SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended November 30, 1996
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
Commission file no. 1-8846
CALTON, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-2433361
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
500 Craig Road
Manalapan, New Jersey 07726-8790
(Addresses of principal Zip Code
executive offices)
Registrant's telephone number,
including area code: (908) 780-1800
Securities registered pursuant to Section 12(b) of the Act:
Title of Class
Name of each exchange
Title of each class on which registered
Common Stock, $.01
par value per share American Stock Exchange
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K X.
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes X No
The aggregate market value (based upon the last sales price reported by the
American Stock Exchange) of voting shares held by non-affiliates of the
registrant as of March 31, 1997 was $8,489,000.
As of March 31, 1997, 26,538,000 shares of Common Stock were outstanding.
Certain items in Parts I and II incorporate information by reference from the
1996 Annual Report to Shareholders. Except for portions which are expressly
incorporated by reference herein, the Annual Report is not deemed filed a part
hereof.
Disclosure Concerning Forward-Looking Statements
All statements, other than statements of historical fact, included in this Form
10-K, including without limitation the statements incorporated by reference in
Part II, Item 7: "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the statements under "Business," are, or may be
deemed to be, "Forward-Looking Statements" within the meaning of Section 27A of
the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such
forward-looking statements, including the statements pertaining to the
Company's ability to comply with the covenants contained in its revolving
credit facility which are incorporated by reference in Part II - Items 7 and 8,
involve assumptions, known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company
to be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements contained in this Form
10-K. Such potential risks and uncertainties, include without limitation,
matters related to national and local economic conditions, the effect of
governmental regulation on the Company, the competitive environment in which
the Company operates, changes in interest rates, home prices, availability and
cost of land for future growth, the timing of land acquisition and product
development, availability of working capital and the availability and cost of
labor and materials, and other risk factors detailed herein and in other of the
Company's Securities and Exchange Commission filings. The forward-looking
statements are made as of the date of this Form 10-K and the Company assumes no
obligation to update the forward-looking statements or to update the reasons
actual results could differ from those projected in such forward-looking
statements.
PART I
Item 1. BUSINESS
(a) General Development of Business
General
Calton, Inc. (the "Company" or "Calton") and its subsidiaries design, construct
and sell single family detached homes primarily in central New Jersey and
central Florida. The Company markets primarily to first and second time move-up
buyers with the 549 homes delivered in fiscal 1996 having an average sales
price of approximately $201,000.
The Company's current homebuilding activities are conducted primarily through
two divisions: the Northeast and the Florida division.
Calton was incorporated in 1981 for the purpose of acquiring all of the issued
and outstanding capital stock of Kaufman and Broad of New Jersey, Inc., a New
Jersey corporation, from Kaufman and Broad, Inc., a Maryland corporation. After
the acquisition, the name of Kaufman and Broad of New Jersey, Inc. was changed
to Calton Homes, Inc. ("Calton Homes") which continues as a wholly owned
subsidiary of Calton. Calton maintains its executive offices at 500 Craig Road,
Manalapan, New Jersey 07726 and its telephone number is (908) 780-1800.
On March 9, 1993, Calton and certain of its subsidiaries filed petitions under
Chapter 11 of the United States Bankruptcy Code. The United States Bankruptcy
Court confirmed the Plan of Reorganization (the "Reorganization") on May 6,
1993 and the Reorganization was consummated on May 28, 1993. The Reorganization
resulted in the discharge of approximately $61.5 million of indebtedness and
$22.8 million of interest payments owed to certain creditors. In exchange for
the discharge of these obligations, these creditors were issued a combination
of cash, equity securities and short-term debt instruments which were retired
in September 1993. The equity securities issued to the creditors represented
approximately 93.5% of the voting power of the Company's capital stock.
On November 21, 1995, the Company had a significant shift in stock ownership
and voting rights. In addition, changes occurred on the Board of Directors and
in the Company's management.
