EXECUTION VERSION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
PULTE HOMES, INC.
AS BORROWER,
THE LENDERS IDENTIFIED HEREIN,
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT,
AND
CITIGROUP GLOBAL MARKETS, INC.,
AS SYNDICATION AGENT
AND
BARCLAYS BANK PLC,
BNP PARIBAS,
CALYON NEW YORK BRANCH
COMERICA BANK
DEUTSCHE BANK TRUST COMPANY AMERICAS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
THE ROYAL BANK OF SCOTLAND PLC,
SUNTRUST BANK,
UBS LOAN FINANCE LLC,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
AND
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH,
BANK OF AMERICA, N.A.,
GUARANTY BANK,
LLOYDS TSB BANK PLC,
MIZUHO CORPORATE BANK, LTD.,
AND
PNC BANK, NATIONAL ASSOCIATION
AS MANAGING AGENTS
AND
LASALLE BANK NATIONAL ASSOCIATION,
WASHINGTON MUTUAL BANK,
AMSOUTH BANK,
FIFTH THIRD BANK, A MICHIGAN BANK CORPORATION,
AND
U.S. BANK, NATIONAL ASSOCIATION,
AS CO-AGENTS
DATED AS OF OCTOBER 31, 2005
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
Table of Contents
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................................... 1
1.1 DEFINITIONS..................................................................... 1
1.2 CLASSIFICATION OF LOANS AND BORROWINGS.......................................... 22
1.3 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS................... 22
1.4 ACCOUNTING TERMS................................................................ 22
1.5 TIME............................................................................ 23
ARTICLE II CREDIT FACILITIES.................................................................. 23
2.1 COMMITMENTS..................................................................... 23
2.2 LOANS AND BORROWINGS............................................................ 23
2.3 REQUESTS FOR REVOLVING BORROWINGS............................................... 24
2.4 SWINGLINE LOANS SUBFACILITY..................................................... 24
2.5 INCREASE OF AGGREGATE COMMITMENT................................................ 26
2.6 FACILITY LCS.................................................................... 28
2.7 FUNDING OF BORROWINGS........................................................... 32
2.8 INTEREST ELECTIONS.............................................................. 33
2.9 TERMINATION AND REDUCTION OF COMMITMENTS........................................ 34
2.10 REPAYMENT OF LOANS; EVIDENCE OF DEBT............................................ 35
2.11 PREPAYMENT OF LOANS............................................................. 36
2.12 FEES............................................................................ 36
2.13 INTEREST........................................................................ 37
2.14 ALTERNATE RATE OF INTEREST...................................................... 38
2.15 INCREASED COSTS................................................................. 39
2.16 BREAK FUNDING PAYMENTS.......................................................... 40
2.17 TAXES........................................................................... 41
2.18 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS..................... 42
2.19 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.................................. 43
2.20 EXTENSION OF MATURITY DATE...................................................... 44
ARTICLE III CONDITIONS PRECEDENT............................................................... 46
3.1 CLOSING CONDITIONS.............................................................. 46
3.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.......................................... 50
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................... 50
4.1 FINANCIAL CONDITION............................................................. 50
4.2 NO MATERIAL CHANGE.............................................................. 51
4.3 ORGANIZATION AND GOOD STANDING.................................................. 51
4.4 DUE AUTHORIZATION............................................................... 51
4.5 NO CONFLICTS.................................................................... 51
4.6 CONSENTS........................................................................ 52
4.7 ENFORCEABLE OBLIGATIONS......................................................... 52
4.8 NO DEFAULT...................................................................... 52
4.9 LIENS........................................................................... 52
4.10 INDEBTEDNESS.................................................................... 52
4.11 LITIGATION...................................................................... 52
4.12 TAXES........................................................................... 53
4.13 COMPLIANCE WITH LAW............................................................. 53
4.14 ERISA........................................................................... 53
4.15 SUBSIDIARIES.................................................................... 54
4.16 USE OF PROCEEDS................................................................. 54
4.17 GOVERNMENT REGULATION........................................................... 54
4.18 ENVIRONMENTAL MATTERS........................................................... 55
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4.19 INTELLECTUAL PROPERTY........................................................... 56
4.20 SOLVENCY........................................................................ 56
4.21 INVESTMENTS..................................................................... 56
4.22 DISCLOSURE...................................................................... 56
4.23 LICENSES, ETC................................................................... 57
4.24 BURDENSOME RESTRICTIONS......................................................... 57
4.25 LABOR CONTRACTS AND DISPUTES.................................................... 57
4.26 BROKER'S FEES................................................................... 57
ARTICLE V AFFIRMATIVE COVENANTS............................................................. 57
5.1 INFORMATION COVENANTS........................................................... 58
5.2 FINANCIAL COVENANTS............................................................. 61
5.3 PRESERVATION OF EXISTENCE AND FRANCHISES........................................ 61
5.4 BOOKS AND RECORDS............................................................... 61
5.5 COMPLIANCE WITH LAW............................................................. 61
5.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS......................................... 61
5.7 INSURANCE....................................................................... 62
5.8 MAINTENANCE OF PROPERTY......................................................... 62
5.9 PERFORMANCE OF OBLIGATIONS...................................................... 62
5.10 USE OF PROCEEDS................................................................. 62
5.11 AUDITS/INSPECTIONS.............................................................. 62
5.12 ADDITIONAL CREDIT PARTIES....................................................... 62
5.13 REIT REQUIREMENTS............................................................... 63
ARTICLE VI NEGATIVE COVENANTS................................................................ 63
6.1 INDEBTEDNESS.................................................................... 63
6.2 LIENS........................................................................... 64
6.3 NATURE OF BUSINESS.............................................................. 64
6.4 CONSOLIDATION AND MERGER........................................................ 64
6.5 SALE OR LEASE OF ASSETS......................................................... 65
6.6 SALE AND LEASEBACK.............................................................. 65
6.7 ADVANCES, INVESTMENTS AND LOANS................................................. 66
6.8 RESTRICTED PAYMENTS............................................................. 66
6.9 TRANSACTIONS WITH AFFILIATES.................................................... 66
6.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS........................................... 66
6.11 NO LIMITATIONS.................................................................. 66
6.12 NO OTHER NEGATIVE PLEDGES....................................................... 67
6.13 OTHER INDEBTEDNESS.............................................................. 67
6.14 RESTRICTIONS ON THE REITS....................................................... 67
ARTICLE VII EVENTS OF DEFAULT................................................................. 68
7.1 EVENTS OF DEFAULT............................................................... 68
7.2 ACCELERATION; REMEDIES.......................................................... 70
7.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT................................... 71
ARTICLE VIII THE ADMINISTRATIVE AGENT.......................................................... 72
ARTICLE IX MISCELLANEOUS..................................................................... 74
9.1 NOTICES......................................................................... 74
9.2 WAIVERS; AMENDMENTS............................................................. 75
9.3 EXPENSES; INDEMNITY; DAMAGE WAIVER.............................................. 76
9.4 SUCCESSORS AND ASSIGNS.......................................................... 77
9.5 SURVIVAL........................................................................ 80
9.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS........................................ 81
9.7 SEVERABILITY.................................................................... 81
9.8 RIGHT OF SETOFF................................................................. 81
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9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS...................... 81
9.10 WAIVER OF JURY TRIAL............................................................ 82
9.11 HEADINGS........................................................................ 82
9.12 CONFIDENTIALITY................................................................. 82
9.13 USA PATRIOT ACT................................................................. 83
SCHEDULES
Schedule 1.1(a) Commitments
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Permitted Liens
Schedule 4.10 Indebtedness
Schedule 4.11 Litigation
Schedule 4.15 Subsidiaries
Schedule 4.21(a) Investment Policy
Schedule 4.21(b) Investments
Schedule 4.25 Labor Contracts and Disputes
EXHIBITS
Exhibit 1.1(a) Form of Assignment and Assumption
Exhibit 1.1(b) Form of Guaranty
Exhibit 1.1(c) Form of Intercreditor Agreement
Exhibit 2.4(e) Form of Swingline Note
Exhibit 2.5 Form of Commitment and Acceptance
Exhibit 2.10(e) Form of Revolving Note
Exhibit 5.1(c) Form of Officer's Certificate
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit
Agreement") is entered into as of October 31, 2005 among PULTE HOMES, INC., a
Michigan corporation (the "Borrower"), the Lenders (as defined herein), and
JPMORGAN CHASE BANK, N.A., as Administrative Agent for the Lenders ("the
Administrative Agent").
RECITALS
WHEREAS, the Borrower, the Administrative Agent (successor by merger to
Bank One, NA) and certain other lenders are party to a certain Amended and
Restated Credit Agreement dated as of September 16, 2004 (the "Original Credit
Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the Original
Credit Agreement to extend the Maturity Date 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.
ARTICLE I
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:
"ABR", when used in reference to any Loan or Borrowing, refers to a
Loan or the Loans comprising such Borrowing which bear(s) interest at a
rate determined by reference to the Alternate Base Rate.
"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 5.12 or otherwise.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
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"Adjusted LIBOR Market Index Rate" means, with respect to an Index
Rate Swingline Loan, the sum of (i) the product of (a) the LIBOR Market
Index Rate applicable to such Index Rate Swingline Loan and (b) the
Statutory Reserve Rate plus (ii) the Applicable Percentage.
"Administrative Agent" means JPMorgan Chase Bank, N.A.. (or any
successor thereto) or any successor administrative agent appointed
pursuant to Article VIII.
"Administrative Fees" has the meaning set forth in Section 2.12(b).
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"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" means the Commitments of all of the Lenders
hereunder, initially in the amount of $1,615,000,000.
"Aggregate LC Commitment" means the lesser of (a) One Billion One
Hundred Twenty-Five Million Dollars ($1,125,000,000) and (b) the Aggregate
Commitment.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus -1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"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:
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LEVEL I LEVEL II LEVEL III LEVEL IV
------------------------- ---------------- ----------------- ----------------------------------
SENIOR DEBT RATING GREATER THAN OR EQUAL BBB / Baa2 BBB- / Baa3 LESS THAN BBB- / Baa3 OR NO SENIOR
TO BBB+ / Baa1 DEBT RATING
DEBT TO CAPITALIZATION RATIO LESS THAN OR EQUAL TO 30% GREATER THAN 30% GREATER THAN 40% GREATER THAN 50%
BUT LESS THAN BUT LESS THAN OR
OR EQUAL TO 40% EQUAL TO 50%
APPLICABLE PERCENTAGE FOR 0.50% 0.625% 0.75% 1.00%
EURODOLLAR LOANS, INDEX RATE
SWINGLINE LOANS AND FACILITY
LC FEE RATE
APPLICABLE PERCENTAGE FOR 0.125% 0.15% 0.175% 0.20%
COMMITMENT FEES
If the Senior Debt Rating is not at the same level as the Debt to
Capitalization Ratio, but no more than one level apart, then the pricing
shall correspond to the level which causes pricing to be lower. If the
Senior Debt Rating is more than one level different from the level
applicable to the Debt to Capitalization Ratio, then the pricing shall be
one level lower (i.e., lower pricing) than the higher of such two levels.
Notwithstanding the foregoing, at any time that either the Moody's or the
S&P rating of the Borrower's senior unsecured debt is at Level II or
better, pricing shall correspond to the level of such rating or, if both
have issued ratings, to the higher of the Moody's or S&P rating (i.e.,
lower pricing). 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 5.1(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" has the meaning assigned to such term in Section
9.4.
"Arranger" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole
Bookrunner.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R.
Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in
dollars at the offices of such member in the United States; provided that
if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to
the Lenders.
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"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.4), and accepted by the
Administrative Agent, in the form of Exhibit 1.1 or any other form
approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Commitments.
"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.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment
Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Pulte Homes, Inc., a Michigan corporation, together
with any successors and permitted assigns.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect or (b) a
Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings 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.
"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.
