Exhibit 10.1
SENIOR UNSECURED REVOLVING CREDIT AGREEMENT
AMONG
WCI COMMUNITIES, INC.
AS BORROWER
AND
FLEET NATIONAL BANK
AND
OTHER LENDERS WHICH ARE OR MAY BECOME
PARTIES TO THIS AGREEMENT
AS LENDERS
AND
FLEET NATIONAL BANK
AS LEAD AGENT
AND
WACHOVIA BANK, N.A.
AS SYNDICATION AGENT
AND
FLEET SECURITIES, INC.
AND
WACHOVIA BANK, N.A.
AS CO-LEAD ARRANGERS
DATED AS OF
JUNE 28, 2002
TABLE OF CONTENTS
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TABLE OF CONTENTS
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Section 1 DEFINITIONS AND RULES OF INTERPRETATION...........................1
Section 2 REVOLVING CREDIT FACILITY........................................20
Section 3 FEES.............................................................31
Section 4 CERTAIN GENERAL PROVISIONS.......................................32
Section 5 SECURITY; GUARANTIES; MASTER ACCOUNT.............................36
Section 6 REPRESENTATIONS AND WARRANTIES...................................37
Section 7 CONDITIONS AND EFFECTIVENESS.....................................43
Section 8 CONDITIONS TO SUBSEQUENT LOANS...................................45
Section 9 AFFIRMATIVE COVENANTS............................................46
Section 10 NEGATIVE COVENANTS...............................................52
Section 11 FINANCIAL COVENANTS..............................................61
Section 12 EVENTS OF DEFAULT; ACCELERATION; REMEDIES........................62
Section 13 SETOFF...........................................................67
Section 14 EXPENSES.........................................................67
Section 15 INDEMNIFICATION..................................................68
Section 16 SURVIVAL OF COVENANTS, ETC.......................................69
Section 17 AGENT; LEAD ARRANGER.............................................69
Section 18 ASSIGNMENT.......................................................73
Section 19 NOTICES, ETC.....................................................77
Section 20 MISCELLANEOUS....................................................79
Section 21 ENTIRE AGREEMENT, ETC............................................79
Section 22 CONSENTS, AMENDMENTS, WAIVERS, ETC...............................79
Section 23 GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE...............80
Section 24 SEVERABILITY.....................................................81
Section 25 WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS...................81
Section 26 RIGHTS OF THIRD PARTIES..........................................81
Section 27 RELATIONSHIP.....................................................82
Section 28 TIME OF THE ESSENCE..............................................82
Section 29 SUCCESSORS AND ASSIGNS...........................................82
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TABLE OF CONTENTS
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LIST OF SCHEDULES
Schedule 1.0 Commitments
Schedule 1.1 Subsidiaries
Schedule 1.2 Core Businesses
Schedule 1.3 Permitted Mortgages
Schedule 1.4 CDD Obligations
Schedule 6.24 Joint Venture Interests
Schedule 10.7 Pension Plans and Welfare Plans
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TABLE OF CONTENTS
(continued)
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LIST OF EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Advance Request
Exhibit C Form of Letter of Credit Request
Exhibit D Form of Borrowing Base Report
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Swing Line Note
Exhibit H Form of Request for Extension
Exhibit I Form of Guaranty
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SENIOR UNSECURED REVOLVING
CREDIT AGREEMENT
THIS SENIOR UNSECURED REVOLVING CREDIT AGREEMENT is made as of
the 28th day of June, 2002, among (i) WCI COMMUNITIES, INC., a Delaware
corporation, having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower"); (ii) FLEET NATIONAL BANK, a
national banking association, having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (MADE10307C), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Fleet"), (iii)
certain other lending institutions, as more particularly described on Schedule
1.0, as to the designation of such Lender and its Commitment, together with
certain other lending institutions which may become parties hereto pursuant to
Section 18.1 (Fleet and the foregoing lending institutions are collectively
referred to herein as the "Lenders" and each as a "Lender"), (iv) FLEET NATIONAL
BANK, as Lead Agent for itself and the other Lenders ("Lead Agent"); (v)
WACHOVIA BANK, N.A., as Syndication Agent for itself and the other Lenders
("Syndication Agent"); and (vi) FLEET SECURITIES, INC. and WACHOVIA BANK, N.A.
as Co-Lead Arrangers for the Lenders (each a "Co-Lead Arranger").
R E C I T A L S:
WHEREAS, Borrower has requested that the Lenders make
available to it a senior, unsecured revolving credit facility; and
WHEREAS, the Lenders and the Lead Agent are willing to make a
senior, unsecured revolving credit facility available to the Borrower on the
terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and the
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
Section 1 DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1 The following terms shall have the meanings set
forth in this Section 1.1 or elsewhere in the provisions of this Agreement
referred to below:
Adjusted Tangible Net Worth. Tangible Net Worth plus the
lesser of (i) fifty percent (50%) of the outstanding balance of the Senior
Subordinated Notes, (ii) $100,000,000.00 or (iii) twenty percent (20%) of
Tangible Net Worth.
Advance. Any disbursement of loan proceeds made or to be made
by Lenders pursuant to the terms of this Agreement (other than Swing Line
Loans).
Advance Request. See Section 2.7(a).
Affiliate. As applied to any Person, any other Person (a)
which directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common
control with that Person, or (2) which owns beneficially or of record 10% or
more of the voting stock or other voting equity interests of that Person. The
term "control" means the possession, directly or indirectly, of the power to
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities or partnership interests, by contract, family
relationship or otherwise.
Agreement. This Senior Unsecured Revolving Credit Agreement,
including the Schedules and Exhibits hereto.
Amenities. Collectively, the golf courses, marinas,
clubhouses, and swimming, tennis and other recreational facilities owned and
operated by any member of the Consolidated Group.
Applicable Law. With respect to any Person, all laws and
provisions of constitutions, statutes, rules, regulations, and orders of
Governmental Authorities applicable to such Person, including, without
limitation, all orders and decrees of all courts and arbitrators in proceedings
or actions to which the Person in question is a party or by which it is bound.
Applicable Margin. On any date of determination, the
percentage per annum set forth in the table below for a Prime Rate Advance,
LIBOR Advance, Letter of Credit Fee or a Unused Fee, as applicable, based upon
the Debt Rating in effect on such date of determination as follows:
Unused Fee Letter of Credit Fee
---------- --------------------
Debt Rating Prime
Pricing Rate LIBOR A B Financial Letter Performance Letter
Level S&P/▇▇▇▇▇'▇ Advance Advance (non-usage > 60%) (non-usage < 60%) of Credit of Credit
----- ----------- ------- ------- ----------------- ----------------- --------- ---------
1 less than BB-/ less 0% 2.00% 0.50% 0.375% 2.00% 1.50%
than Ba3
2 BB-/ Ba3 0% 1.80% 0.375% 0.25% 1.80% 1.30%
3 BB / Ba2 0% 1.65% 0.375% 0.25% 1.65% 1.15%
4 BB+ or greater/ Bal 0% 1.50% 0.30% 0.20% 1.50% 1.00%
or greater
If Borrower has a Debt Rating from both Rating Agencies, the less favorable to
the Borrower of the two Debt Ratings shall determine the Applicable Margin for
each particular item above. Borrower shall maintain a continuous Debt Rating by
at least one of the Rating Agencies. Borrower shall contract with at least one
of the Rating Agencies for the periodic modification and updating of its Debt
Rating, and shall obtain and submit to Lead Agent an update to the Debt Rating
on or before September 30 of each year during the term of this Agreement and at
such other dates as Lead Agent may elect. The Applicable Margin shall be
adjusted on the first Business Day after a Rating Notice Date, and Lead Agent
shall provide a written statement to Borrower, with a copy to the Lenders,
showing the basis for such adjustment. Lead Agent, Lenders and Borrower
acknowledge that, as of the Effective Date, the Applicable Margins are as
indicated in Pricing Level 2. No pricing modification pursuant to this
definition shall be applicable to any existing LIBOR Advance prior to the
expiration of its Interest Period. No decrease in the Applicable Margin shall
occur at any time that the Default Rate is applicable.
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If at any time (a) no Debt Rating shall have been issued or confirmed in writing
by both of the Rating Agencies within the previous 365 days, or (b) the rating
system of both of the Rating Agencies (as opposed to the Debt Rating) shall
change in such a way that shall require modification of this definition, or (c)
both of the Rating Agencies shall no longer perform the functions of a
securities rating agency, Borrower shall then immediately notify Lead Agent of
such event and Borrower and Lead Agent shall promptly negotiate in good faith to
amend this Agreement with respect to the determination of the Debt Rating, and
pending such amendment, the applicable Debt Rating in effect as of the date the
applicable event described in this sentence occurred shall continue to apply.
Assignment and Acceptance. See Section 18.
Average Daily Non-Usage Amount. For any period of examination,
the amount obtained where the numerator is the sum of the daily calculations in
such period of the Revolving Credit Availability for each day in the period and
the denominator is the number of days in such period.
Bankruptcy Code. See Section 12.1(i).
Borrower. See preamble.
Borrowing Base. At any time of determination, the sum of the
following assets which shall not be encumbered by any lien or other security
interest, except as provided in subparagraph (h) below:
(a) Sold Units. With respect to Units subject to Housing
Purchase Contracts, ninety-five percent (95%) of the difference between (x) the
Unit Costs incurred by a Property Owner with respect thereto and (y) the
aggregate amount of all Customer Deposit Liabilities held pursuant to each such
Housing Purchase Contract which may be applied to the Unit Costs; plus
(b) Unsold Units. With respect to Unsold Units (other than
Model Units), eighty percent (80%) of the Unit Costs incurred by a Property
Owner with respect thereto; provided, that Unsold Units (other than Model Units)
shall be excluded from computation in the Borrowing Base under this subparagraph
(b) on and after that date which is one (1) year from the date of the issuance
of a certificate of occupancy for the Unsold Unit; plus
(c) Model Units. With respect to Model Units, eighty percent
(80%) of the Unit Costs incurred by a Property Owner with respect thereto;
provided, that Model Units shall be excluded from computation in the Borrowing
Base on the date which is three (3) years from the issuance of a certificate of
occupancy for the Model Unit; furthermore, the maximum number of Model Units in
the Borrowing Base shall be limited to two (2) Model Units for each subdivision
in which Borrower is actively developing and selling Units, unless otherwise
approved by Lead Agent; plus
(d) Finished Land Inventory. Seventy-five percent (75%) of
Finished Land Inventory Book Value; provided, that there shall be excluded from
this subparagraph (d) Developed Lots that are included within the Borrowing Base
under any other category set forth
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herein and that the maximum amount of availability includable in the Borrowing
Base for Developed Parcels shall be $150,000,000.00; plus
(e) Amenities. With respect to Amenities operated as Equity
Clubs and Non-Equity Clubs, seventy-five percent (75%) of the difference of the
actual cost of the Amenities less the portion of such costs allocated on a pro
rata basis to sold memberships and sold marina slips; and with respect to
Operating Amenities, seventy-five percent (75%) of the cost basis thereof; plus
(f) Land Development Work in Process. With respect to
improvements made by a Property Owner to Developable Land not covered by (a),
(b), (c) or (d) above, sixty-five percent (65%) of the Developed Lot Costs of
improvements made by a Property Owner to such Developable Land and sixty-five
percent (65%) of the Developable Land Book Value of the Developable Land subject
to such improvements; plus
(g) Eligible Joint Ventures. Sixty-five percent (65%) of the
amount of capital contributed by a member of the Consolidated Group to an
Eligible Joint Venture for which Borrower has provided to Lead Agent evidence
satisfactory to Lead Agent of the amount of capital contributed; provided, that
the maximum amount of availability includable in the Borrowing Base under this
category shall be $20,000,000.00; plus
(h) Unimproved Developable Land. With respect to Developable
Land where improvements have not commenced and which is not covered by any other
category in the Borrowing Base, thirty-five (35%) of the difference of (i)
Developable Land Book Value minus (ii) the amount of CDD Obligations and
Permitted Mortgages applicable to such Developable Land; provided, that the
maximum amount of availability includable in the Borrowing Base amount under
this category shall be $50,000,000.00;
provided, however, that:
(i) the cost basis for any Borrowing Base asset shall
not exceed its net realizable value determined in accordance with generally
accepted accounting principles and with respect to any Borrowing Base category
(other than (g) above) on a Project basis as to such category and as to (g) on
an asset by asset basis;
(ii) for purposes of the cost calculations in the
Borrowing Base, capitalized costs such as corporate general and administrative
costs and marketing costs shall be excluded;
(iii) capitalized interest and taxes shall be
allocated to the appropriate categories in the Borrowing Base, then the
applicable advance rate percentages shall be applied; the aggregate amount of
capitalized interest and taxes included in the Borrowing Base shall be limited
to ten percent (10%) of the total Borrowing Base (for example, if the total
Borrowing Base is $400,000,000.00, the aggregate amount of capitalized interest
and taxes included in the Borrowing Base shall not exceed $40,000,000.00); and
(iv) Construction Projects financed by Construction
Loans shall not be included in the Borrowing Base until such time as they become
unencumbered.
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Borrowing Base Availability. As of any date of determination,
the sum of (a) the Borrowing Base minus (b) the Outstanding Loans minus (c) the
Letters of Credit Exposure minus (d) the outstanding principal amount of any
Senior Subordinated Notes having a maturity date of less than one year from such
date of determination of the Borrowing Base Availability minus (e) the
outstanding principal amount of any Senior Notes.
Borrowing Base Report. A report with respect to the Borrowing
Base in the form attached hereto as Exhibit D.
Business Day. Any day other than a Saturday, Sunday, or other
day on which commercial banks in Boston, Massachusetts are authorized or
required to close under the laws of Massachusetts, the laws of the United States
of America, and if the applicable day relates to a LIBOR Advance or an interest
period for a LIBOR Advance, the day on which dealings in U.S. Dollar deposits
are also carried on in the London interbank market and banks are open for
business in London.
CDD. Any Community Development District applicable to any of
the Properties.
CDD Obligations. The obligations of a Property Owner incurred
with respect to Community Development Districts and which are reflected as a
liability on the balance sheet of Borrower as required by generally accepted
accounting principles, including those financial obligations set forth on
Schedule 1.4.
CERCLA. See Section 6.21.
Change of Control. The occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of Borrower or the Consolidated Group taken as a whole to any Person, provided
that a transaction where the holders of all classes of capital stock or equity
interests in Borrower immediately prior to such transaction own directly or
indirectly 50% or more of all classes of capital stock or equity interests in
such Person immediately after such transaction shall not be a Change of Control;
(b) the adoption of a plan relating to the liquidation or
dissolution of Borrower;
(c) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any Person
becomes the beneficial owner, directly or indirectly, of more than 50% of the
voting stock of Borrower; or
(d) the first day on which a majority of the members of the
board of directors of Borrower are not Continuing Directors.
CILP. Communities Investors Limited Partnership, a Delaware
limited partnership.
5
Closing Date. June 28, 2002.
Clubs. Collectively, Equity Clubs and Non-Equity Clubs.
Co-Lead Arrangers. See preamble.
Code. The Internal Revenue Code of 1986, as amended and in
effect from time to time. To the extent that reference is made to any particular
Section of the Code, such reference shall be, where the context so admits, to
any corresponding provisions of any succeeding law.
Commitment. With respect to each Lender, the obligation to
make Advances to Borrower under this Agreement up to the amount set forth on
Schedule 1.0 as the amount of such Lender's Commitment to make Advances to
Borrower, as the same may be reduced from time to time or increased pursuant to
Section 2.3.
Commitment Percentage. With respect to each Lender, the
percentage set forth on Schedule 1.0 as such Lender's percentage of the Total
Commitment.
Compliance Certificate. See Section 9.4(c).
Consolidated or consolidated. With reference to any term
defined herein, shall mean that term as applied to the accounts of Borrower and
its Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated Group. Collectively, Borrower and its
Subsidiaries.
Construction Lenders. One or more of the Lenders or other
financial institutions making Construction Loans.
Construction Loan Agreements. The construction loan agreements
evidencing the Construction Loans.
Construction Loans. The loans made outside this Agreement for
the purpose of financing the construction and development of Construction
Projects.
Construction Projects. The multi-family residential
condominium projects having Hard Costs of $10,000,000.00 or more.
Continuing Directors. As of any date of determination, any
member of the board of directors of Borrower who:
(a) was a member of such board of directors on the date of
this Agreement; or
(b) was nominated for election or elected to such board of
directors with the approval of a majority of the Continuing Directors who were
members of such board at the time of such nomination or election.
Core Businesses. The businesses of the Consolidated Group set
forth on Schedule 1.2.
6
Customer Deposit Liabilities. Collectively, the escrow
deposits, down payments or ▇▇▇▇▇▇▇ money deposited by purchasers pursuant to
Housing Purchase Contracts.
Debt Rating. As of any date of determination by a Rating
Agency, (a) the rating of the Obligations under this Agreement, or (b) if such
Rating Agency does not publicly announce the rating described in clause (a)
above, such Rating Agency's rating of Borrower's non-credit-enhanced, senior
unsecured long-term debt, or (c) if such Rating Agency does not publicly
announce either of the ratings described in clauses (a) or (b) above, such
Rating Agency's publicly announced corporate rating of Borrower.
Default. Any event or condition which but for the giving of
notice or the lapse of time or both would constitute an Event of Default.
Default Rate. See Section 4.3.
Delinquent Lender. See Section 17.5(c).
Depository. See Section 5.3.
Depository Account. See Section 5.3.
Developable Land. All Properties (a) on which Units and
Developed Lots may then be constructed or developed under Applicable Laws and
regulations, (b) its intended use for a Project is permissible under the
applicable regional plan, development agreement or applicable zoning, all of
which have Vested status, and (c) the environmental or regional impact report
for the intended use, if required, is Vested, but specifically excluding any
land on which a Property Owner and Lead Agent reasonably agree that development
is restricted under federal or state wetlands protection or other Environmental
Laws. Notwithstanding the foregoing provisions of this definition, Unentitled
Land which is both (i) contiguous to Developable Land and (ii) an integral part
of the overall development of such Developable Land as evidenced by a
comprehensive plan including such Unentitled Land approved by the applicable
Governmental Authority, may be included in the Borrowing Base as Developable
Land once approved by Lead Agent.
Developable Land Book Value. The acquisition cost of a parcel
of Developable Land.
Developed Lots. Each of the platted subdivided lots and the
Horizontal Improvements thereon located on Developable Land and which, under
Applicable Laws and regulations, may be utilized as the site for a Unit,
high-rise condominium or multi-family facility including specifically those lots
(a) that are ready for construction of a Unit, high-rise condominium or
multi-family facility and for which a building permit would then be issued to a
Property Owner if applied for, (b) with construction of Units underway thereon
or (c) with fully constructed Units situated thereon, but excluding lots under
development that are not yet ready for construction of Units thereon.
Developed Lot Book Value. The cost of each Developed Lot
determined by allocating the acquisition cost and Developed Lot Costs of each
Project (or parcel of land located
7
therein) among the lots and other land (such as commercial, industrial,
Amenities, etc.) located therein, which allocation shall exclude any marketing
and corporate general and administrative expenses.
Developed Lot Costs. The amount of actual costs incurred by a
Property Owner in connection with the development of Developable Land and
Developed Lot, but excluding therefrom: (i) costs incurred for the construction
of Units and (ii) marketing, corporate general and administrative costs and
other costs not directly attributable to design, site improvement, and
construction of infrastructure on Developable Land and Developed Lots.
Developed Parcels. Properties zoned either PUD, residential or
commercial and on which all Horizontal Improvements have been completed in
sufficient capacity to service the permitted use and density for such Developed
Parcel under applicable zoning and in accordance with requirements of
Governmental Authority.
Developed Parcel Book Value. The sum of the Developed Parcel
Costs attributable to such Developed Parcel plus the cost of each Developed
Parcel determined by allocating the acquisition cost and land development costs
of each Project among the Developed Parcel and the other property included from
time to time in the Project. The allocation shall exclude any marketing and
corporate general and administrative expenses.
Developed Parcel Costs. The amount of actual costs incurred by
a Property Owner in connection with the development of Developed Parcels
(including Horizontal Improvements).
Direct Costs. With respect to the construction of any
condominium development, the costs of land at Fair Market Value plus the actual
or projected costs of personal property, and all labor, materials, fixtures,
machinery and equipment required to construct, equip and complete the
improvements in accordance with the plans and specifications therefor.
Distribution. Any of the following: (a) the payment by any
Person of any distributions or other payments to its shareholders, partners or
members; (b) the declaration or payment of any dividend on or in respect of
shares of any class of capital stock of, or partnership or membership interest
in, any Person; (c) the purchase or other retirement of any shares of any class
of capital stock of, or partnership or membership interest in, any Person,
directly or indirectly through a Subsidiary or otherwise; (d) the return of
capital by any Person to its shareholders, partners or members; (e) any other
payment on or in respect of any shares of any class of capital stock of, or
partnership or membership interest in, any Person.
Drawdown Date. The date on which any Advance or Swing Line
Loan is made available to Borrower pursuant to the provisions hereof, and the
date on which any Advance is converted or continued in accordance
with Section 2.7(d).
EBITDA. For any period, on a consolidated basis for the
Consolidated Group, the sum of the amounts for such period of (i) Net Income,
plus (ii) charges against income for foreign, federal, state and local taxes,
plus (iii) Interest Expense, plus (iv) depreciation, plus (v) amortization
expenses, including, without limitation, amortization of goodwill and other
intangible assets and other non-cash expenses (excluding any such non-cash
expense to the
8
extent that it represents an accrual of or reserve for cash expenses in any
future period or exceeds the amount of such accrual or reserved expense in the
current period) and amortization of deferred compensation expense, plus (vi)
extraordinary losses, minus (vii) extraordinary gains minus (viii) non-cash
items increasing such Net Income for such period, other than the accrual of
revenue in the ordinary course of business, in each case, on a consolidated
basis and determined in accordance with generally accepted accounting
principles.
Effective Date. The date upon which this Agreement shall
become effective pursuant to Section 7.
Eligible Assignee. Any of (a) a commercial bank organized
under the laws of the United States, any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000.00; (b) a savings
and loan association or savings bank organized under the laws of the United
States, any State thereof or the District of Columbia, and having a net worth of
at least $100,000,000.00, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws of any
other country which is a member of the OECD, or a political subdivision of any
such country, and having total assets in excess of $1,000,000,000.00, provided
that such bank has a branch or agency in the United States and is acting through
a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD, (e) the then existing Lenders, and (f) other
lending institutions or entities reasonably acceptable to Lead Agent and, so
long as no Default or Event of Default has occurred and is continuing, Borrower.
Eligible Joint Venture. A Joint Venture which meets all of the
following criteria: (i) the Joint Venture is the owner of an asset which
qualifies for inclusion in the Borrowing Base and is consistent with the Core
Businesses; (ii) the interest of the member of the Consolidated Group in the
Joint Venture is unencumbered by any lien or security interest; (iii) all of the
assets of the Joint Venture are unencumbered (excluding liens to secure CDD
Obligations); and (iv) the member of the Consolidated Group holding the interest
in the Joint Venture has satisfied such other requirements as Lead Agent may
require to permit the inclusion of the investment in such Joint Venture in the
Borrowing Base.
Environmental Laws. See Section 6.21(a).
EPA. See Section 6.21(b).
Equity Clubs. Amenities in which the members hold an equity
ownership stake.
Equity Offering. The issuance and sale by any member of the
Consolidated Group of any partnership or member interests or equity securities
of such member of the Consolidated Group to investors.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended from time to time.
Event of Default. See Section 12.1.
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Existing Environmental Matters. Those certain existing
material environmental matters affecting portions of the Properties as
identified on the separate certification of the Borrower dated of even date
herewith.
Fair Market Value. The price a willing buyer would pay to a
willing seller in an arm's length transaction with neither party being under a
compulsion to act.
Fee and Expense Agreement. The Fee and Expense Agreement
between Fleet and Borrower dated of even date herewith.
Fees. Collectively, all fees due and payable to any of Fleet,
Lead Agent, Lead Arranger, or Lenders under this Agreement, including the
Origination Fee, Unused Fee, Lead Agent's Fee, Letter of Credit Fee and other
amounts due and payable under Section 3.
Financial Letters of Credit. Any letters of credit issued
pursuant to Section 2.9 other than Performance Letters of Credit.
Financial Statements. See Section 9.4.
Financial Covenants. The covenants set forth in Section
9.7(b), 10.3(i), 10.4(a), 10.5, 10.10(b) and 11.
Finished Land Inventory. Collectively, Developed Lots and
Developed Parcels.
Finished Land Inventory Book Value. Collectively, the sum of
Developed Lot Book Value and Developed Parcel Book Value.
Fiscal Quarter. The fiscal quarter of Borrower consisting of a
three (3) month fiscal period ending on each March 31, June 30, September 30 and
December 31 of each Fiscal Year.
Fiscal Year. The fiscal year of Borrower consisting of a
twelve (12) month fiscal period ending on each December 31.