Since 1969, the Company and its predecessor have constructed and sold
approximately 17,200 units in 143 residential developments in New Jersey,
Florida, Pennsylvania, California and Illinois. At November 30, 1996, the
Company had 20 communities open for sales. The Company builds single-family
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detached homes ranging in base price from $96,000 to $199,000 in the Florida
division and $180,000 to $515,000 in the Northeast division. The average base
selling price of homes to be built on unsold lots, as of November 30, 1996, was
approximately $148,000 and $285,000 for the Florida and Northeast divisions,
respectively. Because of the timing of home deliveries, the average base
selling price of homes under development may not be indicative of the average
revenue per home sold in any fiscal year. See Item 1(c), "Residential
Development."
In 1996, the Company began its entry into the active adult housing market in
Ocean County, New Jersey. Through this community, marketed under the name
Renaissance, the Company will offer nine different single-family detached home
types. The Company has the contractual right to purchase up to 2,000 finished
lots on a rolling-option basis with the land seller funding the construction of
the amenities. This community is anticipated to be a major part of the
Northeast division's future deliveries and results. The Renaissance community
will offer a wide array of amenities, including a 24-hour attended gatehouse, a
25,000 square foot clubhouse and an eighteen-hole golf course.
(b) Financial Information About Industry Segments
Substantially all revenues and equity in earnings, operating profits and assets
of the Company and its subsidiaries are attributable to one line of business,
the development and sale of residential housing and the acquisition and sale of
real property.
(c) Description of Business
General
The Company designs, constructs and sells single family detached homes,
primarily in central New Jersey and central Florida. The Company markets
primarily to first and second time move-up buyers with the 549 homes delivered
in fiscal 1996 having an average sales price of approximately $201,000.
Corporate Operations
The Company operates through separate divisions, which are located within or
near the markets in which they operate. Each division is managed by an
executive with substantial experience in the markets served. In addition, each
division is staffed with personnel equipped with the skills to complete the
functions of land acquisition, entitlement processing, land development,
construction, marketing, sales and product service.
The Company's corporate staff is responsible for: (i) evaluating the
suitability of and selecting geographic markets; (ii) allocating capital
resources among divisions; (iii) maintaining the Company's relations with its
lenders to regulate the flow of financial resources; and (iv) monitoring the
divisional operations. Capital commitments are determined through consultation
among senior management and division managers. Centralized financial controls
are also maintained through the standardization of accounting and financial
policies and procedures, which are applied uniformly throughout the Company.
The Company's operating strategy generally consists of: (i) targeting primarily
the second and third time move-up buyer and, beginning in 1997, the active
adult community buyer in New Jersey; (ii) conducting homebuilding activities in
markets that, based on economic and demographic trends, demonstrate strong
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growth potential; (iii) designing each residential community to meet the needs
of the particular market based on local conditions and demographic factors;
(iv) minimizing land risks by purchasing entitled tracts of well-located
property through options or contingent purchase contracts and limiting land
holdings to those which can be developed within two years from the date of
purchase or where available purchasing finished lots on a rolling option basis;
(v) developing residential communities in phases which enables the Company to
reduce financial exposure, control construction and operating expenses and
adapt quickly to changes in customer demands and other market conditions; (vi)
utilizing subcontractors to perform land development and home construction on a
fixed price basis; and (vii) emphasizing the quality, features and value of its
homes.
Geographic Markets
The Company's current business operations are principally located in central
New Jersey and the greater Orlando, Florida area. Generally, the Company has
organized divisions that are located in markets that demonstrate a strong
growth profile. The Company selects locations within these markets for its
residential housing communities that have ready access to metropolitan areas by
public transportation and major arterial highways and which have experienced
increased housing demand.
In March 1995, the Company consolidated its New Jersey-North and New Jersey-
South divisions into the Northeast division. The Northeast division conducts
homebuilding activities in Burlington, Hunterdon, Monmouth, Middlesex, Ocean
and Mercer counties in New Jersey. The Company's Florida division conducts
homebuilding activities in the Orange and Seminole County areas, concentrating
in the suburban Orlando area.
The Company does not anticipate that it will expand into any new geographic
areas in fiscal 1997 and, therefore, plans to focus its operating locations and
available capital in the Northeast and Florida divisions.