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"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 4.21(a).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Credit Agreement, (b) any change in any
law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or Issuing Bank (or, for purposes of Section
2.15(b), by any lending office of such Lender or by such Lender's or
Issuing Bank's holding company, if any) with any request, guideline or
directive (whether or not having the force of law, but, if not having the
force of law, only if the same is commonly complied with by similarly
situated lending institutions) of any Governmental Authority made or
issued after the date of this Credit Agreement.
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"Change of Control" means the occurrence of any of the following
events: (a) there shall be consummated any consolidation, share exchange
or merger of the Borrower in which the Borrower is not the continuing or
surviving corporation or pursuant to which the Borrower's Voting Stock
would be converted into cash, securities or other property, other than, in
any case, a merger of the Borrower in which the holders of Voting Stock
immediately prior to the merger have the same or greater proportionate
ownership, directly or indirectly, of the Voting Stock of the surviving
corporation immediately after the merger as they had of the Voting Stock
of the Borrower immediately before the merger; (b) there is a report filed
by any Person, including Affiliates of the Borrower (other than the
Borrower, its Material Subsidiaries, employee stock ownership plans or
employee benefit plans of the Borrower or its subsidiaries, or a Permitted
Holder) on Schedule 13D or 14D-1 (or any successor schedule, form or
report under the Exchange Act) disclosing that such Person (for the
purpose of this definition of "Change in Control" only, the term "Person"
shall include a "person" within the meaning of Section 13(d)(3) and
Section 14(d)(2) of the Exchange Act or any successor provision to either
of the foregoing) has become the beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3, Rule 13d-5 or any successor rule or
regulation promulgated under the Exchange Act) of 30% or more of the
Borrower's Voting Stock; provided, however, that a Person shall not be
deemed the beneficial owner of, or to own beneficially (i) any securities
tendered pursuant to a tender or exchange offer made on behalf of such
Person or any of such Person's Affiliates until such tendered securities
are accepted for purchase or exchange thereunder or (ii) any securities if
such beneficial ownership (A) arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations
under the Exchange Act, and (B) is not also then reportable on Schedule
13D (or any successor schedule, form or report) under the Exchange Act; or
(c) during any period of two consecutive calendar years, individuals who,
at the beginning of such period constituted the board of directors of the
Borrower cease for any reason to constitute a majority of the directors of
the Borrower then in office unless such new directors were elected by the
directors of the Borrower who constituted the board of directors of the
Borrower at the beginning of such period.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Swingline Loans.
"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.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in
Facility LCs and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's potential
Revolving Credit Exposure hereunder, as such commitment may be reduced
from time to time in accordance with this Credit Agreement. The initial
amount of each Lender's Commitment is set forth on Schedule 1.1(a).
"Commitment and Acceptance" has the meaning set forth in Section
2.5(a).
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"Commitment Fees" means the fees payable to the Lenders pursuant to
Section 2.12(a).
"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
Facility LC Application, each Guaranty, the Intercreditor Agreement and
all other related agreements and documents issued or delivered hereunder
or thereunder or pursuant hereto or thereto.
"Credit Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders, any Issuing Bank 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,
including interest and fees which accrue after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of a Credit Party, whether or not allowed claims in such
proceeding.
"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 6.1(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
$300,000,000 to (b) Capitalization.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a) has
failed to make a Loan or purchase a Participation Interest in Loans
required pursuant to the terms of this Credit Agreement (but only for so
long as such Loan is not made or such Participation Interest is not
purchased), (b) has failed to pay to the Administrative Agent or any other
Lender an amount owed by such Lender pursuant to the terms of this Credit
Agreement (but only for so long as such amount has not been paid) or (c)
has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or with respect to which (or with respect to any
assets of which) a receiver, trustee or similar official has been
appointed.
"Dollars" and "$" 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
have 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 such period, (ii) total Federal, state,
foreign or other income taxes of the Borrower for such
7
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 3.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders).
"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 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.
8
"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", when used in reference to any Loan or Borrowing,
refers to a Loan or the Loans comprising such Borrowing which bear(s)
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" means any of the events or circumstances
specified in Section 7.1.
"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.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a)
income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in
which the Borrower is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under
Section 2.19(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to
this Credit Agreement (or designates a new lending office) or is
attributable to such Foreign Lender's failure to comply with Section
2.17(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a).
"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 2.20(a).
"Extension of Credit" means, as to any Lender or Issuing Bank, 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 Issuing Bank or a Modification that constitutes an
increase of a Facility LC by such Issuing Bank.
"Extension Required Lenders" has the meaning set forth in Section
2.20(a).
"Facility Increase" has the meaning set forth in Section 2.5(a).
9
"Facility LC" means (a) each Letter of Credit issued by an Issuing
Bank pursuant to Section 2.6 and (b) each Existing Letter of Credit.
"Facility LC Application" has the meaning set forth in Section
2.6(a).
"Facility LC Collateral Account" has the meaning set forth in
Section 2.6(j).
"Facility LC Fee" has the meaning set forth in Section 2.12(e).
"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.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means that certain letter agreement dated as of
September 29, 2005 among the Borrower, the Arranger and the Administrative
Agent.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Fronting Fee" has the meaning set forth in Section 2.12(f).
"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 1.4.
"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(b) 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,
10
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 therefore, (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 a Payment Guaranty) 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 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
11
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, (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, and (n) such Person's pro rata share of the
"Indebtedness" (i.e., the obligations and liabilities under clauses (a)
through (m) above) of any joint venture in which such Person holds an
interest.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"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 4.19.
"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 1.1(c).
"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 Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.8.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September
and December, (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period, and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.
"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
12
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.
"Issuance Date" means, with respect to a Facility LC, the date on
which such Facility LC is issued.
"Issuing Bank" means each of JPMorgan Chase Bank and such other
Lender selected by the Borrower with the approval of the Administrative
Agent (which approval shall not be unreasonably withheld), to issue such
Facility LC, provided such other Lender consents to act in such capacity.
The Lenders that have issued the Existing Facility LCs have been selected
and approved as Issuing Banks.
"JPMorgan Chase Bank" means JPMorgan Chase Bank, N.A. in its
individual capacity and its successors and assigns.
"LC Disbursement" means a payment made by an Issuing Bank pursuant
to a Facility LC.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Facility LCs at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed
by or on behalf of the Borrower, by a Borrowing or otherwise, at such
time. The LC Exposure of any Lender at any time shall equal its Pro Rata
Share of the total LC Exposure at such time.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any assignee which may become a Lender by way
of assignment in accordance with the terms hereof or by Commitment and
Acceptance in accordance with the terms hereof, together with their
successors and permitted assigns.
"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.
13
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Telerate Page 3750 (formerly the
Dow ▇▇▇▇▇ Market Service) (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such page of
such Service, as determined by the Administrative Agent from time to time
for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect
to such Eurodollar Borrowing for such Interest Period shall be the rate at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"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 JPMorgan
Chase Bank 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, 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
14
"Excluded Subsidiaries") shall not be considered Material Subsidiaries:
(a) Pulte Mortgage LLC; (b) First Heights Holdings Corp.; (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 October 30, 2010, as such date may be extended
in accordance with the terms of Section 2.20 (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).
"Maximum Commitment Limit" means Two Billion Two Hundred Fifty
Million Dollars ($2,250,000,000), less the amount of any reductions of the
Aggregate Commitment effected pursuant to Section 2.9(b).
"Modify" and "Modification" are defined in Section 2.6(a).
"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.
"New Lender" means a Lender or an 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 2.5.
"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
15
not, directly or indirectly, obligated or otherwise liable for the
principal of, premium, if any, and interest on such Indebtedness, except
pursuant to mortgages, deeds of trust or other security interests or other
recourse obligations or liabilities in respect of specific land or other
real property interests of a Credit Party; provided that recourse
obligations or liabilities of a Credit Party solely for indemnities,
covenants or breach of warranty, representation or covenant in respect of
any Indebtedness will not prevent Indebtedness from being classified as
Non-Recourse Land Financing.
"Note" or "Notes" means the Revolving Notes and the Swingline Note,
individually or collectively, as appropriate.
"Original Credit Agreement" has the meaning set forth in the
Recitals to this Credit Agreement.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Credit Agreement.
"Participant" has the meaning set forth in Section 9.4.
"Participation Interest" means the Extension of Credit by a Lender
by way of a participation in a Loan or Loans pursuant to Section 2.4(c) or
Section 2.18(c).
"Payment Guaranty" means, with respect to any Person, such Person's
guaranty of the obligations of a joint venture to make principal payments
of its Indebtedness, whether regularly scheduled or payable upon maturity
by acceleration or otherwise, but shall not include a guaranty in which
the payment obligations are limited to principal payments of the joint
venture's Indebtedness required to be made solely to cure the joint
venture's failure to maintain or satisfy a specified loan-to-value ratio
or other financial covenant or condition with respect to the collateral
that secures such Indebtedness of the joint venture.
"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.
"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 $200,000,000 during the term of
16
this Credit Agreement, (g) Investments in Mortgage Banking Subsidiaries in
an amount not to exceed at any one time the sum of (i) $155,000,000 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, (j) Investments in First
Heights Holding Corp. and North America Builders Indemnity Company, or (k)
other Investments not included under clauses (a) through (j) above
(including Investments in joint ventures) which do not, in the aggregate,
exceed 25% 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 due but not yet delinquent 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 6.1(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
6.1(h), so long as such mortgage Liens are unrecorded and unperfected; and
(m) Liens granted to secure any Indebtedness permitted by Section 6.1(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.
17
"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 of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly announced
as being effective.
"Pro Rata Share" means, as to any Lender at any time, the ratio of
(a) such Lender's Commitment to (b) the Aggregate Commitment, as such
percentage may be increased, reduced or modified at any time or from time
to time pursuant to the terms hereof.
"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
2.12(e).
"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 2.20(a).
"Register" has the meaning set forth in Section 9.4.
"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.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.6(e) to
reimburse the Issuing Banks for amounts paid by the Issuing Banks 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.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"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.
18
"Required Lenders" means Lenders whose aggregate Revolving Credit
Exposure (as hereinafter defined) constitutes at least 66-2/3% of the
Revolving 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 the Revolving Credit Exposure of such Lender at such
time.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan 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 2.10(e).
"RL Maturity Date" has the meaning set forth in Section 2.20(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 second highest of the
ratings of the Borrower's long-term unsecured senior debt by ▇▇▇▇▇'▇, S&P
and Fitch. 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.
19
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to each Credit Party as of a
particular date, that on such date (a) such Credit Party is able to pay
its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such
Credit Party does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Credit Party's ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Credit
Party is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Credit Party's
assets would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Credit Party is engaged or is to engage, (d) the fair value of the assets
of such Credit Party is greater than the total amount of liabilities
(excluding (i) Letters of Credit and surety bonds issued in the normal
course of business in connection with such Credit Party's development
activities and (ii) intercompany indebtedness owed to other Credit
Parties), including, without limitation, contingent liabilities of such
Credit Party and (e) the present fair saleable value of the assets of such
Credit Party is not less than the amount that will be required to pay the
probable liability of such Credit Party on its debts as they become
absolute and matured. In computing the amount of contingent liabilities at
any time, it is intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for
new negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time
to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"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
20
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 1.2)
executed and delivered by a REIT or a Material Subsidiary of the Borrower
after the Closing Date.
"Swingline 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 Fifty Million Dollars
($50,000,000).
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Pro Rata Share of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank.
"Swingline Loan Request" means a request by the Borrower for a
Swingline Loan pursuant to and in accordance with Section 2.4(b).
"Swingline Loans" means the loans made by the Swingline Lender
pursuant to Section 2.4.
"Swingline Note" means the promissory note of the Borrower in favor
of the Swingline Lender in the form of Exhibit 2.4(e) evidencing the
Swingline Loans, as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"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.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"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
21
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.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or, if
such rate is not so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m. on such day (or, if such day is not a
Business Day, on the next preceding Business Day) by the Administrative
Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unused Aggregate Commitment" 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 Aggregate
Commitment exceeds (b) the aggregate Revolving Credit Exposure of all
Lenders.