Fixed Charges. For any period, the sum of Interest Incurred
and any regularly scheduled amortization payments on the Total Debt, but
excluding (i) balloon payments, (ii) interest on Construction Loans covered by
an interest reserve, and (iii) amortization payments on CDD Obligations.
Fleet. See preamble.
Generally Accepted Accounting Principles or generally accepted
accounting principles. In general, principles which are (a) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors (or successor organizations) and (b) such that certified
public accountants would, insofar as the use of accounting principles is
pertinent, be in a position to deliver an unqualified opinion as to the
financial statements in which such principles have been properly applied;
provided that if any changes in generally accepted accounting principles with
which the independent certified
10
accountants of Borrower concur result in a change in the basis of calculating
any of the Financial Covenants, standards or terms contained in this Agreement,
Borrower and Lead Agent agree to amend such covenant calculations, standards or
terms to reflect such changes in generally accepted accounting principles so
that the criteria for evaluating the financial condition of Borrower shall be
the same after such changes as if such changes had not been made.
Governmental Authority. Any international, foreign, federal,
state, county or municipal government, or political subdivision thereof; any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body; or any court or administrative
tribunal.
Guaranty. See Section 5.2.
Hard Costs. With respect to the construction of any
condominium development, Direct Costs less the cost of land at Fair Market Value
and the amount of any contingency reserve in the construction budget for such
condominium development.
Hazardous Substances. See Section 6.21(b).
Horizontal Improvements. All utilities, including water and
sewer, located on real property together with a dedicated roadway built in
material compliance with applicable governmental regulations, all over
rights-of-way dedicated to the applicable Governmental Authority and any private
roadways otherwise built by the Property Owners in compliance with and permitted
under all Applicable Laws.
Housing Purchase Contract. Any legal, valid, binding and
enforceable written agreement for the sale of individual Units or Developed Lots
to any bona-fide purchaser entered into by a Property Owner in the ordinary
course of its business with customary terms and conditions and that provides for
a cash down payment of not less than the greater of $5,000.00 or such amount
that is customary in the local market.
Increasing Lender. See Section 2.3.
Indebtedness. Without duplication, with respect to any Person
(i) indebtedness or liability for borrowed money, including, without limitation,
subordinated indebtedness; (ii) obligations evidenced by bonds, debentures,
notes, or other similar instruments; (iii) obligations for the deferred purchase
price of property or services, provided, however, that Indebtedness shall not
include obligations with respect to options to purchase real property that have
not been exercised; (iv) obligations as lessee under capital leases to the
extent that the same would, in accordance with generally accepted accounting
principles, appear as liabilities in such Person's consolidated balance sheet;
(v) current liabilities in respect of unfunded vested benefits under Pension
Plans and Welfare Plans and incurred withdrawal liability under any
Multi-employer Plan; (vi) reimbursement obligations under letters of credit
(including contingent obligations with respect to letters of credit not yet
drawn upon); (vii) obligations under acceptance facilities; (viii) all
guaranties, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest in any other Person, or otherwise
to assure a creditor against loss; (ix) obligations secured by any liens on any
property of such Person, whether or not the obligations have been
11
assumed; and (x) net liabilities under interest rate swap, exchange or cap
agreements (valued as the termination value thereof, computed in accordance with
a method approved by the International Swaps and Derivatives Association and
agreed to by such Person in the applicable agreement). Indebtedness shall not
include trade accounts payable and accruals incurred in the ordinary course of
business and performance letters of credit, payment and performance bonds and
other performance obligations and guaranties with respect thereto. The amount of
any condominium assurance bonds, as permitted by Section 10.1(k) below, shall be
equal to the amount of Customer Deposit Liabilities in accordance with generally
accepted accounting principles.
Interest Expense. With respect to any period, the sum of (a)
all charges for such period that are considered interest expense under generally
accepted accounting principles including amortization of previously capitalized
interest, plus (b) the portion of rent paid by the Consolidated Group (without
duplication) for that fiscal period under capital lease obligations that should
be treated as interest in accordance with Financial Accounting Standards Board
Statement No. 13, in each case determined on a consolidated basis in accordance
with generally accepted accounting principles, consistently applied.
Interest Incurred. For any period, the total interest paid or
accrued by the Consolidated Group (including the interest component of any
capital leases and excluding fees paid in connection with the closing under this
Agreement or thereafter and excluding interest or fees payable under the
Construction Loans to the extent drawn under the Construction Loans).
Interest Payment Date. As to each Prime Rate Advance or Swing
Line Loan, the first day of each calendar month after the making of such Loan,
and with respect to each LIBOR Advance, the last day of the applicable Interest
Period therefor.
Interest Period. With respect to each LIBOR Advance:
(a) initially, the period commencing on the Drawdown Date of
such LIBOR Advance and ending one (1), two (2) or three (3) months thereafter,
as the case may be, as determined in accordance with the provisions of this
Agreement; and
(b) thereafter, each subsequent Interest Period for such LIBOR
Advance shall begin on the last day of the preceding Interest Period for such
Advance and shall end one (1), two (2) or three (3) months thereafter as
Borrower may select pursuant to Section 2.7(d) of this Agreement.
The number of days in each Interest Period and the particular day on which each
Interest Period ends and the next begins shall be fixed by Lead Agent in
accordance with Lead Agent's generally accepted practice in the applicable
London interbank market; provided that (A) any Interest Period which would
otherwise end on a day which is not a Business Day shall end and the next
Interest Period shall commence on the next succeeding day which is a Business
Day as determined conclusively by Lead Agent in accordance with its then current
practice in the applicable London interbank market, and (B) no Interest Period
for a LIBOR Advance shall end after the Maturity Date.
Investment. With respect to any Person, any loan, advance,
extension of credit (other than accounts receivable arising in the ordinary
course of business), or contribution of
12
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, partnership, joint venture or limited liability
company interests, notes, debentures or other securities of any other Person
made by such Person.
Investor Equity. As of the date of determination, and with
respect to any Person, the consolidated partners', members' or shareholders'
equity of the Person as of that date determined in accordance with generally
accepted accounting principles.
IRS. The Internal Revenue Service.
Issuing Bank. Either Fleet or any other Lender, as selected by
Borrower and approved by Lead Agent.
Joint Venture. Any Person (other than a Subsidiary) in which
Borrower or any other member of the Consolidated Group holds any stock,
partnership interest, joint venture interest, limited liability company interest
or other equity interest.
Lead Agent. See preamble.
Lead Agent's Fee. See Section 3.3.
Lead Agent's Head Office. Lead Agent's head office located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (MADE10307C), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Real Estate
Division, or at such other location as Lead Agent may designate from time to
time.
Lead Arranger. See preamble.
Lenders. Fleet and the other lending institutions listed on
Schedule 1.0 and any other Person who becomes an assignee of any rights of a
Lender pursuant to Section 18.
Letters of Credit. Collectively, Financial Letters of Credit
and Performance Letters of Credit.
Letters of Credit Exposure. The maximum aggregate amount from
time to time which the beneficiaries may draw under outstanding Letters of
Credit, as the same may be reduced from time to time pursuant to the terms of
the Letters of Credit.
Letter of Credit Fee. See Section 3.4.
Letter of Credit Request. See Section 2.9(a).
LIBOR. As applicable to any LIBOR Advance, the rate per annum
as determined on the basis of the offered rates for deposits in U.S. Dollars,
for a period of time comparable to the Interest Period for such LIBOR Advance
which appears on page 3750 of the Dow ▇▇▇▇▇ Market Services (f/k/a Telerate News
Services) as of 11:00 a.m. London time on the day that is two London Business
Days preceding the first day of the Interest Period for such LIBOR Advance,
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR shall be the
rate (rounded upward, if
13
necessary, to the nearest one hundred-thousandth of a percentage point),
determined on the basis of the offered rates for deposits in U.S. Dollars for a
period of time comparable to the Interest Period for such LIBOR Advance which
are offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) London Business Days
preceding the first day of such LIBOR Advance as selected by Lead Agent. The
principal London office of each of such four major banks will be requested to
provide a quotation of its U.S. Dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in U.S. Dollars to leading European banks for a period of time comparable to the
Interest Period for such LIBOR Advance offered by major banks in New York City
at approximately 11:00 a.m. New York City time, on the day that is two London
Business Days preceding the first day of such LIBOR Advance. In the event that
Lead Agent is unable to obtain any such quotation as provided above, it will be
deemed that LIBOR pursuant to a LIBOR Advance cannot be determined. In such
event, the Advance shall bear interest at the Prime Rate. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of any Lender, then for any period
during which such Reserve Percentage shall apply, LIBOR with respect to Advances
owing to such Lender shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage.
LIBOR Advance. Any Advance or portion of any Advance which
bears interest by reference to LIBOR.
Loan or Loans. Individually, or collectively, as the case may
be, the Advances and Swing Line Loans made or to be made to Borrower
contemplated by this Agreement, and amounts drawn under a Letter of Credit as
provided in Section 2.9(e).
Loan Account. See Section 2.5.
Loan Documents. Collectively, this Agreement, the Notes, the
Swing Line Note, the Guaranties and any and all other agreements, instruments or
documents now or hereafter evidencing, securing or relating to the Obligations,
as they may be modified or amended from time to time.
Majority Lenders. As of any date of determination prior to
termination of the Total Commitment, Lenders whose aggregate Commitment
Percentages constitute more than fifty percent (50%) of the Total Commitment. As
of any date of determination occurring after the termination of the Total
Commitment, Lenders holding more than fifty percent (50%) of the sum of the
Outstanding Loans and the Letters of Credit Exposure.
Master Account. See Section 5.3.
Maturity Date. June 30, 2005, or such earlier date as the
Obligations are accelerated or the Commitments are terminated pursuant to the
terms hereof, subject to extension as provided in Section 2.10.
Maximum Revolver Amount. At any time, an amount equal to the
lesser of (i) the Borrowing Base minus (a) the outstanding principal amount of
any Senior Subordinated Notes
14
having a maturity date of less than one year from such time of determination
minus (b) the outstanding principal amount of any Senior Notes, and (ii) the
Total Commitment.
Model Units. The Unsold Units designated from time to time by
Borrower as dedicated for prospective sales display.
Multi-employer Plan. See Section 6.14(b).
Net Income. For any period, the consolidated net income (or
consolidated net deficit) of the Consolidated Group determined in accordance
with generally accepted accounting principles calculated in a consistent manner.
Non-Equity Clubs. Amenities in which the members own a
non-equity ownership stake.
Net Worth. The excess of Total Assets over Total Liabilities.
Notes. See Section 2.4.
Obligations. All Indebtedness, obligations and liabilities of
the Consolidated Group to any of Lenders and Lead Agent, individually or
collectively, existing on the date of this Agreement or arising hereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, now or hereafter
owing or incurred, arising under or in connection with this Agreement, the other
Loan Documents or in respect of the Loans, including, without limitation, any
obligation to pay the Fees, and amounts due under Section 4.7, Section 4.8,
Section 4.9, and Section 14, and including interest and fees that accrue after
the commencement by or against any member of the Consolidated Group of any
proceeding under the Bankruptcy Code or other similar law naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.
OECD. Organization for Economic Cooperation and Development.
Operating Amenities. Amenities owned and operated by a member
of the Consolidated Group, which are not Equity Clubs or Non-Equity Clubs.
Origination Fee. See Section 3.1.
Outstanding Loans. With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.
Pension Plan. Each pension plan (as defined in Section 3(2) of
ERISA) established or assumed or maintained, or to which contributions are made
by any member of the Consolidated Group or any Person which is a member of the
same controlled group, or under common control (within the meaning of Section
414(b) or (c) of the Code or Section 4001(b)(l) of ERISA) with any of the
foregoing.
Performance Letters of Credit. Any letters of credit issued
pursuant to Section 2.9: (a) on behalf of a Person in favor of a Governmental
Authority, including, without limitation, any
15
utility, water or sewer authority, or other similar entity, for the purpose of
assuring such Governmental Authority that such Person or an Affiliate of such
Person will properly and timely complete work it has agreed to perform for the
benefit of such Governmental Authority; (b) in lieu of cash deposits, including,
without limitation, to obtain a license, in place of a utility deposit; or (c)
in lieu of other contract performance, including, without limitation, bid and
performance bonds.
Permitted Liens. Mortgages, pledges, security interests and
other liens and encumbrances permitted to exist on the property of a member of
the Consolidated Group pursuant to Section 10.2.
Permitted Mortgages. The existing, prior first in priority
mortgages affecting portions of the Properties which are more particularly
described on Schedule 1.3, and those first in priority mortgages permitted to be
entered into by a Property Owner pursuant to Section 10.2(k) and to secure
Construction Loans in accordance with Section 9.7(c).
Person. Any individual, corporation, limited liability
company, association, partnership, trust, unincorporated association, business,
or other legal entity, and any government or any Governmental Authority or
political subdivision thereof.
Pricewaterhouse. PricewaterhouseCoopers, LLP or such other
nationally recognized accounting firm selected by Borrower and approved by Lead
Agent.
Prime Rate. A variable per annum rate of interest so
designated from time to time by Lead Agent at Lead Agent's Head Office as its
"prime rate." The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer. Changes in the
rate of interest resulting from changes in the Prime Rate shall take place
immediately without notice or demand of any kind.
Prime Rate Advance. Any Advance or portion of any Advance
which bears interest by reference to at the Prime Rate.
Projects. One or more of the properties, including without
limitation, communities, condominium projects, and single and multi-family
developments, being owned and developed by one or more of the Property Owners
from time to time.
Property. The land including any improvements situated thereon
(including, without limitation, all Developable Land, Amenities, Developed Lots,
Developed Parcels and Units, completed or under construction) owned or acquired
by a Property Owner from time to time.
Property Owners. Borrower and such other members of the
Consolidated Group as shall now or hereafter own Properties.
Qualified Condominium Unit. A unit of a Construction Project
which is encumbered by a first in priority lien or security interest in favor of
a Construction Lender.
RCRA. See Section 6.21.
16
Rating Agencies. Standard & Poor's Corporation and ▇▇▇▇▇'▇
Investors Services, Inc.
Rating Notice. See Section 9.4(i).
Rating Notice Date. The earlier of (a) the date a Rating
Notice is received by Lead Agent, or (b) the date Lead Agent, having received
actual notice of a change by the Rating Agency of the Debt Rating, sends a
same-day notice to Borrower and each Lender of such change, provided that
nothing contained herein shall imply any obligation of the Lead Agent to monitor
such rating changes.
Reemployment Period. See Section 4.9.
Register. See Section 18.3.
Reimbursement Agreements. The applications made and agreements
entered into between the Issuing Bank and Borrower, on the Issuing Bank's
customary form, relating to the Letters of Credit.
Required Lenders. As of any date of determination prior to
termination of the Total Commitment, Lenders whose aggregate Commitment
Percentages constitute at least sixty-six and two-thirds percent (66 2/3%) of
the Total Commitment. As of any date of determination occurring after the
termination of the Total Commitment, Lenders holding at least sixty-six and
two-thirds percent (66 2/3%) of the sum of the Outstanding Loans and the Letters
of Credit Exposure.
Reserve Percentage. As of any date, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other
reserves) which is imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D.
Restricted Cash. All cash of the Consolidated Group allocated
for expenditure or Distribution or held as Customer Deposit Liabilities or
otherwise characterized as a deposit (less that portion of Customer Deposit
Liabilities used for construction costs).
Revolving Credit Availability. As of any date, the Total
Commitment minus the Outstanding Loans minus the Letters of Credit Exposure.
SEC. The Securities and Exchange Commission.
Senior Notes. Such senior unsecured notes as may be issued by
the Borrower or another member of the Consolidated Group in accordance with the
provisions of Section 10.9, and any and all amendments, restatements, renewals,
extensions, consolidations or other modifications thereof in accordance with the
requirements of Section 10.9.
Senior Subordinated Notes. Collectively, the Senior
Subordinated Notes issued as of February 20, 2001 in the aggregate principal
amount of $350,000,000.00 due February 15, 2011, the additional Senior
Subordinated Notes issued as of April 18, 2002, in the aggregate
17
principal amount of $200,000,000.00 due May 1, 2012, and any other issuances of
senior subordinated notes in accordance with the requirements of Section 10.8,
all as the same may be amended, restated, renewed, extended, consolidated or
otherwise modified in accordance with the requirements of Section 10.8.
Subsequent Lender. See Section 2.3.
Subsidiary. Any corporation, limited liability company,
limited partnership, general partnership, association, trust, or other business
entity, a majority of the outstanding voting power of which is owned or
controlled directly or indirectly by Borrower or one or more other Subsidiaries
of Borrower (or any combination thereof). Notwithstanding the foregoing, the
term "Subsidiary" shall not include any entity to the extent the Borrower does
not consolidate its interest in any such entity in its consolidated financial
statements prepared in accordance with generally accepted accounting principles.
Notwithstanding the immediately preceding sentence, not-for-profit golf clubs
and common interest realty associations that do not guarantee the Obligations
hereunder are not Subsidiaries.
Sun City Center Golf. Sun City Center Golf Properties, Inc., a
Delaware corporation.
Sun City Center Lease Intangible. The amount by which the
value of the Kings Point Recreation operations which are part of the Amenities
owned and operated by Sun City Center Golf exceeds the related real estate
assets associated with the Sun City Center lease.
Swing Line Loans. See Section 2.11(a).
Swing Line Bank. Fleet, in its individual capacity.
Swing Line Commitment. $15,000,000.00, as the same may be
changed from time to time in accordance with the terms of this Agreement.
Swing Line Note. See Section 2.11(b).
Swing Line Rate. At any time, a per annum rate equal to the
Prime Rate less three-fourths of one percent (0.75%).
Syndication Agent. See preamble.
Tangible Net Worth. Net Worth less the net book value (after
deducting reserves applicable thereto) of all of the intangible assets of the
Consolidated Group. Intangible assets shall be determined in accordance with
generally accepted accounting principles and shall exclude all deferred
financing costs, deferred tax assets, and the Sun City Center Lease Intangible.
Total Assets. All consolidated assets of the Consolidated
Group determined in accordance with generally accepted accounting principles.
18
Total Commitment. The sum of the Commitments of the Lenders,
as in effect from time to time. As of the Effective Date, the Total Commitment
is $350,000,000.00, provided that the Total Commitment may increase up to a
maximum of $425,000,000.00 as more particularly described in Section 2.3.
Total Debt. At any time, the sum of all Indebtedness of the
members of the Consolidated Group, including, without limitation or duplication,
the Outstanding Loans, the Letters of Credit Exposure, Construction Loans,
Senior Notes, Senior Subordinated Notes and any purchase money loans, plus CDD
Obligations plus Customer Deposit Liabilities as shown on the Borrower's
financial statements in accordance with generally accepted accounting
principles, less Restricted Cash related to such Customer Deposit Liabilities.
Total Enterprise Value. With respect to any merger,
consolidation or stock acquisition, the sum of the market value of the equity
interests in the target entity acquired in such transaction, plus Indebtedness
of the target entity acquired in such transaction, less Unrestricted Cash of the
target entity acquired in such transaction.
Total Liabilities. All consolidated liabilities of the
Consolidated Group which are properly accounted for as such in accordance with
generally accepted accounting principles.
Type or type. As to any Advance or portion thereof, its nature
as a Prime Rate Advance or a LIBOR Advance.
Unentitled Land. Any land in which no improvements have been
made and which requires appropriate approval, permitting and zoning under
Applicable Laws and regulations before the land may be developed.
Unfunded Completion Costs. With respect to any Construction
Project financed under this Agreement pursuant to Section 9.7(b), the remaining
Hard Costs necessary to complete the Construction Project less the aggregate
Customer Deposit Liabilities deposited or to be deposited with respect to the
Construction Project which may be applied to the costs of construction in
accordance with applicable law.
Unit Costs. The Developed Lot Book Value on which Units
(completed or under construction) are situated plus the cost of the construction
of vertical improvements.
Units. The single-family or multi-family residences, whether
completed or under construction, owned and held by the Consolidated Group for
sale in the ordinary course of business, and in which the rights of ownership
and occupancy are to be sold other than on a time-sharing or periodic basis.
Unrestricted Cash. All cash of the Consolidated Group which is
not Restricted Cash.
Unsold Unit. A Unit with respect to which construction has
begun (measured by the commencement of the construction of vertical improvements
beyond the foundation) and for which a Housing Purchase Contract has not been
entered into.
19
Unused Fee. See Section 3.2.
Vested. As to any permit, license, zoning ordinance or rights
thereunder, grant of rights under an order of development of regional impact, or
any other governmental entitlement, the status wherein such governmental right
has been granted in accordance with all applicable governmental regulations, and
all appeal periods have expired with respect to such grant or issuance.
Welfare Plan. See Section 6.14(b).
Section 1.2 Rules of Interpretation.
(a) A reference to any agreement, budget, document or schedule
shall include such agreement, budget, document or schedule as revised, amended,
modified or supplemented from time to time in accordance with its terms and the
terms of this Agreement.
(b) The singular includes the plural, and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law, and all rules and statutory regulations supplementing
or interpreting such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer.
(f) The words "include," "includes" and "including" are not
limiting.
(g) The words "approval" and "approved," as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) Reference to a particular "Section" refers to that section
of this Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subsection of this Agreement.
Section 2 REVOLVING CREDIT FACILITY.
Section 2.1 Commitment to Lend and Borrower's Promise to Pay.
Subject to the terms and conditions set forth in this Agreement, each of the
Lenders, each to their respective Commitment, severally agrees to lend to
Borrower and Borrower may borrow, prepay, and reborrow from time to time between
the Effective Date and the Maturity Date, upon notice to
20
Lead Agent given in accordance with Section 2.7(a), such amounts as may be
requested by Borrower, provided, however, that the sum of (a) the Outstanding
Loans (after giving effect to all amounts requested and including Swing Line
Loans), plus (b) the Letters of Credit Exposure, plus (c) the Unfunded
Completion Costs shall not at any time exceed the Maximum Revolver Amount. The
Advances shall be made pro rata in accordance with each Lender's Commitment
Percentage. Each request for an Advance hereunder shall constitute a
representation by Borrower that the applicable conditions set forth in Section
7, in the case of the initial request made on the Effective Date, and Section 8,
in the case of all other requests, have been satisfied on the date of such
request. The Commitments shall terminate, and the Loans shall mature and become
due and payable on the Maturity Date. Borrower agrees to pay all Obligations on
the Maturity Date.
Section 2.2 Optional Reduction of Commitments. Borrower may,
at its option, upon three (3) Business Days advance notice to Lead Agent, reduce
by $5,000,000.00 or an integral multiple of $500,000.00 in excess thereof or
terminate entirely the unborrowed portion of the Total Commitment. Upon the
effective date of any such termination, Borrower agrees to pay to Lead Agent,
for the accounts of Lenders, the full amount of any accrued and unpaid Unused
Fee and Lead Agent's Fee on the amount of the Commitment so terminated. Upon and
after any such pro rata or complete termination, the Commitments and Commitment
Percentages shall be adjusted accordingly, and no such Commitment or portion
thereof so terminated may be reinstated. In addition, the Swing Line Commitment
and the sublimit for Letters of Credit described in Section 2.9(a) shall be
reduced in proportion to the percentage reduction in the Total Commitment.
Section 2.3 Increase in Total Commitment. At any time prior to
the last twelve (12) months of the term of this Agreement, as same may be
extended pursuant to Section 2.10, Lead Agent may in its discretion (which
discretion shall not be arbitrarily or unreasonably exercised so long as the
conditions set forth below are satisfied), from time to time at the request of
the Borrower, increase the Total Commitment by (i) admitting additional Lenders
hereunder (each a "Subsequent Lender"), or (ii) increasing the Commitment of any
Lender (each an "Increasing Lender"), subject to the following conditions:
(a) each Subsequent Lender is an Eligible Assignee;
(b) the Borrower executes (i) a new Note payable to the order
of each Subsequent Lender, or (ii) a replacement Note payable to the order of
each Increasing Lender for the full amount of such Increasing Lender's new
Commitment;
(c) each Subsequent Lender executes and delivers to Lead Agent
a signature page to this Agreement;
(d) after giving effect to the admission of any Subsequent
Lender or the increase in the Commitment of any Increasing Lender, the Total
Commitment does not exceed $425,000,000.00;
(e) each increase in the Total Commitment shall be in the
amount of at least $10,000,000.00 for Subsequent Lenders, or at least
$5,000,000.00 for Increasing Lenders, or, in either case, a greater integral
multiple of $5,000,000.00;
21
(f) no admission of any Subsequent Lender shall increase the
Commitment of any existing Lender without the written consent of such Lender;
(g) no Default or Event of Default exists or will result from
such increase; and
(h) no Lender shall be an Increasing Lender without the prior
written consent of such Lender.
After adding the Commitment of any Increasing Lender or Subsequent Lender, Lead
Agent shall promptly provide each Lender and Borrower with a new Schedule 1.0 to
this Agreement (and each Lender acknowledges that its Commitment Percentage
under Schedule 1.0 and allocated portion of the Outstanding Loans and Letters of
Credit Exposure will change in accordance with its pro rata share of the
increased Total Commitment).