Products
The Company offers a variety of homestyles tailored to meet the specific needs
of the particular geographic and demographic markets served, including the
second and third time move-up buyer and, to a lesser extent, the first time and
first time move-up buyer. Homestyles, prices and sizes are tailored to each
community based upon the Company's assessment of specific market conditions and
the restrictions imposed by local jurisdictions. In certain projects,
recreational amenities such as tennis courts and playground areas are
constructed by the Company. The Company believes that its current product
strategy which primarily focuses on the second and third time move up and
active adult buyer enables it to mitigate some of the risks inherent in the
homebuilding industry by providing it with a product mix that supplies
particular markets that are not as susceptible to changing market conditions
including interest rate changes.
The Company generally standardizes its product line within geographic markets
it serves. This standardization improves the quality of construction and
permits efficient production techniques and bulk purchasing of materials and
components, thus reducing construction costs and the time required to build a
home. See "Sales and Marketing."
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Land Acquisition, Planning and Development
Substantially all of the land acquired by the Company is purchased only after
necessary entitlements have been obtained so that the Company has certain
rights to begin development or construction as market conditions dictate. The
term "entitlements" refers to developmental approvals, tentative maps or
recorded plats, depending on the jurisdiction within which the land is located.
Entitlements generally give a developer the right to obtain building permits
upon compliance with certain conditions that are usually within the developer's
control. Although entitlements are ordinarily obtained prior to the Company's
purchase of the land, the Company is still required to obtain a variety of
other governmental approvals and permits during the development process. The
Company primarily buys finished lots that are ready for construction in the
Florida market. Although finished lots are generally not available in the
Northeast markets, the Company has entered into a contract to purchase up to
2,000 finished lots on a rolling option basis in Ocean County, New Jersey, in
its active adult community marketed under the name Renaissance.
The Company's general policy has been to control land for future development or
sale through the use of purchase options or contingent purchase contracts
whenever practicable and where market conditions permit. The Company endeavors
to acquire property for development either (i) on an installment method, with
closings on a portion of a project on a periodic basis or (ii) through the use
of purchase money mortgages. In certain cases, when available, the Company
acquires finished lots on a rolling option basis. These policies enable the
Company to limit its financial commitments, including cash expenditures and
interest and other carrying costs, and avoid large land inventories which
exceed the Company's near term development needs. At the same time, the Company
retains any appreciation in the value of the parcel prior to exercising the
option or closing the contingent purchase contract. During the option or
contingency period, the Company performs feasibility studies, technical,
engineering and environmental surveys and obtains the entitlements.
In making land acquisitions, the Company considers such factors as: (i) current
market conditions; (ii) internal and external demographic and marketing
studies; (iii) environmental conditions; (iv) proximity to developed and
recreational areas; (v) availability of mass transportation and major arterial
highways and ready access to metropolitan areas and other employment centers;
(vi) industrial and commercial growth patterns; (vii) financial review as to
the feasibility of the proposed community, including projected profit margins,
returns on capital employed and payback periods; (viii) the ability to secure
governmental approvals and entitlements; (ix) customer preferences; (x) access
to materials and subcontractors; and (xi) management's judgement as to the real
estate market, economic trends and the Company's experience in a particular
market. The Company's development activities include land planning and securing
entitlements. These activities are performed by the Company's employees,
together with independent engineers, architects and other consultants. The
Company's employees also develop long-term planning of future communities.
Construction
The Company employs production managers who are responsible for coordinating
all functions pertaining to the construction process. All construction work for
the Company is performed by subcontractors on a fixed price basis, with the
Company acting as general contractor. In order to maintain control over costs,
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quality and work schedules, the Company employs an on-site superintendent who
is responsible for supervising subcontractor work at each project.
The Company's housing is constructed according to standardized design plans
that are then customized to each individual contract preference. Generally, the
Company seeks to develop communities having a number of lots to absorb
deliveries over a minimum one year period in order to reduce the per unit cost
of the housing products which it sells. Advantages achieved by volume building
include lower unit prices paid to subcontractors and reduced material costs per
unit.
Generally, the Company's policy is to commence construction of a detached
housing unit beyond the foundation after a sales contract for that unit has
been signed. The Company does, however, ordinarily attempt to maintain a
predetermined inventory of homes in-process in order to match the construction
times of homes with the mortgage application process and to accommodate
customers who require immediate occupancy, such as relocation buyers. In
addition, in order to permit construction and delivery of housing units on a
year round basis, the Company, in anticipation of winter in the Northeast, will
start construction of foundations prior to having signed sales contracts.