"Upfront Fees" means the fees payable to the Lenders pursuant to
Section 2.12(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 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan" or "Swingline Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan" or "ABR Swingline Loan").
Borrowings also may be classified and referred to by Class (e.g., a "Revolving
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing").
1.3 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 Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.4 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to
22
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 5.1 (or, prior to the delivery of the first
financial statements pursuant to Section 5.1, consistent with the financial
statements described in Section 3.1(a)); 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.
1.5 TIME.
All references to time herein shall be references to Eastern Standard Time
or Eastern Daylight Savings Time, as the case may be, unless specified
otherwise.
ARTICLE II
CREDIT FACILITIES
2.1 COMMITMENTS. Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
2.2 LOANS AND BORROWINGS.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure
to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Swingline Loan shall be an ABR Loan
or an Index Rate Swingline Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of
23
$1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than
$1,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.6(e). Revolving Borrowings of
more than one Type may be outstanding at the same time; provided, that
there shall not at an time be more than a total of fifteen (15) Eurodollar
Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit Agreement,
the Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date or, if requested prior to an RL
Maturity Date, would end after such RL Maturity Date.
2.3 REQUESTS FOR REVOLVING BORROWINGS. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than noon three Business
Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than noon on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.7.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
2.4 SWINGLINE LOANS SUBFACILITY.
24
(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 Availability Period (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 Commitment, and
(ii) the aggregate Revolving Credit Exposure of all Lenders shall not
exceed the Aggregate Commitment. Prior to the Maturity Date, Swingline
Loans may be repaid and reborrowed by the Borrower in accordance with the
provisions hereof.
(b) Method of Borrowing and Funding Swingline Loans. By no later
than 2:00 p.m. on the date of the requested borrowing of Swingline Loans,
the Borrower shall provide telephonic notice to 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 3.2 and, to the extent that the Swingline Loan
requested is the initial Extension of Credit, Section 3.1 and (iv) whether
such Swingline Loan is to be an ABR 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 2:30 p.m. on the date of such request the Adjusted LIBOR Market
Index Rate. The Borrower shall notify the Swingline Lender by 3:00 p.m. on
such date whether it wishes to accept the Adjusted LIBOR Market Index
Rate. Failure of the Borrower to timely accept the Adjusted LIBOR Market
Index Rate shall make the request for the Adjusted LIBOR Market Index Rate
void, and such Swingline Loan shall be made as an ABR Loan. The Swingline
Lender shall initiate the transfer of funds representing the Swingline
Loan advance to the Borrower by 4:00 p.m. on the Business Day of the
requested borrowing.
(c) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay all ABR Swingline 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 but not later than the Maturity Date. 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
3.2. 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
7.1(f) or (iii) the acceleration of any Loan or termination of any
Commitment pursuant to Section 7.2, each other Lender shall irrevocably
and unconditionally purchase 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 3.2 hereof are then satisfied (provided the Swingline Lender
believed in good faith that the conditions precedent set forth in Section
3.2 were satisfied at the time of funding of such Swingline Loan), whether
or not the Borrower has
25
submitted a Borrowing Request 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 9.1, 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 therefore, 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 2.4(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
2.4(c), the outstanding principal amount, including the Swingline Lender's
Pro Rata Share, of such Swingline Loans shall be deemed to be an ABR
Revolving Loan.
(d) Interest on Swingline Loans. Subject to the provisions of
Section 2.13, each Swingline Loan shall bear interest at a per annum rate
equal to the Alternate Base 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 Commitment and in substantially
the form of Exhibit 2.4(e).
2.5 INCREASE OF AGGREGATE COMMITMENT.
(a) 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 Aggregate Commitment
("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 Aggregate Commitment 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
Commitments or become Lenders with a new Commitment hereunder, subject to
and in accordance with the provisions of this Section 2.5. Any Facility
Increase shall be subject to the following limitations and conditions: (A)
any increase (in the aggregate) in the Aggregate Commitment and the amount
(in the aggregate) of any new Commitment of any New Lender or the amount
(in the aggregate) of any increase in the Commitment of any New Lender,
shall (unless otherwise agreed by the Borrower and the Administrative
Agent) not be less than
26
$5,000,000 (and shall be in integral multiples of $1,000,000 if in excess
thereof); (B) no Facility Increase shall increase the Aggregate Commitment
to an amount in excess of the Maximum 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 2.5 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 3.1(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.
(b) Loans by New Lenders. Upon the effective date of any Facility
Increase 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 ABR Loans
and reborrow an ABR 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 Aggregate Commitment 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 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 an ABR Loan by such New Lender
hereunder.
27
(c) New Lenders' Participation in Facility LCs. Upon the effective
date of any increase in the Aggregate Commitment in accordance with the
provisions of Section 2.5(b), 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 Credit 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
Aggregate Commitment) bears to the Aggregate Commitment as so increased.
(d) 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.
2.6 FACILITY LCS.
(a) General. Subject to the terms and conditions set forth herein,
the Borrower may request the issuance of Facility LCs for its own account,
or may request an Issuing Bank to renew, extend, increase, decrease or
otherwise modify a Facility LC ("Modify," and each such action, a
"Modification"), in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time not later
than five (5) Business Days prior to the Maturity Date. Each Facility LC
shall be issued in Dollar amounts. In the event of any inconsistency
between the terms and conditions of this Credit Agreement and the terms
and conditions of any form of any application for a Facility LC or other
agreement submitted by the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Facility LC (each, a "Facility LC
Application"), the terms and conditions of this Credit Agreement shall
control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Facility LC (or a Modification of
an outstanding Facility LC), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank (reasonably in
advance of the requested date of issuance or Modification) a notice
requesting the issuance of a Facility LC, or identifying the Facility LC
to be Modified, and specifying the date of issuance or Modification (which
shall be a Business Day), the date on which such Facility LC is to expire
(which shall comply with paragraph (c) of this Section), the amount of
such Facility LC, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend
such Facility LC. If requested by the Issuing Bank, the Borrower also
shall submit a Facility LC Application on the Issuing Bank's standard form
in connection with any request for a Facility LC. A Facility LC shall be
issued or Modified only if (and upon issuance or Modification of each
Facility LC the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance or Modification (i) the LC Exposure
shall not exceed the Aggregate LC Commitment and (ii) the aggregate
28
Revolving Credit Exposure of all Lenders shall not exceed the Aggregate
Commitment. Upon receipt of a request for issuance (or increase) of a
Facility LC, the Issuing Bank shall promptly (and in any event prior to
the issuance (or increase) of such Facility LC) notify the Administrative
Agent thereof, which notice may be given by fax or e-mail. The issuance or
Modification by an Issuing Bank of any Facility LC shall, in addition to
the conditions precedent set forth in Section 3.2 (the satisfaction of
which the Issuing Bank shall have no duty to ascertain), be subject to the
conditions precedent that the Issuing Bank 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 above in this Section 2.6(b),
which notice shall be given promptly by the Administrative Agent. Promptly
following the Administrative Agent's receipt of notice of the issuance or
Modification of a Facility LC, the Administrative Agent shall notify the
Lenders, which notice may be by fax or e-mail.
(c) Expiration Date. Each Facility LC shall expire not later than
five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Facility LC (or
Modification to a Facility LC increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in such Facility LC (including, as
of the Effective Date, each Existing Letter of Credit) equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn
under such Facility LC. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Pro Rata Share of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to
be refunded to the Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Facility LCs is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any
Modification of any Facility LC or the occurrence and continuance of a
Default or Event of Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Facility LC, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal
to such LC Disbursement not later than 1:00 p.m. on the date that such LC
Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m. on such date, or, if such notice has
not been received by the Borrower prior to such time on such date, then
not later than 1:00 p.m. on (i) the Business Day that the Borrower
receives such notice, if such notice is received prior to 10:00 a.m. on
the day of receipt, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt; provided that the Borrower may,
subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.3 or 2.4 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to
the extent so financed, the Borrower's obligation to make such payment
shall be satisfied by the resulting ABR Revolving
29
Borrowing or Swingline Loan; and provided further, that, if such payment
is so financed, the time by which the Borrower is obligated to make such
payment shall be deferred to the time at which the ABR Revolving Borrowing
or Swingline Loan made to finance such payment is advanced. If the
Borrower fails to make such payment or satisfy the reimbursement
obligation by an ABR Revolving Borrowing or Swingline Loan as aforesaid
when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due
from the Borrower, in the same manner as provided in Section 2.7 with
respect to Loans made by such Lender (and Section 2.7 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Credit Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Facility LC or this Credit Agreement, or any term or
provision therein, (ii) any draft or other document presented under a
Facility LC proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii)
payment by the Issuing Bank under a Facility LC against presentation of a
draft or other document that does not comply with the terms of such
Facility LC, or (iv) any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the provisions
of this Section, constitute a legal or equitable discharge of, or provide
a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Facility
LC or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other communication under or relating to any
Facility LC (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing
Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents
presented under a Facility LC comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of the Issuing Bank (as finally
30
determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Facility
LC, the Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents
are not in strict compliance with the terms of such Facility LC.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Facility LC. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing
Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders
with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant
to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Reports; Quarterly Statements. Each Issuing Bank shall, no later
than the third (3rd) Business Day following the last day of each month,
provide to the Administrative Agent a schedule of 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 each month (and whether such
Facility LC is a performance Facility LC or financial Facility LC) and the
aggregate amount (if any) payable by the Borrower to such Issuing Bank
during the month pursuant to Sections 2.16 and 2.17. Copies of such
reports shall be provided promptly to each Lender and the Borrower by the
Administrative Agent. The Administrative Agent shall, with reasonable
promptness following receipt from all Issuing Banks of the reports
provided for in this paragraph (i) 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.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing
greater than 66-2/3% of the total LC Exposure) demanding the deposit
31
of cash collateral pursuant to this subsection, or if required pursuant to
Section 2.20(a), the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders (the "Facility LC Collateral Account"), an amount
in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon (or, in the case of a deposit required pursuant to
Section 2.20(a), the amount required to be deposited thereunder); provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in Section 7.1(f).
Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Credit Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over the
Facility LC Collateral Account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option
and sole discretion of the Administrative Agent and at the Borrower's risk
and expense, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such Facility LC
Collateral Account. Moneys in such Facility LC Collateral Account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the Reimbursement
Obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 66-2/3% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under
this Credit Agreement. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of
Default have been cured or waived. If the Borrower is required to provide
an amount of cash collateral pursuant to Section 2.20(a), such amount
shall be returned to the Borrower from time to time to the extent the
amount deposited shall exceed the LC Exposure.
2.7 FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds
by 2:00 p.m. to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that
Swingline Loans shall be made as provided in Section 2.4. The
Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account
of the Borrower maintained with the Administrative Agent in New York City
and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.6(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing (or, in the case of
an ABR Borrowing, at least 30 minutes prior to the time at which such
Lender is required to fund its Loan) that such Lender will not make
available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such
32
date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
2.8 INTEREST ELECTIONS.
(a) Each Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a
Eurodollar Revolving Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing
and, in the case of a Eurodollar Revolving Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.3 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
33
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period."
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and
of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end
of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
2.9 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the
aggregate Revolving Credit Exposure of all Lenders would exceed the
Aggregate Commitment.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each
34
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments. The Borrower's rights under
Section 2.5 shall remain in effect after such reduction of the
Commitments.
2.10 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Maturity Date and (ii) to
the Swingline Lender the then unpaid principal amount of each Swingline
Loan as and when provided in Section 2.4(c).
(b) 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 9.1. 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.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to
time hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms
of this Credit Agreement.
(f) Any Lender may request that Revolving Loans made by it be
evidenced by a Revolving Note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a Revolving Note payable to the order
of such Lender. Thereafter, the Loans evidenced by such Revolving Note and
interest thereon shall at all times (including after assignment pursuant
35
to Section 9.4) be represented by one or more Revolving Notes payable to
the order of the payee named therein.