Section 2.4 The Notes. The Loans (other than Swing Line Loans)
shall be evidenced by separate promissory notes of Borrower in substantially the
form of Exhibit A (each, as substituted, amended or replaced from time to time,
a "Note"), dated as of the Closing Date and completed with appropriate
insertions. One (1) Note shall be payable to the order of each Lender in a
principal amount equal to such Lender's Commitment. In the event a Note is lost,
destroyed or mutilated at any time prior to payment in full of the indebtedness
evidenced thereby, Borrower shall execute a new note substantially in the form
of such Note. The replacement Note shall recite the circumstances of the reissue
of the Note and shall state that it is a replacement promissory note. The Notes
shall not be necessary to establish the indebtedness of Borrower to Lender on
account of the Loans made pursuant to this Agreement.
Section 2.5 Loan Account. Lead Agent will open and maintain a
loan account (the "Loan Account") on its books in the name of Borrower. Each of
the Advances and all fees and other amounts due and payable hereunder will be
debited to and each payment or prepayment on account thereof will be credited
to, and shall be recorded in, the Loan Account, which shall be prima facie
evidence of the amounts owing to each Lender. Any failure of Lead Agent to
record a transaction in a timely fashion shall not affect or impair the validity
of any Obligation. Lead Agent shall render to Borrower a monthly statement of
the Loan Account and, unless written exception thereto is taken by Borrower
within forty-five (45) days of receipt, such statement shall be conclusive and
binding upon Borrower except for manifest error; provided, however, that the
failure of Lead Agent to render any such statement in a timely fashion shall not
impair the validity or binding nature of the Loan Account.
Section 2.6 Repayment of the Loans.
(a) Borrower shall have the right at any time to prepay the
Loans made to Borrower hereunder, in whole or in part, without premium or
penalty, except as provided in Section 4.9, upon written, telegraphic or
telephonic notice to Lead Agent not later than 2:00 p.m. (Boston time) on the
date of payment. Subject to the conditions of Section 2.1 and Section 2.2,
amounts so prepaid may be reborrowed. Notwithstanding the foregoing, no prior
notice shall be required for the prepayment of a Swing Line Loan.
(b) Each partial prepayment of the Loans under Section 2.6 (a)
shall be in the minimum amount of $500,000.00 or an integral multiple of
$100,000.00 in excess thereof
22
(unless the Loans are being prepaid in full), and shall be applied, in the
absence of instruction by the Borrower, first to the principal of any
outstanding Swing Line Loans, and then pro rata to the Lenders in accordance
with their respective Commitment Percentages, without priority or preference
among the Lenders.
(c) If at any time Borrower is not in compliance with the
covenant contained in the first sentence of Section 2.1 above, Borrower shall
immediately pay to Lead Agent for the account of Lenders the amount of such
excess.
Section 2.7 Advances.
(a) Requests for Advances. Whenever Borrower desires to
receive an Advance, Borrower shall give notice to Lead Agent by telephone,
telecopy, telex or cable or other form acceptable to Lead Agent, in each case,
confirmed in writing by Borrower in the form attached hereto as Exhibit B (an
"Advance Request"), delivered to Lead Agent's Head Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(MADE 10307C), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Loan Services,
no later than 12:00 noon (Boston time) three (3) Business Days prior to the
proposed Drawdown Date if such Advance is to be a LIBOR Advance, or no later
than 12:00 noon (Boston time) on the requested Drawdown Date if such Advance is
to be a Prime Rate Advance. Each such notice delivered by Borrower shall specify
the aggregate principal amount of the Advance requested, the proposed Drawdown
Date, Interest Period (if applicable) and Type. Each such notice shall obligate
Borrower to accept the Advance requested from the Lenders on the proposed
Drawdown Date therefor.
(b) Prime Rate Advances. Each Advance Request for a Prime Rate
Advance shall be in a principal amount of not less than $500,000.00 and in
integral multiples of $50,000.00. Requests for any Prime Rate Advance may be
made daily (but only once a day), provided Borrower satisfies all notice
requirements as provided for herein.
(c) LIBOR Advances.
1. Each Advance Request for a LIBOR Advance
shall be in a principal amount of not less than $1,000,000.00 and in integral
multiples of $100,000.00, and at no time shall the aggregate number of all LIBOR
Advances then outstanding exceed six (6). Requests for LIBOR Advances may be
made daily (but only once a day) provided Borrower satisfies all notice
requirements as provided for herein.
2. Whenever any Lender shall actually incur
any losses or actual expenses in connection with a failure by Borrower to borrow
any LIBOR Advance after having given notice of its intention to borrow (whether
by reason of the election of Borrower not to proceed or the non-fulfillment of
any conditions precedent), Borrower agrees to pay to such Lender, upon such
Lender's demand, an amount sufficient to compensate such Lender for all such
losses and actual expenses excluding lost profits. Such Lender's good faith
determination of the amount of such losses and actual expenses, absent manifest
error, shall be binding and conclusive. The Lender shall provide a copy of the
determination of such amount to Borrower showing in reasonable detail the
calculation of the amount thereof. Borrower shall be
23
responsible for losses incurred by the Lenders in connection with the prepayment
of any LIBOR Advance in whole or part, for any reason, as provided in Section
4.9 below.
(d) Conversion Options.
1. Borrower may elect from time to time to
convert all of any outstanding Advance to an Advance of another Type and such
Advance shall thereafter bear interest as a Prime Rate Advance or a LIBOR
Advance, as applicable; provided that (i) with respect to any such conversion of
a LIBOR Advance to a Prime Rate Advance, such conversion shall only be made on
the last day of the Interest Period with respect to such LIBOR Advance; (ii)
with respect to any such conversion of a Prime Rate Advance to a LIBOR Advance,
Borrower shall give Lead Agent at least three (3) Business Days' prior written
notice of such election and the Interest Period requested for such Advance, the
principal amount of the Advance so converted shall be in a minimum aggregate
amount of $1,000,000 or an integral multiple of $100,000 in excess thereof and,
after giving effect to the making of such Advance, there shall be no more than
six (6) LIBOR Advances outstanding at any one time; and (iii) no Advance may be
converted into a LIBOR Advance when any Default or Event of Default has occurred
and is continuing. All or any part of the outstanding Advances of any Type may
be converted as provided herein, provided that no partial conversion shall
result in a Prime Rate Advance in an aggregate principal amount of less than
$500,000 or a LIBOR Advance in an aggregate principal amount of less than
$1,000,000, and that the aggregate principal amount of each Advance shall be in
an integral multiple of $100,000. Each request relating to the conversion of a
Prime Rate Advance to a LIBOR Advance shall be irrevocable by Borrower.
2. Any Advance may be continued as such Type
upon the expiration of an Interest Period with respect thereto by compliance by
Borrower with the terms of this Section 2.7(d); provided that no LIBOR Advance
may be continued as such when any Default or Event of Default has occurred and
is continuing, but shall be automatically converted to a Prime Rate Advance on
the last day of the Interest Period relating thereto ending during the
continuance of any Default or Event of Default.
3. In the event that Borrower does not
notify Lead Agent of its election hereunder with respect to any Advance, such
Advance shall be automatically converted to a Prime Rate Advance at the end of
the applicable Interest Period.
(e) Notification of Lenders. Upon receipt of (i) an Advance
Request or a telephone or telecopy request for Advance or (ii) notice from
Borrower with respect to any outstanding Advance prior to the Interest Payment
Date for such Advance, Lead Agent shall promptly notify each Lender by telephone
or telecopy of the contents thereof and the amount of each Lender's portion of
any such Advance. Each Lender shall, not later than 2:00 p.m. (Boston time) on
the date specified for such Advance in such notice, make available to Lead Agent
at Lead Agent's Head Office, or at such account as Lead Agent shall designate,
the amount of such Lender's portion of the Advance in immediately available
funds.
(f) Disbursement. Prior to 3:00 p.m. (Boston time) on the date
of an Advance hereunder, Lead Agent shall, subject to the satisfaction of the
conditions set forth in Section 2.7(e), disburse the amounts made available to
Lead Agent by the Lenders in like funds by transferring
24
the amounts so made available by deposit into the Loan Account or by wire
transfer pursuant to Borrower's instructions. Unless Lead Agent shall have
received notice from a Lender prior to 11:00 a.m. (Boston time) on the date of
any LIBOR Advance or 1:00 p.m. (Boston time) on the date of any Prime Rate
Advance that such Lender will not make available to Lead Agent such Lender's
ratable portion of such Advance, Lead Agent may assume that such Lender has made
or will make such portion available to Lead Agent on the date of such Advance
and Lead Agent may, in its sole discretion and in reliance upon such assumption,
make available to Borrower on such date a corresponding amount. If and to the
extent such Lender shall not have so made such ratable portion available to Lead
Agent, such Lender agrees to repay to Lead Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to Borrower until the date such amount is repaid
to Lead Agent, (x) for the first two (2) Business Days, at the rate on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day by the Federal Reserve Bank
of New York, and (y) thereafter, at the Prime Rate. If such Lender shall repay
to Lead Agent such corresponding amount, such amount so repaid shall constitute
such Lender's portion of the applicable Advance for purposes of this Agreement,
and if both such Lender and Borrower shall pay and repay such corresponding
amount, Lead Agent shall promptly relend to Borrower such corresponding amount.
If such Lender does not repay such corresponding amount immediately upon Lead
Agent's demand therefor, Lead Agent shall notify Borrower, and Borrower shall
immediately pay such corresponding amount to Lead Agent. The failure of any
Lender to fund its portion of any Advance shall not relieve any other Lender of
its obligation, if any, hereunder to fund its respective portion of the Advance
on the date of such borrowing, but no Lender shall be responsible for any such
failure of any other Lender and no Lender shall be required to fund any amounts
in excess of its Commitment.
(g) In the event that a Lender for any reason fails or refuses
to fund its portion of an Advance in violation of this Agreement, then, the
other Lenders may, but shall not be obligated to, make such Advance on behalf of
such non-funding Lender, which amount shall accrue interest as provided above in
Section 2.7(f) until repaid. Any Lender which advances amounts to Borrower in
excess of such party's ratable share thereof as provided in the preceding
sentence shall be entitled to the full amount of all payments and recoveries
from Borrower or any other obligor due and payable to the non-funding Lender
until such time as the outstanding principal amount of such excess amount and
all interest and other sums due thereon have been repaid to such Lender in full.
Until such time as such non-funding Lender has funded its portion of such
Advance, such non-funding Lender shall (i) have no right to vote regarding any
issue on which voting is required or advisable under this Agreement or any other
Loan Document (and the Commitment Percentages of the other Lenders shall be
grossed up on a pro rata basis to reflect the suspension of the non-funding
Lender), and (ii) shall not be entitled to receive any payments of principal,
interest or fees from Lead Agent (or the other Lenders) in respect of its
Advances, which amounts may be applied by Lead Agent for the benefit of Lead
Agent and the other Lenders not so failing or refusing to fund in accordance
with the provisions of Section 12.3 and thereafter in a manner determined by
Lead Agent in its sole discretion.
Section 2.8 Interest. Except as otherwise provided in Section
4.3, interest on the principal amount of all Advances outstanding from time to
time shall bear interest and shall be payable as follows:
25
(a) Interest shall accrue on each Prime Rate Advance for the
period commencing with the Drawdown Date thereof and ending on the date on which
such Prime Rate Advance is repaid or converted to a LIBOR Advance at a rate per
annum equal to the sum of (i) the Prime Rate plus (ii) the Applicable Margin for
Prime Rate Advances.
(b) Interest shall accrue on each LIBOR Advance for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at a rate per annum equal to (i) the LIBOR
applicable to such LIBOR Advance plus (ii) the Applicable Margin for LIBOR
Advances.
(c) Interest on each Prime Rate Advance and LIBOR Advance
shall be payable in arrears on the Interest Payment Date. Interest on Prime Rate
Advances and LIBOR Advances then outstanding shall also be due and payable on
the Maturity Date.
Section 2.9 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement and the applicable Reimbursement Agreement, upon the written request
of Borrower to an Issuing Bank and Lead Agent in the form of Exhibit C attached
hereto (a "Letter of Credit Request") and the execution and delivery of a
Reimbursement Agreement by Borrower to such Issuing Bank, such Issuing Bank
agrees to issue (with pro rata participation by the Lenders in accordance with
their respective Commitment Percentages) on any Business Day, but prior to the
Maturity Date, one (1) or more irrevocable Performance Letters of Credit or
Financial Letters of Credit in U.S. Dollars in such form as may be agreed upon
by Borrower, such Issuing Bank and Lead Agent; provided, however, that (i) the
aggregate Letters of Credit Exposure of all Letters of Credit shall not exceed
$75,000,000.00 at any one time outstanding, (ii) Borrower shall be in compliance
with the covenant described in the first sentence of Section 2.1 above, (iii) no
Default or Event of Default shall have occurred and be continuing, (iv) the
conditions set forth in Section 8 shall have been satisfied, (v) such Issuing
Bank receives written notice from the Lead Agent that all of the conditions to
issuance of such Letter of Credit as provided herein have been satisfied, and
(vi) in no event shall any amount drawn under a Letter of Credit be available
for reinstatement or a subsequent drawing under such Letter of Credit.
(b) Each Letter of Credit Request hereunder shall be received
by the applicable Issuing Bank and Lead Agent at least three (3) Business Days
prior to the proposed date of issuance. The expiration dates, amounts and
beneficiaries of the Letters of Credit will be as agreed by Borrower, such
Issuing Bank and Lead Agent. No Letter of Credit shall have an expiration date
(taking into account any automatic renewal provisions) later than seven (7)
Business Days prior to the Maturity Date. Each Letter of Credit shall be issued
pursuant to a Reimbursement Agreement to be entered into between Borrower and
the applicable Issuing Bank; provided, however, that to the extent that the
terms and conditions of any Reimbursement Agreement are in conflict with or are
inconsistent with the terms and conditions of this Agreement, the obligations of
the Lenders and Borrower with respect to the Letters of Credit shall be governed
by the terms and conditions of this Agreement. The Borrower assumes all risks
with respect to the use of the Letters of Credit. The Issuing Bank shall give
Lead Agent written notice of the issuance of each Letter of Credit together with
a copy of same.
26
(c) Upon the issuance of a Letter of Credit, each Lender shall
be deemed to have purchased a participation therein from the Issuing Bank in an
amount equal to its respective Commitment Percentage of the amount of such
Letter of Credit. The issuance of any supplement, modification, amendment,
renewal or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit.
(d) Lead Agent may, in its discretion, and shall, at the
request of the Majority Lenders, at any time and from time to time while there
exists any Event of Default, require the Borrower to immediately deposit with
Lead Agent an amount equal to all or any portion of the Letters of Credit
Exposure of any outstanding Letters of Credit hereunder, (provided that if
Borrower fails to make such deposit with Lead Agent, Lead Agent shall be
authorized to make an Advance on Borrower's behalf to fund such deposit). Lead
Agent shall hold the proceeds thereof in an interest bearing account as
collateral security for the Obligations and Borrower hereby grants a security
interest to Lead Agent for the benefit of the Lenders in such account and the
proceeds therein (and such account shall be subject to Lead Agent's right to
setoff against such amounts under Section 13), provided that Lead Agent shall
promptly notify Borrower, Issuing Bank and the Lenders of such Advance and
application of the proceeds thereof to draws under outstanding Letters of Credit
as such draws are made. Upon expiration of all Letters of Credit and payment in
full of all draws thereunder and the Outstanding Loans and all other
Obligations, the amounts remaining on deposit in such account, if any, and all
interest earned thereon shall be paid over to Borrower.
(e) In the event that an Issuing Bank makes any payment under
a Letter of Credit, such Issuing Bank shall promptly notify Lead Agent, who
shall then notify each Lender, and Borrower shall immediately and
unconditionally reimburse such Issuing Bank therefor on the date of such
payment. If the amount of such draw is not reimbursed by Borrower, subject to
Section 2.9(f) below, the unreimbursed amount of the drawing shall automatically
be converted into a Prime Rate Advance made on the date of such drawing bearing
interest as provided in Section 2.8(a) and otherwise subject to the provisions
of this Agreement regarding Prime Rate Advances, but without any requirement for
the conditions set forth in Section 8 to be satisfied. Lead Agent shall then pay
the amount of such Prime Rate Advance to such Issuing Bank. The liability of
Borrower under this Agreement to repay the Lenders in respect of drawings under
Letters of Credit shall rank pari passu with the obligations of Borrower to
repay all other Advances hereunder.
(f) If after the issuance of a Letter of Credit pursuant to
Section 2.9(a) by an Issuing Bank, but prior to the funding of any portion
thereof by a Lender, one of the events described in Section 12.1(i) shall have
occurred, each Lender will, on the date such Advance pursuant to Section 2.9(e)
was to have been made, purchase an undivided participating interest in the
Letter of Credit in an amount equal to its Commitment Percentage of the amount
of such Letter of Credit. Each Lender will immediately transfer to Lead Agent in
immediately available funds the amount of its participation and upon receipt
thereof the Lead Agent will deliver to such Lender a Letter of Credit
participation certificate dated the date of receipt of such funds and in such
amount.
(g) Whenever at any time after Lead Agent has received from
any Lender such Lender's payment of funds under a Letter of Credit pursuant to
Section 2.9(f) above and thereafter Lead Agent receives any payment on account
thereof, then Lead Agent will distribute to Lender its participating interest in
such amount (appropriately adjusted in the case of interest payments
27
to reflect the period of time during which such Lender's participating interest
was outstanding and funded); provided, however, that in the event that such
payment received by Lead Agent is required to be returned, such Lender will
return to Lead Agent any portion thereof previously distributed by Lead Agent to
Lender.
(h) Each Issuing Bank shall, no later than the tenth (10th)
day following the last day of each month, provide to Lead Agent a schedule of
the Letters of Credit issued by it, in form and substance reasonably
satisfactory to Lead Agent, showing the issuance date, account party, original
face amount, amounts (if any) paid thereunder, expiration date and the reference
number of each Letter of Credit outstanding at any time during such month and
whether each such Letter of Credit is a Performance Letter of Credit or a
Financial Letter of Credit. Copies of such reports shall be provided to each
Lender and Borrower by the Lead Agent.
(i) In addition to amounts payable as elsewhere provided in
this Agreement, Borrower hereby agrees to protect, indemnify, pay and save Lead
Agent, each Lender and each Issuing Bank harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) arising from the claims of third parties
against Lead Agent, any Issuing Bank or any Lender as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit other than, in the case of
an Issuing Bank, as a result of its willful misconduct or gross negligence as
determined by a final and non-appealable judgment of a court of competent
jurisdiction, or (ii) the failure of an Issuing Bank to honor a drawing under a
Letter of Credit issued by it as a result of any act or omission, whether
rightful or wrongful, of any present or future Governmental Authority or other
beneficiary thereunder.
Section 2.10 Extension of Maturity Date. The Borrower shall
have the option, to be exercised by giving written notice to the Lead Agent in
the form attached hereto as Exhibit H at least sixty (60), but no earlier than
one hundred eighty (180), days prior to the initial scheduled Maturity Date of
June 30, 2005, to extend the Maturity Date to June 30, 2006, subject to the
terms and conditions set forth in this Agreement. The request by the Borrower
for extension of the Maturity Date shall constitute a representation and
warranty by the Borrower that all of the conditions set forth in this Section
2.10 shall have been satisfied on the date of such request. The obligations of
the Lead Agent and the Lenders to extend the Maturity Date as provided in this
Section 2.10 shall be subject to the satisfaction of the following conditions
precedent on or prior to the initial scheduled Maturity Date of June 30, 2005:
(a) No Default. On the date of the exercise of such extension
option and on the then effective Maturity Date (without regard to such extension
request) there shall exist no Default or Event of Default and no Default or
Event of Default would result from such extension;
(b) Representations and Warranties. The representations and
warranties made by the Borrower and the Consolidated Group in the Loan Documents
or otherwise made by or on behalf of the Borrower and the Consolidated Group in
connection therewith or after the date thereof shall be true and correct in all
material respects on the then effective Maturity Date (without regard to such
extension request); and
28
(c) Extension Fee. The Borrower shall pay to the Lead Agent
sixty (60) days prior to the initial scheduled Maturity Date for the pro rata
accounts of the Lenders in accordance with their respective Commitment
Percentages an extension fee equal to one-fifth of one percent (0.20%) of the
Total Commitment, which fee shall, when paid, be fully earned and non-refundable
under any circumstances.
Section 2.11 Swing Line Commitment.
(a) Subject to the terms and conditions set forth in this
Agreement, the Swing Line Bank agrees to lend to the Borrower, and the Borrower
may borrow (and repay and reborrow) from time to time between the Closing Date
and the date which is five (5) Business Days prior to the Maturity Date upon
notice by the Borrower to the Swing Line Bank given in accordance with this
Section 2.11, such sums as are requested by the Borrower for the purposes set
forth in Section 9.6 in an aggregate principal amount at any one time
outstanding not exceeding the Swing Line Commitment (the "Swing Line Loans");
provided that (i) at no time shall the aggregate principal balance of Swing Line
Loans then outstanding, when added to the Commitment Percentage of the Swing
Line Bank of all other outstanding Advances (after giving effect to all amounts
requested) and the Commitment Percentage of the Swing Line Bank of the Letters
of Credit Exposure, exceed the Commitment of the Swing Line Bank; (ii) no
Default or Event of Default shall have occurred and be continuing; (iii)
Borrower shall be in compliance with the covenant described in the first
sentence of Section 2.1; above; and (iv) no Swing Line Loan shall be used to
repay a Swing Line Loan. The funding of a Swing Line Loan hereunder shall
constitute a representation and warranty by the Borrower that all of the
conditions set forth in Section 8 have been satisfied on the date of such
funding.
(b) The Swing Line Loans shall be evidenced by a separate
promissory note of the Borrower in substantially the form of Exhibit G hereto
(the "Swing Line Note"), dated the date of this Agreement and completed with
appropriate insertions. The Swing Line Note shall be payable to the order of the
Swing Line Bank in such amount as may be outstanding from time to time
thereunder and shall be payable as set forth below. The Borrower irrevocably
authorizes the Swing Line Bank to make or cause to be made, at or about the time
of the Drawdown Date of any Swing Line Loan or at the time of receipt of any
payment of principal thereof, an appropriate notation on the Loan Account
reflecting the making of such Swing Line Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Swing Line Loans set
forth on the Loan Account shall be prima facie evidence of the principal amount
thereto owing and unpaid to the Swing Line Bank, but the failure to record, or
any error in so recording, any such amount on the Loan Account shall not limit
or otherwise affect the obligations of the Borrower hereunder or under the Swing
Line Note to make payments of principal of or interest on any Swing Line Loan
when due.
(c) Each borrowing of a Swing Line Loan shall be subject to
the limits for Prime Rate Advances set forth in Section 2.7(b). Borrower shall
request a Swing Line Loan by giving notice to the Swing Line Bank by telephone,
telecopy, telex or cable, in each case confirmed in writing by Borrower in an
Advance Request, no later than 2:00 p.m. (Boston time) on the requested Drawdown
Date specifying the amount of the requested Swing Line Loan. The Advance Request
shall also contain the statements and certifications required by Section 2.7(a).
Each such Advance Request shall be irrevocable and binding on the Borrower and
shall obligate the
29
Borrower to accept such Swing Line Loan on the Drawdown Date. Notwithstanding
the foregoing, upon the date that the Lenders shall be required to fund the
Advances pursuant to Section 2.11(d) to refund such Swing Line Loan, the
interest rate shall be reset to the interest rate for a LIBOR Advance with an
Interest Period as specified in the Advance Request given by Borrower to Lead
Agent in connection with such Swing Line Loan, or if no Interest Period is
specified, then as a Prime Rate Advance. The proceeds of the Swing Line Loan
will be made available by the Swing Line Bank to the Borrower at the Lead
Agent's Head Office by crediting the Loan Account with such proceeds. Each Swing
Line Loan shall bear interest at the Swing Line Rate from the date of
disbursement until paid in accordance with Section 2.11(d), and such interest
shall be payable on each Interest Payment Date.
(d) The Swing Line Bank shall within five (5) Business Days
after the Drawdown Date with respect to such Swing Line Loan request each
Lender, including the Swing Line Bank, to make an Advance pursuant to Section
2.1 in an amount equal to such Lender's Commitment Percentage of the amount of
the Swing Line Loan outstanding on the date such notice is given. Borrower
hereby irrevocably authorizes and directs the Swing Line Bank to so act on its
behalf, and agrees that any amount advanced to the Lead Agent for the benefit of
the Swing Line Bank pursuant to this Section 2.11(d) shall be considered an
Advance pursuant to Section 2.1. Unless any of the events described in paragraph
(i) of Section 12.1 shall have occurred (in which event the procedures of
Section 2.11(e) shall apply), each Lender shall make the proceeds of its Advance
available to the Swing Line Bank for the account of the Swing Line Bank at the
Lead Agent's Head Office prior to 11:00 a.m. (Boston time) in funds immediately
available no later than the third (3rd) Business Day after the date such notice
is given just as if the Lenders were funding directly to the Borrower, so that
thereafter such Obligations shall be evidenced by the Notes. The proceeds of
such Advance shall be immediately applied to repay the Swing Line Loans.