Materials and Subcontractors
The Company attempts to maintain efficient operations by utilizing standardized
material available from a variety of sources. Prices for materials may
fluctuate due to various factors, including demand levels or supply shortages.
During 1996, major building material prices for lumber, asphalt and appliances
remained relatively flat while prices for concrete increased modestly. The
price of gypsum remained flat overall, increasing during the first half of the
year with a corresponding decrease during the second half.
The Company enters into contracts with numerous subcontractors representing all
building trades in connection with the construction of its homes, and has
established long-term relationships with a number of subcontractors. These
subcontractors bid competitively for each phase of the work at each project and
are selected based on quality, price and reliability. Subcontractor bids are
solicited after an internal job cost budget estimate has been prepared based on
estimated material quantities. These internal estimates serve as the formal
baseline budget against which the cost of each trade is measured. Each division
is responsible for contracting all trades in each of its communities.
Production costs are monitored monthly to assess actual versus contracted
amounts. The Company closely monitors subcontractor performance and
expenditures on each community to assess project profitability. Additionally,
the Company is generally able to obtain reduced prices from many of its
subcontractors due to the volume of work it provides to its subcontractors.
Agreements with subcontractors generally are for three to twelve months, and
provide a fixed price for labor and materials.
The Company has, from time to time, experienced minor temporary construction
delays due to shortages of materials or availability of subcontractors. Such
construction delays may extend the period of time between the signing of a
purchase contract and the receipt of revenues by the Company at the time of
delivery of the home to the buyer. To date, the Company has experienced no
material adverse financial effects as a result of construction delays.
Currently, sufficient materials and subcontractors are available to meet the
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Company's demands; however, the Company cannot predict the extent to which
shortages in necessary materials or labor may occur in the future.
Sales and Marketing
Each division establishes marketing objectives, determines retail pricing,
formulates sales strategies and develops advertising programs, which in each
case, are subject to periodic market analyses conducted by the division. The
Company typically constructs, furnishes and landscapes model homes for each
community and maintains an on-site sales office staffed with its own sales
personnel. The Company makes use of newspaper, billboard and direct mail
advertising, special promotional events and illustrated brochures in a
comprehensive marketing program. The Company has established a web site on the
Internet (http://www.caltonhomes.com) to provide its customers with additional
information on the Company's communities and homes. In marketing its products,
the Company emphasizes quality, features and value and provides a 15 year
limited warranty on its homes. In addition, the Company offers a customization
program in order to make the products the Company builds more attractive to
homebuyers by tailoring them to individual customer needs.
The Company's sales personnel participate in an intensive sales training
program to develop their skills and knowledge. The Company consults with these
personnel in the product development process to obtain and consider feedback
from customers and information with respect to the Company's competitors.
Sales of the Company's homes are made pursuant to standard sales contracts that
are customary in the markets served by the Company. Such contracts require a
customer deposit (generally up to 5% of the base selling price unless limited
by local law) at time of contract signing and provide the customer with a
mortgage contingency, if necessary. The contingency period typically is sixty
(60) days following execution of the contract. In certain instances, contracts
are contingent on the sale of a purchaser's existing home. In such cases, the
Company retains the right to sell the home to a different buyer during the
period in which the "house-to-sell" condition is not satisfied. The
cancellation rate for new contracts signed was approximately 22% for fiscal
1996. Cancellation rates may vary from year to year. The Company attempts to
limit cancellations by training its sales force to determine at the sales
office the qualifications of potential homebuyers and by obtaining financial
information about the prospective purchaser.
At March 31, 1997, the Company employed 50 full-time and part-time sales
personnel who are paid on a salary and/or sales commission basis. The Company
also utilizes the services of independent real estate brokers through a
cooperative broker referral plan.
Customer Financing
The Company sells its homes to customers who generally finance their purchase
through conventional and government insured mortgages. The Company provides its
customers with information on a wide selection of conventional mortgage
products and various mortgage lenders to assist the homebuyer through the
mortgage process. Mortgages arranged by mortgage providers in recent years have
been mortgage loans underwritten and made directly by a lending institution to
the customer. The Company is not liable for repayment of any mortgage loans.