2.11 PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m. on the
date of payment or (iii) in the case of prepayment of a Swingline Loan,
not later than 12:00 noon on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by
Section 2.9, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.9. Promptly
following receipt of any such notice relating to a Revolving Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount
that would be permitted in the case of an advance of a Revolving Borrowing
of the same Type as provided in Section 2.2. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.13.
2.12 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 Aggregate Commitment.
Commitment Fees shall be payable in arrears on each Quarterly Payment Date
and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; notwithstanding the
definition of "Unused Aggregate Commitment," for purposes of calculation
of Commitment Fees,Swingline Loans shall constitute usage only of the
Commitment of the Swingline Lender. All Commitment Fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).
(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
36
pursuant to Section 2.20, such extension fees as are agreed upon among the
Borrower, the Administrative Agent and such Extending Lenders.
(d) Upfront Fees. In consideration of the Aggregate Commitment 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 September 29, 2005 (the
"Upfront Fees"). The Upfront Fees shall be due and payable on or prior to
the Effective Date.
(e) Facility LC Fee. The Borrower shall pay to the Administrative
Agent, for the pro rata benefit 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 provided for in Section 2.6(i)
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
Issuing Banks) in accordance with their Pro Rata Shares thereof.
(f) Fronting Fee. The Borrower shall also pay to the Administrative
Agent, solely for the account of each Issuing Bank, as a Fronting Fee
("Fronting Fee"), with respect to each Facility LC issued by such Issuing
Bank 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 Issuing Bank. The Borrower shall
also pay to the Issuing Bank 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 Issuing Bank's standard
schedule for such charges as in effect from time to time.
(g) Payments. All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent for
distribution (where applicable) to the Lenders. Fees paid shall not be
refundable under any circumstances.
2.13 INTEREST.
(a) The Revolving Loans comprising each ABR Borrowing and ABR
Swingline Loans shall bear interest at the Alternate Base Rate.
37
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage for Eurodollar Loans.
(c) Each Index Rate Swingline Loan shall bear interest at the
Adjusted LIBOR Market Index Rate applicable to such Loan.
(d) 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
7.1(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 ABR Revolving 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.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Commitments; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Revolving Loan
prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate, LIBO Rate or LIBOR
Market Interest Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
2.14 ALTERNATE RATE OF INTEREST. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing or the advance of an Index Rate
Swingline Loan (as applicable):
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period or LIBOR Market
Interest Rate; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and
38
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice no longer
exist, (i) (if and as applicable) any Interest Election Request that
requests the conversion of any Revolving Borrowing to, or continuation of
any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) (if and as applicable) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing and
(iii) (if and as applicable) if any Swingline Loan Request requests an
Index Rate Swingline Loan, such Swingline Loan shall be made as an ABR
Swingline Loan; provided that if the circumstances giving rise to such
notice affect only one Type of Borrowings, then the other Type of
Borrowings shall be permitted.
2.15 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or the
Swingline Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate or Adjusted LIBOR Market Index Rate (as
applicable)) or the Issuing Bank; or
(ii) impose on any Lender, the Swingline Lender or any Issuing
Bank or the London interbank market any other condition affecting
this Credit Agreement Loans or Fixed Rate made by such Lender, Index
Rate Swingline Loan made by such Swingline Lender or any Facility LC
or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or the cost to the
Swingline Lender of making or maintaining any Index Rate Swingline Loan
(or of maintaining its obligation to make any Index Rate Swingline Loan)
or to increase the cost to such Lender or Issuing Bank of participating
in, issuing or maintaining any Facility LC or to reduce the amount of any
sum received or receivable by such Lender, Swingline Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender, Swingline Lender or Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such
Lender, Swingline Lender or Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender, Swingline Lender or Issuing Bank determines that
any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's, Swingline Lender's
or Issuing Bank's capital or on the capital of such Lender's or Issuing
Bank's holding company, if any, as a consequence of this Credit Agreement
or the Loans made by, or participations in Facility LCs held by, such
Lender or
39
Swingline Lender, or the Facility LCs issued by such Issuing Bank, to a
level below that which such Lender, Swingline Lender or Issuing Bank or
such Lender's, Swingline Lender's or Issuing Bank's holding company would
have achieved under the terms of this Agreement but for such Change in Law
(taking into consideration such Lender's, Swingline Lender's or Issuing
Bank's policies and the policies of such Lender's, Swingline Lender's or
Issuing Bank's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender, Swingline Lender
or Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender, Swingline Lender or Issuing Bank or such
Lender's, Swingline Lender's or Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender, Swingline Lender or Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender,
Swingline Lender or Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender, Swingline Lender or Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender, Swingline Lender or
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's, Swingline Lender's or Issuing Bank's
right to demand such compensation. Notwithstanding anything to the
contrary contained herein, the Borrower shall not be required to make any
payments to any Lender, the Swingline Lender, any Issuing Bank 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 therefore within 90 days after the
public announcement of such retroactive application.
2.16 BREAK FUNDING PAYMENTS. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(b) and is revoked in accordance therewith) or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
40
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
2.17 TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error. Any Lender that
shall become aware of an obligation of the Borrower to pay Taxes or Other
Taxes in respect of such Lender's Loans or participation in Facility LCs
shall use good faith efforts to advise the Borrower thereof in a timely
manner in order to afford the Borrower an opportunity to contest the same
or to effect the provisions of Section 2.19(b).
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Credit Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed
41
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a reduced
rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as
to which it has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund);
provided, that the Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
2.18 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 1:00 p.m. on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to
the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. All payments hereunder shall
be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied in accordance with Section 7.3.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving
Loans and
42
participations in LC Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in
LC Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Credit Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against
the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.4(c), 2.6(d), 2.7(b), 2.18(d) or 9.3(c), then
the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
2.19 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign
43
its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.17, or if any Lender defaults in its obligation to fund Loans hereunder
or if any Lender is a Refusing Lender under Section 2.20, then the
Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions
contained in Section 9.4), all its interests, rights and obligations under
this Credit Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant
to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
2.20 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 Commitment is referred to herein as an "Extending Lender")
agree in writing within such 60-day period to extend their 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 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 Commitments of the Extending
Lenders shall without further
44
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
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 Aggregate Commitment shall be
reduced by an amount equal to the sum of the 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 aggregate Revolving Credit Exposure
of all Lenders, after the payment provided for in clause (iii) above,
exceeds the Aggregate Commitment (as so reduced) (A) the Borrower shall
pay on such RL Maturity Date Loans in the amount necessary to cause the
aggregate Revolving Credit Exposure of all Lenders to equal but not exceed
the Aggregate Commitment and (B) if the outstanding Facility LCs exceed
the Aggregate Commitment (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 Facility LCs
exceed the Aggregate Commitment, which funds shall be held in the Facility
LC Collateral Account in accordance with and subject to the terms of
Section 2.6(j). 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
2.20(a):
(i) with respect to any Refusing Lender, the Borrower may, in
its own discretion, require such Refusing Lender to assign all of
its interests, rights and obligations under this Credit Agreement to
one or more assignees (which may be one or more existing Lenders if
any existing Lender accepts such assignment subject to and in
accordance with the provisions of Section 2.19(b)). In such event,
the maturity date of the Loans transferred to such assignee shall be
the Maturity Date as extended in accordance with Section 2.20(a)
above. 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 Aggregate Commitment by
an amount equal to the sum of the 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
Commitments of the Refusing Lenders (at which time their
participations in all Facility LCs and Reimbursement 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 2.16 as a result of any extension of the Maturity Date
pursuant to this Section 2.20 and any assignment
45
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
Aggregate Commitment, repayment of Loans or reallocation of the Pro Rata
Shares, in each case as expressly contemplated by the terms of this
Section 2.20.
ARTICLE III
CONDITIONS PRECEDENT
3.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and make
the initial Extension of Credit is subject to satisfaction (or waiver by each of
the Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent
of duly executed copies of: (i) this Credit Agreement; (ii) the Notes,
(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. To the extent required by
the Administrative Agent, certified copies of the partnership
agreement of such Partnership, together with all amendments
thereto.
(C) Certificates of Good Standing or Existence. To the
extent required by the Administrative Agent, certificate of
good standing or existence for such Partnership, issued as of
a recent date by its state of organization and
46
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. For the Borrower and, to the
extent required by the Administrative Agent, for any other
Corporation or Managing Person, copies of the articles or
certificates of incorporation or other charter documents of
each such Corporation or Managing Person, as applicable,
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary
or assistant secretary of such Corporation or Managing Person,
as applicable, to be true and correct as of the Closing Date.
(B) Bylaws. For the Borrower and, to the extent required
by the Administrative Agent, for any other Corporation or
Managing Person, 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. For the Borrower and, to the extent
required by the Administrative Agent, for any other
Corporation or Managing Person, 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.
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(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. To the extent required by
the Administrative Agent, a copy of the certificate of
formation of such LLC or Managing Person, as applicable,
certified to be true and complete by the appropriate
Governmental Authority of the state or jurisdiction of its
formation and certified by the sole or managing member of such
LLC or Managing Person, as applicable, to be true and correct
as of the Closing Date.
(B) LLC Agreement. To the extent required by the
Administrative Agent, 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. To the extent required by the
Administrative Agent, copies of certificates of good standing,
existence or their equivalent with respect to such LLC or
Managing Person, as applicable, certified as of a recent date
by the appropriate Governmental Authorities of the state or
other jurisdiction of formation and each other jurisdiction in
which the failure to so qualify and be in good standing would
have or could be reasonably expected to have a Material
Adverse Effect.
(E) Incumbency. An incumbency certificate of such LLC or
Managing Person certified by an officer of such LLC or
Managing Person to be true and correct as of the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of an
opinion or opinions from legal counsel to the Credit Parties (which shall
cover, among other things, authority, legality, validity, binding effect,
and enforceability of the Credit Documents), reasonably satisfactory to
the Administrative Agent, addressed to the Administrative Agent and the
Lenders and dated as of the Closing Date.
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(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.
(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 4.11) 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 5.2 (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, 2004.
(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 2.12 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
49
litigation, tax, accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, material contracts, debt agreements,
property ownership, contingent liabilities and management of the Borrower
and its Subsidiaries.
3.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, no Lender
or Issuing Bank 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 Borrowing, a Borrowing Request, duly executed and completed,
by the time specified in Section 3.1, (ii) in the case of any new
Swingline Loan, a Swingline Loan Request, duly executed and completed, by
the time specified in Section 2.4(b) and (iii) in the case of the issuance
or Modification of a Facility LC, the documentation required under Section
2.6.
(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 aggregate Revolving Credit Exposure
of all Lenders shall not exceed the Aggregate Commitment.
The delivery of each Borrowing Request and each Swingline Loan Request and each
request for issuance or Modification of a Facility LC shall constitute a
representation and warranty by the Borrower of the correctness of the matters
specified in paragraphs (b), (c) and (d) above.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
4.1 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders prior to the
Effective Date and pursuant to Section 5.1(a) and (b): (i) have been
prepared in accordance with GAAP and (ii) present fairly the consolidated
and consolidating (as applicable) financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of such
date and for such periods.
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(b) Since December 31, 2004, 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 5.1 or in the
notes thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent.
4.2 NO MATERIAL CHANGE.
Since December 31, 2004, 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.
4.3 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.
4.4 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.
4.5 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 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.
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4.6 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.
4.7 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.
4.8 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.
4.9 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.
4.10 INDEBTEDNESS.
The Credit Parties have no Indebtedness except (a) as disclosed in the
financial statements referenced in Section 4.1, (b) as set forth on Schedule
4.10, and (c) as otherwise permitted by this Credit Agreement.
4.11 LITIGATION.
Except as set forth on Schedule 4.11, 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.
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4.12 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.
4.13 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.