(e) If prior to the making of an Advance pursuant to Section
2.11(d) by all of the Lenders, one of the events described in Section 12.1(i)
shall have occurred, each Lender will, on the date such Advance pursuant to
Section 2.11(d) was to have been made, purchase an undivided participating
interest in the Swing Line Loan in an amount equal to its Commitment Percentage
of such Swing Line Loan. Each Lender will immediately transfer to the Swing Line
Bank in immediately available funds the amount of its participation and upon
receipt thereof the Swing Line Bank will deliver to such Lender a Swing Line
Loan participation certificate dated the date of receipt of such funds and in
such amount.
(f) Whenever at any time after the Swing Line Bank has
received from any Lender such Lender's participating interest in a Swing Line
Loan as provided in Section 2.11(e) above, the Swing Line Bank receives any
payment on account thereof, the Swing Line Bank will distribute to such Lender
its participating interest in such amount (appropriately adjusted in the case of
interest payments to reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by the Swing Line Bank is required to be
returned, such Lender will return to the Swing Line Bank any portion thereof
previously distributed by the Swing Line Bank to it.
(g) Any portions of a Swing Line Loan not so purchased or
converted may be treated by the Swing Line Bank as an Advance which was not
funded by the non-purchasing Lender as contemplated by Section 2.7(f) and
Section 17.5(c). Each Swing Line Loan, once so sold or
30
converted, shall cease to be a Swing Line Loan for the purposes of this
Agreement, but shall be an Advance made by each Lender under its Commitment.
Section 2.12 Absolute Obligations. Each Lender's obligation to
fund an Advance as provided in Section 2.9(e) or Section 2.11(d) or to purchase
participating interests pursuant to Section 2.9(f) or Section 2.11(e) and
Borrower's reimbursement obligations with respect to the Letters of Credit shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Lender, the Borrower or any other member of the
Consolidated Group may have against the Swing Line Bank, Lead Agent, any Issuing
Bank, the Borrower or any other member of the Consolidated Group, or anyone else
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other member of the Consolidated Group; (iv)
any breach of this Agreement or any of the other Loan Documents by the Borrower
or any other member of the Consolidated Group or any Lender; (v) the existence
of any claim, set-off, defense or other right which Borrower may have at any
time against any beneficiary, or any transferee, of any Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may be acting),
whether in connection with this Agreement, the transaction contemplated herein,
or any unrelated transaction (including any underlying transaction between
Borrower or any member of the Consolidated Group and the beneficiary of such
Letter of Credit); (vi) any draft, certificate, statement or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (vii) payment by an Issuing Bank under any Letter of
Credit against presentation of a draft or certificate which does not comply with
the terms of such Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct on the part of such Issuing
Bank; or (viii) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
Section 3 FEES.
Section 3.1 Origination Fee. Borrower has paid to Fleet and
Lead Arranger the fees in accordance with the Fee and Expense Agreement
(collectively, "Origination Fee"). Lead Agent will pay a portion of the
Origination Fee to the Lenders in accordance with the Lead Agent's separate
agreement with each Lender.
Section 3.2 Unused Fee. Borrower shall pay to Lead Agent an
unused fee ("Unused Fee") quarterly in arrears on the first day of each Fiscal
Quarter for the immediately preceding Fiscal Quarter and on the Maturity Date.
The Unused Fee shall be distributed to the Lenders pro rata in accordance with
their respective Commitment Percentage. The amount of the Unused Fee shall be
calculated for any Fiscal Quarter by multiplying the Applicable Margin for the
Unused Fee times the Average Daily Non-Usage Amount. The Applicable Margin for
the Unused Fee shall be identified as follows:
(a) The Applicable Margin shown in "Column A" under "Unused
Fee" in the definition of Applicable Margin, if the Average Daily Non-Usage
Amount is greater than or equal to sixty percent (60%) of the Total Commitment;
or
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(b) The Applicable Margin shown in "Column B" under "Unused
Fee" in the definition of Applicable Margin, if the Average Daily Non-Usage
Amount is less than sixty percent (60%) of the Total Commitment.
Section 3.3 Lead Agent's Fee. Borrower shall pay to Fleet
annually, in advance, for Fleet's own account, a Lead Agent's Fee in accordance
with the Fee and Expense Agreement ("Lead Agent's Fee").
Section 3.4 Letter of Credit Fee. Borrower shall pay to Lead
Agent a fee (collectively, "Letter of Credit Fee") for each Letter of Credit
issued pursuant to this Agreement to be calculated as follows: the sum of (a)
the product obtained by multiplying (x) the Applicable Margin for the Letter of
Credit Fee times (y) the Letters of Credit Exposure; plus (b) the Issuing Bank's
customary issuance fee, payable in accordance with the Issuing Bank's standard
fee schedule. The Letter of Credit Fee shall be payable quarterly in arrears on
the first day of the calendar quarter succeeding the date of issuance. Upon
receipt of such Letter of Credit Fee (but not issuance fee), Lead Agent shall
remit to each Lender its pro rata portion of the Letter of Credit Fee based on
its Commitment Percentage less one-eighth of one percent (.125%), which Lead
Agent shall pay to the applicable Issuing Bank as a fronting fee.
Section 4 CERTAIN GENERAL PROVISIONS.
Section 4.1 Payments. All payments of principal and interest
on the Loans, Fees, and any other amounts due hereunder shall be made by
Borrower to Lead Agent, for the respective accounts of Lenders and Lead Agent,
in immediately available funds at Lead Agent's Head Office not later than 2:00
p.m. (Boston time) on the date when due. Any payment received by Lead Agent
after 2:00 p.m. (Boston time) on the date specified for payment shall be deemed
received on the next Business Day. Whenever any Obligation hereunder is due and
payable, Lead Agent may (but shall not be required to) make an Advance in the
amount of such Obligation and apply the proceeds of the Advance to the payment
of the Obligation, provided that Lead Agent shall promptly notify Borrower of
any such Advance and the application of the proceeds thereof. Upon receipt by
Lead Agent of any such payment of principal, interest or fees (other than fees
or expenses to be retained by Lead Agent pursuant to the terms thereof), Lead
Agent shall, subject to the applicable settlement provisions of Section 17.5,
remit to each other Lender its applicable pro rata share of such payment.
Section 4.2 Computations. All computations of (a) interest on
the Loans, (b) the Fees, and (c) any other amount due hereunder shall be based
on a three hundred sixty (360) day year and paid for the actual number of days
elapsed. Whenever a payment hereunder becomes due on a day which is not a
Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension.
Section 4.3 Interest on Overdue Amounts; Late Charge. Without
limiting the provisions of Section 12.2, overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder arising from the occurrence of an Event of Default shall bear
interest at a rate per annum equal to four percent (4%) plus the Prime Rate,
compounded daily and payable on demand, to accrue from the due date thereof
until the Obligation of Borrower with respect to the payment thereof shall be
discharged, whether before
32
or after judgment ("Default Rate"). In addition, and without limiting the right
of the Lenders to accelerate the Maturity Date, if any payment under this
Agreement, including payment of the outstanding balance in full upon maturity,
is not paid within ten (10) days of the date such payment is due, Borrower shall
pay to Lead Agent (for the pro rata benefit of the Lenders) on demand a late
charge equal to four percent (4%) of the amount of such payment.
Section 4.4 Interest Limitation. Notwithstanding any other
term of this Agreement or any other document referred to herein or therein, the
maximum amount of interest which may be charged to or collected from any person
liable hereunder by Lead Agent or any other Lender shall be absolutely limited
to, and shall in no event exceed, the maximum amount of interest which could
lawfully be charged or collected under applicable law, so that the maximum of
all amounts constituting interest under applicable law, howsoever computed,
shall never exceed as to any person liable therefor such lawful maximum, and any
term of this Agreement or any other document referred to herein or therein which
could be construed as providing for interest in excess of such lawful maximum
shall be and hereby is made expressly subject to and modified by the provisions
of this paragraph.
Section 4.5 Inability to Determine LIBOR. In the event that,
prior to the commencement of any Interest Period relating to any LIBOR Advance,
Lead Agent shall determine in the exercise of its good faith business judgment
that adequate and reasonable methods do not exist for ascertaining the LIBOR for
such Interest Period, Lead Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on Borrower and the
Lenders) to Borrower and Lenders. In such event (a) any Advance Request with
respect to LIBOR Advances shall be automatically withdrawn and shall be deemed a
request for a Prime Rate Advance, and (b) each LIBOR Advance will automatically,
on the last day of the then current Interest Period thereof, become a Prime Rate
Advance, and the obligations of Lenders to make LIBOR Advances shall be
suspended until Lead Agent determines in the exercise of its good faith business
judgment that the circumstances giving rise to such suspension no longer exist,
whereupon Lead Agent shall so notify Borrower and Lenders.
Section 4.6 Illegality. If any applicable law, rule, or
regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any request or directive (whether or
not having the force of law) of any such authority, central bank, or comparable
agency, shall make it unlawful or impossible for any Lender to make, maintain,
or fund its LIBOR Advances, such Lender shall so notify Lead Agent, and Lead
Agent shall forthwith give notice thereof to the other Lenders and Borrower.
Before giving any notice to Lead Agent pursuant to this Section 4.6, such Lender
shall designate a different lending office if such designation will avoid the
need for giving such notice and will not, in the reasonable judgment of such
Lender, be otherwise materially disadvantageous to such Lender. Upon receipt of
such notice, notwithstanding anything contained in Section 2, Borrower shall
repay in full the then outstanding principal amount of each affected LIBOR
Advance of such Lender, together with accrued interest thereon, either (a) on
the last day of the then current Interest Period applicable to such LIBOR
Advance if such Lender may lawfully continue to maintain and fund such LIBOR
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain such LIBOR Advance to such day; provided, however, that
notwithstanding any provision contained in this
33
Agreement to the contrary, Borrower shall not be required to compensate any
Lender for any losses, including any loss or expenses incurred by reason of the
liquidation, reemployment of deposits or other funds acquired to obtain the
LIBOR Advance, incurred as a consequence of any required conversion of a LIBOR
Advance to a Prime Rate Advance as hereinafter provided, as a result of the
events described in this Section 4.6. Concurrently with repaying each affected
LIBOR Advance of such Lender, notwithstanding anything contained in Section 2,
Borrower shall borrow a Prime Rate Advance (or another type of LIBOR Advance, if
available) from such Lender, and such Lender shall make such Advance in an
amount such that the outstanding principal amount of the Note held by such
Lender shall equal the outstanding principal amount of such Note immediately
prior to such repayment.
Section 4.7 Capital Adequacy. Lead Agent or any Lender shall
promptly notify Borrower if any Lender or Lead Agent shall have determined that
any applicable law enacted by the United States, any federal agency, any state,
or political subdivision thereof, including any rule, regulation, guideline,
directive or request regarding capital requirements for banks or bank holding
companies or subsidiaries of bank holding companies, or any change therein or in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency in the United States charged with the
interpretation or administration thereof, or compliance by any Lender or Lead
Agent with any of the foregoing, imposes or increases a requirement by any
Lender or Lead Agent to allocate capital resources to the Commitment of such
Lender to make or issue, or to the maintenance by such Lender or Lead Agent of,
Advances and obligations in respect of Letters of Credit hereunder, and such
Lender or Lead Agent has determined in good faith that would have the effect of
reducing the return on the capital of such Lender or Lead Agent to a level below
that which such Lender or Lead Agent could have achieved (taking into
consideration the then existing policies of such Lender or Lead Agent with
respect to capital adequacy and assuming full utilization of the capital of such
Lender or Lead Agent) but for such applicability, change, interpretation,
administration or compliance, by any amount deemed in good faith by such Lender
or Lead Agent to be material, and which is not reflected in an increase in the
Prime Rate or LIBOR, as the case may be. Borrower and such Lender shall
thereafter attempt to negotiate in good faith an adjustment to the compensation
payable hereunder which will adequately compensate such Lender for such
modification. If Borrower and such Lender are unable to agree to such adjustment
within ninety (90) days of the day on which Borrower shall receive such written
notice, then commencing on the date of such notice (but not earlier than the
effective date of any such applicability, change, interpretation, administration
or compliance), then the fees payable hereunder shall increase by an amount
which will, in the reasonable determination of such Lender, compensate such
Lender for such modification. In determining the amount of income, such Lender
may use any reasonable and equitable methods of averaging, allocating or
attributing such modification among its customers. The affected Lender shall
deliver to Borrower a certificate demonstrating the calculation of the amount of
such increased fees. Borrower shall be required to pay the increased amount
within fifteen (15) days after its receipt of such certificate.
Section 4.8 Additional Costs and Expenses; Reserve
Requirements. If any present or future applicable law, or any amendment or
modification of present applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any Governmental Authority
with appropriate jurisdiction charged with the administration or the
interpretation thereof and
34
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender or Lead Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Lender or Lead Agent to any tax (other than
taxes based on the income or profits of such Lender or Lead Agent), levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to the Advances or Letters of Credit or deposits obtained to fund Advances or
Letters of Credit; or
(b) materially change the basis of taxation of payments to any
Lender of the principal of or the interest on the Advances or any other amounts
payable to any Lender hereunder (other than changes relating to taxes based on
the income or profits of such Lender or Lead Agent); or
(c) impose or render applicable any special deposit or reserve
or similar requirement (whether or not having the force of law) against the
Advances, Loans or Letters of Credit of the type contemplated hereby made by
Lenders; or
(d) impose on any Lender any other conditions or requirements
with respect to the Advances or Letters of Credit;
and the result of any of the foregoing is to (i) increase the cost to any Lender
of making the Advances or participating in any Letter of Credit, or (ii) reduce
the amount of principal, interest, or other amount payable to such Lender or
Lead Agent hereunder, or (iii) require such Lender to make any payment or to
forego any interest or other sum payable hereunder, and which is not reflected
in an increase in the Prime Rate or LIBOR, as the case may be, the amount of
which payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Lender from
Borrower hereunder, then, such Lender will notify Borrower within ninety (90)
days of the date of the actual knowledge of the Lender of the occurrence of such
event, and Borrower and such Lender shall thereafter attempt to negotiate in
good faith an adjustment to the compensation payable hereunder which will
adequately compensate such Lender for such reduction or payment. If such Lender
and Borrower are unable to agree to such adjustment within ninety (90) days of
the date of such notice, Borrower will, upon written demand made by such Lender
at any time and from time to time thereafter, pay to such Lender such additional
amounts as will be sufficient in the good faith opinion of such Lender to
compensate the Lender for such additional cost, reduction, payment or foregone
interest or other sum. In determining the amount of such compensation, such
Lender or Lead Agent may use any reasonable and equitable methods of averaging,
allocating or attributing such amounts to its customers. The affected Lender
shall deliver to Borrower a certificate demonstrating the calculation of the
amount of such increased payment. Borrower shall pay such amount within fifteen
(15) days after its receipt of this certificate.
If any Lender demands compensation under this Section 4.8,
Borrower may at any time, upon at least five (5) Business Days prior notice to
such Lender, prepay in full the then outstanding affected Advances of such
Lender, together with accrued interest thereon to the date of prepayment, along
with any payments required under Section 4.9. Concurrently with prepaying such
Advances, Borrower shall borrow a Prime Rate Advance or a LIBOR Advance not so
affected,
35
from such Lender, and such Lender shall make such Advance in an amount such that
the outstanding principal amount of the Note held by such Lender shall equal the
outstanding principal amount of such Note immediately prior to such prepayment.
Section 4.9 Indemnification. If, due to prepayments made by
Borrower or due to acceleration of the maturity date of any LIBOR Advances
pursuant to the terms of this Agreement, or due to any other reason, including
without limitation the events specified above, but subject to the provisions of
Section 4.8, Lead Agent receives payments of principal other than on the last
day of an Interest Period, Borrower shall, upon demand by Lead Agent, pay to
Lead Agent for the benefit of the applicable Lenders any amounts required to
compensate any such Lenders for any losses, costs or expenses which such Lenders
may reasonably incur as a result of such prepayment, including without
limitation, any loss, costs or expenses incurred by reason of liquidation or
reemployment of deposits or other funds acquired by such Lenders to fund or
maintain their portion of the LIBOR Advances. Such compensation shall include,
without limitation, an amount calculated as follows:
(a) First, Lead Agent shall determine the amount by which (i)
the total amount of interest which would have otherwise accrued hereunder on
each installment of principal so paid, during the period beginning on the date
of such payment and ending on the date such installment would have been due (the
"Reemployment Period"), exceeds (ii) the total amount of interest which would
accrue during the Reemployment Period, on a deposit in the interbank LIBOR
borrowing market in an amount equal (as nearly as may be) to the amount of
principal so paid and to have a maturity comparable to the Reemployment Period.
Each such amount is hereafter referred to as an "Installment Amount."
(b) Second, each Installment Amount shall be treated as
payable as of the date on which the related principal installment would have
been payable by Borrower had such principal installment not been prepaid.
(c) Third, the amount to be paid on each such date shall be
the present value of the Installment Amount determined by discounting the amount
thereof from the date on which such Installment Amount is to be treated as
payable, at the same annual interest rate as that payable upon the interbank
LIBOR deposit designated as aforesaid by Lead Agent.
(d) Fourth, no portion of the principal installments required
pursuant to Section 4.9 shall be considered prepayments of the principal of the
LIBOR Advances.
Section 5 SECURITY; GUARANTIES; MASTER ACCOUNT.
Section 5.1 Unsecured Credit Facility. The Obligations shall
be unsecured except (i) as provided in Section 5.2, (ii) for any setoff rights
under this Agreement, and (iii) as provided in Section 2.9(d).
Section 5.2 Guaranty. Each Subsidiary of Borrower listed on
Schedule 1.1 attached hereto shall execute and deliver to Lead Agent an
Unconditional Guaranty of Payment and Performance (a "Guaranty") in the form
attached hereto as Exhibit I, provided, that the Eligible Joint Ventures shall
not be required to execute a Guaranty. Thereafter, as a condition to the
formation of any new Subsidiary which the Lead Agent determines to be
significant in the
36
exercise of its sole discretion, or if such new Subsidiary has executed and
delivered a guaranty of the Senior Subordinated Notes or Senior Notes, Borrower
shall cause the Subsidiary upon formation to execute and deliver a Guaranty
required by this Section 5.2 to Lead Agent within thirty (30) days of the date
of formation.
Section 5.3 Depository Account and Master Account. Borrower
shall establish at one (1) or more Lenders selected by Borrower (each called a
"Depository") special deposit accounts in the name of Borrower (each called a
"Depository Account") from which withdrawals may be made only to a checking
account maintained by the Borrower in its name with Lead Agent at the Lead
Agent's Head Office (the "Master Account"). Provided no Default or Event of
Default then exists, Borrower shall be entitled to draw upon funds in the Master
Account for any purpose for which it would be entitled to use proceeds of the
Loans pursuant to Section 9.6 or Borrower may direct the application of such
proceeds to reduce the Loans or to specific Obligations.
Section 6 REPRESENTATIONS AND WARRANTIES.
Borrower, for itself and on behalf of each of the other
members of the Consolidated Group, hereby represents and warrants to Lenders and
Lead Agent as follows:
Section 6.1 Existence, etc.
(a) Borrower is a corporation existing under the laws of the
State of Delaware and has been duly organized and is in good standing under the
laws of the State of Delaware and is qualified to do business and is in good
standing under the laws of the State of Florida. Each other member of the
Consolidated Group is an entity validly existing and in good standing under the
laws of the state of its organization, and, if organized outside of the State of
Florida, each such entity is qualified to do business in the State of Florida.
Each member of the Consolidated Group has taken all actions which, by reason of
its ownership of property or carrying on of business, are required to be taken
by it under the laws of any jurisdiction wherein it owns property or carries on
business.
(b) Each member of the Consolidated Group has all requisite
power and authority and has full legal right to enter into each of the Loan
Documents to which it is or is to become a party, and to perform, observe and
comply with all of its agreements and obligations under each of such documents.
Borrower has all requisite power and authority and full legal right to make all
of the borrowings and obtain the extensions of credit contemplated by this
Agreement.
(c) All of the members of the Consolidated Group are listed on
Schedule 1.1.
(d) No member of the Consolidated Group owns or holds of
record and/or beneficially (whether directly or indirectly) any shares of any
class in the capital of any corporations nor any legal and/or beneficial
interests in any Joint Venture, except for the partnership interests listed on
Schedule 6.24 and the Subsidiaries set forth on Schedule 1.1.
Section 6.2 Authority, etc. The execution and delivery by each
of the members of the Consolidated Group of each of the Loan Documents to which
it is a party, the performance by each member of the Consolidated Group of their
respective agreements and obligations under
37
each of such documents, and the making by Borrower of all of the borrowings
contemplated by this Agreement, are within their respective authority, have been
duly authorized by all necessary corporate, partnership or other action and do
not and will not (i) contravene any member of the Consolidated Group's
certificate of incorporation or partnership agreement or other charter
documents, bylaws or any stock provisions, or any amendment thereof, or (ii)
conflict with, or result in a breach of any material term, condition or
provision of, or constitute a default under or result in the creation of any
mortgage, lien, pledge, charge, security interest or other encumbrance upon any
of its properties under any agreement, trust deed, indenture, mortgage or other
instrument to which any member of the Consolidated Group is a party or by which
its properties are bound or affected, or (iii) violate or contravene any
provision of any law, regulation, order, ruling or interpretation thereunder or
any decree, order or judgment of any Governmental Authority in a material
manner, or (iv) require any waiver, consent or approval by any of the creditors
or partners or stockholders of any member of the Consolidated Group, or (v)
require any approval, consent, order, authorization or license by, or giving
prior notice to, or taking any other action with respect to, any Governmental
Authority under any provision of any law applicable to any member of the
Consolidated Group, where the failure to do so would have a material adverse
effect on such entity.
Section 6.3 Binding Effect of Loan Documents, etc. The members
of the Consolidated Group have duly executed and delivered each of the Loan
Documents to which each is a party, and each of such Loan Documents is in full
force and effect. The agreements and obligations of the members of the
Consolidated Group in each of the Loan Documents to which each is a party
constitute legal, valid and binding obligations of the members of the
Consolidated Group, as the case may be, enforceable against the members of the
Consolidated Group, as the case may be, in accordance with their respective
terms, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and by general principles of equity regardless
of whether enforcement of such obligations is sought in a proceeding in equity
or at law.
Section 6.4 No Events of Default, etc.
(a) No Default or Event of Default has occurred and is
continuing.
(b) None of the members of the Consolidated Group is in
default under any provision of its charter documents, bylaws, stock provisions
or under any indenture or agreement by which it is bound, or in violation of any
applicable law, order, regulation, ruling or requirement of any court or public
body or authority by which any members of the Consolidated Group or properties
are bound, which default or violation would have a material adverse effect on
their business, assets, operations or financial condition.
Section 6.5 Capital Stock. All outstanding shares of capital
stock of Borrower are duly authorized, validly issued, fully paid,
non-assessable and issued in compliance with all applicable state and federal
securities laws and other Applicable Laws.
38
Section 6.6 Financial Statements; Solvency; Consideration.
(a) There has been furnished to Lenders financial statements
of Borrower as of December 31, 2001, audited by Pricewaterhouse, and unaudited
financial statements of Borrower as of March 31, 2002. Such statements are true
and correct in all material respects. Except as otherwise disclosed herein,
there are no additional material contingent liabilities of members of the
Consolidated Group which would have a material adverse effect on the
Consolidated Group if adversely determined.
(b) Borrower (after giving effect to the transactions
contemplated hereby), and the Consolidated Group on a consolidated basis, is
solvent, has assets having a fair value in excess of the amount required to pay
its probable liabilities on its existing debts as they become absolute and
matured, and has access to adequate funds for the conduct of its business and
the ability to pay its debts from time to time incurred in connection therewith
as such debts mature.
(c) Each of the members of the Consolidated Group agrees that
it has received good and adequate consideration for execution hereof and the
foregoing documents in that, among other reasons, Borrower will have sufficient
funds to make available to each of the members of the Consolidated Group to
support its operations.
Section 6.7 Material Adverse Change. Since March 31, 2002,
there has not been any material adverse change in the financial condition,
assets, or results of operations of the Consolidated Group. No member of the
Consolidated Group is a party to any contract or agreement that could reasonably
be expected to have a material adverse effect on the business of each of the
Property Owners or of the Consolidated Group taken as a whole, and which is not
shown on the balance sheets of Borrower delivered to Lenders pursuant to Section
9.4 or otherwise disclosed in writing to the Lead Agent who shall promptly
notify the Lenders.
Section 6.8 Mortgage and Liens. None of the property, assets,
income or revenues of any character of the Consolidated Group is subject to any
mortgage, lien, pledge, charge, security interest, defect or other encumbrance
of any kind, other than the Permitted Liens.
Section 6.9 Indebtedness. No member of the Consolidated Group
has any Indebtedness other than Indebtedness permitted by the provisions
contained in Section 10.1.
