the
Reimbursement Obligations and shall be returned to the Borrower upon the
Borrower's request from time to time to the extent that such funds exceed
the amount by which the LC Obligations exceed the Revolving Committed
Amount.
9.4 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent or any of the Lenders or LC Issuers in connection
with enforcing the rights of the Lenders or LC Issuers under the Credit
Documents;
SECOND, to payment of any fees owed to the Administrative Agent or
any Lender or LC Issuer;
THIRD, to the payment of all accrued interest payable to the Lenders
hereunder and all other obligations (other than those obligations to be
paid pursuant to clause "FOURTH" or clause "FIFTH" below) which shall have
become due and payable under the Credit Documents and not repaid pursuant
to clauses "FIRST" and "SECOND" above;
FOURTH, to the payment of the outstanding principal amount of the
Loans and Reimbursement Obligations, pro rata as set forth below;
FIFTH, to the Administrative Agent for deposit in the Facility LC
Collateral Account to the extent of any Collateral Shortfall Amount; and
SIXTH, to the payment of the surplus, if any, to whomever may be
lawfully entitled to receive such surplus.
77
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT; NATURE OF RELATIONSHIP.
Bank One is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Administrative Agent") hereunder and
under each other Credit Document, and each of the Lenders irrevocably authorizes
the Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Credit
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Section 10.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Credit Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Credit Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of the term "secured party"
as defined in the Illinois Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Credit Documents. Each of
the Lenders hereby agrees to assert no claim against the Administrative Agent on
any agency theory or any other theory of liability for breach of fiduciary duty,
all of which claims each Lender hereby waives.
10.2 POWERS.
The Administrative Agent shall have and may exercise such powers under the
Credit Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Credit Documents to be taken by the
Administrative Agent.
10.3 GENERAL IMMUNITY.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower, the Lenders or any Lender
or LC Issuer for any action taken or omitted to be taken in good faith by it or
them hereunder or under any other Credit Document or
78
in connection herewith or therewith except to the extent such action or inaction
is determined in a final non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct of
such Person or from breach of such Person's express obligations under this
Agreement.
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made in
connection with any Credit Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Credit Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Section 5, except receipt of items required to be
delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Event of Default or Default (other than an Event of Default
under Section 9.1(a)); (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Credit Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any Guarantor or of any of the Borrower's
or any such Guarantor's respective Subsidiaries. The Administrative Agent shall
promptly provide the Lenders with copies of all notices of Default sent pursuant
to this Agreement, any written notice relating to changes in the Borrower's debt
ratings that affect the Senior Debt Rating received from the Borrower or a
ratings agency, any documents received by the Administrative Agent pursuant to
Section 7.1 (except to the extent that the Borrower has furnished the same
directly to the Lenders) and any other document or notice received by the
Administrative Agent with respect to this Agreement and requested in writing by
any Lender. The Administrative Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Borrower to the
Administrative Agent at such time, but is voluntarily furnished by the Borrower
to the Administrative Agent (either in its capacity as Administrative Agent or
in its individual capacity).
10.5 ACTION ON INSTRUCTIONS OF LENDERS.
The Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder and under any other Credit Document in
accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Credit Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Credit Document
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
79
10.6 EMPLOYMENT OF AGENTS AND COUNSEL.
The Administrative Agent may execute any of its duties as Administrative
Agent hereunder and under any other Credit Document by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Administrative Agent
and the Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Credit Document.
10.7 RELIANCE ON DOCUMENTS; COUNSEL.
The Administrative Agent shall be entitled to rely upon any Note, notice,
consent, certificate, affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Administrative Agent, which counsel may be employees of
the Administrative Agent.
10.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion of their respective Pro Rata Shares (i) for any amounts
not reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Credit Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Credit Documents (including, without limitation, for any
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Credit
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders), or the enforcement of any of the terms of the Credit
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Administrative
Agent and (ii) any indemnification required pursuant to Section 3.13(b)(iv)
shall, notwithstanding the provisions of this Section 10.8, be paid by the
relevant Lender in accordance with the provisions thereof. The obligations of
the Lenders under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
80
10.9 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Event of Default or Default hereunder (other than an
Event of Default under Section 9.1(a)) unless the Administrative Agent has
received written notice from a Lender or the Borrower referring to this
Agreement describing such Event of Default or Default and stating that such
notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.
10.10 RIGHTS AS A LENDER.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers hereunder and under any other Credit
Document with respect to its Commitments and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Credit Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person.
10.11 LENDER CREDIT DECISION.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Arranger or any other Lender and based on the
financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Credit Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Credit Documents.
10.12 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower, such resignation to be effective upon
the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, sixty (60) days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders, provided that, as
long as no Event of Default has occurred that is continuing, such removal shall
be subject to the approval of the Borrower, not to be unreasonably withheld or
delayed. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent, provided that, as long as no Event of Default has occurred
that is continuing, the appointment of such successor Administrative Agent shall
be subject to the approval of the Borrower, not to be unreasonably withheld or
delayed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders within sixty (60) days after the resigning Administrative
Agent's giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent, provided that, as long as no Event of Default
has occurred that is continuing, the appointment of such successor
Administrative Agent shall be subject to the
81
approval of the Borrower, not to be unreasonably withheld or delayed.
Notwithstanding the previous sentence, the Administrative Agent may at any time
without the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Credit Documents. After the
effectiveness of the resignation or removal of an Administrative Agent, the
provisions of this Section 10 shall continue in effect for the benefit of such
Administrative Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder and under the other
Credit Documents. In the event that there is a successor to the Administrative
Agent by merger, or the Administrative Agent assigns its duties and obligations
to an Affiliate pursuant to this Section 10.12, then the term "Prime Rate" as
used in this Agreement shall mean the prime rate, base rate or other analogous
rate of the new Administrative Agent.
10.13 ADMINISTRATIVE AGENT AND ARRANGER FEES.
The Borrower agrees to pay to the Administrative Agent and the Arranger,
for their respective accounts, the fees agreed to by the Borrower, the
Administrative Agent and the Arranger pursuant to the Fee Letter or as otherwise
agreed from time to time.
10.14 DELEGATION TO AFFILIATES.
The Borrower and the Lenders agree that the Administrative Agent may
delegate any of its duties under this Agreement to any of its Affiliates. Any
such Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the
same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Sections 10 and 11.
82
10.15 AUTHORIZATION OF INTERCREDITOR AGREEMENT.
Each of the Lenders hereby authorizes the Administrative Agent to enter
into the Intercreditor Agreement on their behalf and to carry out the
responsibilities and exercise the powers afforded the Administrative Agent
therein.
10.16 DOCUMENTATION AGENT, SYNDICATION AGENT, ETC.
None of the Lenders identified in this Agreement as a Co-Agent,
Documentation Agent, Managing Agent or Syndication Agent 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,
none of such Lenders shall have or be deemed to have a fiduciary relationship
with any Lender. Each Lender hereby makes the same acknowledgments with respect
to such Lenders as it makes with respect to the Administrative Agent in Section
10.11.
10.17 BENEFITS OF SECTION 10.
None of the provisions of this Section 10 shall inure to the benefit of
the Borrower or of any Person other than Administrative Agent and each of the
Lenders and their respective successors and permitted assigns. Accordingly,
neither the Borrower nor any Person other than Administrative Agent and the
Lenders (and their respective successors and permitted assigns) shall be
entitled to rely upon, or to raise as a defense, the failure of the
Administrative Agent or any Lenders to comply with the provisions of this
Section 10.
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered in writing, (b) when transmitted via telecopy (or other facsimile
device) to the number set out below, (c) the Business Day following the day on
which the same has been delivered prepaid (or on an invoice basis) to a
reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in the case of the Borrower or the Administrative Agent to the
respective address or telecopy numbers set forth on Schedule 11.1, to the
Lenders at the respective address and telecopy number set forth in the
Administrative Questionnaire delivered to the Administrative Agent or in any
case at such other address as any such party may specify by written notice to
the other parties hereto.
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in Section
9.2, each Lender, and each Affiliate of such Lender, is authorized at any time
and from time to time, without presentment, demand, protest or
83
other notice of any kind (all of which rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits (general or special)
and any other indebtedness at any time held or owing by such Lender or its
Affiliates (including, without limitation, branches or agencies of such Lender
or its Affiliates wherever located) to or for the credit or the account of any
Credit Party or any of its Subsidiaries against the Credit Party Obligations of
such Credit Party, irrespective of whether the Administrative Agent or the
Lenders shall have made any demand hereunder and although such Credit Party
Obligations may be contingent or unmatured, and any such set-off shall be deemed
to have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. The Borrower hereby agrees that any Person purchasing a participation
in the Loans and Commitments hereunder pursuant to Section 11.3(e) or 3.8 may
exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties
may assign and transfer any of its interests (except as permitted by
Section 8.4 or 8.5) without the prior written consent of the Lenders; and
provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall be
limited as set forth below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its Loans,
its Notes, and its Commitments); provided, however, that:
(i) unless each of the Administrative Agent and (as long as no
Event of Default exists) Borrower otherwise agrees, any such partial
assignment shall be (A) in an amount at least equal to $5,000,000 or
an integral multiple of $1,000,000 in excess thereof or (B) in an
amount equal to such Lender's entire remaining Commitment;
(ii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations
under this Credit Agreement and the Notes; and
(iii) the parties to such assignment shall execute and deliver
to the Administrative Agent for its acceptance an assignment
agreement in substantially the form of Exhibit 11.3(b) (each an
"Assignment Agreement"), together with a processing fee from the
assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to
84
the extent of such assignment, relinquish its rights (except its rights
with respect to indemnification under the Credit Documents accruing prior
to such assignment) and be released from its obligations under this Credit
Agreement. Upon the consummation of any assignment pursuant to this
Section 11.3(b), the assignor, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are
issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of taxes in
accordance with Section 3.13.
By executing and delivering an Assignment Agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (A) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and the assignee warrants that
it is an Eligible Assignee; (B) except as set forth in clause (A) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement, any
of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial condition
of any Credit Party or any of its Subsidiaries or the performance or
observance by any Credit Party of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (C) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment Agreement; (D) such assignee confirms that it has received a
copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment Agreement; (E)
such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender, and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Credit Agreement and the other Credit Documents; (F)
such assignee appoints and authorizes the Administrative Agent to take
such action on its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (G) such assignee agrees
that it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
85
Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement executed
by the parties thereto, together with any Note subject to such assignment
and payment of the processing fee, the Administrative Agent shall, if such
Assignment Agreement has been completed and is in substantially the form
of Exhibit 11.3(b) hereto, (i) accept such Assignment Agreement, (ii)
record the information contained therein in the Register and (iii) give
prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one or
more Persons in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of its
Commitments and its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be entitled
to the benefit of the yield protection provisions contained in Sections
3.9 through 3.14, inclusive, and the right of set-off contained in Section
11.2, (iv) the Borrower shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Credit Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its
Notes and to approve any amendment, modification, or waiver of any
provision of this Credit Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Notes, extending any scheduled
principal payment date or date fixed for the payment of interest on such
Loans or Notes or fees (other than Administrative Fees) (other than as a
result of the extension of the Maturity Date in accordance with the terms
of Section 2.5), postponing the expiry date of any Facility LC beyond the
Maturity Date, extending its Commitments or releasing all or substantially
all of the Guarantors) and (v) such Lender shall provide written notice of
any participation to the Borrower and the Administrative Agent.
(f) Nonrestricted Assignments. Notwithstanding any other provision
set forth in this Credit Agreement, any Lender may at any time assign and
pledge all or any portion of its Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Lender from its obligations hereunder.
(g) Information. Any Lender may furnish any information concerning
the Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants), subject, however, to the provisions of
Section 11.16.
86
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any
of its Subsidiaries and the Administrative Agent or any Lender shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle
any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Borrower agrees to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) the Administrative Agent and Arranger in connection
with (A) the negotiation, preparation, execution and delivery, syndication
and administration of this Credit Agreement and the other Credit Documents
and the documents and instruments referred to therein, and (B) any
amendment, waiver or consent relating hereto and thereto including, but
not limited to, any such amendments, waivers or consents resulting from or
related to any work-out, renegotiation or restructure relating to the
performance by the Credit Parties under this Credit Agreement (including,
without limitation, in the case of either (A) or (B) above, the reasonable
fees and expenses of counsel to the Administrative Agent, who may or may
not be employees of the Administrative Agent) and (ii) the Administrative
Agent and the Lenders in connection with (A) enforcement and collection of
the Credit Documents and the documents and instruments referred to
therein, including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent, who may or may not be employees of the
Administrative Agent and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party or any of its Subsidiaries and (b)
indemnify the Administrative Agent, Arranger, each Lender and each of
their officers, directors, employees, representatives, Affiliates and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses (including, without limitation,
the reasonable fees and expenses of legal counsel (including the allocated
cost of internal counsel) and settlement costs incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of,
any investigation, litigation or other proceeding (whether or not the
Administrative Agent, Arranger or any Lender is a party thereto) related
to (i) the entering into and/or performance of any Credit Document or the
use of proceeds of any Loans (including other Extensions of Credit)
hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, the reasonable fees
and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding, (ii) any Environmental
Claim, (iii) any claims for Non-Excluded Taxes (but excluding in the case
of clauses (i), (ii) and (iii) above, any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross
negligence or willful misconduct on the part of the Person to be
indemnified).
87
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Subject to the provisions of the last paragraph of this Section 11.6,
neither this Credit Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
and signed by the Required Lenders and the Credit Parties that are parties to
the Credit Document being amended, changed or terminated or with respect to
which such waiver or discharge is being given; provided that no such amendment,
change, waiver, discharge or termination shall without the consent of each
Lender affected thereby:
(a) extend the Maturity Date (other than with the consent of the
Extension Required Lenders pursuant to Section 2.5) or extend the expiry
date of any Facility LC beyond the Maturity Date;
(b) reduce the rate or extend the time of payment of interest or
fees hereunder (it being understood and agreed that a waiver of the
applicability of any post-default increase in interest rates shall not
constitute a reduction in the rate of interest for purposes of this clause
(b));
(c) reduce or waive the principal amount, or extend the date for
payment of any Loan or any Reimbursement Obligation;
(d) increase or extend any Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default or
a waiver of any mandatory reduction in the Commitments or any increase in
the Revolving Committed Amount pursuant to Section 2.1(e) shall not
constitute a change in the terms of any Commitment of any Lender);
(e) except as the result of or in connection with a merger or other
disposition of a Credit Party permitted under Section 8.4, (i) release the
Borrower from its obligations under the Credit Documents or (ii) release
any Credit Party that individually or, together with any other Credit
Party previously released or to be released simultaneously therewith,
cumulatively accounts for more than 5% of Tangible Net Worth from its
obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6 or
Section 3.4(a), 3.4(d), 3.7, 3.8, 5.1, 5.2, 9.1(a), 11.2, 11.3 or 11.5;
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders set forth in Section 1.1; or
(h) consent to the assignment or transfer by a Borrower or all or
substantially all of the other Credit Parties of any of its or their
rights and obligations under (or in respect of) the Credit Documents
except as permitted thereby.
88
Notwithstanding the above, no provision of Section 10 may be amended or modified
without the consent of the Administrative Agent. No provision affecting the
Swingline Loans may be amended or modified without the consent of the Swingline
Lender. No provision affecting an LC Issuer may be amended or modified without
its consent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, LC
Obligations or any other Credit Party Obligations and each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein and (y) the Required Lenders may
consent to allow a Credit Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts, each
of which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts
by telecopy shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter (other than those provided for in Section 11.6(b), (c)
and (d)) requiring the consent of all the Lenders; provided, however, that all
other benefits and obligations under the Credit Documents shall apply to such
Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Credit Extensions, and the repayment of the Loans and other
Credit Party Obligations and the termination of the Commitments hereunder.
11.11 GOVERNING LAW; JURISDICTION.
(a) CHOICE OF LAW. THE CREDIT DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE
89
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO BANKS.