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Backlog
At November 30, 1996, the Company had a backlog of signed contracts for 165
homes with an aggregate sales price of $40.2 million as compared to a backlog
of signed contracts for 166 homes with an aggregate sales price of
$36.0 million at November 30, 1995. All of the November 30, 1996 backlog is
expected to be completed and delivered by November 30, 1997. Backlog includes
contracts containing financing and certain other contingencies, including, in
certain instances, contracts which are contingent on the buyer selling their
homes. Due to changes in product offerings, the uncertainty of future market
conditions and the general economic environment, the sales backlog achieved in
the current period may not be indicative of those to be realized in succeeding
periods.
Residential Development
The Company markets and sells varying types of residential homes ranging in
base selling prices from $96,000 to $199,000 in the Florida division and
$180,000 to $515,000 in the Northeast division. Current average base selling
prices for the Company's homes are approximately $262,000 in New Jersey and
$154,000 in Florida. Average base selling prices of homes sold in any period or
unsold at any point in time will vary depending on the specific projects and
style of homes under development. The Company continually monitors prevailing
market conditions, including interest rates and the level of resale activity in
the markets in which it operates. The Company may, from time to time, sell all
or a portion of a residential project prior to its development by the Company.
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As of November 30, 1996, the Company had 20 residential communities open for
sales which include an aggregate of 1,150 single family detached homes to be
delivered. The following sets forth certain information as of November 30, 1996
with respect to communities being developed by each of the Company's operating
divisions:
Homes
Deliv- Homes
Homes ered Un-
Year Deliv- Yr. der
of Lots ered Ended Con-
First Ap- Incep-Nov. tract Un-
Deliv- proved tion 30, (Back- sold
ery (a) To Date1996 log) Lots Price Range
Northeast ------ ----- ----- ---- ---- ---- -----------------
Belmont at
Steeplechase
(Burlington) 1995 291 55 31 8 228 $179,990-$231,990
Bey Brook
Estates (Dover) 1997 31 0 0 4 27 $396,990-$424,990
Crown Pointe
(West Windsor) 1996 94 3 3 13 78 $384,990-$475,990
Jockey Club at
Steeplechase
(Burlington) 1995 177 88 41 15 74 $137,990-$171,990
Manalapan Chase
(Manalapan) 1996 52 19 19 22 11 $328,990-$406,990
Monmouth Ridings
(Howell) 1994 144 125 38 9 10 $184,990-$223,990
Regency Oaks
(Marlboro) 1995 39 26 9 8 5 $338,990-$429,990
Stanton Ridge
(Readington) 1997 14 0 0 2 12 $415,990-$514,990
Other (commun-
ities with fewer
than 5 homes
unsold) 754 752 119 1 1
----- ----- ---- ---- ----
Total 1,596 1,068 260 82 446
Orlando, Florida
Beechwoods
(Altamonte
Springs) 1995 57 38 27 3 16 $133,900-$174,990
Brookhaven Oaks
(Ocoee) 1996 42 5 5 23 14 $145,990-$179,990
Cambridge Com-
mons (Apopka) 1995 87 52 29 9 26 $ 99,990-$121,990
Cheshire Woods
(Ocoee) 1996 100 20 20 7 73 $108,990-$127,990
Conway Harbor
(Orlando) 1997 63 0 0 1 62 $119,990-$139,990
Crescent Park
(Orlando) 1995 108 33 21 5 70 $156,990-$185,990
Cypress Lakes
(Orlando) 1996 79 24 24 6 49 $ 95,990-$114,990
Heather Glen at
Eastwood
(Orlando) 1997 28 0 0 1 27 $139,990-$171,990
Longwood Club
(Longwood) 1997 52 0 0 2 50 $159,990-$198,990
The Meadows
(Oviedo) 1995 49 22 13 8 19 $140,990-$176,990
Saddlebrook
(Gotha) 1995 52 45 27 1 6 $130,990-$173,990
Sand Lake Cove
(Dr. Phillips) 1996 97 26 26 9 62 $164,990-$198,990
Other (com-
munities with fewer
than 5 homes
unsold) 295 282 66 8 5
----- ----- ---- ---- ----
Total 1,109 547 258 83 479
Chicago, Illinois 1995 78 74 31 0 4
----- ----- ---- ---- ----
TOTAL 2,783 1,689 549 165 929
===== ===== ==== ==== ====
(a) Includes dwelling units completed and delivered, units under construction
and units designated on subdivision or site plans where preliminary and
final subdivision or site plan approvals, which in certain instances may be
subject to the fulfillment of certain conditions imposed thereby, have been
received. Also includes approximately 252 planned homes under rolling
options in 6 communities in New Jersey and Florida currently being
developed and marketed by the Company, which will require cash payments of
$4.8 million in 1997, $3.6 million in 1998 and $390,000 in 1999.