4.14 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 any
notification pursuant to ERISA that any Multiemployer Plan is in
reorganization (within the meaning of
53
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.
4.15 SUBSIDIARIES.
Set forth on Schedule 4.15 is a complete and accurate list of all
Subsidiaries of each Credit Party and whether each such Person is a Material
Subsidiary. Schedule 4.15 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.
4.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 5.10. 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.
4.17 GOVERNMENT REGULATION.
(a) No proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form U-1 referred to in Regulation U. No
Indebtedness being reduced or retired out of the proceeds of the Loans was
or will be incurred for the purpose of purchasing or carrying any margin
stock
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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.
4.18 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 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
55
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.
4.19 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.
4.20 SOLVENCY.
Each Credit Party is, and after consummation of the transactions
contemplated by this Credit Agreement will be, Solvent.
4.21 INVESTMENTS.
All Investments of each Credit Party are (a) as set forth on Schedule
4.21(b) or (b) Permitted Investments.
4.22 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
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material fact necessary in order to make the statements contained therein or
herein, taken as a whole, not misleading.
4.23 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.
4.24 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.
4.25 LABOR CONTRACTS AND DISPUTES.
Except as disclosed on Schedule 4.25, (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.
4.26 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.
ARTICLE V
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 and Swingline
Commitment hereunder shall have terminated:
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5.1 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 5.1(a) and 5.1(b) above, a certificate
of an Authorized Officer of the Borrower substantially in the form of
Exhibit 5.1(c), (i) demonstrating compliance with the financial covenants
contained in Section 5.2 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
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Agreement, including Section 5.2. 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 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
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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 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.
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5.2 FINANCIAL COVENANTS.
(a) Debt to Capitalization Ratio. As of the last day of each fiscal
quarter of the Borrower (beginning with the fiscal quarter ending
September 30, 2005), the Debt to Capitalization Ratio shall be less than
or equal to 0.60 to 1.0.
(b) Tangible Net Worth. As of the last day of each fiscal quarter of
the Borrower (beginning with the fiscal quarter ending September 30,
2005), Tangible Net Worth shall be greater than or equal to the sum of (i)
$3,595,972,000, 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, 2005 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
September 30, 2005), the Interest Coverage Ratio shall be greater than 2.0
to 1.0.
5.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as permitted by Section 6.4, 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.
5.4 BOOKS AND RECORDS.
Each of the Credit Parties will keep complete and accurate books and
records of its transactions in accordance with GAAP (including the establishment
and maintenance of appropriate reserves).
5.5 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).
5.6 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.
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5.7 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.
5.8 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.
5.9 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.
5.10 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.
5.11 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.
5.12 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
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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.
5.13 REIT REQUIREMENTS.
Notwithstanding anything to the contrary contained in Section 5.12, (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.
ARTICLE VI
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 and Swingline
Commitment hereunder shall have terminated:
6.1 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 3.10 (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;
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(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 6.14 and (iv) such REIT shall qualify as a real
estate investment trust under applicable tax laws;
(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 5.2.
6.2 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.
6.3 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.
6.4 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
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(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
6.4.
6.5 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 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 5.12 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 ABR 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 ABR 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 5.2.
6.6 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
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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 6.6 if such Credit Party shall fail so to apply said
amount in satisfaction of such commitment.
6.7 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will make any Investments except for Permitted
Investments.
6.8 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, provided no Event of Default exists or would result therefrom)
upon any shares of its Capital Stock of any class.
6.9 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.
6.10 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 6.4.
6.11 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.
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6.12 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 (a) as set forth in (i) the Credit Documents and (ii)
any bond indenture or equivalent instrument (or any amendment or supplement
thereto) to which such Credit Party is now or hereafter a party and (b)
restrictions with respect to Liens on interests in joint ventures provided for
in the organizational documents of such joint venture or in any agreement
governing Indebtedness of such joint venture.
6.13 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.
6.14 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 6.1(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 6.1 and 6..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.
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ARTICLE VII
EVENTS OF DEFAULT
7.1 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 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 5.2, 5.10 or 6.1 through
6.14 inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 5.1, 5.3, 5.5 or 5.11
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
paragraphs (a), (b) or (c)(i) or (c)(ii) of this Section 7.1)
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.
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(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 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, defeased or redeemed (but not including a voluntary
repayment of such Indebtedness); or (C) any such Indebtedness shall
mature and remain unpaid.
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(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 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.
7.2 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 Issuing
Bank to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments and
Swingline Commitment terminated whereupon the Commitments and Swingline
Commitment and the obligation and power of the Issuing Banks to issue or
Modify Facility LCs shall be immediately terminated.
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(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.
(c) Facility LC Collateral Account. Demand that the Borrower cash
collateralize the LC Exposure in accordance with Section 2.6(j).
(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
7.1(f) shall occur, then (i) the Commitments and Swingline Commitment and the
obligation and power of the Issuing Banks 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, cash collateralize the LC Exposure in accordance
with Section 2.6(j), 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.
7.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent or any of the Lenders or Issuing Banks in connection
with enforcing the rights of the Lenders or Issuing Banks under the Credit
Documents;
SECOND, to payment of any fees owed to the Administrative Agent or
any Lender or Issuing Bank;
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;
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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 LC Exposure; and
SIXTH, to the payment of the surplus, if any, to whomever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.2), and (c) except as expressly set forth
herein, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.2) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default (other than an Event of Default under Section
7.1(a)) unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
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statement, warranty or representation made in or in connection with this Credit
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Credit Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent; the Administrative Agent shall promptly
notify the Borrower and the Lenders of any such appointment. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Such resignation shall not affect the rights or obligations of the
Administrative Agent in its capacity as a Lender, Swingline Lender or Issuing
Bank. Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.3 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Credit
Agreement, any related agreement or any document furnished hereunder or
thereunder.
None of the Lenders identified in this Credit Agreement as a
Co-Agent, Documentation Agent, Managing Agent or Syndication Agent shall have
any right, power, obligation, liability, responsibility or duty under this
Credit 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 the preceding paragraph of this Article VIII.
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.
None of the provisions of this Article VIII 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
Article VIII.
ARTICLE IX
MISCELLANEOUS
9.1 NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to Pulte Homes, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); with a copy to
Pulte Homes, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇);
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(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); with a copy to ▇▇
▇▇▇▇▇▇ Loan Servicing, ▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to the Swingline Lender, to the same address as the
Administrative Agent; and
(iv) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Credit Agreement shall be deemed to
have been given on the date of receipt.
9.2 WAIVERS; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Credit
Agreement or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or issuance
or Modification of a Facility LC shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Credit Agreement nor any other Credit Document nor
any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the
Borrower (or other applicable Credit Parties) and the Required Lenders or
by the Borrower (or other applicable Credit Parties) and the
Administrative Agent with the consent of the Required Lenders; provided
that no such
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agreement shall (i) change the amount of the Commitment of any Lender
(except as provided in Section 2.9) without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees or other amounts
payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees or other amounts payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.18(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) except as the result of or in connection with
a merger or other disposition of a Credit Party permitted under Section
6.4, (A) release the Borrower from its obligations under the Credit
Agreement or (B) 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, in
each case without the written consent of each Lender; (vi) consent to the
assignment or transfer by the 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,
without the written consent of each Lender; (vii) change any of the
provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent
of each Lender; or (viii) amend the definition of Maximum Commitment Limit
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be.
9.3 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates and payable to
third parties, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication
of the credit facilities provided for herein, the preparation and
administration of this Credit Agreement or any amendments, modifications
or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank and payable to third
parties in connection with the issuance, amendment, renewal or extension
of any Facility LC or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing
Bank or any Lender and payable to third parties, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Credit Agreement,
including its rights under this Section, or in connection with the Loans
made or Facility LCs issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Facility LCs.
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(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result
of (i) the execution or delivery of this Credit Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto
of their respective obligations hereunder or the consummation of the
transactions contemplated hereby, (ii) any Loan or Facility LC or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Facility LC if the documents presented
in connection with such demand do not strictly comply with the terms of
such Facility LC), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction have resulted
from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or
the Swingline Lender, as the case may be, such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Credit Agreement or any agreement
or instrument contemplated hereby, the transactions contemplated hereby,
any Loan or Facility LC or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
9.4 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Credit Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of an
Issuing Bank that issues any Facility LC), except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations
hereunder
77
without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing
in this Credit Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of an
Issuing Bank that issues any Facility LC), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Bank and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Credit Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and
is continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Revolving Commitment to an assignee that is a Lender immediately
prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Credit Agreement;
(B) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; and
(C) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.4(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and 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.
78
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations
of a Lender under this Credit Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under
this Credit Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits
of Sections 2.15, 2.16, 2.17 and 9.3 with respect to obligations
accruing and matters occurring prior to the effective date of such
assignment). Any assignment or transfer by a Lender of rights or
obligations under this Credit Agreement that does not comply with
this Section 9.4 shall be treated for purposes of this Credit
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Assumption delivered to 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 and LC
Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, the
Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement, notwithstanding
notice to the contrary. The Register shall be available for
inspection by the Borrower, any Lender and Issuing Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made
by it pursuant to Section 2.4(c), 2.5(c), 2.6(d) or (e), 2.7(b),
2.18(d) or 9.3(c), the Administrative Agent shall have no obligation
to accept such Assignment and Assumption and record the information
therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Credit Agreement
unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, any Issuing Bank or the Swingline Lender,
sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Credit Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (A) such
Lender's obligations under this Credit Agreement shall
79
remain unchanged, (B) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and
(C) the Borrower, the Administrative Agent and the other Lenders and
Issuing Bank shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Credit Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of
this Credit Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.2(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section
9.8 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent, which consent makes specific reference to this
Section 9.4(c)(ii). A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section
2.17 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
9.5 SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Credit
Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Credit
Agreement and the making of any Loans and issuance of any Facility LCs,
regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, any Issuing Bank
or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any fee or any other amount payable
under this Credit Agreement is outstanding and unpaid or any Facility LC
is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.3 and
Article VIII shall survive and remain in full force and effect regardless
of the consummation of
80
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Facility LCs and the Commitments or the termination of
this Credit Agreement or any provision hereof.
9.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Credit Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Credit Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.1, this Credit Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Credit Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Credit Agreement.
9.7 SEVERABILITY. Any provision of this Credit Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
9.8 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower or any
other Credit Party against any of and all the obligations of the Borrower or any
other Credit Party now or hereafter existing under this Credit Agreement or any
other Credit Document held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Credit Agreement or any other
Credit Document and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Credit Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to this Credit Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in
81
respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Credit Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Credit Agreement against
the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Credit Agreement
in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.1.
Nothing in this Credit Agreement will affect the right of any party to
this Credit Agreement to serve process in any other manner permitted by
law.
9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.11 HEADINGS. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Credit
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Credit Agreement.
9.12 CONFIDENTIALITY. Each of the Administrative Agent, any Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Credit Agreement, (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Credit Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the
82
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Credit Agreement or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
9.13 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.
83
Each of the parties hereto has caused a counterpart of this Second Amended
and Restated Credit Agreement to be duly executed and delivered as of the date
first above written.