(b) CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS
STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER OR LC ISSUER TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER
OR LC ISSUER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT ANY LENDER OR LC
ISSUER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY CREDIT DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN CHICAGO, ILLINOIS.
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent, to
promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
90
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents and the Fee
Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.16 CONFIDENTIALITY.
Each Lender agrees to hold any confidential information which it may
receive from the Borrower pursuant to this Agreement in confidence, except for
disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, who shall be advised of and directed to maintain the confidentiality
of such information, (ii) to legal counsel, accountants, and other professional
advisors to such Lender or to an assignee or participant of a Lender, who shall
be advised of and directed to maintain the confidentiality of such information,
(iii) to regulatory officials, (iv) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which such Lender is a party, (vi) to such Lender's
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties, who
shall be advised of and directed to maintain the confidentiality of such
information, (vii) permitted by Section 11.3(g) and (viii) to rating agencies if
requested or required by such agencies in connection with a rating relating to
the Loans and other Extensions of Credit hereunder. Notwithstanding anything
herein to the contrary, confidential information shall not include, and each
Lender (and each employee, representative or other agent of any Lender) may
disclose to any and all Persons, without limitation of any kind, the "tax
treatment" and "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are or
have been provided to such Lender relating to such tax treatment or tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning such tax treatment or tax structure
of the transactions contemplated hereby as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to such tax treatment or tax structure.
11.17 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time when
all of the conditions set forth in Section 5.1 have been satisfied or
waived by the Lenders and it shall have been executed by the Borrower and
the Administrative Agent, and the Administrative Agent shall have received
copies hereof (telefaxed or otherwise) which, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, interest, fees and other
Credit Party Obligations have been paid in full and all Commitments have
been terminated. Upon termination, the Credit
91
Parties shall have no further obligations (other than the indemnification
provisions that survive and any other provisions that by their terms
survive) under the Credit Documents; provided that should any payment, in
whole or in part, of the Credit Party Obligations be rescinded or
otherwise required to be restored or returned by the Administrative Agent
or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall automatically
be reinstated and all amounts required to be restored or returned and all
costs and expenses incurred by the Administrative Agent or Lender in
connection therewith shall be deemed included as part of the Credit Party
Obligations.
11.18 NO CONSEQUENTIAL DAMAGES.
Each party hereto waives any claim for consequential damages by reason of
the breach of any provision of the Credit Documents by any other party.
11.19 USA PATRIOT ACT. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56) (signed into law October 26,
2001)) (the "Act") hereby notifies the Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.
SIGNATURES FOLLOW BEGINNING ON PAGE 95
92
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
PULTE HOMES, INC.,
a Michigan corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
93
LENDERS:
BANK ONE, NA,
individually in its capacity as a Lender and
in its capacity as the Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
94
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
95
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
CITICORP NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
96
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
97
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
98
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
99
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
100
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
101
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
102
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
UBS LOAN FINANCE LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
Title: Director, Banking Products Services, US
By: /s/ Winslowe Ogbourne
Title: Associate Director, Banking
Products Services, US
103
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
104
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Principal
105
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Kazuya Matsushita
Title: General Manager
106
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
CALYON NEW YORK BRANCH
By: /s/ Attila Coach
Title: Senior Vice President
By: /s/ Philippe Soustra
Title: Executive Vice President
107
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
GUARANTY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
108
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP & Team Leader
109
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
110
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
STANDARD FEDERAL BANK N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Commercial Banking Officer
111
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
WASHINGTON MUTUAL BANK, FA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
112
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
FIFTH THIRD BANK, EASTERN MICHIGAN
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: AVP
113
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
COMPASS BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
114
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
BANK OF HAWAII
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
115
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
CATHAY UNITED BANK LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Title: VP & Deputy General Manager
116
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
THE NORINCHUKIN BANK, NEW YORK
BRANCH
By: /s/ Toshifumi Tsukitani
Title: General Manager
117
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
118
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
LAND BANK OF TAIWAN LOS ANGELES
BRANCH
By: /s/ Hui-Jou Cheng
Title: AVP & Deputy General Manager
119
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
BANK OF COMMUNICATIONS, NEW YORK
BRANCH
By: /s/ Hong Tu
Tile: General Manager
120
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT WITH
PULTE HOMES, INC.
TAIPEIBANK, NEW YORK AGENCY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: V.P. & General Manager
121
SCHEDULE 1
LENDER COMMITMENT PRO RATA SHARE
------------------------------------------------- ----------------- --------------
Bank One, NA $ 70,000,000.00 5.34351145%
Citicorp North America, Inc. $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
Barclays Bank PLC $ 70,000,000.00 5.34351145%
BNP Paribas $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
Comerica Bank $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
Deutsche Bank Trust Company Americas $ 70,000,000.00 5.34351145%
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
SunTrust Bank $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
The Royal Bank of Scotland plc $ 70,000,000.00 5.34351145%
UBS Loan Finance LLC $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
Wachovia Bank, National Association $ 70,000,000.00 5.▇▇▇▇▇▇▇▇%
Bank of America, N.A $ 50,000,000.00 3.816793893%
The Bank of Tokyo-Mitsubishi Ltd., Chicago Branch $ 50,000,000.00 3.816793893%
CALYON New York Branch $ 50,000,000.00 3.816793893%
Guaranty Bank $ 50,000,000.00 3.816793893%
Mizuho Corporate Bank, Ltd. $ 50,000,000.00 3.816793893%
PNC Bank, National Association $ 50,000,000.00 3.816793893%
Standard Federal Bank N.A. $ 45,000,000.00 3.435114503%
Washington Mutual Bank, FA $ 40,000,000.00 3.053435114%
Fifth Third Bank, Eastern Michigan $ 35,000,000.00 2.671755725%
Compass Bank $ 25,000,000.00 1.908396946%
Bank of Hawaii $ 15,000,000.00 1.145038167%
Cathay United Bank, Ltd. $ 15,000,000.00 1.145038167%
The Norinchukin Bank, New York Branch $ 15,000,000.00 1.145038167%
The Northern Trust Company $ 15,000,000.00 1.145038167%
Land Bank of Taiwan Los Angeles Branch $ 15,000,000.00 1.145038167%
Bank of Communications, New York Branch $ 10,000,000.00 0.763358778%
TaipeiBank, New York Agency $ 10,000,000.00 0.763358778%
TOTAL $1,310,000,000.00 100%
SCHEDULE 1.1(b)
EXISTING LETTERS OF CREDIT
1
SCHEDULE 1.1(c)
PERMITTED LIENS
None
1
SCHEDULE 6.10
INDEBTEDNESS
None
1
SCHEDULE 6.11
LITIGATION
None
1
Schedule 6.15
Subsidiaries as of September 15, 2004
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
1. 56th and Lone Mountain, L.L.C. Arizona ▇▇▇ ▇▇▇▇'▇ Coventry Homes, Inc. 50% No
2. Abacoa Homes, Inc. Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
3. American Title of the Palm Beaches Michigan 1,000 Pulte Diversified Companies, 1,000 100% No
Corporation Inc.
4. Andrea's Court, S.E. Puerto Rico Pulte International Building 50% No
Corp.
5. Anthem Arizona L.L.C. (Arizona) Arizona Bellasera Corp. 100% No Yes
6. Asset Five Corp. Arizona 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
7. Asset One Corp. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
8. Asset Seven Corp. Arizona 1,711 ▇▇▇ ▇▇▇▇ Corporation 1,711 89% No Yes
9. August ▇▇▇▇▇, LLC Maryland Pulte Home Corporation 100% No
10. BMD Development, LLC Michigan PHNE Business Trust 100% No
11. Bel North, LLC Maryland Wil Corporation 100% No
12. ▇▇▇▇▇▇▇▇▇▇▇ Properties LLC Michigan Pulte Homes of Ohio L.L.C. 100% No
13. Campus Lakes, LLC Maryland Pulte Home Corporation 100% No
14. ▇▇▇▇'▇ ▇▇▇▇▇, L.L.C. Maryland Pulte Home Corporation 100% No
15. ▇▇▇▇▇▇▇▇ ▇▇ Basin, LLC Michigan ▇▇▇▇▇▇▇▇ Natural Resources 100% No
Corp.
16. ▇▇▇▇▇▇▇▇ Natural Resources Michigan 1,000 Pulte Home Corporation 1,000 100% No
Corporation
17. Chase Triple M, LLC Delaware Pulte Home Corporation 51.61% No
18. City Homes Development L.L.C. Michigan Pulte Homes, Inc. 50% No
19. Ciudad Riviera, S.A. de C.V. Mexico 500 Controladora PHC, S.A. DE C.V. 500 25% No
20. ▇▇▇▇▇▇▇▇▇, L.L.C. Michigan 100 Pulte Home Corporation 100 100% No
21. Coachman Development, LLC Michigan Pulte Homes of New Engkand, LLC 100% No
22. Consorcio Inmobiliario Su Casita, Mexico Hipotecaria Su Casita, S.A. 99% No
S.A. de C.V. de C.V.
23. Contractors Insurance Company of Hawaii NABIC/Pulte Homes, Inc.
North America, Inc. a Risk
Retention Group
24. Controladora PHC, S.A. DE C.V. Mexico 499,955 Pulte International-Mexico, 499,955 99.99% No
Inc.
Pulte Home Corporation 0.01%
25. Corporacion Activa de Servicios de Mexico Hipotecaria Su Casita, S.A. de 99%
Administracion, S.A. de C.V. C.V.
26. Corta Bella Golf Club, LLC Michigan Pulte Home Corporation 100% No
27. ▇▇▇▇ Realty Company Michigan 100 Pulte Home Corporation 100 100% No
28. Del ▇. ▇▇▇▇ Development Co., L.P. Delaware ▇▇▇ ▇▇▇▇ Communities, Inc. 99% No
▇▇▇ ▇▇▇▇ Construction 1%
Services Co.
1
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
29. Del ▇. ▇▇▇▇ Financial Corporation Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
30. Del ▇. ▇▇▇▇ Foothills Corporation Arizona 1,000 ▇▇▇ ▇▇▇▇ Commercial Properties 1,000 100% No
Corporation
31. Del ▇. ▇▇▇▇ Land Conservancy Arizona
32. ▇▇▇ ▇▇▇▇ California Corp. Arizona 250 ▇▇▇ ▇▇▇▇ Corporation 250 100% No Yes
33. ▇▇▇ ▇▇▇▇ Commercial Properties Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
Corporation
34. ▇▇▇ ▇▇▇▇ Communties of Illinois, Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
Inc.
35. ▇▇▇ ▇▇▇▇ Communities of ▇▇▇▇▇▇▇, Arizona 1,000 ▇▇▇ ▇▇▇▇'▇ Coventry Homes, Inc. 1,000 100% No Yes
Inc.
36. ▇▇▇ ▇▇▇▇ Communities, Inc. Arizona 751,852 ▇▇▇ ▇▇▇▇ Corporation 751,852 100% No Yes
37. ▇▇▇ ▇▇▇▇ Community Management Co. Arizona 1,000 Pulte Arizona Services, Inc. 1,000 100% No
38. ▇▇▇ ▇▇▇▇ Construction Services Co. Arizona 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
39. ▇▇▇ ▇▇▇▇ Corporation Delaware 100 Pulte Homes, Inc. 100 100% No Yes
40. ▇▇▇ ▇▇▇▇ Golf Corp. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
41. ▇▇▇ ▇▇▇▇ Home Construction, Inc. Arizona 100 ▇▇▇ ▇▇▇▇ Communities, Inc 100 100% No Yes
42. ▇▇▇ ▇▇▇▇ Homes, Inc. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
43. ▇▇▇ ▇▇▇▇ Limited Holding Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No Yes
44. ▇▇▇ ▇▇▇▇ Midatlantic Corp. Arizona 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
45. ▇▇▇ ▇▇▇▇ Mortgage LLC Delaware Pulte Mortgage LLC 100% No
46. ▇▇▇ ▇▇▇▇ Property Corp. Arizona 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
47. ▇▇▇ ▇▇▇▇ Purchasing Company of Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
Illinois, Inc.
48. ▇▇▇ ▇▇▇▇ Southwest Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Construction Services 1,000 100% No
Co.
49. ▇▇▇ ▇▇▇▇ Texas Limited Partnership Arizona ▇▇▇ ▇▇▇▇ Limited Holding Co. 99% No Yes
▇▇▇ ▇▇▇▇ Southwest Co. 1%
50. ▇▇▇ ▇▇▇▇ Texas Title Agency Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Southwest Co 1,000 100% No
51. ▇▇▇ ▇▇▇▇ Title Company of Nevada, Nevada 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
Inc.
52. ▇▇▇ ▇▇▇▇'▇ Contracting Services, Arizona 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No
Inc.
53. ▇▇▇ ▇▇▇▇'▇ Coventry Homes Arizona 1,000 ▇▇▇ ▇▇▇▇'▇ Coventry Homes, Inc. 1,000 100% No Yes
Construction Co.
54. ▇▇▇ ▇▇▇▇'▇ Coventry Homes of Nevada Arizona 1,000 ▇▇▇ ▇▇▇▇'▇ Coventry Homes, Inc. 1,000 100% No
55. ▇▇▇ ▇▇▇▇'▇ Spruce Creek Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
Communities, Inc.
56. ▇▇▇ ▇▇▇▇'▇ Sunflower of Tucson, Inc. Arizona 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc. 1,000 100% No
57. ▇▇▇ ▇▇▇▇'▇ Coventry Homes, Inc. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
58. Desarrolladous Urbanos (Canooanas) Puerto Rico Pulte International Building 50% No
SE
59. Devtex Land, L.P. Texas ▇▇ ▇▇, Inc. 99.90% No
PN I, Inc. 0.10%
60. DiVosta Homes, L.P. Delaware PH5 Corporation 99% No Yes
DiVosta Homes Holdings, LLC 1%
61. DiVosta Building Corporation Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
62. DiVosta Homes Holdings, LLC Delaware PH5 Corporation
2
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
63. DiVosta Homes Marketing, Inc. Florida 1,000 DiVosta Homes, L.P. 1,000 100% No
64. DiVosta Homes Sales, Inc. Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
65. DW Aviation Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
66. DW Homebuilding Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
67. Edinburgh Realty Corporation Michigan 10,000 Pulte Home Corporation 10,000 100% No
68. Fallsgrove Associates LLC Maryland Pulte Home Corporation 35.36% No
69. Fideicomiso ▇▇▇▇▇▇ ▇▇▇▇▇▇ 222 Pulte Mortgage LLC
70. First Heights Bank, fsb Texas 7,500,100 Pulte Diversified Companies 7,500,100 100% No
71. Florida Building Products, Inc. Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
72. Florida Club Homes, Inc. Florida 5,000 DiVosta Homes, L.P.. 5,000 100% No
73. ▇▇▇ ▇▇▇▇ Retreat, LLC Michigan Pulte Home Corporation 100% No
74. Gatestone, LLC Michigan Pulte Home Corporation 100% No
75. GI Development Business Trust Massachusetts PHNE Business Trust 100% No
76. Grand Place Hayward, LLC California Pulte Home Corporation 100% No
77. Grayhaven Estates Limited, L.L.C. Michigan Pulte Homes, Inc. 99% No
78. Great Island Community, LLC Michigan GI Development Corporation 100% No
79. Guaranteed Mortgage Corporation III Michigan 1,000 Pulte Financial Companies, 1,000 100% No
Inc.