Section 6.10 Litigation. Except for claims, actions and
proceedings fully covered by insurance, there is no pending or, to the best
knowledge of Borrower and the other members of the Consolidated Group,
threatened action, suit, or proceeding before any court, Governmental Authority,
or board of arbitration against any member of the Consolidated Group, which if
determined against any of them could materially and adversely affect the
financial condition, assets or operations of the Consolidated Group taken as a
whole. By a separate certification of Borrower dated of even date herewith,
Borrower has disclosed all claims, actions, and proceedings pending or, to the
best knowledge of Borrower and the other members of the Consolidated Group,
threatened against Borrower and the other members of the Consolidated Group.
Section 6.11 No Default. No member of the Consolidated Group
is in default in any respect under any material contract, agreement or
instrument to which it is a party or by which it
39
or any of its property is bound, the consequence of which default could
materially and adversely affect the financial condition, assets, or operations
of the Consolidated Group taken as a whole.
Section 6.12 Taxes. Except as otherwise disclosed to the Lead
Agent who shall notify the Lenders, all members of the Consolidated Group have
filed all federal, state and local tax returns required to be filed by them and
have paid, or have made reasonable provision for payment of, all taxes (if any)
which have or are reasonably likely to become due and payable pursuant to any of
the said returns or pursuant to any matters raised by audits or for other
reasons known to them, except for taxes the amount, applicability, or validity
of which are currently being contested by them in good faith by appropriate
proceedings and with respect to which they have set aside on their books
adequate reserves.
Section 6.13 Compliance with Applicable Law. To the best of
Borrower's knowledge:
(a) The location, construction, occupancy, development,
operation and use of the Properties comply in all material respects with the
terms of all of the following encumbrances constituting Permitted Liens: all
applicable regional impact plans and reports, all applicable restrictive
covenants and deed restrictions and all Applicable Laws. The Property Owners
have obtained all necessary certificates, licenses, authorizations,
registrations, permits and/or approvals necessary for the use and operation of
the Properties or any part thereof (the "Permits") as currently developed in
accordance with all Applicable Laws.
(b) The Borrower and each other member of the Consolidated
Group is in compliance with all Applicable Laws, except to the extent that
failure to do so would not individually or in the aggregate materially and
adversely affect the financial condition, assets or operations of such member or
the Consolidated Group taken as a whole.
Section 6.14 ERISA Compliance; Severance Obligations.
(a) There are no Pension Plans currently in effect.
(b) Each welfare plan (as defined in Section 3(1) of ERISA)
established or assumed or maintained, or to which contributions are made, by the
Consolidated Group or any member thereof is referred to herein as a "Welfare
Plan." No Welfare Plan is a multi-employer plan (as defined in Section
4001(a)(3) of ERISA), and each Welfare Plan is, and has at all times been, in
compliance in all material respects with the applicable provisions of ERISA and
the Code. No member of the Consolidated Group has any liability for
post-retirement benefits provided or to be provided to employees under any
Welfare Plan, except to make available continuous coverage as and to the extent
required by the provisions regarding employee benefit plans set forth in Section
4980(B) of the Code.
(c) Except for the Welfare Plans, no member of the
Consolidated Group has established or assumed or maintains or makes any
contributions to any employee benefit plan (as defined in Section 3(3) of ERISA)
except a Management Cash Incentive Distribution Plan, the details of which have
been disclosed in writing to Lead Agent prior to the Closing Date. There is no
material unfulfilled obligation on the part of any member of the Consolidated
Group to make any contribution with respect to the Welfare Plans.
40
(d) The execution and delivery of the Loan Documents and the
consummation of the transactions contemplated thereby will not involve any
prohibited transaction within the meaning of ERISA.
(e) Except as disclosed in a separate certification from the
Borrower dated of even date herewith, no member of the Consolidated Group has
any obligation to make severance payments or provide post-employment benefits
pursuant to any contract or other arrangement with any of its employees,
officers or directors, excluding the Welfare Plans.
Section 6.15 Other Representations. Each of the
representations and warranties made by any of the members of the Consolidated
Group in each of the Loan Documents to which such member of the Consolidated
Group is a party is true and correct in all material respects.
Section 6.16 Disclosure. No representation or warranty made by
Borrower or any member of the Consolidated Group in this Agreement or in any
agreement, instrument, document, certificate, statement or letter furnished to
Lead Agent or Lenders by or on behalf of Borrower or any member of the
Consolidated Group in connection with any of the transactions contemplated by
any of the Loan Documents contains any untrue statement of a material fact when
taken as a whole or omits to state a material fact necessary in order to make
the statements contained therein not misleading in light of the circumstances in
which they are made.
Section 6.17 Loans as Senior Indebtedness. All Obligations of
the Consolidated Group to Lenders are senior in right of payment to the Senior
Subordinated Notes.
Section 6.18 Holding Company and Investment Company Acts. No
member of the Consolidated Group is a "holding company," nor a "subsidiary
company" of a "holding company," nor an "affiliate" of a "holding company," as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
it a "registered investment company," nor an "affiliated company" nor a
"principal underwriter" of a "registered investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
Section 6.19 Regulations U and X. The proceeds of the Loans or
Letters of Credit shall be used by the Consolidated Group solely for the
purposes specified in Section 9.6. No portion of any Loan or Letter of Credit is
to be used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 6.20 Fiscal Year. The Consolidated Group has a Fiscal
Year ending December 31 of each calendar year.
Section 6.21 Compliance With Certain Environmental Laws.
(a) None of the Property Owners, nor any operator of the
Properties or any operations thereon is in violation, or alleged violation, of
any judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean
41
Water Act, the Toxic Substances Control Act, the Federal Clean Air Act, the Safe
Drinking Water Act, the Flood Disaster Protection Act of 1973, or any state or
local statute, regulation, ordinance, order or decree relating to health,
safety, wetlands, land usage and development, or the environment (collectively,
the "Environmental Laws"), which violation would have a material adverse affect
on the business, assets or financial condition of the Consolidated Group taken
as a whole. The separate certification from Borrower dated of even date herewith
describes all of the Existing Environmental Matters. Each of the Property Owners
shall take all actions necessary to comply with all compliance orders affecting
the Properties and cause the Existing Environmental Matters to comply with all
Environmental Laws.
(b) Except for the Existing Environmental Matters, none of the
Property Owners has received notice from any third party including, without
limitation, any federal, state or local Governmental Authority: (i) that it has
been identified by the United States Environmental Protection Agency (the "EPA")
as a potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that
any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any hazardous
substances, as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant, as defined by 42 U.S.C. Section 9601(33), or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Law ("Hazardous Substances") which any Property Owner has
generated, transported or disposed of has been found at any site at which a
federal, state or local Governmental Authority or other third party has
conducted or has ordered that any Property Owner conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that any Property Owner is a named party to any claim, action,
cause of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release or presence of Hazardous Substances.
(c) Except for the Existing Environmental Matters: (i) no
portion of the Properties has been used for the handling, processing, storage or
disposal of Hazardous Substances except in accordance with applicable
Environmental Laws, and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Properties,
except for underground tanks for fuel maintained in accordance with applicable
Environmental Laws; (ii) in the course of any activities conducted by any
Property Owner or operators of its properties, no Hazardous Substances have been
generated or are being used on the Properties except in accordance with
applicable Environmental Laws; (iii) to the best of Borrower's knowledge, there
have been no releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of Hazardous Substances on, upon,
into or from any Properties of any Property Owner, which releases would have a
material adverse effect on the value of the Properties taken as a whole; (iv) to
the best knowledge of the Property Owners, there have been no releases on, upon,
from or into any real property in the vicinity of any of the Properties which,
through soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Properties taken
as a whole; and (v) to the best of Borrower's knowledge, any Hazardous
Substances that have been generated on any of the Properties have been
transported offsite only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities have
42
been and are, to the best knowledge of Borrower, operating in compliance with
such permits and applicable Environmental Laws.
Section 6.22 Insurance. The policies of insurance or
certificates of insurance furnished to Lead Agent with respect to the business
and properties of the Consolidated Group, are in full force and effect, and no
notice of cancellation or non-renewal has been received with respect thereto.
Section 6.23 Common Enterprise and Consideration. The members
of the Consolidated Group are collectively engaged in a common enterprise for
the furtherance of the Core Businesses. Accordingly, the members of the
Consolidated Group have received good and adequate consideration for the
entering into this Agreement and the Loan Documents. Furthermore, the members of
the Consolidated Group agree that an advance to Borrower that is subsequently
disbursed by Borrower to any members of the Consolidated Group for use by such
entity shall benefit all of the other members of the Consolidated Group, even if
the advance is based upon a Borrowing Base which includes assets of members of
the Consolidated Group that do not receive the disbursement from Borrower. The
members of the Consolidated Group agree that they will each receive good and
adequate benefit from this common arrangement given the common enterprise of all
of the foregoing as set forth above.
Section 6.24 Joint Ventures. The members of the Consolidated
Group are parties to only those Joint Ventures set forth on Schedule 6.24. No
member of the Consolidated Group has received notice that an event of default
exists with respect to any Joint Ventures by any of the members of the
Consolidated Group, except as set forth on Schedule 6.24. All of the Joint
Ventures are Eligible Joint Ventures, except as set forth on Schedule 6.24.
Section 6.25 Laws Pertaining to Land Sales. None of the
Property Owners have received any notice that it is in violation of the
Interstate Land Sales Full Disclosure Act (the "Interstate Land Sales Act"), the
Florida Land Sales Practices Law (the "Florida Land Sales Law") or similar laws
pertaining to land sales (including, without limitation, any laws pertaining to
the sale of interests in timeshare units) in any state in which any Property
Owner sells, transfers, manages, operates, develops or otherwise disposes of
property, which violation could have a material adverse effect on the assets,
business, operations, or financial condition of the Consolidated Group taken as
a whole.
Section 7 CONDITIONS AND EFFECTIVENESS.
This Agreement shall become effective when each of the
following conditions precedent has been fulfilled:
Section 7.1 Loan Documents, etc. Each of the Loan Documents
shall have been duly and properly authorized, executed, amended, restated,
ratified and delivered by the respective party or parties thereto and shall be
in full force and effect, and executed original counterparts of each of the Loan
Documents shall have been furnished to Lead Agent. In the case of any request
for an Advance or Letter of Credit, Lead Agent shall have received a fully
completed and executed Advance Request or Letter of Credit Request, as
applicable. In addition, Borrower shall have delivered to the trustee under the
indentures with respect to the Senior Subordinated
43
Notes a notice approved by Lead Agent designating the Obligations under this
Agreement as "Designated Senior Debt", as such term is defined in such
indentures.
Section 7.2 Legality of Transactions. No change in applicable
law shall have occurred as a consequence of which it shall have become and
continue to be unlawful for any Person, including any of Lenders or Lead Agent,
to perform any of its agreements or obligations under any of the Loan Documents
to which any of them is a party on the Effective Date.
Section 7.3 Representations and Warranties. Each of the
representations and warranties made by or on behalf of Borrower and the members
of the Consolidated Group to Lenders and Lead Agent in this Agreement or the
other Loan Documents shall be true and correct in all material respects when
made, shall, for all purposes of this Agreement, be deemed to be repeated on and
as of the Effective Date, and shall be true and correct in all material respects
on and as of such date, except, in each case, as necessarily affected by the
consummation of the transactions contemplated by the Loan Documents.
Section 7.4 Performance, etc. Borrower and each of the members
of the Consolidated Group shall have duly and properly performed, complied with
and observed each of its covenants, agreements and obligations contained in any
of the Loan Documents to which it is a party or by which it is bound and are
required to be performed on or prior to the Effective Date. No Event of Default
or Default shall have occurred and be continuing on the Effective Date, and no
condition shall exist on the Effective Date which, with notice, or the passage
of time, or both, could constitute an Event of Default.
Section 7.5 Certified Copies of Certain Documents. Lead Agent
shall have received from Borrower copies of the charter documents and bylaws of
Borrower certified to be true and correct by the corporate secretary for
Borrower; certificates of existence and/or good standing from the applicable
jurisdiction of organization or formation with respect to Borrower and each
other member of the Consolidated Group; and, if applicable, evidence of each
such entity's qualification to do business in the State of Florida.
Section 7.6 Proof of Action. Lead Agent shall have received
copies, certified by the corporate secretary of Borrower and each member of the
Consolidated Group to be true and complete on the Effective Date, of the records
of all actions taken by Borrower's and each such member's directors and
shareholders as may be required to authorize (a) the execution and delivery by
each member of the Consolidated Group of each of the Loan Documents to which it
is a party, (b) its performance of all of its agreements and obligations under
each of such documents, and (c) the borrowings and other transactions
contemplated by this Agreement.
Section 7.7 Incumbency Certificate. Lead Agent shall have
received from Borrower an incumbency certificate, dated the Effective Date,
signed by its corporate secretary and giving the name and bearing a specimen
signature of each individual who shall be authorized: (i) to sign on Borrower's
behalf each of the Loan Documents to which it is or is to become a party; (ii)
to make Advance Requests and Letter of Credit Requests; and (iii) to give
notices and to take any other action on Borrower's behalf under the Loan
Documents.
44
Section 7.8 Proceedings and Documents. All corporate,
partnership, governmental and other proceedings in connection with the
transactions contemplated by the Loan Documents and all instruments and
documents incidental thereto, shall be in form and substance reasonably
satisfactory to Lead Agent, and Lead Agent shall have received all such
counterpart originals or certified or other copies of all such instruments and
documents as Lead Agent shall have reasonably requested.
Section 7.9 Fees. Borrower shall have complied with its
obligation to pay the Fees to the Lead Agent, the Co-Lead Arrangers and the
Lenders, and the costs of Lead Agent incurred in closing the transaction
evidenced by this Agreement.
Section 7.10 Legal Opinions. Lead Agent shall have received a
favorable written opinion, in form and substance satisfactory to Lead Agent in
its discretion, addressed to Lead Agent and Lenders, dated the Effective Date
from each of: (a) counsel to the Borrower and the other members of the
Consolidated Group, as to the matters set forth in Section 6.1 through 6.3 and
such other matters as Lead Agent may reasonably request; and (b) local counsel
admitted to practice and currently practicing in the State of Florida with
respect to Florida taxation issues and such other matters as Lead Agent may
reasonably request.
Section 7.11 Borrowing Base Report. Lead Agent shall have
received from Borrower, at least five (5) Business Days prior to the Closing
Date, a Borrowing Base Report dated as of April 30, 2002, provided, however,
that Borrower shall notify Lead Agent in writing on the Effective Date of any
material deviation from the values reflected on the Borrowing Base Report and
shall provide Lead Agent with such supplementary documentation as Lead Agent may
reasonably request.
Section 8 CONDITIONS TO SUBSEQUENT LOANS.
The obligation of each Lender to make any Advances or of an
Issuing Bank to issue Letters of Credit or of the Swing Line Bank to make Swing
Line Loans subsequent to the Effective Date shall be subject to the satisfaction
of the following conditions precedent:
Section 8.1 Legality of Transactions. It shall not be unlawful
for any Person including Lead Agent or any Lender to perform any of its
agreements or obligations under any of the Loan Documents to which Lead Agent or
such Lender is a party on the Drawdown Date of such Advance.
Section 8.2 Representations and Warranties. Each of the
representations and warranties made by or on behalf of each of the members of
the Consolidated Group to Lead Agent and Lenders in this Agreement or any other
Loan Documents shall be true and correct in all material respects when made and
shall, for all purposes of this Agreement, be deemed to be repeated on and as of
the date of Borrower's notice of borrowing for such Advance or Letter of Credit
Request and on and as of the Drawdown Date of such Advance or the date of
issuance of such Letter of Credit, and shall be true and correct in all material
respects on and as of each of such dates, except, in each case, as affected by
the consummation of the transactions contemplated by the Loan Documents.
45
Section 8.3 Performance, etc. Each of the members of the
Consolidated Group shall have duly and properly performed, complied with and
observed in all material respects each of its covenants, agreements and
obligations contained in this Agreement and any of the other Loan Documents to
which it is a party or by which it is bound on the Drawdown Date of such Advance
or the date of issuance of such Letter of Credit. No Default or Event of Default
shall exist.
Section 8.4 Proceedings and Documents. Any corporate,
partnership, governmental and other proceedings which are undertaken in
connection with the transactions contemplated by such Advance, and any
instruments and documents incidental to such Advance shall be in form and
substance reasonably satisfactory to Lead Agent, and Lead Agent shall have
received all such counterpart originals or certified or other copies of all such
instruments and documents as Lead Agent shall have reasonably requested.
Section 8.5 Payment of Fees. Borrower shall have complied with
its obligations to pay the Fees under Section 3, or any other amount arising
hereunder at any time subsequent to the Closing Date and becoming due and
payable on or before the Drawdown Date of such Advance or the date of issuance
of such Letter of Credit.
Section 8.6 Borrowing Documents. In the case of a request for
an Advance or Letter of Credit, Lead Agent shall have received a fully completed
and executed Advance Request or Letter of Credit Request, as applicable.
Section 9 AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that, so long as any portion of the Loans
or any Letter of Credit is outstanding or the Lenders, the Swing Line Bank or
the Issuing Banks have any obligation to make Advances or Swing Line Loans or
issue Letters of Credit hereunder, respectively, Borrower will comply with all
of the following, and Borrower shall cause each of the members of the
Consolidated Group specified below to do the same:
Section 9.1 Punctual Payment. Notwithstanding Lenders' right
to make Advances in the amount of any Obligation due hereunder, Borrower will
duly and punctually pay or cause to be paid the principal and interest on the
Loans, Fees, Obligations and all other fees and other amounts due and payable
hereunder, all in accordance with the terms of this Agreement and any applicable
Loan Document.
Section 9.2 Legal Existence, Etc. Each member of the
Consolidated Group will maintain its respective legal existence and good
standing under the laws of the state of its formation, will maintain its
qualification to do business in the State of Florida and in each other state in
which the failure to do so would have a material adverse effect on its
condition, financial or otherwise, and will maintain all of its rights and
franchises, except where the failure to maintain any such right or franchise
would not have a material adverse effect on the conduct of its business.
Section 9.3 Change of Corporate Name. The Consolidated Group
shall notify Lead Agent within five (5) days of any change in its or any
Consolidated Group member's corporate name or any other name under which it
conducts its business.
46
Section 9.4 Financial Statements and Other Reports. Borrower
will furnish or cause to be furnished financial statements and other monthly,
quarterly or other periodic reports to Lead Agent and each of Lenders with
respect to the Consolidated Group as follows:
(a) within ninety (90) days after the close of each Fiscal
Year, the consolidated audited balance sheets and audited consolidated
statements of income, retained earnings and cash flows (the "Financial
Statements") for such year, and, setting forth in comparative form the
corresponding figures for the preceding year, prepared in accordance with
generally accepted accounting principles consistently applied, accompanied by a
report and unqualified opinion of Pricewaterhouse;
(b) within forty-five (45) days after the end of each Fiscal
Quarter of each Fiscal Year, the unaudited consolidated balance sheet,
consolidated income statement and a consolidated statement of cash flows similar
to those required by clause (a) above (but with a requirement as to comparison
with the prior year) as of the end of such Fiscal Quarter and for the Fiscal
Quarter from the beginning of the current Fiscal Year to the end of such Fiscal
Quarter, prepared in accordance with generally accepted accounting principles
consistently applied and certified as to preparation in accordance with
generally accepted accounting principles and that such statements fairly present
the financial condition of the Consolidated Group at the dates thereof and for
the periods then ended, on behalf of Borrower by its chief financial officer,
subject only to changes resulting from audit and normal year-end adjustments;
(c) at the delivery of each quarterly and annual statement, a
detailed computation showing compliance with the Financial Covenants certified
by the chief financial officer of Borrower or other designated officer of
Borrower acceptable to Lead Agent in the form of Exhibit E attached hereto
("Compliance Certificate"), and further certifying that such officer has caused
this Agreement to be reviewed and has no knowledge of any Default by it in the
performance or observance of any of the provisions hereof, during such quarter
or at the end of such year, or, if such officer has such knowledge, specifying
each Default and the nature thereof;
(d) a report from Pricewaterhouse certifying, without material
qualification, (i) within ninety (90) days of the end of each Fiscal Year, the
compliance by Borrower with the Financial Covenants, and the accuracy of the
year-end Borrowing Base Report, and (ii) such other financial matters relating
to Borrower as Lead Agent from time to time reasonably requests;
(e) promptly upon receipt thereof or at Lead Agent's request,
copies of all management letters, which are submitted to Borrower by its
independent accountants in connection with any annual or interim audit of any
member of the Consolidated Group's books of the Consolidated Group made by such
accountants;
(f) a Borrowing Base Report in such form and at such times
specified in Section 10.11;
(g) on or before January 31 of each year, a budget for such
year for the Consolidated Group and on or before February 28 of each year, a two
(2) year projected balance sheet, income statement, cash flow statement and
Financial Covenants;
47
(h) within five (5) Business Days of the filing or mailing
thereof, copies of all material of a financial nature filed with the SEC or sent
to the stockholders of the Borrower, including without limitation, each Form
10-K and Form 10-Q;
(i) not later than ten (10) Business Days after the Borrower
receives notice of the same from either of the Rating Agencies or otherwise
learns of the same, notice of the issuance of any change in the Debt Rating by
either of the Rating Agencies, together with the details thereof, and of any
announcement by either of the Rating Agencies that any such Debt Rating is
"under review" or that any such Debt Rating has been placed on a watch list or
that any similar action has been taken by either of the Rating Agencies
(collectively a "Rating Notice"); and
(j) such other periodic reports, financial statements, other
information as Lead Agent from time to time reasonably requests, on a monthly,
quarterly or other periodic basis, including, without limitation, periodic
reports of financial information, construction progress, inventory, marketing
and sales results, and compliance with financial, environmental or other
covenants.
Section 9.5 Reserves. Each member of the Consolidated Group on
a consolidated basis will maintain appropriate reserves for depreciation, taxes
and any other expenses or liabilities in accordance with generally accepted
accounting principles.
Section 9.6 Use of Loan Proceeds. The Consolidated Group shall
use the proceeds of the Loans and Letters of Credit solely: (i) to provide
working capital needs for the Core Businesses in a manner consistent with the
provisions of this Agreement, and (ii) for other uses set forth in this
Agreement.
Section 9.7 Commencement and Financing of Construction
Projects.
(a) Multi-family residential condominium projects having Hard
Costs of less than $10,000,000.00 and developed in the ordinary course of
Borrower's business may be financed under this Agreement.
(b) Borrower shall have the option to finance under this
Agreement any Construction Projects the Hard Costs of which are equal to or
greater than $10,000,000.00 but less than $25,000,000.00 upon satisfaction of
the requirements contained in Section 9.7(c)(ii), (iii) and (iv) below, except
that Borrower may, at its option, elect not to hire a third party general
contractor. Notwithstanding the foregoing, at no time shall Borrower permit the
aggregate Unfunded Completion Costs to exceed the lesser of (i) $100,000,000.00,
(ii) the Borrowing Base Availability, and (iii) the Revolving Credit
Availability.
(c) With respect to any Construction Projects financed outside
this Agreement, Borrower shall not use any proceeds of the Loans or Letters of
Credit or any of its funds to construct vertical improvements beyond the
foundation for such a Construction Project until Borrower has complied with the
conditions of this Section 9.7(c). Borrower acknowledges the desire of Fleet and
certain of the other Lenders (individually or in any combination) to provide the
Construction Loans, and agrees to work with them in that regard.
48
Prior to construction of vertical improvements at any such
Construction Project beyond the foundation of any such Construction Project, the
following conditions must be satisfied:
(i) Borrower shall have closed a Construction Loan
(either with one or more of the Lenders or some other lender) not in excess of
eighty percent (80%) of the sum of (x) the total cost of the Construction
Project being financed (including land at Fair Market Value and interest and
soft costs) minus (y) the Customer Deposit Liabilities deposited or to be
deposited with respect to such Construction Project;
(ii) All required governmental approvals shall have
been obtained and issued;
(iii) Borrower shall have delivered Lead Agent a
construction contract with a bonded contractor and a consulting engineering
report, all being acceptable to Lead Agent;
(iv) Borrower shall have entered into Housing
Purchase Contracts for condominium units which produce proceeds from sales (net
of selling expenses and Customer Deposit Liabilities used for construction
costs) in excess of seventy-five percent (75%) of the Construction Loan Amount;
and
(v) Loan documents for Construction Loan must not
provide for the following: (1) cross default to this Agreement or any other Loan
Document, whether directly or indirectly; or (2) financial covenants which are
more restrictive than the Financial Covenants contained in this Agreement.
(d) Without the prior written consent of Lead Agent, no member
of the Consolidated Group shall modify any provisions of any documents
evidencing or securing any of the Construction Loans or enter into new
agreements with respect thereto which would (i) grant additional collateral with
respect thereto; (ii) increase the amount of any Construction Loans; or (iii)
otherwise materially adversely impact the Loans. Borrower shall promptly provide
to Lead Agent copies of all proposed modifications, amendments, restatements,
extensions, renewals and clarifications of any documents evidencing or securing
any of such Construction Loans and copies of notices of default or events of
default with respect thereto.