BORROWER:
PULTE HOMES, INC.,
a Michigan corporation
By: ____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
84
LENDERS:
JPMORGAN CHASE BANK, N.A.,
individually in its capacity as a Lender and
in its capacity as the Administrative Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
85
SCHEDULE 1.1(a)
LENDER COMMITMENT
----------------------------------------------------------- -----------------
JPMorgan Chase Bank, N.A. $ 75,000,000.00
Citigroup Global Markets, Inc. 75,000,000.00
Barclays Bank PLC 75,000,000.00
BNP Paribas 75,000,000.00
Calyon New York Branch 75,000,000.00
Comerica Bank 75,000,000.00
Deutsche Bank Trust Company Americas 75,000,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA 75,000,000.00
The Royal Bank of Scotland plc 75,000,000.00
SunTrust Bank 75,000,000.00
UBS Loan Finance LLC 75,000,000.00
Wachovia Bank, National Association 75,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch 60,000,000.00
Bank of America, N.A. 50,000,000.00
Guaranty Bank 50,000,000.00
Lloyds TSB Bank plc 50,000,000.00
Mizuho Corporate Bank, Ltd. 50,000,000.00
PNC Bank, National Association 50,000,000.00
LaSalle Bank National Association 45,000,000.00
Washington Mutual Bank 40,000,000.00
AmSouth Bank 35,000,000.00
Fifth Third Bank, a Michigan bank corporation 35,000,000.00
U.S. Bank, National Association 35,000,000.00
Banco Popular de Puerto Rico, New York Branch 25,000,000.00
City National Bank 25,000,000.00
Compass Bank, an Alabama banking corporation 25,000,000.00
The Northern Trust Company 20,000,000.00
Bank of Hawaii, a Hawaii corporation 15,000,000.00
California Bank & Trust, a California banking corporation 15,000,000.00
▇▇▇▇▇ ▇▇▇ Commercial Bank, Ltd., New York Branch 15,000,000.00
E.Sun Commercial Bank, Ltd., Los Angeles Branch 15,000,000.00
The International Commercial Bank of China, New York Agency 15,000,000.00
The Norinchukin Bank, New York Branch 15,000,000.00
Bank of Communications, New York Branch 10,000,000.00
Malayan Banking Berhad, New York Branch 10,000,000.00
Taipei Fubon Commercial Bank, New York Agency 10,000,000.00
-----------------
TOTAL $1,615,000,000.00
SCHEDULE 1.1(b)
EXISTING LETTERS OF CREDIT
1
SCHEDULE 1.1(c)
PERMITTED LIENS
None
1
SCHEDULE 4.10
INDEBTEDNESS
None
1
SCHEDULE 4.11
LITIGATION
None
1
SCHEDULE 4.15
SUBSIDIARIES
Subsidiaries as of October 15, 2005
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. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, LP Delaware Pulte Homes of NJ, Limited 99% No
Partnership
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 100 ▇▇▇ ▇▇▇▇ Communities of 100 100% No Yes
Illinois, Inc.
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 Wil 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. ▇▇▇▇'▇ ▇▇▇▇▇, L.L.C. Maryland Wil Corporation 100% No
14. ▇▇▇▇▇▇▇▇ ▇▇ Basin, LLC Michigan ▇▇▇▇▇▇▇▇ Natural Resources 100% No
Corp.
15. ▇▇▇▇▇▇▇▇ Natural Resources Michigan 1,000 Pulte Home Corporation 1,000 100% No
Corporation
16. Chase Triple M, LLC Delaware Pulte Home Corporation 51.61% No
17. Ciudad Riviera, S.A. de C.V. Mexico 500 Controladora PHC, S.A. DE C.V. 500 25% No
18. ▇▇▇▇▇▇▇▇▇, L.L.C. Michigan 100 Pulte Home Corporation 100 100% No
19. Coachman Development, LLC Michigan Pulte Homes of New England, LLC 100% No
20. Consorcio Inmobiliario Su Casita, Mexico Hipotecaria Su Casita, S.A. de 99% No
S.A. de C.V. C.V.
21. Contractors Insurance Company of Hawaii NABIC/Pulte Homes, Inc. 100% No
North America, Inc. a Risk
Retention Group
22. Controladora PHC, S.A. DE C.V. Mexico 499,955 Pulte International-Mexico, 499,955 99.99% No
Inc.
Pulte Home Corporation 0.01%
23. Corporacion Activa de Servicios de Mexico Hipotecaria Su Casita, S.A. de 99%
Administracion, S.A. de C.V. C.V.
24. Corte Bella Golf Club, LLC Michigan Pulte Home Corporation 100% No
25. CP Sunridge, LLC Delaware Pulte Home Corporation 50% No
26. ▇▇▇▇ Realty Company Michigan 100 Pulte Arizona Services, Inc. 100 100% No
1
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
---------------------------------- ------------- ------- ------------------------------- ---------- ----- ------- --------
27. Del ▇. ▇▇▇▇ Development Co., L.P. Delaware ▇▇▇ ▇▇▇▇ Communities, Inc. 99% No
▇▇▇ ▇▇▇▇ Construction Services
Co. 1%
28. Del ▇. ▇▇▇▇ Financial Corporation Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
29. Del ▇. ▇▇▇▇ Foothills Corporation Arizona 1,000 ▇▇▇ ▇▇▇▇ Commercial Properties 1,000 100% No
Corporation
30. Del ▇. ▇▇▇▇ Land Conservancy Arizona
31. ▇▇▇ ▇▇▇▇ Building Products LLC Michigan ▇▇▇ ▇▇▇▇ Communities of 100% No
Illinois, Inc.
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
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
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 PH1 Corporation 99% No Yes
DiVosta Homes Holdings, LLC 1%
61. DR Super Block 1 South, LLC Delaware Pulte Home Corporation 50% No
2
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------- ------------- --------- ------------------------------ ---------- ----- ------- --------
62. DiVosta Building Corporation Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
63. DiVosta Homes Holdings, LLC Delaware PH1 Corporation 100%
64. DiVosta Homes Marketing, Inc. Florida 1,000 DiVosta Homes, L.P. 1,000 100% No
65. DiVosta Homes Sales, Inc. Florida 5,000 DiVosta Homes, L.P. 5,000 100% No
66. DW Aviation Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
67. DW Homebuilding Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
68. Edinburgh Realty Corporation Michigan 10,000 Pulte Home Corporation 10,000 100% No
69. Fallsgrove Associates LLC Maryland Pulte Home Corporation 35.36% No
70. Fideicomiso ▇▇▇▇▇▇ ▇▇▇▇▇▇ 222 Pulte Mortgage LLC
71. First Heights Bank, fsb Texas 7,500,100 Pulte Diversified Companies 7,500,100 100% No
72. First Heights Holding Corporation Michigan 50,000 Pulte Diversified Companies, 50,000 100% No
Inc.
73. Florida Building Products, Inc. Florida 5,000 DiVosta Homes, L.P. 5,000 100% No Yes
74. Fort Lincoln-Pulte Limited DC Pulte Home Corporation 1% No
Liability Company
75. Gatestone, LLC Michigan Pulte Home Corporation 100% No
76. GI Development Business Trust Massachusetts PHNE Business Trust 100% No
77. Grand Place Hayward, LLC California Pulte Home Corporation 100% No
78. Grayhaven Estates Limited, L.L.C. Michigan Pulte Homes, Inc. 99% No
PNI, Inc. 1%
79. Great Island Community, LLC Michigan GI Development Business Trust 100% No
80. Grupo Su Casita Trust Mexico Pulte Mortgage LLC 16.66% No
81. Grupo Su Casita. S.A. de C.V. Mexico Grupo Su Casita Trust 100% No
82. Guaranteed Mortgage Corporation III Michigan 1,000 Pulte Financial Companies, 1,000 100% No
Inc.
83. H.D. Whispering Creek, L.L.C. Maryland Pulte Home Corporation 100% No
84. H. D. Investments I, LLC Maryland Wil Corporation 100% No
85. ▇▇▇▇▇▇▇▇ Hills, LLC Maryland Wil Corporation 100% No
86. ▇▇▇▇▇▇▇ Pond Development Michigan 1,000 Pulte Homes of New England, 1,000 100% No
Corporation LLC
87. Highlands One Maryland Wil Corporation 100% No
88. Hilltop Farms Development, LLC Michigan Pulte Homes of New England LLC 100% No
89. Hipotecaria Su Casita, S.A. de C.V. Mexico 1,320,136 Pulte Mortgage LLC 335,680 22.90% No
90. Homesite Solutions Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
91. HydroSource Acquisition, Inc. Michigan 1,000 Preserve I, Inc. 1,000 100% No
92. Island Walk Development Company Florida 5,000 DiVosta Homes, L.P. 5,000 100% No
93. Island Walk Realty, Inc. Florida 500 DiVosta Homes, L.P. 500 100% No
94. Interesa, S.A. de C.V. Mexico 1,872,688 Fideicomiso (3,395,461 Outst.) No
95. JNN Properties LLC Michigan 100 Pulte Home Corporation 100% No
96. Jersey ▇▇▇▇▇▇▇ LLC New Jersey 100 Preserve I, Inc. 100% No
97. Joliet Mortgage Reinsurance Company Vermont 100 Pulte Mortgage LLC 100 100% No
98. ▇▇▇▇ Acquisition Group, LLC Nevada ▇▇ ▇▇, Inc. 11.99% No
99. Lexington Oaks Golf Club, Inc. Florida 1,000 Pulte Home Corporation 1,000 100% No
100. Lone Tree Golf Club, LLC Michigan Pulte Home Corporation 100% No
101. LPC One Development Partners, LLC Delaware Pulte Home Corporation 32.69% No
3
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
--------------------------------- ------------- -------- ------------------------------- ---------- ----- ------- --------
102. ▇▇▇▇▇, ▇▇ Maryland Wil Corporation 100% No
103. MALDP Development Corporation Michigan 1,000 Pulte Homes of New England, LLC 1,000 100% No
104. Marina Operations Corp. Arizona 1,000 Sun City Homes, Inc. 1,000 100% No
105. Marquette Title Insurance Company Vermont 100,000 Pulte Homes, Inc. 100,000 100% No
106. Mayaguez Partners, S. E. Puerto Rico Pulte International Building 50% No
Corp.
107. MCS Mountain Road, LLC Maryland Pulte Home Corporation 100% No
108. Mountain View One LLC Arizona Asset One Corp. 50% No
109. Mountain View Two LLC Arizona ▇▇▇ ▇▇▇▇ Corp. 100% No
110. Nantar, S. DE ▇.▇. DE C.V. Mexico Controladora PHC, S.A. DE C.V. 99.30% No
Pulte International-Mexico, 0.70%
Inc.
111. North American Builders Indemnity Colorado 300,000 Pulte Homes, Inc. 300,000 100% No
Company
112. North Valley Enterprise, LLC Nevada ▇▇▇ ▇▇▇▇ Communities, Inc. 50% No
113. Oceanside Village, LLC Michigan Pulte Homes of New England, LLC 100% No
114. PB Venture L.L.C. Michigan Pulte Homes, Inc. 100% No
115. PBW Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
116. PC/BRE Development L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
117. PC/BRE Springfield, L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
118. PC/BRE Venture L.L.C. Delaware PB Venture L.L.C. 100% No
119. PC/BRE ▇▇▇▇▇▇▇ ▇▇▇▇ L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
120. PC/▇▇▇ ▇▇▇▇▇▇▇▇ L.L.C. Delaware PC/BRE Venture L.L.C. 100% No
121. PCIC Corporation Michigan 1,000 Pulte Mortgage LLC 1,000 100% No
122. PH Arizona LLC Michigan 100 Pulte Home Corporation 100 50% No
Pulte Development Corporation 50%
123. PH1 Corporation Michigan 100 Pulte Homes, Inc. 100% No
124. PH2 Corporation Michigan Pulte Home Corporation 100 100% No
125. PH3 Corporation Michigan 1,000 Divosta Homes, L.P. 1,000 100% No
126. PH4 Corporation Michigan 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
127. PHC Title Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
128. PHM Title Agency L.L.C. Delaware TVM Corporation 63% No
129. PHNE Business Trust Massachusetts Pulte Homes Corporation, No Yes
Trustee
130. PHS Virginia Holdings, LLC Michigan PHNE Business Trust 100% No
131. PHS Virginia Limited Partnership Michigan 99% PHNE Business Trust 100% No
1% PHS Virginia Holdings, LLC
132. PHT Building Materials Limited Michigan Pulte Homes of Texas, LP 99% No
Partnership PHT Operating Company, LLC 1%
133. PHT Operating Company LLC Michigan Pulte Homes of Texas, LP 100% No
134. PHT Title Agency, L.P. Texas PHC Title Corporation 99% No
PHT Title Corporation 1%
135. PHT Title Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
136. PIMI Holdings LLC Michigan Pulte International Corporation 100%
137. PL Roseville, LLC California Pulte Home Corporation 50%
4
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------- ------------- ------ ------------------------------- ---------- ----- ------- --------
138. PN I, Inc. Nevada 1,000 Pulte Home Corporation 1,000 100% No
139. ▇▇ ▇▇, Inc. Nevada 1,000 Pulte Home Corporation 1,000 100% No Yes
140. PN III, LLC Delaware ▇▇ ▇▇, Inc. 100% No
141. Potomac Yard Development LLC Delaware Pulte Home Corporation 50% No
142. ▇▇▇▇▇▇ Building Systems, Limited Michigan ▇▇▇▇▇▇ Holding Company, L.L.C. 99% No
Partnership ▇▇▇▇▇▇ Building California LLC 1%
143. ▇▇▇▇▇▇ Building Systems, L.L.C (AZ) Arizona ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
144. ▇▇▇▇▇▇ Building Systems, L.L.C (NV) Nevada ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
145. ▇▇▇▇▇▇ Building California LLC Michigan ▇▇▇▇▇▇ Holding Company, L.L.C. 100% No
146. ▇▇▇▇▇▇ Holding Company, L.L.C. Nevada PNII, Inc. 50%
147. Preserve I, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
148. Preserve II, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
149. Pulte Arizona Services, Inc. Michigan 1,000 PH Arizona, LLC 1,000 100% No
150. Pulte Aviation I LLC Michigan Pulte Homes, Inc. 100%
151. Pulte Aviation II LLC Michigan Pulte Homes, Inc. 100%
152. Pulte Building Products LLC Michigan Pulte Home Corporation 100% No
153. Pulte Bajio Construcciones, S. de Mexico Pulte Mexico, S. de ▇.▇. de 99.99% No
▇.▇. de C.V. C.V.