80. H. D. Investments I, LLC Maryland Wil Corporation 100% No
81. ▇▇▇▇▇▇▇▇ Hills, LLC Maryland Pulte Home Corporation 100% No
82. ▇▇▇▇▇▇▇ Pond Development Corporation Michigan 1,000 Pulte Homes of New England, LLC 1,000 100% No
83. Highlands One Maryland Wil Corporation 100% No
84. Hilltop Farms Development, LLC Michigan Pulte Homes of New England LLC 100% No
85. Hipotecaria Su Casita, S.A. de C.V. Mexico 1,320,136 Pulte Mortgage LLC 335,680 22.90% No
86. Homesite Solutions Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
87. HydroSource Acquisition, Inc. Michigan 1,000 Preserve I, Inc. 1,000 100% No
88. Island Walk Development Company Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
89. Island Walk Realty, Inc. Florida 500 DiVosta Homes, L.P. 500 100% No
90. Interesa, S.A. de C.V. Mexico 1,872,688 Fideicomiso (3,395,461 Outst.) No
91. JNN Properties LLC Michigan 100 Pulte Home Corporation 100% No
92. Jersey ▇▇▇▇▇▇▇ LLC New Jersey 100 Preserve I, Inc. 100% No
93. Joliet Mortgage Reinsurance Company Vermont 100 Pulte Mortgage LLC 100 100% No
94. Lexington Oaks Golf Club, Inc. Florida 1,000 Pulte Home Corporation 1,000 100% No
95. Lone Tree Golf Club, LLC Michigan Pulte Home Corporation 100% No
96. ▇▇▇▇▇, ▇▇ Maryland Pulte Home Corporation 100% No
97. MALDP Development Corporation Michigan 1,000 Pulte Homes of New England, LLC 1,000 100% No
98. Marina Operations Corp. Arizona 1,000 Sun City Homes, Inc. 1,000 100% No
99. Marquette Title Insurance Company Vermont 100,000 Pulte Homes, Inc. 100,000 100% No
100. Mayaguez Partners, S. E. Puerto Rico Pulte International Building 50% No
Corp.
3
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
101. Mountain View One LLC Arizona Asset One Corp. 50% No
102. Mountain View Two LLC Arizona ▇▇▇ ▇▇▇▇ Corp. 100% No
103. Nantar, S. DE ▇.▇. DE C.V. Mexico Controladora PHC, S.A. DE C.V. 99.30% No
Pulte International-Mexico, 0.70%
Inc.
104. New Mexico Asset Corporation Arizona 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
105. New Mexico Asset Limited Partnership Arizona New Mexico Asset Corp. 99% No
▇▇▇ ▇▇▇▇ Corp. 1%
106. North American Builders Indemnity Colorado 300,000 Pulte Homes, Inc. 300,000 100% No
Company
107. North Valley Enterprise, LLC Nevada ▇▇▇ ▇▇▇▇ Communities, Inc. 50% No
108. Oceanside Village, LLC Michigan Pulte Homes of New England, LLC 100% No
109. One Willowbrook, L.L.C. Maryland Wil Corporation 50% No
PBW Corporation 50%
110. P & H Clinton Partnership ptrshp-not Pulte Homes of NJ, Limited 100% No
registered Partnership
111. PB Venture L.L.C. Michigan Pulte Homes, Inc. 100% No Yes
112. PBW Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
113. PC/BRE Development L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
114. PC/BRE Springfield, L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
115. PC/BRE Venture L.L.C. Delaware PB Venture L.L.C. 100% No
116. PC/BRE ▇▇▇▇▇▇▇ ▇▇▇▇ L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
117. PC/▇▇▇ ▇▇▇▇▇▇▇▇ L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
118. PCIC Corporation Michigan 1,000 Pulte Mortgage LLC 1,000 100% No
119. PH Arizona LLC Michigan 100 50 -Pulte Home Corporation 100 100% No
50-Pulte Development
Corporation
120. PH1 Corporation Michigan 100 Pulte Homes, Inc. 100% No
121. PH2 Corporation Michigan Pulte Home Corp. 100 100% No
122. PH3 Corporation Michigan 1,000 Divosta Homes, L.P. 1,000 100% No
123. PH4 Corporation Michigan 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
124. PH5 Corporation Michigan Pulte Diversified Companies, 100% No
Inc.
125. PHC Title Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
126. PHM Title Agency L.L.C. Delaware TVM Corporation 63% No
127. PHNE Business Trust Massachusetts Pulte Homes Corporation,
Trustee
128. PHS Virginia Holdings, LLC Michigan PHNE Business Trust 100% No
129. PHS Virginia Limited Partnership Michigan 99% PHNE Business Trust 100% No
1% PHS Virginia Holdings, LLC
130. PHT Building Materials Limited Michigan Pulte Homes of Texas, LP 99% No
Partnership PHT Operating Company, LLC 1%
131. PHT Operating Company LLC Michigan Pulte Homes of Texas, LP 100% No
132. PHT Title Agency, L.P. Texas PHC Title Corporation 99% No
4
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
PHT Title Corporation 1%
133. PHT Title Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
134. PIMI Holdings LLC Michigan Pulte International Corporation 100%
135. PL Roseville, LLC California 50% Pulte Home Corporation 50%
136. PN I, Inc. Nevada 1,000 Pulte Home Corporation 1,000 100% No
137. ▇▇ ▇▇, Inc. Nevada 1,000 Pulte Home Corporation 1,000 100% No Yes
138. PQL Realty Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
139. Potomac Yard Development LLC Delaware 50% Pulte Home Corporation 50% No
140. ▇▇▇▇▇▇ Acquisition, LLC Michigan ▇▇ ▇▇, Inc. 100% No
141. ▇▇▇▇▇▇ Building Systems, Limited Michigan 99% ▇▇▇▇▇▇ Holding Company, 100% No
Partnership L.L.C.
1% ▇▇▇▇▇▇ Building California
LLC
142. ▇▇▇▇▇▇ Building Systems, L.L.C (AZ) Arizona ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
143. ▇▇▇▇▇▇ Building Systems, L.L.C (NV) Nevada ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
144. ▇▇▇▇▇▇ Building California LLC Michigan ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
145. ▇▇▇▇▇▇ Holding Company, L.L.C. Nevada ▇▇▇▇▇▇ Acquisition, LLC 50%
146. Preserve I, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
147. Preserve II, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
148. Pulte Arizona Services, Inc. Michigan 1,000 PH Arizona, LLC 1,000 100% No
149. Pulte Aviation I LLC Michigan Pulte Homes, Inc. 100%
150. Pulte Aviation II LLC Michigan Pulte Homes, Inc. 100%
151. Pulte Bajio Construcciones, S. de Mexico Pulte Mexico, S. de ▇.▇. de 99.99% No
▇.▇. de C.V. C.V. .01%
Pulte International Mexico,
Inc.
152. Pulte Chile Corporation Michigan 1,000 Pulte International Corporation 1,000 100% No
153. Pulte Communities NJ, Limited Michigan Preserve II, Inc. 99% No Yes
Partnership Preserve I, Inc. 1%
154. Pulte de Chile Limitada Chile Pulte Chile Corporation 99% No
Pulte SA Corporation 1%
155. Pulte Development Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
156. Pulte Development New Mexico, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
157. Pulte Diversified Companies, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No Yes
158. Pulte Financial Companies, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No
159. Pulte Funding, Inc. Michigan Pulte Mortgage LLC 100% No
160. Pulte Home Corporation Michigan 1,000 Pulte Diversified Companies, 1,000 100% No Yes
Inc.
161. Pulte Home Corporation of The Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
Delaware Valley
162. Pulte Home Sciences of Virginia, LLC Michigan PHS Virginia, Inc. 100% No
163. Pulte Home Sciences, LLC Michigan Pulte Homes of Michigan LLC 100% No
164. Pulte Homes of Greater Kansas City, Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
Inc.
165. Pulte Homes of Indiana, LLC Indiana ▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇ Homes, Inc. 50% No
Pulte-IN Corporation 50%
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
166. Pulte Homes of Michigan I, Limited Michigan P/MI 99% No
Partnership Pulte MI Holding Corp 1%
167. Pulte Homes of Michigan LLC Michigan Pulte Homes, Inc. 100% No Yes
168. Pulte Homes of Minnesota Corporation Minnesota 1,000 Pulte Home Corporation 1,000 100% No Yes
169. Pulte Homes of New England LLC Michigan PHNE Business Trust 100% No Yes
170. Pulte Homes of New Mexico, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
171. Pulte Homes of New York, Inc. Michigan 10,000 Pulte Home Corporation 10,000 100% No Yes
172. Pulte Homes of NJ, LP Michigan PHC/Delaware Valley 1% No Yes
Preserve II 99%
173. Pulte Homes of Ohio LLC Ohio Pulte Homes, Inc. 100% No Yes
174. Pulte Homes of PA, LP Michigan PHC/Delaware Valley 1% No Yes
Preserve II 99%
175. Pulte Homes of South Carolina, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
176. Pulte Homes of Texas, L.P. Texas Pulte Texas Holdings, Inc. 99.90% No Yes
PN I, Inc. 0.10% No
177. Pulte Homes Tennessee Limited Nevada RN Acquisition 2 Corp. 74.40% No
Partnership Radnor Homes, Inc. 25.60% No
178. Pulte Homes, Inc. Michigan Publicly Traded No
179. Pulte Georgia Holdings LLC Michigan Pulte Home Corporation 100%
180. Pulte Internacional Mexico S. DE Mexico 50,000 Controladora 49,500 99% No
▇.▇. DE ▇.▇. ▇▇▇▇▇ International-Mexico, 500 1%
Inc.
181. Pulte International Building Michigan 1,000 Pulte International Caribbean 1,000 100% No
Corporation Corp.
182. Pulte International Caribbean Corp. Michigan 1,000 Pulte International Corporation 1,000 100% No
183. Pulte International Caribbean II, Michigan 99% Pulte Realty Holdings, Inc. 100%
Limited Partnership 1% Putle RC, LLC
184. Pulte International Corporation Michigan 1,000 Pulte Diversified Companies, 1,000 100% No
Inc.
185. Pulte International Mexico Limited Michigan 1,000 99% Pulte International 1,000 100% No
Partnership Corporation
1% PIMI Holdings LLC
186. Pulte Land Company, LLC Michigan Pulte Homes, Inc. 100% No Yes
187. Pulte Land Development Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
188. Pulte Lifestyle Communities, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
189. Pulte Mexico Asesores Mexico 99.9% Pulte Mexico, S. de 100% No
Inmobiliarios, S. de ▇.▇. de C.V. R.L. de C.V.
.1% Pulte International Mexico
Limited Partnership
190. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Pulte Mexico, S. de ▇.▇. de 99.9% No
C.V. No
Pulte International - .1%
Mexico, Inc.
191. Pulte Mexico Division Norte, S. DE Mexico Pulte Mexico S. DE RL DE C.V. 96.7% No
RL DE ▇.▇. ▇▇▇▇▇ International - 3.3% No
Mexico, Inc.
192. Pulte Mexico, S. de ▇.▇. de C.V. Mexico Controladora PHC, S.A. de C.V. 64% No
6
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
193. Pulte Michigan Holdings Corporation Michigan 10,000 Pulte Home Corporation 100% No
194. Pulte Michigan Services, LLC Michigan Pulte Diversified Companies, 100% No
Inc.
195. Pulte Midwest Title, Inc. Arizona ▇▇▇ ▇▇▇▇ Corporation 100%
196. Pulte Mortgage LLC Delaware Pulte Home Corporation 100% No
197. Pulte Payroll Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
198. Pulte RC, LLC Michigan Pulte Realty Holdings, Inc. 100%
199. Pulte Real Estate Company Florida 200 ▇▇▇▇ Realty Company 200 100% No
200. Pulte Realty Corporation Arizona 1,000 Pulte Homes, Inc. 1,000 100% No Yes
201. Pulte Realty Holdings, Inc. Michigan 60,000 Pulte Homes, Inc. 1,000 100% No
202. Pulte S.R.L. Argentina Pulte Argentina Corporation 50% No
Pulte SRL Corporation 50%
203. Pulte SA Corporation Michigan 1,000 Pulte International Corporation 1,000 100% No
204. Pulte Services California, LLC Michigan Marquette Title Insurance 100% No
Company
205. Pulte Services Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
206. Pulte SRL Holdings, LLC Michigan Pulte International Mexico 100% No
Limited Partnership
207. Pulte Texas Holdings, Inc. Michigan 1,000 PNII, Inc. 1,000 100% No
208. Pulte Title Agency of Michigan, Michigan PHC Title Corporation 49% No
L.L.C.
209. Pulte Title Agency of Minnesota, Minnesota PHC Title Corporation 80% No
L.L.C.
210. Pulte Title Agency of Ohio, Limited Ohio PHC Title Corporation 49% No
Liability Company
211. Pulte Trades of North Carolina, LLC Michigan Pulte Home Corporation 100% No
212. Pulte Urban Renewal, LLC New Jersey Preserve I, Inc. 100%
213. ▇▇▇▇▇.▇▇▇, Inc. Michigan 10,000 Pulte Homes, Inc. 10,000 100% No
214. Pulte-IN Corporation Michigan 1,000 Pulte Homes of Michigan LLC 1,000 100% No Yes
215. Radnor Homes, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No Yes
216. Residencial Riviera, S.A. de C.V. Mexico Controladora PHC, S.A. de C.V. 25% No
217. Residencias del Norte Limitada Chile Pulte Chile Corporation 99.90% No
Pulte SA Corporation 0.10% No
218. Riverwalk of the Palm Beaches Florida 5,000 DiVosta Homes, L.P. 5,000 100% No
Development Company, Inc.
219. RN Acquisition 2 Corp. Nevada 1,000 Pulte Homes, Inc. 1,000 100% No Yes
220. ▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇ Homes, Inc. Michigan 750 Pulte Homes of Michigan LLC 750 100% No Yes
221. Shorepointe Village Homes, L.L.C. Michigan Pulte Homes, Inc. 82.5% No
222. South Natick Hills, LLC Michigan Pulte Homes of New England LLC 100%
223. Spa L Builders LLC California Pulte Home Corporation 38.6% No
224. Springfield Golf Resort, L.L.C. Arizona PC/BRE Springfield L.L.C. 88% No
225. Springfield Realty Corporation Michigan 2,500 Pulte Arizona Services, Inc. 2,500 100% No
226. Spruce Creek South Utilities, Inc. Florida 50 ▇▇▇ ▇▇▇▇'▇ Spruce Creek 50 100% No
(Assets sold to Communities,
7
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------------- ------------- --------- ------------------------------- ---------- ----- ------- --------
Florida Water Utility Co. 6/30/00) Inc.
227. Stetson Ventures II, LLC Arizona Pulte Home Corporation 100% No
228. Sun City Homes, Inc. (formerly Del Nevada 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
▇. ▇▇▇▇ Finance Company)
229. Sun City Sales Corporation Michigan 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No
230. Sun City Title Agency Co. Arizona 100,000 ▇▇▇ ▇▇▇▇ Communities, Inc 100,000 100% No
231. Sun City Title Agency of Illinois, Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
Inc.
232. Sun State Insulation Co., Inc. Arizona 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No
233. Terravita Corp. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
234. Terravita Home Construction Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No Yes
235. Thunderbird Lodge Holding Corp. Arizona 100 ▇▇▇ ▇▇▇▇ Communities, Inc. 100 100% No
236. TVM Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
237. Upper Gwynedd Development, Limited Michigan 99% Preserve II, Inc. 100%
Partnership 1% Pulte Home Corporation of
the Delaware Valley
238. Village Walk Development Company, Florida 5,000 DiVosta Homes, L.P. 5,000 100% No
Inc.
239. Wil Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
240. ▇▇▇▇▇▇ ▇▇ Limited Partnership Maryland PBW Corporation 99% No
Wil Corporation 1%
241. Wilben, LLLP Maryland Wil Corporation 95% No
PBW Corporation 5%
242. ▇▇▇▇▇▇▇▇' Field at Perry Hall, LLC Maryland Wil Corporation 100% No
243. Willow Brook Associates Limited Massachusetts Pulte Homes of New England, LLC 99% No
Partnership
8
SCHEDULE 6.21(b)
INVESTMENTS
None
1
SCHEDULE 6.25
LABOR CONTRACTS AND DISPUTES
None
1
SCHEDULE 11.1
NOTICES
Borrower:
Pulte Homes, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Pulte Homes, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Agent
Bank One, NA
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
1
EXHIBIT 1.1
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of September 16,
2004, by the undersigned (collectively, the "Subsidiary Guarantors") in favor of
the Administrative Agent, for the benefit of the Lenders, under the Credit
Agreement referred to below.