Section 9.8 Maintenance and Alterations. The Consolidated
Group shall preserve and maintain the Properties in good order, repair and
condition, and shall promptly restore damage from casualty or condemnation,
which condemnation or casualty could have a material adverse affect on the
business operations or financial condition of the Consolidated Group taken as a
whole, and shall not permit or commit waste on the Properties and shall cause
each and every part of the Properties to comply in all material respects with
all applicable Federal, State and local laws and governmental regulations, and
any lawful private restrictions or other requirements or provisions relating to
the development, operation, maintenance or use of the Properties, including,
without limitation, the terms and provisions of any mortgages or other
agreements or instruments constituting Permitted Liens. No portion of the
Properties shall be removed, demolished or altered in any material manner which
materially diminishes the value of
49
the Properties taken as a whole without the prior written consent of Lead Agent.
Upon any casualty, condemnation, removal, demolition, or such alteration, the
portion of any such affected Properties shall be removed from the Borrowing
Base.
Section 9.9 Certain Environmental Matters. The Consolidated
Group shall (i) strictly comply with all applicable requirements of any
Environmental Law; and (ii) provide Lead Agent with written notice within five
(5) Business Days of obtaining knowledge of: (a) any potential or known release,
or threat of release, of any Hazardous Substances or oil at or from the
properties or upon receiving notice from any federal, state or other
environmental agency or authority in connection with the foregoing matters,
including the assessment, containment or removal of any Hazardous Substance from
its properties; or (b) and any non-compliance with any Environmental Law. Any
such notice shall state that it is given pursuant to this Section 9.9. Lead
Agent agrees to promptly forward any notices given pursuant to this Section 9.9
to the Lenders. Lead Agent may, in its reasonable discretion, from time to time,
by or through any of its authorized officers, agents or professional
consultants, visit, inspect and conduct tests (including a Phase I environmental
audit, and if recommended, further tests) or otherwise examine the Properties
and the records maintained with respect thereto to verify compliance with such
requirements to its satisfaction, all at the cost and expense of the
Consolidated Group.
Section 9.10 Notice of Litigation and Judgment. Borrower will
give notice in writing, in form and detail satisfactory to Lead Agent, within
five (5) Business Days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings to which any
member of the Consolidated Group is or becomes a party involving an uninsured
claim against it or any litigation or proceeding against Persons with which it
has a business relationship, which, if adversely determined could materially and
adversely affect the financial condition, assets or operations of the
Consolidated Group taken as a whole, and stating the nature and status of such
litigation or proceedings. Borrower will give notice, in writing, in form and
detail satisfactory to Lead Agent, within five (5) Business Days of any
judgment, final or otherwise, against a member of the Consolidated Group in an
amount in excess of Two Million Five Hundred Thousand and No/100 Dollars
($2,500,000.00). Any such notice shall state that it is given pursuant to this
Section 9.10. Lead Agent agrees to promptly forward any notices given pursuant
to this Section 9.10 to the Lenders.
Section 9.11 Notice of Defaults. Borrower will give notice in
writing to Lead Agent immediately upon becoming aware of the occurrence of any
Default or Event of Default. Any such notice shall state that it is given
pursuant to this Section 9.11. Lead Agent agrees to promptly forward any notices
given pursuant to this Section 9.11 to the Lenders.
Section 9.12 Material Adverse Changes. The Consolidated Group
shall disclose in writing to Lead Agent within five (5) Business Days of
becoming aware of it, any fact that materially and adversely affects or which
could in the future materially and adversely affect the financial condition and
operations of the Consolidated Group. Any such notice shall state that it is
given pursuant to this Section 9.12. Lead Agent agrees to promptly forward any
notices given pursuant to this Section 9.12 to the Lenders. Within five (5)
Business Days of such time as Borrower provides such disclosure to Lead Agent,
Borrower shall also deliver to Lead Agent in writing its proposal for addressing
such material adverse effect.
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Section 9.13 Books and Records. The books and records relating
to the financial affairs of the Consolidated Group shall at all times be
maintained in accordance with, and all financial statements provided for herein,
shall be prepared in accordance with generally accepted accounting principles
consistently applied, subject only to changes resulting from audit and normal
year-end adjustments. Such books and records shall be kept by Borrower at the
Chief Executive Office of Borrower, or at such other location as Borrower shall
specify by prior written notice given to Lead Agent. The Consolidated Group
shall maintain a Fiscal Year ending December 31 of each year.
Section 9.14 Insurance. The Consolidated Group will maintain
with financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies, including
windstorm and flood insurance and terrorism insurance (to the extent terrorism
insurance is available on a commercially reasonable basis), as shall be in
accordance with the general practices of businesses engaged in similar
activities in similar geographic areas, and in amounts, containing such terms,
in such forms and for such periods as may be reasonable and prudent in
accordance with sound business practices. Borrower shall furnish to Lead Agent
certificates or other evidence satisfactory to Lead Agent of compliance with the
foregoing insurance provision. The Consolidated Group shall at all times comply
with and conform to all provisions of each such insurance policy and to all
requirements of the insurers thereunder applicable to the Consolidated Group,
the Properties or to the use, occupation, possession, operation, maintenance or
repair of all or any portion of the Properties. To the extent any insurance
coverage required by this Section 9.14 is cancelled or otherwise terminated
through no fault of Borrower or any other member of the Consolidated Group,
Borrower shall have a commercially reasonable time to replace such insurance
coverage provided Borrower proceeds with diligence to replace such coverage.
Section 9.15 Taxes and Mechanic's Liens. The Consolidated
Group will duly pay and discharge, or cause to be paid and discharged, before
the same shall become overdue, all taxes, assessments and other governmental
charges imposed upon any of the Consolidated Group and their real properties,
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials or supplies that if unpaid
might by law become a lien or charge upon any of its property; provided that any
such tax, assessment, charge, levy or claim need not be paid if the validity or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if Borrower shall have set aside on its books adequate reserves
with respect thereto; and provided further that any of the Consolidated Group
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any lien that may have attached as
security therefor.
Section 9.16 Conduct of Business. The Consolidated Group will
continue to engage in the Core Businesses.
Section 9.17 Compliance with Law. The Consolidated Group will
(i) comply with all Applicable Laws and any lawful private restrictions and
other encumbrances constituting Permitted Liens, whether now existing or
hereafter arising, to which the Consolidated Group or their properties may be or
become subject, noncompliance with which could have a material adverse effect on
the Consolidated Group's business, operations or financial condition or their
ability to fulfill their obligations under this Agreement or the other Loan
Documents (and will
51
strictly comply with any applicable requirements of all federal and state laws
with respect to land sales, including, without limitation, disclosure laws, in
any state in which it engages in business) and (ii) promptly obtain, maintain,
apply for renewal, and not allow to lapse, any authorization, consent, approval,
license or order, and accomplish any filing or registration with, any court or
Governmental Authority which may be or may become necessary in order that the
Consolidated Group perform all of their obligations under this Agreement or the
other Loan Documents and in order that the same may be valid and binding and
effective in accordance with their terms and in order that Lead Agent and
Lenders may be able freely to exercise and enforce any and all of their rights
under this Agreement or the other Loan Documents.
Section 9.18 Access. Except as otherwise required by
applicable law or regulation, the Consolidated Group will permit Lead Agent, by
its representatives and agents, to inspect, during normal business hours, any of
its properties, to examine and make copies of its books of accounts and other
financial records, and to discuss its affairs, finances and accounts with, and
to be advised as to the same by, its officers at such reasonable times and
intervals as Lead Agent may designate, all at the cost and expense of Borrower.
The Consolidated Group authorizes Lead Agent and Lenders to disclose information
obtained pursuant to this Agreement to any participant, assignee or potential
participant or potential assignee in the Loans made hereunder and, whenever
required or requested by governmental or regulatory authorities, to such
authorities, and as otherwise permitted pursuant to Section 18.6 below. The
Consolidated Group will permit a potential purchaser of all or a portion of the
Loans, which purchaser is designated by Lead Agent, to inspect, in the presence
of an authorized representative of Borrower, during normal business hours, any
of its Properties, to examine and make copies of its accounts and other
financial records, and to discuss its affairs, finances and accounts with such
potential purchaser at such reasonable times and intervals as Lead Agent may
request without charge to Lead Agent or such potential purchaser.
Section 9.19 Further Assurances. The Consolidated Group shall,
at any time and from time to time, execute and deliver such further instruments
and take such further action as may reasonably be requested by Lead Agent, in
each case further and more perfectly to effect the purposes of this Agreement
and the other Loan Documents.
Section 9.20 Intangible, Recording and Stamp Tax. The
Consolidated Group will promptly pay all Florida intangible taxes or documentary
stamp taxes assessed against the Consolidated Group, Lead Agent or any of
Lenders as a result of this Agreement or any document related hereto, if any.
Borrower agrees to promptly provide stamped original receipts of such payments
to Lead Agent.
Section 10 NEGATIVE COVENANTS.
Borrower covenants and agrees that, so long as any portion of the Loans
or any Letter of Credit is outstanding or the Lenders, the Swing Line Bank or
the Issuing Banks have any obligation to make Advances or Swing Line Loans or
issue Letters of Credit hereunder, respectively, Borrower will comply with all
of the following, and Borrower shall cause each of the members of the
Consolidated Group specified below to do the same:
52
Section 10.1 Indebtedness. None of the Consolidated Group will
incur or permit to exist or remain outstanding any Indebtedness to any Person,
provided, however, that the Consolidated Group may incur or permit to exist or
remain outstanding:
(a) Indebtedness of Borrower arising under this Agreement or
the other Loan Documents;
(b) The Senior Subordinated Notes, subject to the requirements
of Section 10.8;
(c) Any Senior Notes which may be issued by the Borrower,
subject to the requirements of Section 10.9;
(d) The Construction Loans, subject to the requirements
of Section 9.7;
(e) Indebtedness in the respect of taxes, assessments,
governmental charges, and claims for labor, materials or supplies, to the extent
that payment thereof is not yet due or is being contested in good faith by
appropriate proceedings, and an adequate reserve has been established therefor
and is maintained in accordance with generally accepted accounting principles;
(f) CDD Obligations in an aggregate amount not to exceed
$150,000,000.00 at any time;
(g) Indebtedness of Borrower incurred through the leasing of
equipment (capitalized leases) in an aggregate amount not to exceed
$12,000,000.00 at any time;
(h) Sale and leasebacks of Units in an amount not to exceed
$5,000,000.00 at any time;
(i) Indebtedness for normal operating expenses for any member
of the Consolidated Group when such member has executed a promissory note in
favor of another member of the Consolidated Group or an appropriate entry has
been recorded in the financial statements of the Consolidated Group (provided
that such intercompany Indebtedness shall be subordinate in repayment to the
Obligations);
(j) The execution of guaranties for the issuance of
performance and payment and other credit enhancement bonds, without double
counting for liabilities shown on the books of Borrower, and other than issued
with respect to CDD Obligations and the improvements constructed with respect
thereto, in an aggregate amount not to exceed $90,000,000.00 at any time;
(k) Condominium assurance bonds on behalf of a member of the
Consolidated Group for completion of Construction Projects;
(l) Indebtedness secured by a Permitted Lien (without double
counting);
(m) Accounts payable, accruals, Customer Deposit Liabilities,
reserves and operating leases incurred in the ordinary course of business;
53
(n) Non-recourse purchase money loans;
(o) Unsecured Indebtedness of a character not otherwise
specified in this Section 10.1 without duplication, in an aggregate amount not
to exceed $20,000,000.00 at any time;
(p) Recourse purchase money loans in an aggregate amount not
to exceed $30,000,000.00 at any time;
(q) Indebtedness of Financial Resources Group, Inc., a
Subsidiary of Borrower, not to exceed $50,000,000.00 at any time;
(r) Guaranties issued in favor of and required by applicable
Governmental Authorities or utility companies associated with infrastructure
improvements; and
(s) Guaranties by members of the Consolidated Group with
respect to (i) any of the Indebtedness permitted in this Section 10.1, excluding
Section 10.1(n), and (ii) the Indebtedness of Joint Ventures the investment in
which is permitted by Section 10.3(i) below.
Section 10.2 Security Interests and Liens. None of the
Consolidated Group will create or permit to exist any mortgage, pledge, security
interest, or other lien or encumbrance on any of its property except for the
following by a member of the Consolidated Group where designated ("Permitted
Liens"):
(a) liens and other encumbrances arising from attachments or
similar proceedings, pending litigation, judgments or taxes or assessments or
government charges in any such event whose validity or amount is being contested
in good faith by appropriate proceedings and for which adequate reserves have
been established and are maintained in accordance with generally accepted
accounting principles, or taxes and assessments which are not due and
delinquent;
(b) liens of carriers, warehousemen, mechanics and materialmen
and other like liens and liens imposed by law, created in the ordinary course of
business, for amounts not yet due or which are being contested in good faith by
appropriate proceedings and as to which adequate reserves or other appropriate
provisions are being maintained in accordance with generally accepted accounting
principles;
(c) pledges or deposits made in connection with workmen's
compensation, employee benefit plans, unemployment or other insurance, old age
pensions, or other Social Security benefits;
(d) the Permitted Mortgages;
(e) equipment leases or other operating leases in the ordinary
course of business;
(f) educational impact liens required by applicable
governmental authorities;
(g) liens with respect to approved CDD Obligations;
54
(h) easements and restrictions of record as of the Closing
Date;
(i) restrictions and easements in connection with an
acquisition permitted under Section 10.5 as to a member of the Consolidated
Group;
(j) liens and security interests in favor of Lead Agent and
the Lenders under or pursuant to this Agreement; and
(k) liens with respect to the Indebtedness allowed
under Section 10.1 (d), (n) and (p).
Section 10.3 Investments. None of the Consolidated Group will
make or permit to exist to remain outstanding any Investment except Investments
by a member of the Consolidated Group where designated in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase;
(b) marketable direct obligations of any of the following:
Federal Home Loan Mortgage Corporation, Student Loan Marketing Association,
Federal Home Loan Banks, Federal National Mortgage Association, Government
National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United States,
Federal Land Banks, or any other agency or instrumentality of the United States
of America;
(c) demand deposits, certificates of deposit, bankers
acceptances and time deposits of banks organized under the laws of the United
States of America or any state thereof having total assets in excess of
$100,000,000.00;
(d) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less that "P-1" if rated by ▇▇▇▇▇'▇ Investors
Services, Inc., and not less than "A-1" if rated by Standard and Poor's
Corporation;
(e) mortgage-backed securities guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by ▇▇▇▇▇'▇ Investors Service, inc. or by Standard
& Poor's Corporation at not less than "AA" if then rated by ▇▇▇▇▇'▇ Investors
Service, Inc. and not less than "AA" if then rated by Standard & Poor's
Corporation;
(f) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing Section 10.3
(a), (b) or (e) with banks described in the foregoing Section 10.3(c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with
the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally
55
in investments described in the foregoing Section 10.3(a) through (f) and have
total assets in excess of $50,000,000;
(h) acquisition of property permitted under Section 10.4
and Section 10.5;
(i) capital contributions and the amount of any future
required capital contributions to existing or new Joint Ventures, the aggregate
amount of which, when added to the aggregate amount of any guaranties of the
Indebtedness of such Joint Ventures permitted by Section 10.1(s) above, shall
not exceed twenty percent (20%) of Adjusted Tangible Net Worth at any time; and
(j) Investments of a character not otherwise specified in this
Section 10.3, the value of which shall not exceed $5,000,000.00 in the aggregate
at any time.
Section 10.4 Merger and Consolidation.
(a) Without the prior written approval of the Majority
Lenders, none of the Consolidated Group will at any time merge or consolidate
with or into any Person, except for the following: (i) Subsidiaries of Borrower
may merge into Borrower or another Subsidiary of Borrower; and (ii) a merger,
consolidation or stock or asset acquisition in the ordinary course of Borrower's
Core Businesses, provided that the aggregate Total Enterprise Value of any such
transactions during any eighteen (18) month period shall not exceed twenty-five
percent (25%) of the Adjusted Tangible Net Worth calculated at the time of each
such transaction plus 100% of the aggregate proceeds of Equity Offerings (net of
equity substituted from proceeds of new equity) from and after the Closing Date;
provided, further, that such twenty-five percent (25%) limitation may be
increased up to an additional ten percent (10%) as provided in Section 10.10(c)
below. Borrower shall provide thirty (30) days prior notice to Lead Agent of any
proposed permitted merger hereunder and shall cause the Consolidated Group to
execute such documents as Lead Agent may request in order to continue the
effectiveness of this Agreement and the other Loan Documents.
(b) No member of the Consolidated Group shall create a
Subsidiary other than a Subsidiary to conduct its Core Businesses. Any new
Subsidiary shall automatically become a member of the Consolidated Group, and
Borrower shall cause such new Subsidiary to execute and deliver to Lead Agent a
Guaranty pursuant to Section 5.2. Such Subsidiary shall also be included as a
Property Owner as appropriate and shall enter into such other documents or
instruments as Lead Agent may request in order to cause such Subsidiary to
comply with the provisions of this Agreement, including the provisions of
Section 5.2. The Subsidiaries formed for homeowners' associations may be owned
in part by the homeowners in the applicable community and with respect to
Amenities, in part by the owners of memberships in Equity Clubs.
56
Section 10.5 Acquisitions.
(a) Developable Land. The Borrowers shall be permitted to
acquire additional Developable Land, provided that the following conditions are
continuously complied with:
(i) the Consolidated Group is then and will
immediately after such acquisition be in compliance with all covenants contained
in this Agreement;
(ii) the Property meets the requirements to
constitute Developable Land;
(iii) no Default or Event of Default exists or would
occur upon such acquisition; and
(iv) the aggregate net book value (including
capitalized interest and overhead) of all Properties (excluding Amenities and
Units) not subject to a purchase contract, less the balance of applicable CDD
Obligations, is less than one hundred fifty percent (150%) of Adjusted Tangible
Net Worth.
(b) Unentitled Land. The Borrower shall be permitted to
acquire additional Unentitled Land, provided that the conditions in
Section 10.5(a)(i) and (iii) are continuously complied with and the aggregate
book value (including all acquisition costs) of all Unentitled Land after giving
effect to such acquisition does not exceed fifteen percent (15%) of Adjusted
Tangible Net Worth.
Section 10.6 Transactions with Affiliates. No member of the
Consolidated Group shall pay or enter into any agreement to pay any fees, wages,
salary, bonus, commission, contributions to benefit plans or any other
compensation for goods or services or otherwise enter into any other agreement
or arrangement with its Affiliates or to or for the benefit of any Person who is
a director or officer of the Consolidated Group or any of its Affiliates or who
has, or any of whose Affiliates has, a beneficial interest in the capital stock
or partnership interests of any of the Consolidated Group or any of its
Affiliates, except in the ordinary course of and pursuant to the reasonable
requirements of such member's business and upon terms and conditions materially
no more favorable than those such member would be willing to enter into with an
unaffiliated third party; provided, however, that the following transactions
shall not be prohibited by this Section 10.6: (i) any transaction having a value
of $500,000 or less; and (ii) transactions otherwise permitted by this
Agreement; and (iii) Borrower's Employee Homesite Purchase Policy. At the
request of Lead Agent, Borrower shall provide computations and evidence of
compliance with this Section 10.6.
Section 10.7 ERISA Compliance. Except for the Welfare Plans in
effect on the Effective Date which are set forth on Schedule 10.7, none of the
Consolidated Group will, without giving prior notice to Lead Agent, establish,
assume, maintain or contribute to any employee benefit plan (as that term is
defined in Section 3(3) of ERISA). None of the Consolidated Group will permit
any Pension Plan or Welfare Plan to (i) engage in a "prohibited transaction" as
such term is defined in Section 4975 of the Code which would result in a
liability for it; (ii) incur any "accumulated funding deficiency", as such term
is defined in Section 302 of ERISA, whether or not
57
waived; or (iii) be terminated in a manner which would result in the imposition
of a lien or encumbrance on its assets pursuant to Section 4068 of ERISA.
Section 10.8 Senior Subordinated Notes.
(a) Borrower shall not issue additional Senior Subordinated
Notes after the Closing Date unless the following conditions are satisfied in
connection with each such issuance:
(i) no Default or Event of Default shall have
occurred and be continuing;
(ii) the maturity date of any issuance of Senior
Subordinated Notes must extend at least one hundred seventy-nine (179) days
beyond the Maturity Date of this Agreement;
(iii) the provisions pursuant to which such Senior
Subordinated Notes are subordinate to the Obligations shall be acceptable to
Lead Agent in the exercise of its sole discretion, and shall include, without
limitation, standstill and payment blockage requirements on the holders of such
Senior Subordinated Notes for a period of at least one hundred seventy-nine
(179) days following a Default or Event of Default hereunder, as more
particularly described in the indentures with respect to the Senior Subordinated
Notes outstanding on the Closing Date;
(iv) the covenants contained in any indenture or
other agreement relating to such Senior Subordinated Notes must be less
restrictive than the covenants contained in this Agreement;
(v) such Senior Subordinated Notes must be unsecured;
(vi) at least seventy-five (75%) of the net proceeds
from such Senior Subordinated Notes must be applied to reduce the Outstanding
Loans, if any, unless otherwise approved in writing by the Majority Lenders or
unless the purpose of such issuance of Senior Subordinated Notes is to repay
existing Senior Subordinated Notes; and
(vii) the outstanding principal amount of any such
Senior Subordinated Notes having a maturity date of less than one year from the
date of the determination must be covered by the Borrowing Base as indicated in
the definition of "Borrowing Base Availability" in Section 1.1 above.
(b) Without the prior written consent of the Majority Lenders,
Borrower shall not:
(i) repay, prepay, purchase, redeem or otherwise
acquire any Senior Subordinated Notes, provided, however, nothing contained in
this Section 10.8 shall prevent any member of the Consolidated Group from making
regularly scheduled payments of principal and interest on any Senior
Subordinated Notes provided for or permitted in any indenture with respect to
such Senior Subordinated Notes if no Event of Default exists and the payment
would not cause an Event of Default to occur; or
58
(ii) permit the modification, waiver or amendment of
any of the terms of any Senior Subordinated Notes, except for modifications,
waivers or amendments that do not (x) increase the interest rate, fees or other
charges provided for therein or change the maturity date or any other scheduled
date for repayment of principal of such Senior Subordinated Notes, (y) change
the subordination provisions of such Senior Subordinated Notes or (z) impose
upon any member of the Consolidated Group any obligation or limitation that, in
the reasonable judgment of the Lead Agent, is, in any material respect, more
burdensome or restrictive than those currently provided for in this Agreement;
or
(iii) permit (whether or not within the control of a
member of the Consolidated Group) the modification, waiver, or amendment of, or
release of any parties to, any subordination agreement or subordination
provisions contained in any indenture with respect to any Senior Subordinated
Notes.
Section 10.9 Senior Notes.
(a) Borrower shall not issue any Senior Notes unless the
following covenants are satisfied in connection with each such issuance:
(i) no Default or Event of Default shall have
occurred and be continuing;
(ii) the payment of the Senior Notes shall rank pari
passu with payment of the Loans, the Fees and the other Obligations;
(iii) the covenants contained in any indenture or
other agreement relating to the Senior Notes must not be more restrictive than
the covenants contained in this Agreement;
(iv) at least seventy-five percent (75%) of the net
proceeds therefrom must be applied to reduce the Outstanding Loans, if any,
unless otherwise approved in writing by the Majority Lenders or unless the
purpose of such issuance of Senior Notes is to repay existing Senior Notes;
(v) the outstanding principal amount of the Senior
Notes must be covered by the Borrowing Base at all times as indicated in the
definition of "Borrowing Base Availability" in Section 1.1 above;
(vi) the Senior Notes must be unsecured; and
(vii) the covenants and other provisions relating to
the Senior Notes shall otherwise be subject to approval by the Lead Agent in the
exercise of its reasonable discretion.
(b) After the issuance of any Senior Notes, Borrower shall not
without the prior written consent of the Majority Lenders:
59
(i) repay, prepay, purchase, redeem or otherwise
acquire any Senior Notes, provided, however, nothing contained in this
Section 10.9 shall prevent any member of the Consolidated Group from making
regularly scheduled payments of principal and interest on any Senior Notes
provided for or permitted in any indenture with respect to such Senior Notes if
no Event of Default exists and the payment would not cause an Event of Default
to occur; or
(ii) permit the modification, waiver or amendment of
any of the terms of any Senior Notes, except for modifications, waivers or
amendments that do not (x) increase the interest rate, fees or other charges
provided for therein or change the maturity date or any other scheduled date for
repayment of principal of such Senior Notes, (y) change the priority of payment
of such Senior Notes relative to the Loans, Fees and other Obligations or (z)
impose upon any member of the Consolidated Group any obligation or limitation
that, in the reasonable judgment of the Lead Agent, is, in any material respect,
more burdensome or restrictive than those currently provided for in this
Agreement.
Section 10.10 Permitted Distributions.
(a) No member of the Consolidated Group shall make any
Distributions if a Default or Event of Default exists at the time of the making
or would exist as a result of the making of such Distribution.