Pulte International Mexico, .01%
Inc.
154. Pulte Chile Corporation Michigan 1,000 Pulte International Corporation 1,000 100% No
155. Pulte Communities NJ, Limited Michigan Preserve II, Inc. 99% No Yes
Partnership Preserve I, Inc. 1%
156. Pulte de Chile Limitada Chile Pulte Chile Corporation 99% No
Pulte SA Corporation 1%
157. Pulte Development Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
158. Pulte Development New Mexico, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
159. Pulte Diversified Companies, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No Yes
160. Pulte Financial Companies, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No
161. Pulte Funding, Inc. Michigan Pulte Mortgage LLC 100% No
162. Pulte Home Corporation Michigan 1,000 Pulte Diversified Companies, 1,000 100% No Yes
Inc.
163. Pulte Home Corporation of The Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
Delaware Valley
164. Pulte Home Sciences of Virginia, Michigan PHS Virginia Limited 100% No
LLC Partnership.
165. Pulte Home Sciences, LLC Michigan Pulte Homes of Michigan LLC 100% No
166. Pulte Homes of Greater Kansas City, Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
Inc.
167. Pulte Homes of Maryland LLC Maryland Wil Corporation 100% No
168. Pulte Homes of Indiana, LLC Indiana Pulte Homes of Michigan LLC 100% No Yes
169. Pulte Homes of Michigan I, Limited Michigan Pulte Homes of Michigan LLC 99% No
Partnership Pulte Michigan Holdings 1%
Corporation
170. Pulte Homes of Michigan LLC Michigan Pulte Homes, Inc. 100% No Yes
171. Pulte Homes of Minnesota Minnesota 1,000 Pulte Home Corporation 1,000 100% No Yes
Corporation
172. Pulte Homes of New England LLC Michigan PHNE Business Trust 100% No Yes
173. Pulte Homes of New Mexico, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
5
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------- ------------- ------ ------------------------------- ---------- ------ ------- --------
174. Pulte Homes of New York, Inc. Michigan 10,000 Pulte Home Corporation 10,000 100% No Yes
175. Pulte Homes of NJ, Limited Michigan PHC of the Delaware Valley 1% No Yes
Partnership Preserve II, Inc. 99%
176. Pulte Homes of Ohio LLC Ohio Pulte Homes, Inc. 100% No Yes
177. Pulte Homes of PA, Limited Michigan PHC of the Delaware Valley 1% No Yes
Partnership Preserve II, Inc. 99%
178. Pulte Homes of South Carolina, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
179. Pulte Homes of Texas, L.P. Texas Pulte Texas Holdings, Inc. 99.90% No Yes
PN I, Inc. 0.10% No
180. Pulte Homes Tennessee Limited Nevada RN Acquisition 2 Corp. 74.40% No Yes
Partnership Radnor Homes, Inc. 25.60% No
181. Pulte Homes, Inc. Michigan Publicly Traded No
182. Pulte Georgia Holdings LLC Michigan Pulte Home Corporation 100%
183. Pulte Internacional Mexico S. DE Mexico 50,000 Controladora 49,500 99% No
▇.▇. DE ▇.▇. ▇▇▇▇▇ International-Mexico, 500 1%
Inc.
184. Pulte International Building Michigan 1,000 Pulte International Caribbean 1,000 100% No
Corporation Corp.
185. Pulte International Caribbean Corp. Michigan 1,000 Pulte International Corporation 1,000 100% No
186. Pulte International Caribbean II, Michigan 99% Pulte Realty Holdings, Inc. 100%
Limited Partnership 1% Putle RC, LLC
187. Pulte International Corporation Michigan 1,000 Pulte Diversified Companies, 1,000 100% No
Inc.
188. Pulte International Mexico Limited Michigan 1,000 99% Pulte International 1,000 100% No
Partnership Corporation
1% PIMI Holdings LLC
189. Pulte Land Company, LLC Michigan Pulte Homes, Inc. 100% No Yes
190. Pulte Land Development Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
191. Pulte Lifestyle Communities, Inc. Michigan 1,000 Pulte Home Corporation 1,000 100% No
192. 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
193. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Pulte Mexico, S. de ▇.▇. de 99.9% No
▇.▇.
▇▇▇▇▇ International - .1% No
Mexico, Inc.
194. Pulte Mexico Division Norte, S. DE Mexico Pulte Mexico S. DE RL DE C.V. 96.7% No
RL DE ▇.▇. ▇▇▇▇▇ International -
Mexico, Inc. 3.3% No
195. Pulte Mexico, S. de ▇.▇. de C.V. Mexico Controladora PHC, S.A. de C.V. 64% No
196. Pulte Michigan Holdings Corporation Michigan 10,000 Pulte Home Corporation 100% No
197. Pulte Michigan Services, LLC Michigan Pulte Homes, Inc. 100% No
198. Pulte Midwest Title, Inc. Arizona ▇▇▇ ▇▇▇▇ Corporation 100%
199. Pulte Mortgage LLC Delaware Pulte Home Corporation 100% No
200. Pulte Payroll Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
201. Pulte Purchasing Corporation Michigan 1 Pulte Home Corporation 1 14.285% No
Pulte Development Corporation 14.285%
▇▇ ▇▇, Inc. 14.285%
Pulte Homes of Michigan LLC 14.285%
6
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
----------------------------------- ------------- ------ ------------------------------- ---------- ------ ------- --------
▇▇▇ ▇▇▇▇ California Corporation 14.285%
▇▇▇ ▇▇▇▇ Communities, Inc. 14.285%
PHT Building Materials Limited 14.285%
Partnership
202. Pulte RC, LLC Michigan Pulte Realty Holdings, Inc. 100% No
203. Pulte Real Estate Company Florida 200 ▇▇▇▇ Realty Company 200 100% No
204. Pulte Realty Corporation Arizona 1,000 Pulte Realty Holdings, Inc. 1,000 100% No Yes
205. Pulte Realty Holdings, Inc. Michigan 60,000 Pulte Homes, Inc. 1,000 100% No
206. Pulte Realty of New York, Inc. New York 100 Pulte Home Corporation 100 100% No
207. Pulte Realty of South New Jersey, Michigan 1,000 Pulte Home Corporation 1,000 100% No
Inc.
208. Pulte SA Corporation Michigan 1,000 Pulte International Corporation 1,000 100% No
209. Pulte Services California, LLC Michigan Marquette Title Insurance 100% No
Company
210. Pulte Services Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
211. Pulte SRL Holdings, LLC Michigan Pulte International Mexico 100% No
Limited Partnership
212. Pulte Texas Holdings, Inc. Michigan 1,000 PNII, Inc. 1,000 100% No
213. Pulte Title Agency of Michigan, Michigan PHC Title Corporation 49% No
L.L.C.
214. Pulte Title Agency of Minnesota, Minnesota PHC Title Corporation 80% No
L.L.C.
215. Pulte Title Agency of Ohio, Limited Ohio PHC Title Corporation 49% No
Liability Company
216. Pulte Trades of North Carolina, LLC Michigan Pulte Home Corporation 100% No
217. Pulte Urban Renewal, LLC New Jersey Preserve I, Inc. 100% No
218. ▇▇▇▇▇.▇▇▇, Inc. Michigan 10,000 Pulte Homes, Inc. 10,000 100% No
219. Pulte/BP Murrieta Hills, LLC California Pulte Home Corporation 70% No
220. Radnor Homes, Inc. Michigan 1,000 Pulte Homes, Inc. 1,000 100% No
221. Rancho Diamante Investments, LLC California Pulte Home Corporation 25% No
222. RCC Georgia Investor III LLC Pulte Georgia Holdings 100% No
223. Residencial Riviera, S.A. de C.V. Mexico Controladora PHC, S.A. de C.V. 25% No
224. Residencias del Norte Limitada Chile Pulte Chile Corporation 99.90% No
Pulte SA Corporation 0.10% No
225. Riverwalk of the Palm Beaches Florida 5,000 DiVosta Homes, L.P. 5,000 100% No
Development Company, Inc.
226. RN Acquisition 2 Corp. Nevada 1,000 Pulte Homes, Inc. 1,000 100% No
227. Roseville Schools LLC California PL Roseville, LLC 47% No
228. Shorepointe Village Homes, L.L.C. Michigan Pulte Homes, Inc. 82.5% No
229. South Natick Hills, LLC Michigan Pulte Homes of New England LLC 100%
230. Spa L Builders LLC California Pulte Home Corporation 38.6% No
231. Springfield Golf Resort, L.L.C. Arizona PC/BRE Springfield L.L.C. 88% No
232. Spruce Creek South Utilities, Inc. Florida 50 ▇▇▇ ▇▇▇▇'▇ Spruce Creek 50 100% No
(Assets sold to Florida Water Communities, Inc.
Utility Co. 6/30/00)
233. Stetson Ventures II, LLC Arizona Pulte Home Corporation 50% No
234. Summerfield Crossing LLC Michigan Pulte Home Corporation 100% No
7
STATE OF SHARES OBLIGATION OPTIONS MATERIAL
NAME INCORPORATION O/S OWNED BY SHARES OWNED O/S SUB?