WITNESSETH:
WHEREAS, Pulte Homes, Inc., a Michigan corporation (the "Principal"), and
Bank One, NA, a national banking association having its principal office in
Chicago, Illinois, as Administrative Agent, and certain other Lenders from time
to time party thereto have entered into a certain Amended and Restated Credit
Agreement dated September 16, 2004 (as same may be amended or modified from time
to time, the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for extensions of credit to be made by the Lenders to the Principal;
WHEREAS, the Credit Agreement requires that each of the Subsidiary
Guarantors execute and deliver this Guaranty whereby each of the Subsidiary
Guarantors shall guarantee the payment when due, subject to Section 10 hereof,
of all Guaranteed Obligations, as defined below; and
WHEREAS, in consideration of the financial and other support that the
Principal has provided, and such financial and other support as the Principal
may in the future provide, to the Subsidiary Guarantors, and because each
Subsidiary Guarantor has determined that executing this Guaranty is in its
interest and to its financial benefit, each of the Subsidiary Guarantors is
willing to guarantee the obligations of the Principal under the Credit
Agreement, any Note and the other Credit Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. "Guaranteed Obligations" is defined in Section 4 below.
Other capitalized terms used herein but not defined herein shall have the
meaning set forth in the Credit Agreement.
2. Representations and Warranties. Each of the Subsidiary Guarantors
represents and warrants (which representations and warranties shall be deemed to
have been renewed upon each Extension of Credit under the Credit Agreement)
that:
(a) It (i) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the state (or
other jurisdiction) of its organization, (ii) is duly qualified and in good
standing as a foreign entity and authorized to do business in every
1
jurisdiction unless the failure to be so qualified, in good standing or
authorized would not have or could not be reasonably expected to have a Material
Adverse Effect and (iii) has the requisite power and authority to own its
properties and to carry on its business as now conducted and as proposed to be
conducted.
(b) It (i) has the requisite power and authority to execute, deliver and
perform this Guaranty and any other Credit Document to which it is a party and
to incur the obligations herein and therein provided for and (ii) is duly
authorized to, and has been authorized by all necessary action, to execute,
deliver and perform this Guaranty and any other Credit Document to which it is a
party.
(c) Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by it (i) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws,
(ii) violate, contravene or materially conflict with any Requirement of Law or
any other law, regulation (including, without limitation, Regulation D, O, T, U
or X), order, writ, judgment, injunction, decree or permit applicable to it,
(iii) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which would have or could be reasonably
expected to have a Material Adverse Effect, or (iv) result in or require the
creation of any Lien (other than those contemplated in or created in connection
with the Credit Documents) upon or with respect to its properties.
(d) Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party is required in connection with its execution, delivery or performance of
this Guaranty and any other Credit Agreement to which it is a party.
3. Covenants. Each of the Subsidiary Guarantors covenants that, so long as
any Lender has any Commitment outstanding under the Credit Agreement or any of
the Guaranteed Obligations shall remain unpaid, that it will, and, if necessary,
will enable the Principal to, fully comply with those covenants and agreements
set forth in the Credit Agreement.
4. The Guaranty. Subject to Section 10 hereof, each of the Subsidiary
Guarantors hereby absolutely and unconditionally guarantees, as primary obligor
and not as surety, the full and punctual payment (whether at stated maturity,
upon acceleration or early termination or otherwise, and at all times
thereafter) and performance of the Credit Party Obligations, including without
limitation any such Credit Party Obligations incurred or accrued during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, whether or not allowed or allowable in such proceeding
(collectively, subject to the provisions of Section 10 hereof, being referred to
as the "Guaranteed Obligations"). Upon failure by the Principal to pay
punctually any such amount, each of the Subsidiary Guarantors agrees that it
shall forthwith on demand pay to the Administrative Agent for the benefit of the
Lenders and, if applicable, their Affiliates, the amount not so paid at the
place and in the manner specified in the Credit Agreement, any Note or the
relevant Credit Document, as the case may be. This Guaranty is a guaranty of
payment and
2
not of collection. Each of the Subsidiary Guarantors waives any right to require
the Lenders or the Administrative Agent to ▇▇▇ the Principal, any other
guarantor, or any other person obligated for all or any part of the Guaranteed
Obligations, or otherwise to enforce its payment against any collateral securing
all or any part of the Guaranteed Obligations.
5. Guaranty Unconditional. Subject to Section 10 hereof, the obligations
of each of the Subsidiary Guarantors hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any of the Guaranteed Obligations, by operation of
law or otherwise, or any obligation of any other guarantor of any of the
Guaranteed Obligations, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;
(b) any modification or amendment of or supplement to the Credit
Agreement, any Note or any other Credit Document;
(c) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Principal under the Credit
Agreement, any Note, any Collateral Document, any other Credit Document,
or any obligations of any other guarantor of any of the Guaranteed
Obligations, or any action or failure to act by the Administrative Agent,
any Lender or any Affiliate of any Lender with respect to any collateral
securing all or any part of the Guaranteed Obligations;
(d) any change in the corporate or other legal existence, structure
or ownership of the Principal or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Principal, or any other guarantor
of the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Principal, or any other guarantor of
any of the Guaranteed Obligations;
(e) the existence of any claim, setoff or other rights which the
Subsidiary Guarantors may have at any time against the Principal, any
other guarantor of any of the Guaranteed Obligations, the Administrative
Agent, any Lender or any other Person, whether in connection herewith or
any unrelated transactions;
(f) any invalidity or unenforceability relating to any other
guarantor of any of the Guaranteed Obligations, for any reason related to
the Credit Agreement, any Note on any other Credit Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by any other guarantor of the Guaranteed Obligations, of the
principal of or interest on any Note or any other amount payable under the
Credit Agreement, any Note or any other Credit Document; or
(g) any other act or omission to act or delay of any kind by the
Principal, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any Lender or
3
any other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of any Subsidiary Guarantor's obligations hereunder.
Notwithstanding the foregoing, the Subsidiary Guarantors do not waive defenses
to the Guaranteed Obligations that are available to the Principal, except for
such defenses as may arise by reason of any insolvency, bankruptcy,
reorganization or similar proceeding affecting the Principal.
6. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Subsidiary Guarantors' obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have been
indefeasibly paid in full and the Commitments under the Credit Agreement shall
have terminated or expired. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Principal or any other
party under the Credit Agreement or any other Credit Document is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Principal or otherwise, each of the Subsidiary Guarantor's
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
7. Waivers. Each of the Subsidiary Guarantors irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Principal, any
other guarantor of any of the Guaranteed Obligations, or any other Person.
8. Subrogation. Each of the Subsidiary Guarantors hereby agrees not to
assert any right, claim or cause of action, including, without limitation, a
claim for subrogation, reimbursement, indemnification or otherwise, against the
Principal arising out of or by reason of this Guaranty or the obligations
hereunder, including, without limitation, the payment or securing or purchasing
of any of the Guaranteed Obligations by any of the Subsidiary Guarantors unless
and until the Guaranteed Obligations are indefeasibly paid in full, and any
commitment to lend under the Credit Agreement and any other Credit Documents is
terminated or has expired.
9. Stay of Acceleration. If acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Principal, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other
Credit Document shall nonetheless be payable by each of the Subsidiary
Guarantors hereunder forthwith on demand by the Administrative Agent made at the
request of the Required Lenders.
10. Limitation on Obligations. The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law, or
any state, federal or foreign bankruptcy, insolvency, reorganization or other
law affecting the rights of creditors generally, if the obligations of any
Subsidiary Guarantor under this Guaranty would otherwise be held or determined
to be avoidable, invalid or unenforceable on account of the amount of such
Subsidiary Guarantor's liability under this Guaranty, then, notwithstanding any
other provision
4
of this Guaranty to the contrary, the amount of such liability shall, without
any further action by the Subsidiary Guarantors, the Administrative Agent or any
Lender, be automatically limited and reduced to the highest amount that is valid
and enforceable as determined in such action or proceeding (such highest amount
determined hereunder being the relevant Subsidiary Guarantor's "Maximum
Liability"). This Section 10(a) with respect to the Maximum Liability of the
Subsidiary Guarantors is intended solely to preserve the rights of the
Administrative Agent hereunder to the maximum extent not subject to avoidance
under applicable law, and neither the Subsidiary Guarantor nor any other person
or entity shall have any right or claim under this Section 10(a) with respect to
the Maximum Liability, except to the extent necessary so that the obligations of
the Subsidiary Guarantor hereunder shall not be rendered voidable under
applicable law.
(a) Each of the Subsidiary Guarantors agrees that the Guaranteed
Obligations may at any time and from time to time exceed the Maximum
Liability of each Subsidiary Guarantor, and may exceed the aggregate
Maximum Liability of all other Subsidiary Guarantors, without impairing
this Guaranty or affecting the rights and remedies of the Administrative
Agent hereunder. Nothing in this Section 10(b) shall be construed to
increase any Subsidiary Guarantor's obligations hereunder beyond its
Maximum Liability.
(b) In the event any Subsidiary Guarantor (a "Paying Subsidiary
Guarantor") shall make any payment or payments under this Guaranty or
shall suffer any loss as a result of any realization upon any collateral
granted by it to secure its obligations under this Guaranty, each other
Subsidiary Guarantor (each a "Non-Paying Subsidiary Guarantor") shall
contribute to such Paying Subsidiary Guarantor an amount equal to such
Non-Paying Subsidiary Guarantor's "Pro Rata Share" of such payment or
payments made, or losses suffered, by such Paying Subsidiary Guarantor.
For the purposes hereof, each Non-Paying Subsidiary Guarantor's "Pro Rata
Share" with respect to any such payment or loss by a Paying Subsidiary
Guarantor shall be determined as of the date on which such payment or loss
was made by reference to the ratio of (i) such Non-Paying Subsidiary
Guarantor's Maximum Liability as of such date (without giving effect to
any right to receive, or obligation to make, any contribution hereunder)
or, if such Non-Paying Subsidiary Guarantor's Maximum Liability has not
been determined, the aggregate amount of all monies received by such
Non-Paying Subsidiary Guarantor from the Principal after the date hereof
(whether by loan, capital infusion or by other means) to (ii) the
aggregate Maximum Liability of all Subsidiary Guarantors hereunder
(including such Paying Subsidiary Guarantor) as of such date (without
giving effect to any right to receive, or obligation to make, any
contribution hereunder), or to the extent that a Maximum Liability has not
been determined for any Subsidiary Guarantors, the aggregate amount of all
monies received by such Subsidiary Guarantors from the Principal after the
date hereof (whether by loan, capital infusion or by other means). Nothing
in this Section 10(c) shall affect any Subsidiary Guarantor's several
liability for the entire amount of the Guaranteed Obligations (up to such
Subsidiary Guarantor's Maximum Liability). Each of the Subsidiary
Guarantors covenants and agrees that its right to receive any contribution
under this Guaranty from a Non-Paying Subsidiary Guarantor shall be
subordinate and junior in right of payment to all the Guaranteed
5
Obligations. The provisions of this Section 10(c) are for the benefit of
both the Administrative Agent and the Subsidiary Guarantors and may be
enforced by any one, or more, or all of them in accordance with the terms
hereof.
11. Application of Payments. All payments received by the Administrative
Agent hereunder shall be applied by the Administrative Agent to payment of the
Guaranteed Obligations in the order of priority set forth in Section 9.4 of the
Credit Agreement unless a court of competent jurisdiction shall otherwise
direct.
12. Notices. All notices, requests and other communications to any party
hereunder shall be given or made by telecopier or other writing and telecopied,
or mailed or delivered to the intended recipient at its address or telecopier
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for such purpose by notice to the
Administrative Agent in accordance with the provisions of Section 11.1 of the
Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return-receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or
addressed as aforesaid.
13. No Waivers. No failure or delay by the Administrative Agent or any
Lender in exercising any right, power or privilege 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, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, any Note and the other Credit Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
14. No Duty to Advise. Each of the Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Principal's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks that each of the Subsidiary Guarantors assumes and incurs
under this Guaranty, and agrees that neither the Administrative Agent nor any
Lender has any duty to advise any of the Subsidiary Guarantors of information
known to it regarding those circumstances or risks.
15. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the Lenders and their respective successors and
permitted assigns and in the event of an assignment of any amounts payable under
the Credit Agreement, any Note, or the other Credit Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, shall be
transferred with such indebtedness. This Guaranty shall be binding upon each of
the Subsidiary Guarantors and their respective successors and permitted assigns.
16. Changes in Writing. Neither this Guaranty nor any provision hereof may
be changed, waived, discharged or terminated orally, but only in writing signed
by each of the Subsidiary Guarantors and the Administrative Agent with the
consent of the Required Lenders.
6
17. Costs of Enforcement. Each of the Subsidiary Guarantors agrees to pay
all costs and expenses including, without limitation, all court costs and
attorneys' fees and expenses paid or incurred by the Administrative Agent or any
Lender or any Affiliate of any Lender in endeavoring to collect all or any part
of the Guaranteed Obligations from, or in prosecuting any action against, the
Principal, the Subsidiary Guarantors or any other guarantor of all or any part
of the Guaranteed Obligations.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF ILLINOIS. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN CHICAGO,
ILLINOIS AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER CREDIT DOCUMENTS)
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
SUBSIDIARY GUARANTORS, AND THE ADMINISTRATIVE AGENT AND THE LENDERS ACCEPTING
THIS GUARANTY, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
19. Setoff. Without limiting the rights of the Administrative Agent or the
Lenders under applicable law, if all or any part of the Guaranteed Obligations
is then due, whether pursuant to the occurrence of an Event of Default or
otherwise, then the Guarantor authorizes the Administrative Agent and the
Lenders to apply any sums standing to the credit of the Guarantor with the
Administrative Agent or any Lender of the Administrative Agent or any Lender
toward the payment of the Guaranteed Obligations.
20. Taxes, etc. All payments required to be made by any of the Subsidiary
Guarantors hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political or taxing authority thereof
(excluding federal taxation of the overall income of any Lender), provided,
however, that if any of the Subsidiary Guarantors is required by law to make
such deduction or withholding, such Subsidiary Guarantor shall forthwith (i) pay
to the Administrative Agent or any Lender, as applicable, such additional amount
as results in the net amount received by the Administrative Agent or any Lender,
as applicable, equaling the full amount which would have been received by the
Administrative Agent or any Lender, as applicable, had no such deduction or
withholding been made, (ii) pay the full amount deducted to the relevant
authority in accordance with applicable law, and (iii) furnish to the
7
Administrative Agent or any Lender, as applicable, certified copies of official
receipts evidencing payment of such withholding taxes within 30 days after such
payment is made.
21. Supplemental Guarantors. Pursuant to Section 7.12 of the Credit
Agreement, additional Subsidiaries shall become obligated as Subsidiary
Guarantors hereunder (each as fully as though an original signatory hereto) by
executing and delivering to the Administrative Agent a supplemental guaranty in
the form of Exhibit A attached hereto (with blanks appropriately filled in).
22. Original Guaranty Superseded. This Guaranty supersedes and replaces
that certain Subsidiary Guaranty dated October 1, 2003.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this Guaranty
to be duly executed, under seal, by its authorized officer as of the day and
year first above written.
[Signature of Subsidiary Guarantors]
8
EXHIBIT A
SUPPLEMENTAL GUARANTY
[Date]
Bank One, NA, as Administrative Agent
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Amended and Restated
Credit Agreement, dated as of September 16, 2004, as amended, among Pulte Homes,
Inc., the lenders from time to time parties thereto (the "Lenders"), and Bank
One, NA, as a Lender and as administrative agent (the "Administrative Agent") on
behalf of itself and the other Lenders (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") and (ii) that
certain Guaranty, dated as of even date with the Credit Agreement, executed and
delivered by the Subsidiary Guarantors parties thereto in favor of the
Administrative Agent, for the benefit of the Lenders (as amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty"). Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the respective meanings provided therein.