(b) If no Default or Event of Defaults exists or would exist
as a result thereof, Borrower may make Distributions in an amount not to exceed
fifty percent (50%) of the sum of (i) the Net Income of all members of the
Consolidated Group on a consolidated basis from December 31, 2001, minus (ii)
the amount of any Distributions previously made under this Section 10.10(b)
since the Closing Date and amounts utilized under Section 10.4 as provided in
Section 10.10(c). In the event that the Financial Statements for any Fiscal Year
disclose that Borrower did not qualify for any Distribution that has been
previously made, then the amount of subsequent Distributions under this Section
10.10(b) shall be decreased accordingly.
(c) In lieu of making Distributions permitted under Section
10.10(b) above, Borrower may elect, at its sole discretion, to instead increase
the percentage limitation on the Total Enterprise Value of any mergers,
consolidations or stock or asset acquisitions under Section 10.4 during any
eighteen (18) month period up to an additional ten percent (10%) of Adjusted
Tangible Net Worth, provided that for the purpose of computations under Section
10.4 only, Adjusted Tangible Net Worth shall be reduced by the amount of such
Investment forgone as a Distribution.
Section 10.11 Borrowing Base. Each member of the Consolidated
Group represents, warrants and covenants as follows:
(a) The Property Owners are the owners of all Developable Land
or Amenities the value of which is to be included in the Borrowing Base and
shall neither create nor suffer to exist any lien or encumbrance thereon or
security interest therein (other than Permitted Liens).
(b) One of the Property Owners is the owner of each Developed
Lot, Developed Parcel and Unit, the value of which is to be included in the
Borrowing Base and shall
60
neither create nor suffer to exist any lien or encumbrance thereon or security
interest therein (other than Permitted Liens), nor sell, assign, transfer or
create or suffer to exist any lien or encumbrance on or security interest (other
than Permitted Liens) in any Housing Purchase Contract or other right
constituting proceeds thereof to or in favor of any other Person.
(c) For the purpose of computing the Borrowing Base, Borrower
shall furnish to Lead Agent information with such specificity as Lead Agent
shall from time to time require in the form of Exhibit D (the "Borrowing Base
Report"), or in such other form and substance and at such times, in each case,
as may be reasonably requested by Lead Agent, including a certificate signed by
an authorized officer of Borrower showing a calculation of the Borrowing Base
(attaching all documentation used in such calculations). If the sum of the
Outstanding Loans are greater than or equal to sixty percent (60%) of the Total
Commitment, such information shall be provided to Lead Agent monthly within
thirty (30) days of the last day of the immediately preceding month; and if the
Outstanding Loans are less than sixty (60%) of the Total Commitment, such
information shall be provided to Lead Agent quarterly within thirty (30) days of
the immediately preceding quarter end.
Section 10.12 More Restrictive Agreements. Without limiting
the terms of Section 10.1 or Section 10.8, should Borrower or the Consolidated
Group as a whole enter into or modify any agreements or documents pertaining to
any existing or future Indebtedness or Equity Offering, which agreements or
documents include covenants (whether affirmative or negative) which are
individually or in the aggregate materially more restrictive against Borrower or
the Consolidated Group as a whole than those set forth in Section 9, 10, or
Section 11, the Borrower shall promptly notify the Lead Agent and, if requested
by the Majority Lenders, the Borrower and the Lead Agent shall promptly amend
this Agreement and the other Loan Documents, as applicable, to include some or
all of such more restrictive provisions as determined by the Majority Lenders in
their sole discretion.
Section 10.13 No Other Negative Pledge. Borrower will not
covenant or otherwise agree with any Person (other than the Lenders and Lead
Agent pursuant to this Agreement), whether in connection with obtaining or
modifying credit accommodations from such Person, or incurring other
Indebtedness, or otherwise, to keep its unencumbered assets free of any or all
liens, and Borrower will not permit any other member of the Consolidated Group
to so covenant.
Section 11 FINANCIAL COVENANTS.
Borrower covenants and agrees that, so long as any portion of the Loans
or any Letter of Credit is outstanding or the Lenders, the Swing Line Bank or
the Issuing Banks have any obligation to make Advances or Swing Line Loans or
issue Letters of Credit hereunder, respectively, Borrower will comply with all
of the following:
Section 11.1 Maximum Revolver Amount. Borrower will not at any
time cause or permit the sum of (i) the Outstanding Loans plus (ii) the Letters
of Credit Exposure plus (iii) the Unfunded Completion Costs to exceed the
Maximum Revolver Amount.
61
Section 11.2 Minimum Adjusted Tangible Net Worth. Borrower
will not permit Adjusted Tangible Net Worth determined as of the end of any
Fiscal Quarter to be less than the sum of the following:
(a) $575,000,000.00; plus
(b) an amount equal to fifty percent (50%) of the positive Net
Income earned after July 1, 2002; plus
(c) an amount equal to seventy-five percent (75%) of the
aggregate proceeds of Equity Offerings (net of equity substituted from proceeds
of new equity) after the Effective Date.
Section 11.3 Total Debt to Adjusted Tangible Net Worth.
Borrower will not permit the ratio of Total Debt to Adjusted Tangible Net Worth
determined as of the end of any Fiscal Quarter to be greater than 2.25 to 1.
Section 11.4 EBITDA to Fixed Charges. Borrower will not permit
the ratio of EBITDA to Fixed Charges to be less than 2 to 1. Compliance with
this covenant shall be calculated on a rolling four (4) quarter basis and shall
be tested as of the last day of each Fiscal Quarter.
Section 11.5 Expenditures to Revenue. Borrower will not permit
the ratio of (a) the sum of (i) the cost of Properties purchased, plus (ii)
development expenditures for Properties and Amenities (excluding expenditures by
the Consolidated Group for either Units or for Construction Projects and
expenditures funded by CDD Obligations), to (b) the sum of (i) revenue from the
sale of Properties (excluding Units and Qualified Condominium Units), plus (ii)
sales revenue from the Amenities and memberships in the Clubs, including
Customer Deposit Liabilities, determined on a cash basis (exclusive of the costs
of Amenities operations for such period), plus (iii) twenty-five percent (25%)
of the sales revenue from Units and Qualified Condominium Units during the
period of reference, to equal or exceed 1.20 to 1. Compliance with this covenant
shall be calculated on a rolling four (4) quarter basis and shall be tested as
of the last day of each Fiscal Quarter. For purposes of this Section 11.5, sales
revenue shall be as reported on the audited financial statements of Borrower as
prepared in accordance with the provisions of Section 9.4. Capitalized interest
and corporate general administration expenses shall be excluded for purposes of
calculation of expenditures in this Section 11.5. Notwithstanding the foregoing,
compliance with the covenant contained in this Section 11.5 shall only be
required if calculation of the covenant in Section 11.3 above results in a
leverage ratio in excess of 1.85 to 1.
Section 11.6 Unsold Units in Production. Borrower will not
permit the number of Unsold Units as of the end of any Fiscal Quarter to exceed
thirty-five percent (35%) of the aggregate number of Unit sales for the
immediately preceding four (4) Fiscal Quarters.
Section 12 EVENTS OF DEFAULT; ACCELERATION; REMEDIES.
Section 12.1 Events of Default; Acceleration. If any of the
following events (an "Event of Default") shall occur and be continuing:
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(a) if Borrower or any other member of the Consolidated Group
executing and delivering a Guaranty pursuant to Section 5.2 shall fail to pay
any principal of or interest on the Loans, any Fees or any other amounts due and
payable hereunder when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any other date
fixed for payment, which payment default, except for payments due at maturity,
is not cured within three (3) days of the date due;
(b) if any member of the Consolidated Group shall fail to
comply with any of the covenants contained in Section 9.6, Section 9.12, Section
9.14 and Section 10.13;
(c) if any member of the Consolidated Group shall fail to
comply with any of the covenants contained in Section 9.4, Section 9.10, Section
9.11, Section 9.17, Section 9.18, Section 9.19, Section 10.1, Section 10.3,
Section 10.4, Section 10.5, Section 10.6, Section 10.7, Section 10.8, Section
10.9, Section 10.10, Section 10.11(c), Section 10.12, and Section 11.1 and such
failure shall continue for ten (10) days after written notice of such failure
has been given to Borrower by Lead Agent;
(d) if any member of the Consolidated Group shall fail to
comply with any of its covenants contained in Section 9.2, Section 9.3, Section
9.5, Section 9.7, Section 9.8, Section 9.9, Section 9.13, Section 9.15, Section
9.16, Section 9.20, Section 10.11 (other than (c)), Section 11.2, Section 11.3,
Section 11.4 and Section 11.6 and such failure shall continue for thirty (30)
days after written notice of such failure has been given to Borrower by Lead
Agent;
(e) if any member of the Consolidated Group shall fail to
comply with any of its covenants contained in Section 10.2 by (i) the filing of
an involuntary lien or interest and such failure shall continue for forty-five
(45) days after written notice of such failure has been given to Borrower by
Lead Agent, or (ii) the filing of a voluntary lien or interest (which shall not
have a cure period);
(f) if any member of the Consolidated Group shall fail to
perform any term, covenant or agreement contained herein (other than those
specified in subsections (a) through (e) above or (q) below) and such failure
shall continue for thirty (30) days after written notice of such failure has
been given to Borrower by Lead Agent;
(g) if any representation or warranty of any member of the
Consolidated Group in any Loan Document or in any document or instrument
delivered pursuant to or in connection with this Agreement shall prove to have
been false in any material respect upon the date when made or deemed made;
(h) if any member of the Consolidated Group shall fail to make
payment or otherwise shall fail to observe or perform when due or within any
applicable period of grace any term, covenant or agreement contained in any
agreement by which any member of the Consolidated Group is bound, evidencing or
securing borrowed money or other Indebtedness in a principal amount greater than
$5,000,000.00 or any event or condition shall occur in respect of such
Indebtedness, as would permit the holder or holders thereof or of any such
Indebtedness to accelerate the maturity thereof or cause any of such
Indebtedness to be repurchased, prepaid, defeased or redeemed or an offer to
repurchase, prepay, defense or redeem such Indebtedness to be made; provided,
that any non-recourse purchase money loans and any non-recourse loans to Joint
Ventures shall be excluded from coverage by this Section 12.1(h);
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(i) if any one or more of the following shall occur as to any
member of the Consolidated Group:
(i) the commencement by such member of a voluntary
case under Title 11 of the United States Code as from time to time in effect
(the "Bankruptcy Code"), or by its authorizing, by appropriate proceedings of
its board of directors, managing partner or other governing body, the
commencement of such a voluntary case;
(ii) the filing by such member of an answer or other
pleading admitting or failing to deny the material allegations of a petition
filed against it commencing an involuntary case under the Bankruptcy Code, or
seeking, consenting to or acquiescing in the relief therein provided, or by its
failing to controvert timely the material allegations of any such petition;
(iii) the entry of an order for relief against such
member in any involuntary case commenced under the Bankruptcy Code;
(iv) the seeking of relief by such member as a debtor
under any applicable law, other than the Bankruptcy Code, of any jurisdiction
relating to the liquidation or reorganization of debtors or to the modification
or alteration of the rights of creditors, or by its consenting to or acquiescing
in such relief;
(v) the entry of an order by a court of competent
jurisdiction (A) finding such member to be bankrupt or insolvent or (B) ordering
or approving its liquidation, reorganization or any modification or alteration
of the rights of its creditors which remains undischarged and unstayed for more
than thirty (30) days;
(vi) the entry of an order by a court of competent
jurisdiction assuming custody for, or appointing a receiver or other custodian
for, all or a substantial part of such member's property which remains
undischarged and unstayed for more than thirty (30) days; or
(vii) the making by such member of an assignment for
the benefit of its creditors, or appointing or consenting to the appointment of
a receiver or other custodian for all or a substantial part of its property;
(j) if there shall remain in force, undischarged, unsatisfied,
unstayed and unbonded, for more than thirty (30) days, whether or not
consecutive, any final judgment against any member of the Consolidated Group
which, with other outstanding final judgments, undischarged, unsatisfied,
unstayed and unbonded for more than thirty (30) days against such Person(s)
exceeds $2,500,000.00;
(k) if any member of the Consolidated Group shall default in
the performance of any term, covenant or agreement contained in any Loan
Document and such default shall continue beyond the applicable cure period
therefor;
(l) if any Loan Document shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or the
express prior written agreement,
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consent or approval of all of the Lenders; or any action at law, suit in equity
or other legal proceeding to cancel, revoke or rescind any Loan Document shall
be commenced by or on behalf of any member of the Consolidated Group who is a
party thereto; or any court or any other Governmental Authority of competent
jurisdiction shall make a determination that, or shall issue a judgment, order,
decree or ruling to the effect that any one or more of the Loan Documents or any
one or more of the material obligations of any member of the Consolidated Group
under any one or more of the Loan Documents are illegal, invalid or
unenforceable in accordance with the terms thereof and no further appeal may be
made regarding such judgment, order, decree or ruling;
(m) if an event of default shall have been declared by any
Construction Lender and be continuing under such Construction Lender's
Construction Loan Agreement beyond any applicable cure period;
(n) if Borrower or any Property Owner shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any of its
assets;
(o) the occurrence of a Change of Control;
(p) if a default or event of default occurs and is continuing
under any of the Senior Subordinated Notes or the Senior Notes; or
(q) if Borrower fails to comply with the covenant contained in
Section 11.5 and such failure shall continue for a period of one hundred eighty
(180) days after written notice of such failure has been given to Borrower by
Lead Agent; provided, that Borrower and any other member of the Consolidated
Group shall be prohibited from making any additional acquisitions of Properties
during such cure period;
then, Lead Agent may, and upon the request of the Majority Lenders, shall by
notice to Borrower terminate the Commitments under this Agreement, and upon such
termination the Lenders shall have no further obligation to make Advances to
Borrower, and may, and upon the request of the Majority Lenders, shall declare
all amounts owing with respect to this Agreement, including, without limitation,
the Loans and the Letters of Credit Exposure, to be, and they shall thereupon
forthwith mature and become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the parties hereto; provided, that upon the occurrence of any Event of
Default specified in Section 12.1(i), Lenders' Commitments hereunder shall
immediately terminate and all such amounts shall become immediately due and
payable automatically and without any requirement of notice from Lead Agent.
The cure periods contained herein are subject to the following
terms and conditions:
(i) Lead Agent shall have the right to take all
actions it deems appropriate or necessary, notwithstanding the pendency of the
cure period, if Lead Agent determines that an emergency condition creating
imminent danger to life or property exists which is not being expeditiously
acted upon by Borrower or other applicable member of the Consolidated Group;
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(ii) The applicable cure period is conditioned upon
Borrower ceasing and desisting, to the extent possible, from the action creating
the Default, and Borrower consistently taking all actions necessary to cure the
Default; and
(iii) No portion of the Properties which is the
subject of a Default or an Event of Default shall be included in the Borrowing
Base during the pendency of such Default or Event of Default.
(iv) Without further action by the parties hereto,
any cure periods contained in the foregoing subsections of this Section 12.1
shall be automatically reduced to the shorter of the applicable cure periods
contained in the documents relating to the Senior Notes and the Senior
Subordinated Notes, and shall not extend beyond same.
Section 12.2 Remedies and Default Rate. No remedy herein
conferred upon any Lender or Lead Agent is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. Upon the occurrence of an
Event of Default, the Obligations shall bear interest at the Default Rate.
Section 12.3 Proceeds. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, Lead
Agent or any Lender, as the case may be, receives any monies in connection with
the enforcement of any of the Loan Documents, such monies shall be distributed
for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Lead Agent and the Lenders for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by Lead Agent and the Lenders in connection with the
collection of such monies by Lead Agent and the Lenders, for the exercise,
protection or enforcement by Lead Agent and the Lenders of all or any of the
rights, remedies, powers and privileges of Lead Agent and the Lenders under this
Agreement or any of the other Loan Documents or in support of any provision of
adequate indemnity to Lead Agent and the Lenders against any taxes or liens
which by law shall have, or may have, priority over the rights of Lead Agent and
the Lenders to such monies, provided however, that any distribution to Lead
Agent and the Lenders under this Section 12.3(a) shall be first made to Lead
Agent for costs incurred by Lead Agent on behalf of Lenders, then pro rata to
each Lender based on its respective Commitment Percentage;
(b) Second, to all other Obligations in such order or
preference as Lead Agent and the Majority Lenders may determine; provided,
however, that distributions in respect of such Obligations shall be made (i)
first to repayment of Swing Line Loans; (ii) pari passu among Obligations with
respect to Lead Agent's fee payable pursuant to Section 3.3 and all other
Obligations; (iii) pari passu among Obligations with respect to the Loans and
Letters of Credit, except that in the event that any Lender shall have
wrongfully failed or refused to make an Advance under Section 2.7 and such
failure or refusal shall be continuing, Advances made by other Lenders during
the pendency of such failure or refusal shall be entitled to be repaid as to
principal and accrued interest in priority to the other Obligations described in
this Section 12.3(b); and (iv) Obligations owing to Lenders with respect to each
type of Obligation such as interest, principal, fees and expenses,
66
shall be made among Lenders pro rata; and provided, further that Lead Agent may
in its discretion make proper allowance to take into account any Obligations not
then due and payable; and
(c) Third, the excess, if any, shall be returned to Borrower
or to such other Persons as are entitled thereto.
Section 13 SETOFF.
Any deposits or other sums credited by or due from any of
Lenders to any member of the Consolidated Group and any securities or other
property of any member of the Consolidated Group in the possession of such
Lender in the accounts described in Section 5.3 above may, upon the consent of
Lead Agent and the Majority Lenders, be applied to or setoff against the payment
of Obligations of the Consolidated Group hereunder and under the other Loan
Documents and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of the
Consolidated Group to such Lender at any time after the occurrence and during
the continuance of any Event of Default. Each of Lenders agrees with each other
Lender that (a) if an amount to be setoff is to be applied to Indebtedness of
Borrower or any other member of the Consolidated Group to such Lender, other
than Indebtedness evidenced by the Notes held by such Lender, such amount shall
be applied ratably to such other Indebtedness and to the Indebtedness evidenced
by all such Notes held by such Lender, and (b) if such Lender shall receive from
Borrower or any other member of the Consolidated Group, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross-action,
enforcement of the claim evidenced by the Notes held by such Lender by
proceedings against Borrower or any other member of the Consolidated Group at
law or in equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings or otherwise, and shall retain and apply to
the payment of the Note or Notes held by such Lender any amount in excess of its
ratable portion of the payments received by all of Lenders with respect to the
Notes held by all of Lenders, such Lender will make such disposition and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, pro tanto assignment of claims, subrogation, or otherwise as
shall result in each Lender receiving in respect of the Notes held by it its
proportionate payment as contemplated by this Agreement; provided that if all or
any part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
Section 14 EXPENSES. Borrower agrees to pay (a) the reasonable costs
of producing and reproducing this Agreement, the other Loan Documents and the
agreements and instruments mentioned herein and delivered pursuant to this
Agreement, (b) any taxes (including any interest and penalties in respect
thereto) payable by Lead Agent or any of Lenders (other than taxes based upon
Lead Agent's or any Lender's net income) on or with respect to the transactions
contemplated by this Agreement, (c) the reasonable fees, expenses and
disbursements of Lead Agent and Lead Agent's legal counsel incurred in
connection with the preparation or interpretation of the Loan Documents and
other instruments mentioned herein, and amendments, modifications, approvals,
consents or waivers hereto or hereunder, and the administration of the Loans,
which shall include but shall not be limited to all syndication costs and the
costs to organize, plan, hold and attend periodic meetings of Lenders, (d) all
reasonable
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expenses (including reasonable attorneys' fees and costs, which attorneys may be
employees of any Lender or Lead Agent) incurred by any Lender, or Affiliates of
Lender, or Lead Agent in connection with (i) the enforcement of or preservation
of rights under any of the Loans Documents against Borrower or any other member
of the Consolidated Group, or the administration thereof after the occurrence of
a Default or Event of Default, and (ii) any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related to Lead Agent's or
any Lender's relationship with any member of the Consolidated Group, and (e) all
reasonable fees, expenses and disbursements of any Lender or Lead Agent incurred
in connection with UCC searches and intangible property searches. Borrower shall
not be charged any fees or costs, other than Lead Agent's Fee, and other fees
described herein for the normal day to day administration of the Loans by Lead
Agent (which shall include only services performed by Lead Agent's in-house
employees), including the exchange of information between Lead Agent and
Lenders.
Section 15 INDEMNIFICATION. Except for liability arising
exclusively from the gross negligence or willful misconduct of Lead Agent, the
Swing Line Bank, any Issuing Bank or any Lender, Borrower and the other members
of the Consolidated Group agree to indemnify and hold harmless Lead Agent, the
Swing Line Bank, the Issuing Bank and the Lenders, and all Affiliates thereof,
and their respective officers, directors, employees, agents and advisors from
and against any and all claims, actions and suits whether groundless or
otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Agreement or any of
the other Loan Documents or the transactions contemplated hereby including,
without limitation, (a) any actual or proposed use by Borrower or any other
member of the Consolidated Group of a Letter of Credit or the proceeds of the
Loans, (b) any actual or alleged infringement of any patent, copyright,
trademark, service ▇▇▇▇ or similar right of Borrower or any other member of the
Consolidated Group, (c) Borrower or any other member of the Consolidated Group
entering into or performing this Agreement or any of the other Loan Documents,
or (d) with respect to Borrower or any other member of the Consolidated Group
and their respective properties and assets, the violation of any Environmental
Laws, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, Lenders and Lead Agent shall be entitled to select their own counsel
and, in addition to the foregoing indemnity, Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of Borrower under this Section 15 are unenforceable for any reason,
Borrower hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law.
There shall be specifically excluded from the foregoing indemnification any
claims, actions, suits, liabilities, losses, damages and expenses arising from
disputes among Lenders with respect to the Loans or the Loan Documents. In the
event that any such claims, actions, suits, liabilities, losses, damages and
expenses involve both a dispute among Lenders and other matters covered by this
indemnification provision, Lead Agent shall make a reasonable good faith
allocation of all losses, damages and expenses incurred between Lenders' dispute
and the other matters covered by this indemnification provision, which
allocation by Lead Agent
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shall be final and binding upon the parties hereto. These indemnity obligations
shall survive repayment of the Loans and other Obligations.
Section 16 SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in any of the Loan Documents or in
any documents or other instruments delivered by or on behalf of Borrower or the
other members of the Consolidated Group pursuant hereto and thereto shall be
deemed to have been relied upon by Lenders and Lead Agent, notwithstanding any
investigation made by any of them, and shall survive the making by Lenders of
any of the Advances, and shall continue in full force and effect so long as any
amount due under this Agreement remains outstanding and unpaid or any Lender has
any obligation to make any Advances. The representations and warranties as to
environmental matters set forth in Section 6.21 shall not terminate and shall
survive the payment in full of the Loans.
Section 17 AGENT; LEAD ARRANGER.
Section 17.1 Authorization. Lead Agent is authorized to take
such action on behalf of each of Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to Lead Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by Lead Agent. The
relationship between Lead Agent and Lenders is and shall be that of agent and
principal only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute Lead Agent as a trustee or fiduciary
for any Lender.
Section 17.2 Employees and Agents. Lead Agent may exercise its
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement and the other Loan
Documents. Lead Agent may utilize the services of such Persons as Lead Agent in
its sole discretion may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by Borrower in accordance with and
subject to the limitations of Section 15. Lead Agent may from time to time
appoint such Persons as it desires to act on its behalf under this Agreement in
such capacities and with such powers as it may specify. Lead Agent shall
promptly notify Borrower of the appointment of any such Person and the capacity
in which they are authorized to act on behalf of Lead Agent. Lead Agent may,
upon giving written notice to Borrower, revoke the appointment of any such
Person.
Section 17.3 No Liability. Neither Lead Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that Lead Agent or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
Section 17.4 No Representations. Lead Agent shall not be
responsible for the execution or validity or enforceability of this Agreement,
the Notes, any of the other Loan Documents or
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any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of Borrower
or other members of the Consolidated Group, or be bound to ascertain or inquire
as to the performance or observance of any of the terms, conditions, covenants
or agreements herein or in any instrument at any time constituting, or intended
to constitute, collateral security for the Notes. Lead Agent shall not be bound
to ascertain whether any notice, consent, waiver or request delivered to it by
Borrower or any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. Lead Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to Lenders, with respect to the credit worthiness or financial
condition of Borrower or other members of the Consolidated Group. Each Lender
acknowledges that it has, independently and without reliance upon Lead Agent or
any other Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.
Section 17.5 Payments.
(a) A payment by Borrower to Lead Agent hereunder or any of
the other Loan Documents for the account of any Lender shall constitute, as
between the Borrower and Lender for whose benefit such payment was made, a
payment to such Lender. Lead Agent agrees promptly to distribute to each Lender
such Lender's pro rata share of payments received by Lead Agent for the account
of Lenders except as otherwise expressly provided herein or in any of the other
Loan Documents.