---------------------------------- ------------- ------- ------------------------------ ---------- ------ ------- --------
235. Sun City Homes, Inc. (formerly Del Nevada 100 ▇▇▇ ▇▇▇▇ Corporation 100 100% No
▇. ▇▇▇▇ Finance Company)
236. Sun City Sales Corporation Michigan 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No
237. Sun City Title Agency Co. Arizona 100,000 ▇▇▇ ▇▇▇▇ Communities, Inc 100,000 100% No
238. Sun State Insulation Co., Inc. Arizona 1,000 ▇▇▇ ▇▇▇▇ Communities, Inc 1,000 100% No
239. Tallmadge ▇▇▇▇▇ STP Associates LLC New York Pulte Homes of New York, Inc. 47.482% No
240. Terravita Corp. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 100% No
241. Terravita Home Construction Co. Arizona 1,000 ▇▇▇ ▇▇▇▇ Corporation 1,000 75% No
▇▇▇ ▇▇▇▇ Communities, Inc. 25%
242. Thunderbird Lodge Holding Corp. Arizona 100 ▇▇▇ ▇▇▇▇ Communities, Inc. 100 100% No
243. TVM Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No
244. Upper Gwynedd Development, Limited Michigan Preserve II, Inc. 100%
Partnership Pulte Home Corporation of the 1%
Delaware Valley
245. Wellington Waltham, LLC Massachusetts Pulte Homes of New England LLC 100% No
246. Wil Corporation Michigan 1,000 Pulte Home Corporation 1,000 100% No Yes
247. ▇▇▇▇▇▇ ▇▇ Limited Partnership Maryland PBW Corporation 99% No
Wil Corporation 1%
248. Wilben, LLLP Maryland Wil Corporation 95% No
PBW Corporation 5%
249. ▇▇▇▇▇▇▇▇' Field at Perry Hall, LLC Maryland Wil Corporation 100% No
8
SCHEDULE 4.21(a)
INVESTMENT POLICY
PULTE HOMES, INC.
INVESTMENT POLICY
PURPOSE
This Policy has been adopted by the Board of Directors of Pulte Homes, Inc. (the
"Company") to establish internal rules for the investment of corporate funds.
Investments in accordance with this Policy and changes to Section F may be made
from time to time by, or at the direction of, the Chief Executive Officer, the
Chief Financial Officer ("CFO") and/or the Treasurer of the Company. Other
investments or modifications of this Policy may be made only with the prior
approval of the Board of Directors. This Policy does not affect the validity of
existing investments of the Company.
ADMINISTRATION OF POLICY
The CFO of the Company shall have principal responsibility and authority for
compliance with this Policy and shall establish suitable internal controls to
assure compliance. The Treasurer is responsible for implementing this Policy.
INVESTMENT POLICY
Responsibilities associated with investment of corporate cash are to be
discharged in such a manner as to protect/maintain the principal involved,
maintain adequate liquidity to fund the Company's anticipated cash requirements
and provide for prudent diversification of risk. The Company's objective is to
maximize the after-tax rate of return on investments consistent with the above
referenced safety, liquidity and diversification guidelines.
A. Surplus Funds
The Treasurer and Director of Treasury Operations (Assistant Treasurer) are
authorized to approve the investment of surplus funds of the Company in approved
money market investments for short-term periods under the guidelines below.
Surplus funds are defined as cash in the Company's accounts which are not
required at that point in time to maintain adequate bank balances or to meet
outstanding financial objectives. Acceptable investments are shown in Exhibit 1.
B. Diversification
To minimize the risk of loss and to promote liquidity, the Company generally
should maintain a reasonable diversity of investments. When investing surplus
funds in non-affiliated entities:
1
- No more than $15 million may be invested in any one issuer (other than
obligations of, or those guaranteed by, the United States of America, U.S.
government agencies, or U.S. government sponsored enterprises).
- No more than $50 million may be invested in issuers which are in the same
or a similar industry (other than banks or other financial institutions).
- No more than twenty percent (20%) may be invested in whole loan repurchase
agreements with approved broker/dealers listed in Exhibit 2.
Notwithstanding the above, the Company's only restriction for funds invested
overnight is that they meet the rating criteria shown in Exhibit 1.
C. Maturities
The Company's Treasurer may approve investments with a duration of up to one
year if otherwise in compliance to Exhibit 1. Investments with a duration longer
than 1 year may be made with the prior approval of the Company's CFO.
D. Change in Circumstances
The determination as to whether an investment is permitted under the Policy
shall not be affected due to a change in circumstances occurring after the
investment has been made (e.g., reduction in amount of surplus funds;
downgrading of rating of a particular issuer). Upon a change in circumstances,
the Treasurer will investigate the events which precipitated the change and will
determine whether or not to terminate the investment. The Company shall not
roll-over or otherwise renew or extend an investment if such investment would
not then be permitted under this Policy.
E. Hedging
Any investment in fixed income securities with a duration greater than one year
must be hedged with an appropriate instrument executed with a financial
institution maintaining a minimum ▇▇▇▇▇'▇ A3 credit rating (or equivalent) in
order to protect the principal amount of the investment unless the CEO and CFO
jointly allow for a specific exception. The Company's CFO and Treasurer are
responsible for developing an appropriate hedge strategy.
F. Selection of Approved Broker/Dealers, Mutual Fund Companies and Banks
Any additions, deletions or other changes to the list of approved
broker/dealers, mutual fund companies and banks (Exhibits 2 and 3) must be
approved in writing by at least two of the officers below:
- Chief Executive Officer
- Chief Financial Officer
- Treasurer
APPROVED: _____________________________________________ DATE: ___________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President and Chief Financial Officer
2
APPROVED: _____________________________________________ DATE: ___________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Treasurer
3
SCHEDULE 4.21(b)
INVESTMENTS
None
1
SCHEDULE 4.25
LABOR CONTRACTS AND DISPUTES
None
1
EXHIBIT 1.1(a)
FORM OF ASSIGNMENT AND ASSUMPTION
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 under the respective
facilities identified below (including any Facility LCs, guarantees, and
swingline loans included in such facilities) 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: Pulte Homes, Inc.
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent
under the Credit Agreement
-------------
(1) Select as applicable.
1
5. Credit Agreement: Second Amended and Restated Credit Agreement dated as of
October 31, 2005 among Pulte Homes Inc., the Lenders
parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, and the other agents parties thereto
6. Assigned Interest:
AGGREGATE AMOUNT OF
COMMITMENT/LOANS FOR ALL AMOUNT OF COMMITMENT/ PERCENTAGE ASSIGNED OF
LENDERS LOANS 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:
[Consented to and](3) Accepted:
JPMorgan Chase Bank, N.A.,, as
Administrative Agent
By: ________________________________
Title:
---------------
(2) Set forth, so at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
2
[Consented to:](4)
[NAME OF RELEVANT PARTY]
By: ______________________________
Title:
---------------
(4) To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, Issuing Bank) is required by the terms of the Credit
Agreement.
3
ANNEX 1
PULTE HOMES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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 Loan Document(5), (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan 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 Loan 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 Loan 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 5.1(a) or (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
Foreign Lender(6), 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 own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
----------------
(5) The term "Loan Document" should be conformed to that used in the Credit
Agreement.
(6) The concept of "Foreign Lender" should be conformed to the section in the
Credit Agreement governing withholding taxes and gross-up.
4
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 New York.
5
EXHIBIT 1.1(b)
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of October 31, 2005,
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
JPMorgan Chase Bank, N.A., a national banking association having its principal
office in New York, New York, as Administrative Agent, and certain other Lenders
from time to time party thereto have entered into a certain Second Amended and
Restated Credit Agreement dated October 31, 2005 (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 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.
6
(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 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:
7
(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 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
8
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 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.
9
(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
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 7.3 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 9.1 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
10
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.
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 NEW YORK. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY STATE COURT SITTING IN NEW YORK, NEW YORK AND
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR 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.
11
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
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 5.12 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 September 16, 2004.
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]
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EXHIBIT A
SUPPLEMENTAL GUARANTY
[DATE]
JPMorgan Chase Bank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Second Amended and
Restated Credit Agreement, dated as of October 31, 2005, as amended, among Pulte
Homes, Inc., the lenders from time to time parties thereto (the "Lenders"), and
JPMorgan Chase Bank, N.A., 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 5.12 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 New York (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:
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EXHIBIT 1.1(c)
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Intercreditor
Agreement"), dated as of October 31, 2005, 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"), JPMORGAN CHASE BANK,
N.A., 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 JPMORGAN CHASE BANK, N.A. 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 Second Amended and Restated
Credit Agreement, dated as of October 31, 2005 (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 (including any interest or fees
which accrue after the commitment of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Borrower,
whether or not allowed claims in such proceeding)) 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, whether or not
allowed claims in such proceeding) 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.
2
ARTICLE II
Terms of Subordination
2.1 Subordination.
(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 indefeasibly
in full and satisfied and no commitments with respect thereto remains
outstanding, 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.
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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 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.
5
ARTICLE VI
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.
6
To Administrative Agent: JPMorgan Chase Bank, N.A.
_____________________________
_____________________________
Attn: _______________
Ph: _________________
Fax: ________________
To the Trustee: JPMorgan Chase Bank, N.A.
_____________________________
_____________________________
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
7.7 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 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 September 16, 2004.
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: JPMORGAN CHASE BANK, N.A.,
as Administrative Agent for the
Revolving Credit Lenders
By: ___________________________________
Name: _________________________________
Title: ________________________________
SENIOR CREDITOR: JPMORGAN CHASE BANK, N.A., 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 JPMORGAN CHASE BANK, N.A. and_________________________________,
in their capacity as Senior Creditors (the "Senior Creditors") under that
certain Intercreditor and Subordination Agreement, dated as of October 31, 2005,
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 Credit 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 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.
3. THIS CREDIT 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 Credit Agreement to be
duly executed by its authorized officer, as of the day and year first above
written.
[NEW REIT]
By: ___________________________________
Name: _________________________________
Title: ________________________________
10
Acknowledged and Accepted
JPMORGAN CHASE BANK, N.A., as
Administrative Agent, in its
capacity as a Senior Creditor
By: ___________________________________
Name: _________________________________
Title: ________________________________
JPMORGAN CHASE BANK, N.A., as
Trustee, in its capacity as a Senior Creditor
By: ___________________________________
Name: _________________________________
Title: ________________________________
11
EXHIBIT 2.4(e)
SWINGLINE NOTE
$50,000,000.00 October 31, 2005
Pulte Homes, Inc., a Michigan corporation (the "Borrower") promises to pay
to the order of JPMorgan Chase Bank, N.A. (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 JPMorgan Chase Bank, N.A., in
New York, New York, 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 Second Amended and Restated Credit Agreement, dated as of
October 31, 2005 (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 JPMorgan Chase Bank, N.A., 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:
12
EXHIBIT 2.5
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 Second Amended and Restated Credit
Agreement dated as of October 31, 2005, by and among Pulte Homes, Inc., a
Michigan corporation (the "Borrower"), JPMorgan Chase Bank, N.A., 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 2.5 of the Credit Agreement, the Borrower has
requested an increase in the Aggregate Commitment from $_______________ to
$__________________. Such increase in the Aggregate 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 2.5) OF THE CREDIT AGREEMENT]. In
connection with such requested increase in the Aggregate Commitment, 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.
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 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 5.1(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 Commitment and Acceptance on the
basis of which it has made such analysis and decision independently and without
reliance on the Agent or any other Lender, and (v) if it is a Foreign
1
Lender, it has delivered 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 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.]
2. *Paragraph 2 is to be inserted only if Accepting Lender is not already
a party to the Credit Agreement prior to the Increase Date.
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 New York.
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 the Administrative Questionnaire
delivered by Accepting Lender to the Administrative Agent.
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:
JPMORGAN CHASE BANK, N.A., as
ADMINISTRATIVE AGENT
By: ______________________________
Name:
Title:
COMMITMENT: ACCEPTING LENDER:
$_________________________ [NAME OF ACCEPTING LENDER]
By: _________________________________
Name: _______________________________
Title: ______________________________
3
EXHIBIT 2.10(e)
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 Article II of the Agreement (as
hereinafter defined), in immediately available funds at the main office of
JPMorgan Chase Bank, N.A. in New York, New York, 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.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Second Amended and Restated Credit Agreement
dated as of October 31, 2005 (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 JPMorgan Chase Bank, N.A.,
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: ______________________________
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EXHIBIT 5.1(c)
FORM OF OFFICER'S CERTIFICATE
TO: JPMORGAN CHASE BANK, N.A., as Administrative Agent
RE: Second Amended and Restated Credit Agreement dated as of October 31, 2005
among PULTE HOMES, INC., a Michigan corporation (the "Borrower"), the
Lenders identified therein, JPMorgan Chase Bank, N.A. 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 5.2 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
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