In accordance with Section 7.12 of the Credit Agreement and Section
21 of the Guaranty, the undersigned, [GUARANTOR]____________, a corporation
[limited partnership/limited liability company] organized under the laws of
___________, hereby elects to be a "Guarantor" for all purposes of the Credit
Agreement and "Subsidiary Guarantor" for all purposes of the Guaranty,
respectively, effective from the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Subsidiary Guarantor under,
and to be bound in all respects by the terms of, the Guaranty, to the same
extent and with the same force and effect as if the undersigned were a direct
signatory thereto.
This Supplemental Guaranty shall be construed in accordance with and
governed by the internal laws of the State of Illinois (but otherwise without
regard to the conflict of laws provisions).
IN WITNESS WHEREOF, this Supplemental Guaranty has been duly
executed by the undersigned as of the __ day of ____, 200_.
[GUARANTOR]
By: __________________________________
Name:
Title:
9
EXHIBIT 1.2
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Intercreditor
Agreement"), dated as of September __, 2004, is by and among ASSET SEVEN CORP.,
an Arizona corporation ("Asset Seven"), PULTE REALTY CORPORATION, an Arizona
corporation ("Pulte Realty"), each subsidiary of Pulte Homes, Inc. that from
time to time executes an Intercreditor Joinder Agreement (as defined below)
(together with Asset Seven and Pulte Realty, individually a "Subordinated
Creditor" and collectively the "Subordinated Creditors"), BANK ONE, NA, as
administrative agent for the Revolving Credit Lenders from time to time party to
the Revolving Credit Agreement described below (in such capacity,
"Administrative Agent"), and ______________________________, as trustee for the
Noteholders pursuant to the Indenture described below (in such capacity, the
"Trustee").
RECITALS:
A. Pursuant to the terms of that certain Amended and Restated Credit
Agreement, dated as of September 16, 2004 (as amended, modified, supplemented or
restated from time to time, the "Revolving Credit Agreement"), among Pulte
Homes, Inc. (the "Borrower"), the lenders from time to time party thereto (the
"Revolving Credit Lenders") and Administrative Agent, the Revolving Credit
Lenders have provided a revolving credit facility to the Borrower. The
obligations of the Borrower under the Revolving Credit Agreement are guaranteed
by certain subsidiaries of the Borrower (the "Guarantors").
B. The Borrower has issued and may issue from time to time senior
unsecured notes (the "Senior Notes") pursuant to that certain indenture, dated
as of October 24, 1995, or a supplement thereto (as previously amended, modified
or supplemented and as amended, modified, supplemented or restated from time to
time, the "Indenture").
C. The Subordinated Creditors are holders of promissory notes (the
"Subordinated Notes") from certain subsidiaries of the Borrower (the "Note
Issuers"), which Subordinated Notes are secured by mortgages on certain real
properties owned by the Note Issuers (the "Collateral").
D. Each Subordinated Creditor is a subsidiary of the Borrower.
E. In order to induce the Revolving Credit Lenders and the holders of the
Senior Notes (the "Noteholders") to provide or continue to provide the financial
accommodations to the Borrower under the Revolving Credit Agreement and the
Senior Notes (collectively, the "Senior Loan Documents" and individually, a
"Senior Loan Document"), and because of the direct benefit to the Subordinated
Creditors of such financial accommodations, Subordinated Creditors,
Administrative Agent and the Trustee have agreed to enter into this
Intercreditor Agreement.
1
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1 Certain Defined Terms. For the purposes hereof:
(a) "Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or replaced
from time to time. References to sections of the Code should be construed also
to refer to any successor sections.
(b) "Event of Default" means (i) an "Event of Default" as defined in the
Revolving Credit Agreement or (ii) an event of default under the Senior Notes or
the Indenture.
(c) "Senior Creditors" means (i) so long as any Senior Obligations (or
commitments with respect thereto) remains outstanding under the Revolving Credit
Agreement, Administrative Agent and (ii) so long as any Senior Obligations (or
commitments with respect thereto) remains outstanding under the Senior Notes,
the Trustee.
(d) "Senior Obligations" means (i) the "Credit Party Obligations" as
defined in the Revolving Credit Agreement and (ii) all obligations (including,
without limitation, principal, interest and fees) outstanding under the Senior
Notes.
(e) "Subordinated Obligations" means (i) the principal amount of, and
accrued interest (including, without limitation, any interest which accrues
after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of a Note Issuer) on any Subordinated
Note, and (ii) all other indebtedness, obligations and liabilities of the Note
Issuers to the Subordinated Creditors now existing or hereafter incurred.
(f) "Intercreditor Joinder Agreement" means an intercreditor joinder
agreement in substantially the form of Exhibit A attached hereto.
1.2 Other Definitional Provisions. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Intercreditor Agreement shall
refer to this Intercreditor Agreement as a whole and not to any particular
provision of this Intercreditor Agreement, and section, subsection, schedule and
exhibit references are to this Intercreditor Agreement unless otherwise
specified. Defined terms herein shall include in the singular number the plural
and in the plural the singular.
ARTICLE II
Terms of Subordination
2.1 Subordination.
2
(a) Each of the Subordinated Creditors agrees, for itself and each future
holder of the Subordinated Obligations held by such Subordinated Creditor, that
the Subordinated Obligations are expressly subordinate and junior in right of
payment (as defined in subsection 2.1(b)) to all Senior Obligations in all
respects.
(b) "Subordinate and junior in right of payment" shall mean that:
(i) Upon the occurrence and during the continuance of an Event of
Default, (A) none of the Subordinated Creditors will, without the express
prior written consent of the Senior Creditors or unless otherwise
instructed by the Senior Creditors, take, demand or receive, directly or
indirectly, by set-off, redemption, purchase or in any other manner, any
payment on or security for the whole or any part of the Subordinated
Obligations, and (B) without the express prior written consent of the
Senior Creditors or unless otherwise instructed by the Senior Creditors,
none of the Subordinated Creditors will make demand for the payment of or
accelerate the scheduled maturities of any amounts owing under the
Subordinated Obligations.
(ii) Until the Senior Obligations shall have been paid in full and
satisfied, upon the occurrence and during the continuance of an Event of
Default, none of the Subordinated Creditors will accelerate, declare to be
immediately due and payable, enforce or take any action to enforce or
collect, or otherwise exercise any rights or remedies it may possess with
respect to the Subordinated Obligations or any portion thereof, or take
any action to enforce or otherwise exercise any rights or remedies with
respect to, or realize upon, the Collateral, in each case without the
prior written consent of the Senior Creditors.
(iii) Without limiting the generality of the foregoing provisions of
this Section 2.1, in the event of any liquidation, termination, revocation
or other winding-up of a Note Issuer, or in the event of any receivership,
insolvency, reorganization or bankruptcy proceedings, assignment for the
benefit of creditors or any proceeding by or against a Note Issuer for any
relief under any bankruptcy, reorganization or insolvency law or laws
(federal or state) or any law (federal or state) relating to the relief of
debtors, readjustment of indebtedness, reorganization, composition or
extension of indebtedness, then, upon the occurrence and during the
continuance of an Event of Default, unless otherwise agreed to or
instructed in writing by the Senior Creditors, all Senior Obligations
shall first be paid in full before any payment or distribution is made in
respect of the Subordinated Obligations, and any payment or distribution
of any kind or character (whether in cash, property or securities) that,
but for the subordination provisions contained herein, would otherwise be
payable or deliverable to a Subordinated Creditor upon or in respect of
the Subordinated Obligations, shall instead be paid over or delivered to
the Senior Creditors or their representatives, and such Subordinated
Creditor shall not receive any such payment or distribution or any benefit
therefrom unless and until the Senior Obligations shall have been fully
paid and satisfied.
2.2 Power of Attorney; Agreement to Cooperate. Each of the Subordinated
Creditors hereby agrees, upon the occurrence of an Event of Default, to duly and
promptly take such action as may be requested at any time and from time to time
by the Senior Creditors, to file appropriate
3
proofs of claim in respect of the Subordinated Obligations, and to execute and
deliver such powers of attorney, assignment of proofs of claim or other
instruments as may be requested by the Senior Creditors in order to enable the
Senior Creditors to enforce any and all claims upon or in respect of the
Subordinated Obligations and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or in respect
of the Subordinated Obligations.
2.3 Payments Received by a Subordinated Creditor. Should any payment or
distribution or security or realization of the Collateral, or the proceeds of
any thereof, be collected or received by a Subordinated Creditor in respect of
the Subordinated Obligations, and such collection or receipt is received in a
receivership, insolvency, reorganization or bankruptcy proceeding involving a
Note Issuer or is not expressly permitted hereunder, the Subordinated Creditor
will forthwith turn over the same to the Senior Creditors in the form received
(except for endorsement or assignment by the Subordinated Creditor when
necessary) to be applied to the Senior Obligations and, until so turned over,
the same shall be held in trust by the Subordinated Creditor as the property of
the Senior Creditors.
2.4 Subrogation. The Subordinated Creditors shall not be subrogated to the
rights of the Senior Creditors to receive payments or distributions of assets of
the Note Issuers for the Senior Obligations.
2.5 Application of Payments Among Senior Creditors. Any payment with respect to
the Senior Obligations or received by a Senior Creditor pursuant to the terms of
this Intercreditor Agreement shall be applied pro rata to the Senior Obligations
outstanding under the Revolving Credit Agreement and the Senior Notes based on
the aggregate amount of Senior Obligations outstanding under the Revolving
Credit Agreement and the Senior Notes, respectively, on the date of such
payment, as certified by Administrative Agent and the Trustee, respectively, to
the other Senior Creditors.
ARTICLE III
Representations and Warranties
3.1 Each of the Subordinated Creditors represents and warrants to the Senior
Creditors that:
(a) Subordinated Obligations. The Subordinated Obligations are payable
solely and exclusively to the Subordinated Creditors and to no other person,
firm, corporation or other entity, without deduction for any defense, offset or
counterclaim.
(b) Power and Authority; Authorization; No Violation. Each Subordinated
Creditor has full power, authority and legal right to execute, deliver and
perform this Intercreditor Agreement, and, the execution, delivery and
performance of this Intercreditor Agreement have been duly authorized by all
necessary action on the part of such Subordinated Creditor, do not require any
approval or consent of any holders of any indebtedness or obligations of such
Subordinated Creditor and will not violate any provision of law, governmental
regulation, order or decree or any provision of any indenture, mortgage,
contract or other agreement to which such Subordinated Creditor is party or by
which such Subordinated Creditor is bound.
4
(c) Consents. No consent, license, approval or authorization of, or
registration or declaration with, any governmental instrumentality, domestic or
foreign, is required in connection with the execution, delivery and performance
by the Subordinated Creditor of this Intercreditor Agreement.
(d) Binding Obligation. This Intercreditor Agreement constitutes a legal,
valid and binding obligation of the Subordinated Creditor enforceable in
accordance with its terms.
ARTICLE IV
Modification of Senior Obligations; Reliance
4.1 Each of the Subordinated Creditors agrees that, without the necessity of any
reservation of rights against such Subordinated Creditor and without notice to
or further assent by such Subordinated Creditor, (a) any demand for payment of
any Senior Obligation may be made, and the Senior Obligations or the liability
of the Borrower or any of its subsidiaries for any part thereof, or any guaranty
therefor, or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, modified, accelerated, compromised,
waived, surrendered, or released and (b) any document or instrument evidencing
or governing the terms of the Senior Obligations or guaranties or documents in
connection with the Senior Obligations may be amended, modified, supplemented or
terminated, in whole or in part, as the applicable Senior Creditor may deem
advisable from time to time, in each case all without notice to or further
assent by such Subordinated Creditor, which will remain bound under this
Intercreditor Agreement, and all without impairing, abridging, releasing or
affecting the subordination provided for herein, notwithstanding any such
renewal, extension, modification, acceleration, compromise, amendment,
supplement, termination, waiver, surrender or release. Each of the Subordinated
Creditors waives (i) any and all notice of the creation, modification, renewal,
extension or accrual of any of the Senior Obligations and (ii) notice of or
proof of reliance on this Intercreditor Agreement and protest, demand for
payment and notice of an Event of Default. The Senior Obligations shall
conclusively be deemed to have been created, contracted, incurred or continued
in reliance upon this Intercreditor Agreement, and all dealings between or among
the Note Issuers and the Senior Creditors shall be deemed to have been
consummated in reliance upon this Intercreditor Agreement. The Subordinated
Creditors acknowledge and agree that the Senior Creditors, the Revolving Credit
Lenders and the Noteholders have relied upon the subordination provided for
herein in making the Senior Obligations available to the Borrower.
ARTICLE V
No Transfer of Subordinated Obligations or Collateral
5.1 The Subordinated Creditors will not (a) sell, assign or otherwise transfer,
in whole or in part, any Subordinated Obligation or any Collateral held by the
Subordinated Creditors or any interest therein to any other person or entity (a
"Transferee") other than a Subordinated Creditor or (b) create, incur or suffer
to exist any security interest, lien, charge or other encumbrance whatsoever
upon the Subordinated Obligations or the Collateral in favor of any Transferee.
ARTICLE VI
5
Joinder of Other Subordinated Creditors
6.1 Any subsidiary of the Borrower that properly elects to be taxed as a real
estate investment trust under Section 856 (c) of the Code may become a
Subordinated Creditor hereunder by executing and delivering an Intercreditor
Joinder Agreement. Upon receipt by the Senior Creditors of an Intercreditor
Joinder Agreement from a subsidiary of the Borrower, such subsidiary shall be
considered a Subordinated Creditor under the terms of this Intercreditor
Agreement.
ARTICLE VII
Miscellaneous
7.1 No Waiver; Cumulative Remedies. No failure or delay on the part of any
Senior Creditor, Revolving Credit Lender or Noteholder in exercising any right,
power or privilege hereunder or under any Senior Loan Document or any other loan
document entered into in connection therewith and no course of dealing between
the Subordinated Creditors and any Senior Creditor, Revolving Credit Lender or
Noteholder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Senior
Loan Document or any other loan document entered into in connection therewith
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Senior Creditors, the Revolving Credit Lenders and the Noteholders would
otherwise have. No notice to or demand on any Subordinated Creditor in any case
shall entitle such Subordinated Creditor to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Senior Creditors, the Revolving Credit Lenders and the Noteholders to any
other or further action in any circumstances without notice or demand.
7.2 Further Assurances. The Subordinated Creditors agree, upon the request of a
Senior Creditor, to promptly take such actions, as reasonably requested, as is
necessary to carry out the intent of this Intercreditor Agreement.
7.3 Notices. All notices and other communications with respect to this
Intercreditor Agreement shall have been duly given and shall be effective (a)
when delivered in writing, (b) when transmitted via telecopy (or other facsimile
device) to the number set out below, (c) the business day following the day on
which the same has been delivered prepaid (or on an invoice basis) to a
reputable national overnight air courier service, or (d) the third business day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth below or at such other address as such party may
specify by written notice to the other parties hereto.
To Administrative Agent: Bank One, NA
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
6
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee: ______________________________________
______________________________________
______________________________________
______________________________________
Attn: ________________________________
Ph: ________________________________
Fax: ________________________________
7.4 Governing Law; Jurisdiction.
(a) THIS INTERCREDITOR AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Intercreditor Agreement may be brought in the
courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Intercreditor
Agreement, each party hereto hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of such
courts. Each party hereto further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address for notices pursuant to Section 7.3, such service to become
effective 20 days after such mailing. Nothing herein shall affect the right of a
Senior Creditor to serve process on a Subordinated Creditor in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against a Subordinated Creditor in any other jurisdiction.
(b) Each party hereto hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Intercreditor Agreement
brought in the courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
7.5 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS INTERCREDITOR AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INTERCREDITOR AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
7.6 Successors and Assigns. This Intercreditor Agreement shall be binding upon
and inure to the benefit of the Senior Creditors, the Subordinated Creditors,
and their respective successors, transferees and assigns.
7.7 Severability. If any provision of any of this Intercreditor Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining
7
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
7.8 Counterparts. This Intercreditor Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be as effective as an
original and shall constitute a representation that an original will be
delivered.
7.9 Waivers, Amendments, Etc. This Intercreditor Agreement may not be rescinded
or canceled or modified in any way, nor may any provision of this Intercreditor
Agreement be waived or changed without the express prior written consent thereto
of the Senior Creditors.