(b) If in the opinion of Lead Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may refrain from
making the distribution until its right to make such distribution shall have
been adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by Lead
Agent is to be repaid, each Person to whom any such distribution shall have been
made shall either repay to Lead Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Lender that fails (i) to make
available to Lead Agent its pro rata share of any Advance or (ii) to comply with
the provisions of Section 13 with respect to making dispositions and
arrangements with the other Lenders, where such Lender's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of Lenders, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Lender") and shall be deemed a Delinquent Lender until
such time as such delinquency is satisfied. A Delinquent Lender shall be deemed
to have assigned any and all payments due to it from Borrower, whether on
account of the Outstanding Loans, unpaid reimbursement Obligations, interest,
fees or otherwise, to the remaining nondelinquent Lenders for application to,
and reduction of, their respective pro rata shares of the Outstanding Loans. The
Delinquent Lender
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hereby authorizes Lead Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of the Outstanding
Loans. A Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to
the Outstanding Loans of the nondelinquent Lenders, Lenders' respective pro rata
shares of the Outstanding Loans have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment causing
such delinquency. In the event Lead Agent is a Delinquent Lender, the Lenders
may vote to remove Lead Agent upon written agreement of the Required Lenders and
may vote to appoint a successor agent upon a vote of the Majority Lenders as set
forth in Section 17.9 hereof.
Section 17.6 Holders of Notes. Lead Agent may deem and treat
the payee of any Note as the absolute owner or purchaser thereof for all
purposes hereof until it shall have been furnished in writing with a different
name by such payee or by a subsequent holder, assignee or transferee.
Section 17.7 Indemnity. Lenders ratably agree hereby to
indemnify and hold harmless Lead Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which Lead Agent has not been reimbursed by
Borrower as required by Section 15), and liabilities of every nature and
character arising out of or related to this Agreement, the Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or Lead Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by Lead Agent's willful
misconduct or gross negligence.
Section 17.8 Agent as Lender. In its individual capacity as a
Lender, Fleet shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Advances made by it, and as the
holder of any of the Notes as it would have were it not also Lead Agent.
Section 17.9 Resignation. Lead Agent may resign at any time by
giving sixty (60) days prior written notice thereof to Lenders and Borrower. In
addition, the Required Lenders may remove the Lead Agent from its capacity as
agent (i) in the event Lead Agent holds less than a $20,000,000.00 Commitment,
(ii) in the event of the Lead Agent's willful misconduct or gross negligence, or
(iii) in the event that the Lead Agent is in receivership, conservatorship or
other similar proceeding in which the day-to-day activities of the Lead Agent
are controlled or subject to approval by any applicable Governmental Authority
having jurisdiction over the Lead Agent. Upon any such resignation or upon
removal of Lead Agent as set forth in the preceding sentence or in Section 17.5
hereof, the Majority Lenders shall have the right to appoint a successor Lead
Agent. Unless an Event of Default shall have occurred and be continuing, such
successor Lead Agent shall be reasonably acceptable to Borrower. If no successor
Lead Agent shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within thirty (30) days after the retiring Lead
Agent's giving of notice of resignation, then the retiring Lead Agent may, on
behalf of Lenders, appoint a successor Lead Agent, which shall be a financial
institution whose debt obligations are rated not less than A-2 or its equivalent
by Standard & Poor's Corporation. Upon the acceptance of any appointment as Lead
Agent hereunder by a successor Lead Agent, such successor Lead Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Lead Agent, and the retiring Lead Agent
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shall be discharged from its duties and obligations hereunder. After any
retiring Lead Agent's resignation, or removal in accordance with the provisions
hereof, the provisions of this Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Lead Agent.
Section 17.10 Notification of Defaults and Events of Default.
Lead Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to Lead Agent for the
account of the Lenders, unless Lead Agent has received notice from a Lender or
the Borrower referring to the Loan Documents and describing with reasonable
specificity such Default or Event of Default and stating that such notice is a
"notice of default". Thereafter, Lead Agent shall promptly provide the Lenders
with written notice of its receipt of any such notice.
Section 17.11 Duties in the Case of Enforcement. In case one
or more Events of Default have occurred and shall be continuing, and whether or
not acceleration of the Obligations shall have occurred, Lead Agent shall, if
(a) so requested by the Majority Lenders and (b) the Lenders, or such portion
thereof as may be acceptable to Lead Agent, have provided to Lead Agent such
additional indemnities and assurances against expenses and liabilities as Lead
Agent may reasonably request, proceed to enforce the provisions of the Loan
Documents and exercise all or any such other legal and equitable and other
rights or remedies as it may have. The Majority Lenders may direct Lead Agent in
writing as to the exercise of such remedies. Lenders hereby agree to indemnify
and hold Lead Agent harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such directions. Lead Agent need not
comply with any such direction to the extent that Lead Agent reasonably believes
Lead Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
Section 17.12 Bankruptcy. In the event a bankruptcy or other
insolvency proceeding is commenced by or against Borrower or any member of the
Consolidated Group which has executed a Guaranty, Lead Agent shall have the sole
and exclusive right to file and pursue a joint proof of claim on behalf of all
Lenders. Each Lender irrevocably waives its right to file or pursue a separate
proof of claim in any such proceedings.
Section 17.13 Disclosure. Lead Agent hereby discloses to
Lenders that it is an Affiliate of FleetBoston Investments, which owns an
interest in CILP. Lenders hereby acknowledge: the foregoing disclosure and that
FleetBoston Investments, as an owner of CILP, may take actions which may
conflict with actions taken by Fleet as Lead Agent. Lenders agree that Lead
Agent is hereby authorized by Lenders to continue in the capacity as Lead Agent
and to fulfill the role of Lead Agent hereunder notwithstanding its affiliation
with FleetBoston Investments, and that Fleet, as Lead Agent, will not be liable
to Lenders for actions taken by FleetBoston Investments.
Section 17.14 Lead Arranger. Consolidated Group acknowledges
and agrees that Fleet Securities, Inc. has acted as Lead Arranger in connection
with the Loans. The relevant Lead Agent indemnification provisions contained
herein shall also protect Lead Arranger.
Section 17.15 Documentation Agent and Co-Agents. The
Documentation Agent and each Co-Agent acknowledge that Lead Agent is acting as
"Lead Agent" under this Agreement
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and that neither the Documentation Agent nor any Co-Agent shall have any duties
or responsibilities except those that may be requested from time to time by Lead
Agent and accepted in writing by the Documentation Agent or either Co-Agent.
Section 18 ASSIGNMENT.
Section 18.1 Conditions to Assignment by Lenders.
(a) Except as provided herein, each Lender may assign to one
(1) or more Eligible Assignees all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment
Percentage and Commitment and the same portion of the Loans at the time owing to
it, and the Notes held by it); provided that (i) Lead Agent shall have given its
prior written consent to such assignment, which consent shall not be
unreasonably withheld, (ii) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Lender's rights and obligations under
this Agreement, (iii) each assignment shall be in an amount that is at least
$5,000,000.00 (provided that if the Eligible Assignee is not already a Lender,
such assignment shall be in the amount of at least $10,000,000.00) and is a
whole multiple of $1,000,000.00, unless otherwise consented to by Lead Agent,
which consent shall not be unreasonably withheld, (iv) each Lender which is a
Lender on the date hereof shall retain, free of any such assignment, an amount
of its Commitment of not less than $10,000,000.00, unless it is assigning its
entire Commitment, and (e) the parties to such assignment shall execute and
deliver to Lead Agent, for recording in the Register (as hereinafter defined),
an Assignment and Acceptance, substantially in the form attached hereto as
Exhibit F (an "Assignment and Acceptance"), together with any Notes subject to
such assignment. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, but in no event prior to the recording of same in the Register, the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, shall have the rights and obligations of a Lender
hereunder, and the assigning Lender shall, to the extent provided in such
assignment and upon payment to Lead Agent of the registration fee referred to in
Section 18.3, be released from its further obligations under this Agreement with
respect to the interest assigned.
(b) Any Lender may at any time assign or pledge its Commitment
or Note or any portion of its rights under the Loan Documents to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341, and, with Lead Agent's consent, any Lender
may at any time assign or pledge all or any portion of its rights under this
Agreement to an Eligible Assignee to secure such Lender's indebtedness, in each
case without the prior written consent of Borrower, provided that each such
assignment shall be made in accordance with applicable law, and no such
assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate any such assignment, Borrower shall, at the request of the
assigning Lender, duly execute a registered promissory note or notes evidencing
the Obligations made or extended to Borrowers by the assigning Lender hereunder,
provided that the assignment is otherwise in compliance with the terms hereof.
(c) Each Lender may sell participations to one or more banks
or other entities in all or a portion of such Lender's rights and obligations
under this Agreement and the other
73
Loan Documents; provided that (i) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Borrower,
(ii) such participation shall not entitle such participant to any rights or
privileges under this Agreement or the Loan Documents, including, without
limitation, the right to approve waivers, amendments or modifications, (iii)
such participant shall have no direct rights against the Borrower or any other
member of the Consolidated Group, and (iv) such sale is effected in accordance
with all Applicable Laws.
Section 18.2 Certain Representations and Warranties;
Limitations; Covenants. By executing and delivering an Assignment and
Acceptance, the parties to the Assignment and Acceptance thereunder confirm to
and agree with each other and the other parties hereto as follows: (a) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto; (b) the assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of Borrower and the
other members of the Consolidated Group or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance or
observance by Borrower, the other members of the Consolidated Group or any other
Person primarily or secondarily liable in respect of any of the Obligations or
any of their obligations under this Agreement or any of the other Loan Documents
or any other instrument or document furnished pursuant hereto; (c) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 6.6 and Section 9.4
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (d) such assignee will, independently and without reliance upon the
assigning Lender, Lead 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 this Agreement; (e) such
assignee represents and warrants that it is an Eligible Assignee; (f) such
assignee appoints and authorizes Lead Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to Lead Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; (g) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender; (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and (i) such assignee
represents that it is acquiring the portion of the Loans assigned to it pursuant
to the Assignment and Acceptance for investment only and not with a view to or
with any intention to resell, distribute, subdivide or fractionalize such
portion in whole or in part, or grant any participation therein.
Section 18.3 Register. Lead Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of Lenders and
the Commitment Percentages of, and principal amount of the Advances owing to
Lenders from time to time as a condition to the effectiveness thereof. All
assignments of any portion of the Loans or Commitments must be reported to Lead
Agent to permit registration in the Register. The entries in the Register shall
be conclusive, in the absence
74
of manifest error, and Borrower, Lead Agent and Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by Borrower and
Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, (i) the assigning Lender agrees to pay to
Lead Agent a registration fee in the sum of $5,000.00 and (ii) Lead Agent will
deliver a copy of the Register to Borrower.
Section 18.4 New Notes. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each Note
subject to such assignment, Lead Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to
Borrower and Lenders (other than the assigning Lender). Within five (5) Business
Days after receipt of such notice, Borrower, at its own expense, shall execute
and deliver to Lead Agent, in exchange for each surrendered Note, a new Note to
the order of such Eligible Assignee in an amount equal to the amount assumed by
such Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has maintained some portion of its obligations hereunder, a new
Note to the order of the assigning Lender in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the Notes delivered at the time of
execution of this Agreement. Within five (5) Business Days upon request,
following issuance of any new Notes pursuant to this Section 18.4, Borrower
shall deliver an opinion of counsel, addressed to Lenders and Lead Agent,
relating to the due authorization, execution and delivery of such new Notes and
the legality, validity, enforceability and binding effect thereof and the
applicability of the Guaranties to the new Note. The surrendered Notes shall be
canceled and returned to Borrower.
Section 18.5 No Assignment by Borrower. Borrower shall not
assign or transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Lenders.
Section 18.6 Disclosure. Each Lender agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" or "secret" by Borrower and
provided to it by Borrower, or by Lead Agent on Borrower's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than Borrower, provided that such
source is not bound by a confidentiality agreement with Borrower known to the
Lender; provided, however, that any Lender may disclose such information (a) at
the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such Governmental Authority; (b) pursuant to subpoena or other court
process; (c) when required to do so in accordance with the provisions of any
applicable requirement of law; (d) to the extent reasonably required in
connection with any litigation or proceeding to which Lead Agent, any Lender or
their respective Affiliates may be party; (e) to the extent reasonably required
in connection with the exercise of
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any remedy hereunder or under any other Loan Document; (f) to such Lender's
independent auditors and other professional advisors; (g) to any participant or
assignee, actual or potential, provided that such Person agrees in writing to
keep such information confidential to the same extent required of Lenders
hereunder, and (h) as to any Lender, as expressly permitted under the terms of
any other document or agreement regarding confidentiality to which Borrower is
party or is deemed party with such Lender.
Section 18.7 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption from, or
a reduction of, United States withholding tax under Sections 1441 or 1442 of the
Code, such Lender agrees with and in favor of Lead Agent, to deliver to Lead
Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, properly
completed IRS Form 1098 W8-BEN or Form 1098 W8-ECI before the payment of any
interest in the first calendar year and before the payment of any interest in
each third succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Lender, two
(2) properly completed and executed copies of IRS Form 4224 before the payment
of any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid under
this Agreement, and IRS Form W-9;
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax; and
(iv) in the case of any Lender claiming exemption
from United States withholding tax under Sections 871(b) or 881(c) of the Code,
with respect to payments of "Portfolio Interest," a Form W-8, or any subsequent
versions thereof or successors thereto, and if the Lender delivers a Form W-8, a
certificate representing that such Lender is not a bank for purposes of Section
881(c) of the Code, is not a ten percent (10%) shareholder (within the meaning
of Section 871(h)(3)(b) of the Code) of Borrower or any Subsidiary thereof, and
is not a controlled foreign corporation related to Borrower or any of its
Subsidiaries (within the meaning of Section 864(d)(4) of the Code).
Each such certificate and form shall be properly completed and duly executed by
such Lender claiming complete exemption from a reduced rate of United States
withholding tax on payments by Borrower under this Agreement and other Loan
Documents. Each Lender agrees to promptly notify Lead Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1098
W8-BEN or Form 1098 W8-ECI,
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and such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of Borrower to such Lender, such Lender
agrees to notify Lead Agent of the percentage amount in which it is no longer
the beneficial owner of Obligations of Borrower to such Lender. To the extent of
such percentage amount, Lead Agent will treat such Lender's IRS Form 1098 W8-BEN
or Form 1098 W8-ECI as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with Lead Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, Lead Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable withholding tax after taking into
account such reduction. If the forms or other documentation required by
Section 18.7(a) above are not delivered to Lead Agent, then Lead Agent may
withhold from any interest payment to such Lender not providing such forms or
other documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that Lead Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify Lead Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Lender shall indemnify Lead Agent fully for all
amounts paid, directly or indirectly, by Lead Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to Lead Agent under this Section 18.7,
together with all costs and expenses (including reasonable attorneys' fees and
legal expenses). The obligation of Lenders under this subsection (e) shall
survive the payment of all Obligations and the resignation or replacement of
Lead Agent.
(f) Certain Lenders that may enter into this Agreement from
and after even date may be unable to comply with the indemnity provision of
Section 18.7(e). In the event that Lead Agent agrees in the applicable
Assignment and Acceptance for any subsequent Lender, then such Lender shall be
governed by and shall comply with the provisions of this Section 18.7(f) rather
than Section 18.7(e). In addition to any other rights of offset contained in
this Agreement or under any applicable law, in the event that any amounts would
otherwise be covered by an indemnity under Section 18.7(e) from such Lenders,
such as United States withholding tax due and payable and any penalties or
interest with respect thereto and fees and expenses of collection, then in such
event, Lead Agent shall be authorized to offset any such amounts against the
amounts payable to such Lenders hereunder until otherwise indemnified amounts
are fully paid. The right of offset contained herein shall be in addition to and
shall not limit or otherwise waive or diminish any right or remedy that Lead
Agent may have against such Lenders under any applicable law.
Section 19 NOTICES, ETC.
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Except as otherwise expressly provided in this Agreement, all
notices and other communications made or required to be given pursuant to this
Agreement or the other Loan Documents shall be in writing and shall be (i)
delivered in hand, (ii) mailed by United States registered or certified
first-class mail, postage prepaid, or (iii) sent by telegraph or telex and
confirmed by letter mailed on the same Business Day, or (iv) sent by Federal
Express or other nationally recognized overnight delivery service, addressed as
follows:
(a) if to Borrower or any other member of the Consolidated
Group:
WCI Communities, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
(b) if to Lead Agent:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (MADE10307C)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
with a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
and a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(c) if to any Lender, at such Lender's address set forth on
Schedule 1.0;
or such other address for notice as each such party shall last have furnished in
writing to the person giving the notice. Any such notice or demand shall be
deemed to have been duly given or made and to have become effective (i) if
delivered by hand to a responsible officer of the party to which it is directed,
at the time of the receipt thereof by such officer, (ii) if sent by registered
or certified first-class mail, postage prepaid, upon the earlier of the date of
receipt or five (5) Business Days after the posting thereof, (iii) if sent by
telex or cable, on the Business Day such telex or cable is dispatched, and (iv)
the next Business Day for the overnight courier service is sent by overnight
courier service. Refusal of delivery shall be deemed to constitute a delivery.
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Section 20 MISCELLANEOUS.
The rights and remedies herein expressed are cumulative and
not exclusive of any other rights which the parties would otherwise have. The
captions in this Agreement are for convenience of reference only and shall not
define or limit the provisions hereof. This Agreement and any amendment hereof
may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument. In proving this
Agreement, it shall not be necessary to produce or account for more than one (1)
such counterpart signed by the party against whom enforcement is sought.
Section 21 ENTIRE AGREEMENT, ETC.
This Agreement, together with the other Loan Documents and any
other documents executed in connection herewith or therewith, expresses the
entire understanding of the parties with respect to the transactions
contemplated hereby. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally or in writing, except as provided in
Section 22.
Section 22 CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) Except as otherwise expressly provided in this Section
22(b) or elsewhere in this Agreement, any consent or approval required or
permitted by this Agreement may be given, and any term of this Agreement or of
any other Loan Document or instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower or any other member
of the Consolidated Group of any terms of this Agreement or the other Loan
Documents or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Majority Lenders.
(b) Notwithstanding the foregoing, the following specific
approval procedures shall be applicable as follows:
(i) none of the following may occur without the
written consent of each affected Lender: a decrease in the rate of interest on
the Notes; a change in the amount of the Commitments of the Lenders (except as
provided in Section 2.2); a forgiveness, reduction or waiver of the principal of
any unpaid Loan or any interest thereon or Fee payable under this Agreement or
the other Loan Documents; the postponement of any date fixed for any payment of
principal of or interest on the Loans or an extension of the Maturity Date
(except as provided in Section 2.10); a change in the manner of distribution of
any payments to the Lenders or the Lead Agent; the release of Borrower or any
member of the Consolidated Group from its respective Obligations, except as
otherwise provided herein; an amendment of the definition of Majority Lenders or
Required Lenders; any modification to require a Lender to fund a pro rata share
of a request for an Advance made by Borrower other than based on its Commitment
Percentage; an amendment of this Section 22 or any other provision of this
Agreement or the Loan Documents which requires the approval of all of the
Lenders or the Majority Lenders or the Required Lenders to require a lesser
number of Lenders to approve such action; or an increase in the advance rate in
respect of any
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category of asset of the Borrowing Base or the addition of any new category of
asset to the Borrowing Base or any change or modification to the definition of
any category of asset in the Borrowing Base (other than any change the effect of
which is to make a ministerial clarification of such definition).
(ii) the provisions and requirements of Section 9.2,
Section 9.3, Section 9.8, Section 9.10 (for amounts equal to or less than
$2,500,000.00), Section 9.19, Section 9.20, and Section 10.6 may be waived,
suspended or modified by Lead Agent;
(iii) the provisions and requirements of Section 9.4,
Section 9.5, Section 9.7, Section 9.9, Section 9.10 (for amounts in excess of
$2,500,000.00), Section 9.11, Section 9.12, Section 9.13, Section 9.14, Section
9.15, Section 9.17, Section 9.18, Section 10.1, Section 10.2, Section 10.3,
Section 10.4, Section 10.5, Section 10.7, Section 10.8, Section 10.9, Section
10.10, and Section 10.12 shall not be waived, suspended or modified without the
written consent of the Majority Lenders;
(iv) the provisions and requirements of Section 9.6,
Section 9.16, Section 10.11, Section 10.13, and Section 11 shall not be waived,
suspended or modified without the written consent of the Required Lenders;
(v) the amount of the Origination Fee and Lead
Agent's Fee payable for Lead Agent's account and Section 17 may not be amended
without the written consent of Lead Agent;
(vi) any provisions of this Agreement relating to
Swing Line Loans may not be amended without the written consent of the Swing
Line Bank; and
(vii) any provisions of this Agreement relating to
Letters of Credit may not be amended without the written consent of the Issuing
Bank.
(c) No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of Lead Agent or any Lender in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon Borrower shall entitle Borrower to other or further
notice or demand in similar or other circumstances.
Section 23 GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER
THE LAWS OF THE STATE OF GEORGIA AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF GEORGIA OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN SECTION 19. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
80
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
Section 24 SEVERABILITY.
In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
provision hereof, and this Agreement shall be interpreted and construed as if
such provision to the extent the same shall have been invalid, illegal or
unenforceable had never been contained herein. The parties hereto agree that
they will negotiate in good faith to replace any provision held to be invalid,
illegal or unenforceable with a valid provision which is as similar as possible
in substance to the invalid, illegal or unenforceable provision.
Section 25 WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE LEAD AGENT AND THE LENDERS HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY
LAW, EACH OF THE BORROWER, THE LEAD AGENT AND THE LENDERS HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES OR CONSEQUENTIAL DAMAGES. BORROWER CERTIFIES THAT NO
REPRESENTATIVE, LEAD AGENT OR ATTORNEY OF ANY LENDER OR THE LEAD AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE LEAD AGENT WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE LEAD AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 25.
81
Section 26 RIGHTS OF THIRD PARTIES.
All conditions to the performance of the obligations of Lead
Agent and Lenders under this Agreement, including the obligation to make
Advances, are imposed solely and exclusively for the benefit of Lead Agent and
Lenders. No other Person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Lead
Agent and Lenders will refuse to make Advances in the absence of strict
compliance with any or all conditions. No other Person shall, under any
circumstances, be deemed to be a beneficiary of such conditions. Any and all of
the conditions may be freely waived, in whole or in part, by Lead Agent and
Lenders at any time if in their sole discretion they deem it desirable to do so.
In particular, Lead Agent and Lenders make no representations and assume no
obligations as to third parties concerning the quality of the construction by
the Property Owners of the Projects.
Section 27 RELATIONSHIP.
The relationship between Lenders and Borrower is solely that
of a lender and borrower, and nothing contained herein or in any of the other
Loan Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
Section 28 TIME OF THE ESSENCE.
Time is of the essence of this Agreement.
Section 29 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
82
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed and delivered under seal as of the date first set forth above.
WCI COMMUNITIES, INC., a Delaware
corporation
By:________________________________
Name:______________________________
Title:_____________________________
FLEET NATIONAL BANK, individually and
as Lead Agent
By:_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
FLEET SECURITIES, INC., as Lead Arranger
By:________________________________
Name:______________________________
Title:_____________________________
WACHOVIA BANK, N.A., individually and
as Syndication Agent and Co-Lead Arranger
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
AMSOUTH BANK, an Alabama state
chartered bank
By:___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SUNTRUST BANK
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
COMERICA BANK, a Michigan banking
corporation
By:_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
FIFTH THIRD BANK, FLORIDA
By:_________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANKUNITED, F.S.B., a Federal savings bank
By:___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
GUARANTY BANK, a Federal Savings Bank
By:____________________________________
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
UBS AG, Stamford Branch
By:____________________________________
Name:__________________________________
Title:_________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
SOVEREIGN BANK
By:____________________________________
Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COMPASS BANK
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
CAYMAN ISLANDS BRANCH
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
Title:________________________________
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
SCHEDULE 1.0
BANKS AND COMMITMENTS
NAME AND ADDRESS COMMITMENT COMMITMENT PERCENTAGE
FLEET NATIONAL BANK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $50,000,000.00 14.285714285714%
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
steven ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, N.A. $45,000,000.00 12.857142857143%
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ VanDeventor
▇▇▇▇▇.van ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
GUARANTY BANK $40,000,000.00 11.428571428571%
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1
UBS AG, STAMFORD BRANCH $30,000,000.00 8.571428571429%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
AMSOUTH BANK $25,000,000.00 7.142857142857%
Feather Sound ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SOVEREIGN BANK $25,000,000.00 7.142857142857%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SUNTRUST BANK $20,000,000.00 5.714285714286%
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANKUNITED, F.S.B. $20,000,000.00 5.714285714286%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2
COMERICA BANK $20,000,000.00 5.714285714286%
Comerica Bank.
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
george w ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FIFTH THIRD BANK, FLORIDA $20,000,000.00 5.714285714286%
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK TRUST COMPANY AMERICAS $15,000,000.00 4.285714285714%
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Gregory Shefrin
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE FIRST BOSTON $15,000,000.00 4.285714285714%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
▇▇▇▇▇▇▇.▇'▇▇▇▇@▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COMPASS BANK $15,000,000.00 4.285714285714%
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3
FLEET NATIONAL BANK $10,000,000.00 2.857142857143%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
steven ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Total: $350,000,000.00 100.0000000000%
4