7.10 Original Intercreditor Agreement Superseded. This Intercreditor Agreement
replaces and supersedes the Intercreditor Agreement dated October 1, 2003.
8
IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor
Agreement to be executed as of the day and year first above written.
SUBORDINATED CREDITOR: ASSET SEVEN CORP.,
an Arizona corporation
By: ________________________________
Name: ________________________________
Title:________________________________
SUBORDINATED CREDITOR: PULTE REALTY CORPORATION, an
Arizona corporation
By: ________________________________
Name: ________________________________
Title:________________________________
SENIOR CREDITOR: BANK ONE, NA,
as Administrative Agent for the
Revolving Credit Lenders
By: ________________________________
Name: ________________________________
Title:________________________________
SENIOR CREDITOR: __________________________________, as
Trustee
By: ________________________________
Name: ________________________________
Title:________________________________
9
EXHIBIT A
Form of Intercreditor Joinder Agreement
THIS INTERCREDITOR JOINDER AGREEMENT (the "Agreement"), dated as of
__________________________ is entered into among _________________________, (the
"New REIT") and BANK ONE, N.A. and _____________________________________, in
their capacity as Senior Creditors (the "Senior Creditors") under that certain
Intercreditor and Subordination Agreement, dated as of September 16, 2004, among
ASSET SEVEN CORP., an Arizona corporation, PULTE REALTY CORPORATION, an Arizona
corporation, the other Subordinated Creditors party thereto and the Senior
Creditors (as the same may be amended, modified, extended or restated from time
to time, the "Intercreditor Agreement"). All capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Intercreditor
Agreement.
1. The New REIT hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New REIT will be deemed to be a Subordinated
Creditor under the Intercreditor Agreement and shall have all of the rights and
obligations of a Subordinated Creditor thereunder as if it had executed the
Intercreditor Agreement. The New REIT hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions contained
in the Intercreditor Agreement, including without limitation, all of the
subordination terms set forth in Article II of the Intercreditor Agreement.
2. This Agreement may be executed in any number of counterparts, each of
which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts
by telecopy shall be as effective as an original and shall constitute a
representation that an original will be delivered.
3. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New REIT has caused this Agreement to be duly
executed by its authorized officer, as of the day and year first above written.
[NEW REIT]
By: ________________________________
Name: ________________________________
Title:________________________________
Acknowledged and Accepted
10
BANK ONE, NA, as Administrative Agent,
in its capacity as a Senior Creditor
By: ________________________________
Name: ________________________________
Title:________________________________
_____________________________________________, as
Trustee, in its capacity as a Senior Creditor
By: ________________________________
Name: ________________________________
Title:________________________________
11
EXHIBIT 2.1(e)
COMMITMENT AND ACCEPTANCE
This Commitment and Acceptance (this "Commitment and Acceptance") dated as
of______ , 200_, is entered into among the parties listed on the signature pages
hereof. Capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to them in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
Reference is made to that certain Amended and Restated Credit Agreement
dated as of September 16, 2004, by and among Pulte Homes, Inc., a Michigan
corporation (the "Borrower"), Bank One, NA, as Administrative Agent, and the
Lenders that are parties thereto (as the same may from time to time be amended,
modified, supplemented or restated, in whole or in part and without limitation
as to amount, terms, conditions or covenants, the "Credit Agreement").
Pursuant to Section 2.1(e) of the Credit Agreement, the Borrower has
requested an increase in the Revolving Committed Amount from $_______________ to
$__________________. Such increase in the Revolving Committed Amount is to
become effective on _______________ __, ____ (the "Increase Date") [THIS DATE IS
TO BE MUTUALLY AGREED UPON BY THE BORROWER, THE ACCEPTING LENDER AND AGENT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.1(e)) OF THE CREDIT AGREEMENT]. In
connection with such requested increase in the Revolving Committed Amount, the
Borrower, Administrative Agent and _________________ ("Accepting Lender") hereby
agree as follows:
1. ACCEPTING LENDER'S COMMITMENT. Effective as of the Increase Date,
[Accepting Lender shall become a party to the Credit Agreement as a Lender,
shall have all of the rights and obligations of a Lender thereunder, shall agree
to be bound by the terms and provisions thereof and shall thereupon have a
Commitment under and for purposes of the Credit Agreement in an amount equal
[the Commitment of Accepting Lender under the Credit Agreement shall be
increased from $___________________] to the amount set forth opposite Accepting
Lender's name on the signature pages hereof.
2. REPRESENTATIONS AND AGREEMENTS OF ACCEPTING LENDER. [Accepting Lender
(a) represents and warrants that (i) it has full power and authority, and has
taken all action necessary, to execute and deliver this Commitment and
Acceptance and to consummate the transactions contemplated hereby] and to become
a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to become a Lender, (iii) from and after the Increase Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of its Commitment, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 7.1(a) and (b)
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
1
into this Commitment and Acceptance on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to this
Commitment and Acceptance is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Accepting Lender; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.*
*If the Accepting Lender is already a party to the Credit Agreement prior to the
Increase Date, only the bracketed provision needs to be included.
3. REPRESENTATION OF BORROWER. The Borrower hereby represents and warrants
that, as of the date hereof and as of the Increase Date, (a) no event or
condition shall have occurred and then be continuing which constitutes an Event
of Default or Default and (b) the representations and warranties of the Borrower
contained in the Credit Agreement are true and correct in all material respects
(except to the extent any such representation or warranty is stated to relate
solely to an earlier date).
4. ADMINISTRATIVE AGENT'S FEE. On or before the Increase Date, the
Borrower shall pay to the Administrative Agent an administrative fee in the
amount of $3,500.00.
5. GOVERNING LAW. This Commitment and Acceptance shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
6. NOTICES. For the purpose of notices to be given under the Credit
Agreement, the address of Accepting Lender (until notice of a change is
delivered) shall be the address set forth in Schedule 1.
2
IN WITNESS WHEREOF, the parties hereto have executed this Commitment and
Acceptance by their duly authorized officers as of the date first above written.
BORROWER:
PULTE HOMES, INC.
By: ________________________
Name:
Title:
ADMINISTRATIVE AGENT:
BANK ONE, NA, as ADMINISTRATIVE AGENT
By: __________________________
Name:
Title:
COMMITMENT: ACCEPTING LENDER:
$_______________________ [NAME OF ACCEPTING LENDER]
By: ___________________________
Name: ________________________
Title: _________________________
3
SCHEDULE 1
TO COMMITMENT AND ACCEPTANCE
1. Attach Accepting Lender's Administrative Information Sheet, which must
include its payment instructions and notice address.
4
EXHIBIT 2.1(f)
NOTE
$______________ ___________, 200_
Pulte Homes, Inc., a Michigan corporation (the "Borrower"), promises to
pay to the order of ____________________________________ (the "Lender") the
lesser of the principal sum of ______________________________ Dollars
($_____________) or the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower pursuant to Section 2 of the Agreement (as
hereinafter defined), in immediately available funds at the main office of Bank
One, NA in Chicago, Illinois, as Administrative Agent, together with interest on
the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Maturity Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of September __, 2004 (which, as it may be amended or modified and in effect
from time to time, is herein called the "Agreement"), among the Borrower, the
lenders party thereto, including the Lender, and Bank One, NA, as Administrative
Agent, to which Agreement reference is hereby made for a statement of the terms
and conditions governing this Note, including the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. Capitalized
terms used herein and not otherwise defined herein have the meanings attributed
to them in the Agreement.
PULTE HOMES, INC.
By:___________________________________
Name: ______________________________
Title: _______________________________
1
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF PULTE HOMES, INC.
DATED _______________, 200_
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Loan Period Paid Balance
--------- ----------- --------- -------
2
EXHIBIT 2.2(e)
SWINGLINE NOTE
$50,000,000.00 September __, 2004
Pulte Homes, Inc., a Michigan corporation (the "Borrower") promises to pay
to the order of Bank One, NA (the "Swingline Lender") the lesser of the
principal sum of Fifty Million and no/100 Dollars ($50,000,000.00) or the
aggregate unpaid principal amount of all Swingline Loans made by the Swingline
Lender to the Borrower pursuant to the Agreement (as hereinafter defined) in
immediately available funds at the main office of Bank One, NA, in Chicago,
Illinois, as Administrative Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on all Swingline Loans in full, if not sooner due and payable under the
Agreement, on the Maturity Date.
This Note is the Swingline Note issued pursuant to, and is entitled to the
benefits of, the Amended and Restated Credit Agreement, dated as of September
__, 2004 (which as it may be amended or modified and in effect from time to time
is herein called the "Agreement") among the Borrower, the lenders party thereto
(including the Swingline Lender) and Bank One, NA, as Administrative Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
PULTE HOMES, INC.
By: __________________________________
Name:
Title:
1
EXHIBIT 7.1(c)
FORM OF OFFICER'S CERTIFICATE
TO: BANK ONE, NA, as Administrative Agent
RE: Credit Agreement dated as of September __, 2004 among PULTE HOMES, INC., a
Michigan corporation (the "Borrower"), the Lenders identified therein,
Bank One, NA as Administrative Agent (the "Administrative Agent")(as the
same may be amended, modified, extended or restated from time to time, the
"Credit Agreement")
DATE :
_________________________________________________________
Pursuant to the terms of the Credit Agreement, I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice
President and Treasurer of the Borrower, hereby certify on behalf of the Credit
Parties that, as of the fiscal quarter/year ending _________ ____, 200__, the
statements below are accurate and complete in all material respects (all
capitalized terms used herein unless otherwise defined shall have the meanings
set forth in the Credit Agreement):
a. Attached hereto as Schedule 1 are calculations (calculated as of
the date of the financial statements referred to in paragraph c. below)
demonstrating compliance by the Credit Parties with the financial
covenants contained in Section 7.2 of the Credit Agreement.
b. No Default or Event of Default exists under the Credit Agreement.
c. The quarterly/annual financial statements for the fiscal
quarter/year ended _________ ___, 200__ which accompany this certificate
are true and correct and have been prepared in accordance with GAAP (in
the case of any quarterly financial statements, subject to changes
resulting from audit and normal year-end audit adjustments).
PULTE HOMES, INC.
a Michigan corporation
By: __________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
1
EXHIBIT 11.3(b)
ASSIGNMENT AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells
and assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor (including any letters of
credit, guarantees, and swingline loans included therein) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender) against
any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to the
rights and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned pursuant to clauses (i) and (ii) above
being referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of [identify Lender](1)]
3. Borrower(s): ______________________________
4. Administrative Agent: ______________________, as the administrative agent
under the Credit Agreement
____________
(1) Select as applicable.
1
5. Credit Agreement: [The [amount] Credit Agreement dated as of _______ among
[name of Borrower(s)], the Lenders parties thereto,
[name of Administrative Agent], as Administrative Agent,
and the other agents parties thereto]
6. Assigned Interest:
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Commitment/Loans for all Lenders Assigned Commitment/Loans(2)
--------------------------------------------------------------------------------------------------
$ $ %
--------------------------------------------------------------------------------------------------
$ $ %
--------------------------------------------------------------------------------------------------
$ $ %
--------------------------------------------------------------------------------------------------
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:______________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:______________________________
Title:
------------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
2
[Consented to and](3) Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By_________________________________
Title:
[Consented to:](4)
[NAME OF RELEVANT PARTY]
By________________________________
Title:
-------------
(3) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(4) To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
3
ANNEX 1
[__________________](5)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Credit Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Credit Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 7.1(a) and (b)
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (v) if it is a
Non-U.S. Lender, attached to the Assignment and Assumption is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its
------------
(5) Describe Credit Agreement at option of Administrative Agent.
1
own credit decisions in taking or not taking action under the Credit Documents,
and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Documents are required to be performed by it as
a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Illinois.
2
EXHIBIT 10.1(a)
Existing LC's under Pulte Home Inc. Page: 1
PULTE HOMES INC. EXISTING LETTERS OF CREDIT
As of 09/16/04
EXISTING LETTERS OF CREDIT
BANK ONE L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 1,901,784.14 11/01/2004 Insur-Related
BANK ONE SLT335980 $ 2,569,872.07 11/01/2004 Financial
BANK ONE SLT751439 $ 968,775.00 10/07/2004 Insur-Related
BANK ONE SLT751440 $ 895,908.25 12/31/2004 Performance
BANK ONE SLT751442 $ 678,100.00 10/15/2005 Performance
BANK ONE SLT751443 $ 73,200.00 10/15/2005 Performance
BANK ONE SLT343879 $ 417,609.00 11/26/2004 Performance
BANK ONE SLT343880 $ 109,800.00 10/30/2005 Performance
BANK ONE SLT343881 $ 3,275,500.00 10/30/2005 Performance
BANK ONE SLT751453 $ 11,226.00 11/03/2004 Performance
BANK ONE SLT751454 $ 30,327.00 11/03/2004 Performance
BANK ONE SLT751462 $ 45,400.00 10/31/2005 Performance
BANK ONE SLT751463 $ 23,075.00 10/31/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 423,662.00 11/18/2005 Performance
BANK ONE SLT751466 $10,787,009.32 02/10/2005 Financial
BANK ONE SLT751475 $ 348,000.00 11/24/2004 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 2,217,709.00 12/01/2004 Insurance
BANK ONE SLT751486 $ 3,093,239.00 12/03/2004 Performance
BANK ONE SLT751491 $ 129,062.43 06/30/2005 Financial
BANK ONE SLT346767 $ 576,682.00 02/25/2005 Financial
BANK ONE SLT751499 $ 60,740.61 01/21/2005 Performance
BANK ONE SLT751501 $ 516,775.45 01/20/2006 Performance
BANK ONE SLT751502 $ 1,443,778.89 01/20/2006 Performance
Existing LC's under Pulte Home Inc. Page: 2
BANK ONE SLT751503 $ 497,204.06 01/20/2006 Performance
BANK ONE SLT751509 $ 50,000.00 01/28/2005 Performance
BANK ONE SLT751510 $ 3,450.00 01/05/2005 Performance
BANK ONE SLT751512 $ 50,000.00 02/04/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 131,875.00 02/04/2006 Financial
BANK ONE SLT751523 $ 619,218.75 02/16/2006 Performance
BANK ONE SLT751524 $ 24,150.00 01/26/2005 Financial
BANK ONE SLT751525 $ 100,000.00 02/10/2005 Financial
BANK ONE SLT751529 $ 500,000.00 09/13/2005 Financial
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 3,456,945.80 05/01/2005 Performance
BANK ONE SLT430033 $ 1,365,822.80 05/03/2005 Performance
BANK ONE SLT430035 $ 1,890,125.81 05/03/2005 Performance
BANK ONE SLT430134 $ 433,119.00 04/06/2005 Performance
BANK ONE SLT430183 $ 1,818,339.58 04/19/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 525,613.78 04/19/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 200,483.00 04/07/2005 Performance
BANK ONE SLT430216 $ 195,907.80 05/01/2006 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 14,115.00 05/30/2005 Performance
BANK ONE SLT430235 $ 689,282.00 05/30/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 1,000,000.00 07/01/2005 Financial
BANK ONE SLT430334 $ 286,000.00 07/01/2005 Performance
BANK ONE SLT430339 $ 352,700.00 07/31/2006 Performance
BANK ONE SLT430344 $ 462,318.00 07/07/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 900,703.00 07/08/2006 Performance
BANK ONE SLT430398 $ 776,637.80 07/30/2005 Performance
BANK ONE SLT430399 $ 219,395.63 07/28/2005 Performance
BANK ONE SLT430400 $ 406,904.88 07/28/2005 Performance
BANK ONE SLT430401 $ 506,065.63 07/28/2005 Performance
BANK ONE SLT430402 $ 4,103,377.50 07/28/2005 Performance
Existing LC's under Pulte Home Inc. Page: 3
BANK ONE SLT430403 $1,061,906.25 07/28/2005 Performance
BANK ONE SLT430404 $1,146,525.00 07/28/2005 Performance
BANK ONE SLT430405 $ 415,816.25 07/28/2005 Performance
BANK ONE SLT430406 $ 92,900.00 07/28/2005 Performance
BANK ONE SLT430407 $ 89,375.00 07/28/2005 Performance
BANK ONE SLT430429 $2,000,000.00 08/09/2005 Performance
BANK ONE ▇▇▇▇▇▇▇▇▇ $ 332,000.00 08/09/2005 Performance
BANK ONE SLT430526 $9,665,592.00 09/14/2005 Performance
BANK ONE SLT430528 $8,090,134.00 09/14/2005 Performance
-------------
TOTAL BANK ONE 75,071,238.48
=============
COMERICA L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
COMERICA 506007 $ 418,000.00 06/08/2005 Performance
COMERICA 506008 $ 332,000.00 06/08/2005 Performance
COMERICA 506009 $ 373,000.00 06/08/2005 Performance
COMERICA 506010 $ 534,000.00 06/08/2005 Performance
COMERICA 506012 $ 10,000.00 04/14/2005 Performance
COMERICA 506021 $ 50,000.00 04/26/2005 Performance
COMERICA 506022 $ 942,864.00 04/26/2005 Performance
COMERICA 506023 $ 9,843.00 04/26/2005 Performance
COMERICA 506026 $ 31,200.00 04/26/2005 Performance
COMERICA 506027 $ 103,445.00 04/26/2005 Performance
COMERICA 506031 $ 200,000.00 11/01/2005 Performance
COMERICA 506054 $ 653,507.04 07/30/2005 Performance
COMERICA 506057 $ 1,716,873.00 08/31/2005 Performance
COMERICA 506064 $ 543,334.50 12/28/2005 Performance
COMERICA 511074 $ 4,666,343.00 02/15/2005 Financial
COMERICA 511395 $14,121,636.00 05/01/2005 Financial
COMERICA 526021 $ 500,000.00 11/01/2004 Financial
Existing LC's under Pulte Home Inc. Page: 4
COMERICA 535729 $ 32,000.00 10/29/2004 Performance
COMERICA 547625 $ 25,000.00 09/15/2005 Performance
COMERICA 547694 $ 112,500.00 09/30/2005 Performance
COMERICA 575196 $ 1,722,995.00 06/25/2005 Performance
COMERICA 576583 $ 20,000.00 08/20/2005 Performance
COMERICA 578243 $ 3,935.00 11/03/2004 Performance
COMERICA 578650 $ 131,330.00 11/01/2004 Performance
COMERICA 580674 $ 602,054.00 02/06/2005 Performance
COMERICA 582013 $ 102,000.00 04/02/2005 Performance
COMERICA 582374 $ 37,500.00 04/16/2005 Performance
COMERICA 583037 $ 1,223,964.00 05/17/2005 Performance
COMERICA 583164 $ 2,500.00 05/21/2005 Performance
COMERICA 585451 $ 3,750.00 08/31/2005 Performance
COMERICA 585452 $ 56,038.00 08/31/2005 Performance
COMERICA 585455 $ 174,400.00 08/31/2005 Performance
COMERICA 585456 $ 228,047.00 08/31/2005 Performance
COMERICA 585457 $ 174,067.00 08/31/2005 Performance
COMERICA 585460 $ 496,555.00 08/31/2005 Performance
COMERICA 585564 $ 65,000.00 08/31/2005 Performance
COMERICA 585735 $ 50,000.00 09/10/2005 Performance
COMERICA 545620-01 $ 3,686,739.00 05/15/2005 Performance
COMERICA 586012 $ 134,000.00 09/20/2005 Performance
COMERICA 586013 $ 200,000.00 09/20/2005 Performance
COMERICA 586108 $ 156,225.00 09/25/2004 Performance
COMERICA 586109 $ 483,609.00 09/23/2004 Performance
COMERICA 586125 $ 33,800.00 09/24/2004 Performance
COMERICA 586190 $ 22,500.00 09/25/2004 Performance
Existing LC's under Pulte Home Inc. Page: 5
COMERICA 586740 $1,000,000.00 10/19/2005 Performance
COMERICA 586779 $ 34,625.00 10/22/2004 Performance
COMERICA 587081 $ 251,650.00 11/04/2005 Performance
COMERICA 587281 $ 95,000.00 11/30/2005 Performance
COMERICA 587522 $2,490,000.00 11/23/2004 Performance
COMERICA 587538 $2,516,000.00 11/23/2004 Performance
COMERICA 587595 $ 250,000.00 11/30/2005 Performance
COMERICA 587662 $ 650,000.00 11/03/2004 Performance
COMERICA 588364 $ 139,006.00 12/30/2004 Performamce
COMERICA 588365 $ 131,443.00 12/30/2004 Performance
COMERICA 588779 $ 28,390.00 01/17/2005 Performance
COMERICA 589432 $ 10,950.00 02/14/2005 Performance
COMERICA 590118 $ 61,330.68 03/14/2005 Performance
COMERICA 590454 $ 89,832.40 03/22/2005 Performance
COMERICA 590587 $ 174,000.00 03/28/2005 Performance
COMERICA 590744 $ 83,744.00 03/31/2005 Performance
COMERICA 590745 $ 56,838.00 03/31/2005 Performance
COMERICA 590947 $ 416,784.50 04/07/2005 Performance
COMERICA 591288 $ 579,600.00 04/19/2005 Performance
COMERICA 591651 $1,800,000.00 10/28/2005 Performance
COMERICA 591652 $ 171,800.00 10/28/2005 Performance
COMERICA 592032 $ 64,500.00 05/19/2006 Performance
COMERICA 592040 $1,800,000.00 05/19/2005 Performance
COMERICA 592188 $ 60,600.00 06/06/2005 Performance
COMERICA 592189 $ 606,000.00 06/06/2005 Performance
COMERICA 592414 $ 37,500.00 05/26/2006 Performance
Existing LC's under Pulte Home Inc. Page: 6
COMERICA 592563 $ 1,000,000.00 06/07/2005 Financial
COMERICA 592626-04 $ 13,500.00 06/07/2005 Financial
COMERICA 592838-04 $ 1,062,953.00 06/15/2005 Financial
COMERICA 592951-04 $ 181,250.00 06/20/2005 Performance
COMERICA 593263 $ 214,807.00 06/30/2005 Performance
COMERICA 593245 $ 60,750.00 06/29/2005 Performance
COMERICA 593242 $ 16,500.00 06/29/2005 Performance
COMERICA 593241 $ 15,000.00 06/29/2005 Performance
COMERICA 593631 $ 193,000.00 07/14/2005 Performance
COMERICA 593632 $ 22,500.00 07/14/2006 Performance
COMERICA 594130 $ 101,000.00 07/29/2005 Performance
COMERICA 594131 $ 5,000.00 07/29/2005 Performance
COMERICA 594133 $ 434,700.00 07/29/2005 Performance
COMERICA 594218 $ 947,292.00 08/05/2005 Performance
COMERICA 594423 $ 3,306,500.00 08/11/2005 Performance
COMERICA 594424 $ 587,400.00 08/11/2005 Performance
COMERICA 594782 $ 9,750.00 08/11/2005 Performance
COMERICA 595058 $ 2,045,577.00 08/11/2005 Performance
--------------
TOTAL COMERICA $59,003,626.12
==============
COMPASS L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
COMPASS BANK 25559 $ 109,500.00 03/06/2005 Performance
COMPASS BANK 25560 $ 564,427.70 03/06/2005 Performance
COMPASS BANK 25561 $ 364,416.00 03/06/2005 Performance
COMPASS BANK 26163 $ 382,050.00 07/07/2005 Performance
-------------
TOTAL COMPASS BANK $1,420,393.70
=============
Existing LC's under Pulte Home Inc. Page: 7
PNC L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
PNC 257306 $ 271,205.00 05/05/2005 Performance
PNC 257965 $ 705,812.00 05/26/2005 Performance
PNC 257966 $ 1,557,907.00 06/03/2005 Performance
PNC 258087 $ 20,752.05 06/04/2005 Performance
PNC 260987 $ 2,170,834.27 09/29/2005 Performance
PNC S261774NJY $ 344,137.73 12/28/2004 Performance
PNC S261777NJY $ 139,951.50 08/18/2005 Performance
PNC S261780NJY $ 201,988.69 08/18/2005 Performance
PNC S261781NJY $ 70,791.61 08/18/2005 Performance
PNC S262359NJY $ 218,010.00 11/20/2004 Performance
PNC 265560 $ 7,343,580.00 04/08/2005 Performance
PNC 265687 $ 503,401.09 04/15/2005 Performance
PNC 265688 $ 2,067,124.50 04/15/2005 Performance
PNC 265689 $ 1,863,123.38 04/15/2005 Performance
PNC 265811 $ 820,282.87 03/12/2005 Performance
PNC 18100346 $ 22,240.07 07/30/2007 Performance
PNC 18100347 $ 1,294,959.45 07/26/2005 Performance
PNC 5069900 $ 5,755,200.00 09/02/2005 Performance
PNC 507990 $ 590,863.20 09/02/2005 Performance
--------------
TOTAL PNC BANK $25,962,164.41
==============
STANDARD FEDERAL L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $726,700.00 04/12/2005 Performance
STANDARD FEDERAL 450118 $ 79,750.00 02/10/2005 Performance
STANDARD FEDERAL 450160 $130,000.00 10/01/2004 Performance
STANDARD FEDERAL 450169 $ 5,000.00 05/17/2005 Performance
STANDARD FEDERAL 450171 $ 10,710.00 06/03/2005 Performance
STANDARD FEDERAL 450172 $250,000.00 10/13/2004 Performance
STANDARD FEDERAL 450173 $ 35,071.50 06/03/2005 Performance
STANDARD FEDERAL 450174 $ 20,000.00 06/23/2005 Performance
Existing LC's under Pulte Home Inc. Page: 8
STANDARD FEDERAL 450176 $ 128,975.00 10/13/2004 Performance
STANDARD FEDERAL 450183 $ 18,225.00 06/03/2005 Performance
STANDARD FEDERAL 450191 $ 99,525.00 06/03/2005 Performance
STANDARD FEDERAL 450193 $ 90,000.00 06/18/2005 Performance
STANDARD FEDERAL 450237 $ 655,000.00 05/01/2005 Performance
STANDARD FEDERAL 450238 $ 551,000.00 05/01/2005 Performance
STANDARD FEDERAL 450263 $ 5,590.00 06/30/2005 Performance
STANDARD FEDERAL 450266 $ 954,229.00 06/30/2005 Performance
STANDARD FEDERAL 450348 $2,132,000.00 07/16/2005 Performance
STANDARD FEDERAL 450399 $ 28,950.00 06/21/2005 Performance
STANDARD FEDERAL 451588 $ 219,667.00 05/15/2005 Performance
STANDARD FEDERAL 451596 $1,290,764.00 05/15/2005 Performance
STANDARD FEDERAL 451916 $ 460,000.00 10/15/2005 Performance
STANDARD FEDERAL 451917 $ 287,641.00 10/15/2004 Performance
STANDARD FEDERAL 452121 $1,935,217.90 01/20/2005 Performance
STANDARD FEDERAL 452137 $1,572,000.00 01/28/2005 Financial
STANDARD FEDERAL 452444 $ 753,795.00 06/11/2005 Performance
STANDARD FEDERAL S452871 $ 100,000.00 12/12/2004 Performance
STANDARD FEDERAL 452922 $ 833,000.00 02/04/2005 Performance
STANDARD FEDERAL 452927 $ 935,646.00 01/23/2006 Performance
STANDARD FEDERAL 453095 $1,060,500.00 04/19/2005 Performance
STANDARD FEDERAL 453120 $3,000,000.00 05/08/2005 Performance
Existing LC's under Pulte Home Inc. Page: 9
STANDARD FEDERAL 453245 $ 336,700.00 06/15/2005 Financial
STANDARD FEDERAL 453271 $ 5,483,750.00 06/24/2005 Performance
STANDARD FEDERAL S453293 $ 1,654,500.00 06/25/2005 Performance
STANDARD FEDERAL S453483 $ 179,500.00 11/11/2004 Performance
STANDARD FEDERAL S453594 $ 5,116,558.43 09/12/2005 Performance
--------------
TOTAL STANDARD FEDERAL $31,139,964.83
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
Bank of America 3019835 $285,060.00 03/15/2005 Performance
TOTAL BANK OF AMERICA $285,060.00
SUNTRUST L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
SUN TRUST F502818 $ 315,251.00 01/03/2005 Financial
SUN TRUST F503490 $ 210,000.00 09/20/2004 Financial
SUN TRUST 600223 $ 94,331.80 04/04/2005 Performance
SUN TRUST 600224 $ 87,581.60 04/04/2005 Performance
SUN TRUST 600423 $ 8,000.00 05/27/2005 Performance
SUN TRUST 600431 $ 67,338.00 06/11/2005 Performance
SUN TRUST 600432 $ 83,252.00 06/11/2005 Performance
SUN TRUST 600441 $ 21,500.00 12/18/2004 Performance
SUN TRUST 600443 $ 94,438.69 12/18/2004 Performance
SUN TRUST 600463 $ 11,000.00 10/30/2005 Performance
SUN TRUST 600502 $ 3,188.00 08/20/2005 Performance
SUN TRUST 600552 $ 3,000.00 09/21/2004 Performance
SUN TRUST 600554 $ 9,600.00 12/14/2004 Performance
SUN TRUST 600588 $ 3,800.00 10/28/2004 Performance
SUN TRUST 600622 $ 1,000.00 12/08/2004 Performance
Existing LC's under Pulte Home Inc. Page: 10
SUN TRUST 600674 $ 7,442.21 01/24/2005 Performance
SUN TRUST 600705 $ 457,620.48 09/21/2004 Performance
SUN TRUST 600815 $ 603,429.83 02/26/2005 Performance
SUN TRUST 600923 $ 98,643.00 02/10/2005 Performance
SUN TRUST 600993 $ 31,000.00 05/16/2005 Performance
SUN TRUST 601009 $ 40,000.00 06/02/2005 Performance
SUN TRUST 601028 $ 80,922.00 06/23/2005 Performance
SUN TRUST 601030 $ 250,000.00 08/01/2005 Performance
SUN TRUST 601032 $ 24,943.00 06/30/2005 Performance
SUN TRUST 601033 $ 230,616.00 06/30/2005 Performance
SUN TRUST 601034 $ 105,885.00 06/30/2005 Performance
SUN TRUST 601119 $ 80,000.00 09/22/2005 Performance
SUN TRUST 601278 $ 195,442.04 11/08/2004 Performance
SUN TRUST 601329 $ 683,267.84 06/21/2005 Performance
SUN TRUST 601404 $ 100,000.00 11/15/2004 Performance
SUN TRUST 601405 $ 32,699.00 11/15/2004 Performance
SUN TRUST 601406 $ 95,802.00 11/15/2004 Performance
SUN TRUST 601430 $ 25,000.00 01/18/2005 Performance
SUN TRUST 601438 $ 339,500.00 11/10/2004 Performance
SUN TRUST 601448 $ 65,150.00 01/15/2005 Performance
SUN TRUST 601481 $ 222,400.00 04/03/2005 Performance
SUN TRUST 601484 $ 250,000.00 04/04/2005 Performance
SUN TRUST 601492 $ 86,300.40 04/08/2005 Performance
SUN TRUST 601524 $ 113,147.01 05/15/2005 Performance
SUN TRUST 601577 $1,168,913.00 12/30/2004 Performance
SUN TRUST 601578 $ 53,438.00 06/25/2005 Performance
SUN TRUST 601594 $ 19,750.00 07/24/2005 Performance
SUN TRUST 601601 $ 918,778.96 08/12/2004 Performance
Existing LC's under Pulte Home Inc. Page: 11
SUN TRUST 601603 $ 58,607.00 02/08/2005 Performance
SUN TRUST 601619 $ 31,964.00 09/03/2005 Performance
SUN TRUST 601620 $ 8,100.00 09/01/2004 Performance
SUN TRUST 601628 $ 664,479.00 09/20/2004 Performance
SUN TRUST 601636 $ 30,000.00 10/01/2005 Performance
SUN TRUST 601640 $1,162,524.00 10/02/2005 Performance
SUN TRUST 601642 $ 204,956.25 10/07/2005 Performance
SUN TRUST 601643 $ 10,000.00 10/08/2004 Performance
SUN TRUST 601650 $ 336,464.27 10/16/2005 Performance
SUN TRUST 601655 $ 167,354.90 10/16/2005 Performance
SUN TRUST 841302 $ 148,502.10 06/01/2005 Financial
SUN TRUST 841367 $ 100,000.00 10/01/2004 Financial
SUN TRUST 841588 $1,570,228.00 07/01/2005 Financial
SUN TRUST 841664 $ 303,381.25 07/29/2005 Financial
SUN TRUST 841924 $ 465,670.00 09/17/2004 Financial
SUN TRUST 841926 $ 407,000.00 09/17/2004 Financial
SUN TRUST F840747 $ 862,707.00 09/30/2004 Financial
SUN TRUST F842180 $ 50,000.00 11/17/2004 Financial
SUN TRUST F842221 $ 250,000.00 12/31/2004 Financial
SUN TRUST F842271 $ 200,000.00 12/01/2004 Financial
SUN TRUST F842282 $1,000,000.00 02/28/2006 Financial
SUN TRUST F842510 $ 650,000.00 04/01/2006 Financial
SUN TRUST F842619 $ 375,000.00 01/30/2006 Financial
SUN TRUST F842741 $ 36,600.00 02/22/2005 Financial
SUN TRUST F842792 $ 750,000.00 03/26/2005 Financial
SUN TRUST F842798 $ 1,000.00 02/28/2005 Financial
SUN TRUST F842802 $1,250,000.00 10/01/2004 Financial
SUN TRUST F842920 $ 914,085.00 10/31/2005 Financial
SUN TRUST F842954 $1,000,000.00 03/30/2005 Financial
Existing LC's under Pulte Home Inc. Page: 12
SUN TRUST F842973 $ 190,000.00 04/01/2005 Financial
SUN TRUST F842955 $ 685,873.38 03/25/2005 Financial
SUN TRUST F843034 $ 128,000.00 04/13/2005 Performance
SUN TRUST F843093 $ 88,875.00 06/30/2007 Financial
SUN TRUST F843106 $ 300,000.00 04/27/2005 Financial
SUN TRUST F843173 $ 500,000.00 09/28/2005 Financial
SUN TRUST F843189 $ 50,000.00 05/19/2005 Financial
SUN TRUST F843209 $4,000,000.00 06/01/2006 Financial
SUN TRUST P000022 $2,072,251.24 10/25/2005 Performance
SUN TRUST P000023 $2,357,953.56 10/25/2005 Performance
SUN TRUST P000024 $ 62,572.12 10/25/2005 Performance
SUN TRUST P000029 $ 231,429.29 10/30/2005 Performance
SUN TRUST P000030 $ 192,954.30 10/30/2005 Performance
SUN TRUST P000042 $ 990,000.00 10/31/2005 Performance
SUN TRUST P000043 $ 675,000.00 10/31/2005 Performance
SUN TRUST P000109 $ 150,000.00 12/02/2004 Performance
SUN TRUST P000131 $ 71,628.75 12/12/2004 Performance
SUN TRUST P000286 $ 114,855.30 01/30/2005 Performance
SUN TRUST P000369 $ 219,743.88 04/09/2005 Performance
SUN TRUST P000404 $ 761,567.00 03/20/2005 Performance
SUN TRUST P000440 $ 135,907.00 03/31/2005 Performance
SUN TRUST P000442 $ 187,705.00 03/31/2005 Performance
SUN TRUST P000443 $ 87,734.00 03/31/2005 Performance
SUN TRUST P000482 $ 104,949.38 04/26/2005 Performance
SUN TRUST P000483 $ 24,844.00 04/23/2005 Performance
SUN TRUST P000484 $ 31,500.00 04/23/2005 Performance
SUN TRUST P000485 $ 115,500.00 04/23/2005 Performance
SUN TRUST P000537 $ 774,743.00 07/17/2005 Performance
Existing LC's under Pulte Home Inc. Page: 13
SUN TRUST P000665 $ 114,978.16 07/27/2005 Performance
SUN TRUST P000682 $ 49,345.00 08/05/2005 Performance
SUN TRUST P000695 $ 700,000.00 08/08/2005 Performance
SUN TRUST P000724 $ 88,000.00 04/20/2005 Performance
SUN TRUST P000731 $ 20,000.00 08/31/2005 Performance
SUN TRUST P000747 $ 18,900.00 03/29/2005 Performance
SUN TRUST P000748 $ 122,192.91 03/03/2005 Performance
SUN TRUST P000754 $ 6,000.00 11/15/2004 Performance
SUN TRUST P000755 $ 10,000.00 11/15/2004 Performance
SUN TRUST P000782 $ 154,893.75 09/23/2005 Performance
SUN TRUST P000783 $ 3,900.00 09/22/2004 Performance
SUN TRUST P000784 $ 80,000.00 09/22/2005 Performance
SUN TRUST P000785 $ 98,250.00 09/22/2005 Performance
SUN TRUST P000801 $ 6,140.00 09/23/2004 Performance
SUN TRUST P000802 $ 76,550.00 09/23/2004 Performance
SUN TRUST P000803 $ 8,500.00 09/23/2005 Performance
SUN TRUST F841974 $ 375,000.00 10/01/2005 Financial
SUN TRUST F842062 $4,000,000.00 10/20/2004 Financial
SUN TRUST F842067 $ 400,000.00 10/23/2004 Financial
SUN TRUST P000818 $ 779,875.50 10/02/2005 Performance
SUN TRUST P000820 $ 119,125.00 03/29/2005 Performance
SUN TRUST P000837 $1,979,771.88 12/01/2004 Performance
SUN TRUST P000838 $ 738,072.85 12/01/2004 Performance
SUN TRUST P000846 $ 224,000.00 10/09/2004 Performance
SUN TRUST P000847 $ 511,370.00 10/09/2005 Performance
SUN TRUST P000850 $ 44,278.35 06/01/2005 Performance
SUN TRUST P000851 $ 33,750.00 06/01/2005 Performance
SUN TRUST P000858 $ 85,105.76 07/20/2005 Performance
SUN TRUST P000859 $ 39,994.24 01/25/2005 Performance
Existing LC's under Pulte Home Inc. Page: 14
SUN TRUST P000862 $ 342,699.31 04/16/2005 Performance
SUN TRUST P000863 $ 290,945.65 04/16/2005 Performance
SUN TRUST P000864 $ 83,000.00 10/16/2005 Performance
SUN TRUST P000879 $ 228,000.00 08/04/2005 Performance
SUN TRUST P000880 $ 90,918.31 04/24/2005 Performance
SUN TRUST P000881 $ 102,549.00 11/14/2004 Performance
SUN TRUST P000888 $ 50,000.00 11/01/2005 Performance
SUN TRUST P000895 $ 65,713.76 05/03/2005 Performance
SUN TRUST P000896 $ 119,941.78 05/03/2005 Performance
SUN TRUST P000897 $ 3,565.00 05/03/2005 Performance
SUN TRUST P000898 $ 16,549.00 05/03/2005 Performance
SUN TRUST P000905 $ 162,000.00 11/10/2005 Performance
SUN TRUST P000909 $ 303,658.65 05/06/2005 Performance
SUN TRUST P000910 $ 59,767.80 05/06/2005 Performance
SUN TRUST P000920 $ 159,494.00 05/12/2005 Performance
SUN TRUST P000925 $ 29,000.00 05/12/2005 Performance
SUN TRUST P000933 $ 480,000.00 11/15/2004 Performance
SUN TRUST P000941 $ 471,850.31 12/07/2005 Performance
SUN TRUST P000949 $ 152,051.00 11/30/2004 Performance
SUN TRUST P000959 $ 50,000.00 11/30/2004 Performance
SUN TRUST P000987 $1,252,476.00 12/10/2005 Performance
SUN TRUST P000988 $ 205,426.38 12/10/2005 Performance
SUN TRUST P000993 $ 32,250.00 01/30/2005 Performance
SUN TRUST P001011 $ 261,463.95 12/22/2004 Performance
SUN TRUST P001013 $ 42,900.00 12/30/2004 Performance
SUN TRUST P001017 $ 31,358.83 06/30/2005 Performance
SUN TRUST P001024 $ 301,500.00 01/15/2006 Performance
SUN TRUST P001038 $ 130,168.00 01/14/2005 Performance
Existing LC's under Pulte Home Inc. Page: 15
SUN TRUST P001045 $ 16,011.50 01/12/2005 Performance
SUN TRUST P001128 $ 110,640.00 03/01/2005 Performance
SUN TRUST P001136 $ 40,053.00 03/15/2005 Performance
SUN TRUST P001137 $ 267,850.00 03/15/2005 Performance
SUN TRUST P001138 $ 558,338.00 03/15/2005 Performance
SUN TRUST P001139 $ 323,576.00 03/15/2005 Performance
SUN TRUST P001141 $ 367,500.00 03/15/2005 Performance
SUN TRUST P001151 $ 25,000.00 03/11/2005 Performance
SUN TRUST P001154 $ 307,813.60 09/10/2005 Performance
SUN TRUST P001207 $ 7,800.00 04/10/2006 Performance
SUN TRUST P001219 $ 102,300.00 04/13/2005 Performance
SUN TRUST P001220 $ 100,218.00 04/13/2005 Performance
SUN TRUST P001226 $ 304,618.80 05/27/2005 Performance
SUN TRUST P001245 $ 143,678.05 10/22/2005 Performance
SUN TRUST P001264 $ 563,600.00 05/06/2005 Performance
SUN TRUST P001265 $ 16,000.00 05/06/2005 Performance
SUN TRUST P001277 $ 76,349.00 05/15/2005 Performance
SUN TRUST P001285 $1,963,323.72 09/25/2008 Performance
SUN TRUST P001286 $ 93,881.95 09/25/2008 Performance
SUN TRUST P001288 $ 364,058.35 09/25/2008 Performance
SUN TRUST P001289 $1,594,167.01 09/25/2008 Performance
SUN TRUST P001290 $ 818,034.10 09/25/2008 Performance
SUN TRUST F843258 $ 70,800.00 06/18/2005 Financial
SUN TRUST P001306 $ 968,824.06 06/18/2005 Performance
SUN TRUST F843288 $ 100,000.00 06/04/2006 Financial
SUN TRUST P001316 $ 70,000.00 06/07/2006 performance
SUN TRUST P001322 $ 64,000.00 06/11/2005 performance
SUN TRUST P001321 $ 146,000.00 06/11/2005 Performance
Existing LC's under Pulte Home Inc. Page: 16
SUN TRUST P001336 $ 2,650,000.00 06/30/2006 Performance
SUN TRUST P001337 $ 478,500.00 12/07/2005 Performance
SUN TRUST F843303 $ 960,700.00 06/11/2005 Financial
SUN TRUST F843404 $10,000,000.00 06/30/2005 Financial
SUN TRUST F843409 $ 3,870,000.00 07/31/2007 Financial
SUN TRUST F843477 $ 3,800,000.00 07/19/2005 Financial
SUN TRUST F843479 $ 2,000,000.00 07/19/2005 Financial
SUN TRUST F843493 $ 1,300,000.00 07/20/2005 Financial
SUN TRUST F843494 $ 185,000.00 07/20/2005 Financial
SUN TRUST F843518 $ 1,585,656.00 07/29/2005 Financial
SUN TRUST F843519 $ 697,395.00 07/29/2005 Financial
SUN TRUST F843584 $ 250,000.00 08/12/2005 Financial
SUN TRUST F843609 $ 276,500.00 08/15/2005 Financial
SUN TRUST F843620 $ 168,990.00 08/18/2005 Financial
SUN TRUST F843621 $ 250,000.00 08/22/2005 Financial
SUN TRUST P843631 $ 400,000.00 08/18/2006 Performance
SUN TRUST F843651 $ 1,009,985.00 08/23/2006 Financial
SUN TRUST F843654 $ 59,832.00 08/23/2006 Financial
SUN TRUST F843655 $ 397,875.00 08/23/2006 Financial
SUN TRUST F843681 $ 250,000.00 08/30/2007 Financial
SUN TRUST F843691 $ 558,000.00 09/30/2007 Financial
SUN TRUST P001374 $ 315,962.00 07/30/2005 Performance
SUN TRUST P001397 $ 69,370.00 07/30/2005 Performance
SUN TRUST P001398 $ 302,332.00 01/21/2006 Performance
SUN TRUST P001404 $ 241,141.00 06/30/2006 Performance
SUN TRUST P001413 $ 1,370,586.00 07/29/2005 Performance
SUN TRUST P001414 $ 602,804.00 07/29/2005 Performance
SUN TRUST P001420 $ 23,300.00 08/05/2005 Performance
SUN TRUST P001421 $ 15,500.00 07/30/2006 Performance
Existing LC's under Pulte Home Inc. Page: 17
SUN TRUST P001443 $ 760,000.00 08/11/2005 Performance
SUN TRUST P001454 $ 4,422,855.00 08/15/2005 Performance
SUN TRUST P001457 $ 442,489.78 08/15/2005 Performance
SUN TRUST P001458 $ 162,223.60 08/15/2005 Performance
SUN TRUST P001459 $ 38,825.00 09/11/2005 Performance
SUN TRUST P001473 $ 60,060.00 09/12/2005 Performance
SUN TRUST P001478 $ 2,747.00 02/23/2006 Performance
SUN TRUST P001479 $ 11,300.00 02/23/2006 Performance
SUN TRUST F843725 $ 100,000.00 09/30/2006 Financial
---------------
TOTAL SUNTRUST BANK $101,789,183.48
===============
WACHOVIA L/C'S LETTER OF CREDIT NO. OUTSTANDINGS EXPIRATION DATE PURPOSE*
----------------------------------------------------------------------------------------------------
Wachovia 202833 $ 225,000.00 04/09/2005 Performance
Wachovia 203909 $3,201,257.48 06/30/2005 Performance
Wachovia 204114 $ 49,677.01 07/21/2005 Performance
Wachovia 204117 $ 110,006.60 07/21/2005 Performance
Wachovia 204122 $ 705,720.97 07/21/2005 Performance
Wachovia 204194 $ 168,750.00 08/28/2005 Performance
Wachovia 204195 $ 300,000.00 08/28/2005 Performance
Wachovia 204198 $ 108,750.00 08/28/2005 Performance
Wachovia 204457 $ 78,000.00 08/05/2005 Performance
Wachovia 401338 $ 315,082.00 11/18/2005 Performance
Wachovia 405181 $ 374,018.39 12/28/2005 Performance
Wachovia 405182 $ 117,638.32 12/28/2005 Performance
Wachovia 405183 $ 307,346.19 01/08/2006 Performance
Wachovia 405322 $ 772,477.16 09/30/2005 Performance
Wachovia 405424 $ 71,200.00 11/18/2005 Performance
Wachovia 405530 $ 10,000.00 01/29/2005 Performance
Wachovia 406754 $ 140,577.00 10/28/2005 Performance
Existing LC's under Pulte Home Inc. Page: 18
Wachovia 412851 $ 68,533.50 05/14/2005 Performance
Wachovia 412856 $ 75,500.00 05/14/2005 Performance
Wachovia 414008 $ 562,461.00 12/03/2004 Performance
Wachovia 420228 $ 3,660,280.42 03/05/2005 Performance
Wachovia 422131 $ 82,000.00 07/23/2005 Performance
Wachovia 519668 $ 33,000.00 10/14/2005 Performance
Wachovia 519759 $ 354,362.72 10/22/2005 Performance
Wachovia 204136 $ 250,000.00 07/17/2005 Performance
---------------
TOTAL WACHOVIA BANK $ 12,141,638.76
TOTAL ALL REVOLVER BANKS 306,813,269.78
===============