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Land Inventory
The Company acquires options or contingent purchase contracts on land where
practicable and where market conditions and lending availability permit. In
other instances, the Company has endeavored to acquire property either subject
to purchase money mortgages, or on an installment method, with closings on a
portion of a project on a periodic basis. In order to ensure the availability
of land for future development, the Company believes it is necessary to control
land in New Jersey at an earlier point in time than in other markets. As of
November 30, 1996, if all of the options held by the Company were exercised and
all of the contingent purchase contracts to which the Company is a party were
closed, the Company would have sufficient land to maintain its anticipated
level of deliveries for the next five years in the Northeast market. The
Company believes that additional acquisitions of new communities will be
required for anticipated deliveries in 1999 and beyond in the Florida market.
The Company's revolving credit facility (the "Facility") contains provisions
limiting the amount of land which the Company may acquire in any one year
(other than land acquisitions utilizing proceeds of purchase money mortgages)
to $22.0 million in 1997.
The following table sets forth certain information, as of November 30, 1996,
with respect to options held by the Company and contingent purchase contracts
to which the Company is a party:
Number of
Proposed
Residential Planned
Communities Homes (1)
----------- ---------
Northeast 10 3,459
Orlando, Florida 2 152
----------- ---------
Total 12 3,611
=========== =========
(1) Final development approvals have not been obtained with respect to certain
properties included in the above table. Accordingly, the number of units
approved for development, if any, may differ from the number of planned
units reflected in the table. In addition, prior to exercising an option
or closing a contingent purchase contract, the Company conducts
feasibility studies and other analyses with respect to a proposed
community. In certain instances, a determination may be made by the
Company not to proceed with certain communities. Accordingly, no assurance
can be given that the Company will ultimately pursue the development of
every community reflected in the table above.
As of November 30, 1996, the Company held options or was a party to contingent
contracts to purchase 12 parcels of land in New Jersey and Florida for which it
has paid options fees and earnest money aggregating $2.1 million (which
includes $900,000 applied to the purchase price of a property acquired in
December, 1996). A total of 3,611 homes, of which 3,297 homes are single family
and 314 are townhomes, are planned for these parcels. Through November 30,
1996, the Company has spent an additional $3.7 million in predevelopment costs
on such land, $2.6 million of which costs would not be recoverable in the event
these options were not exercised or the contracts were not closed, as the case
may be. Assuming that in each year the Company makes payments with respect to
either options or contingent contracts, exercises options, or closes such
contracts with respect to the minimum amount of land necessary to retain its
rights to acquire the remainder of the subject properties, the aggregate amount
required to retain or exercise such options or close or extend such contingent
contracts in periods subsequent to November 30, 1996 is approximately
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$11.7 million in 1997, $13.3 million in 1998, $9.7 million in 1999,
$11.9 million in 2000, $8.3 million in 2001 and $59.8 million thereafter.
Assuming the Company exercises such options and contingent contracts, the
Company will be in a position to acquire title to approximately 313, 469, 425,
618, and 293 lots during fiscal years 1997 through 2001, respectively, and
1,493 lots thereafter. The Renaissance community represents the majority of the
capital requirements and lots which are currently planned for development
subsequent to the year 2001.
Commercial Land and Buildings
Pursuant to management's continued focus on its core homebuilding business, the
Company sold four of its commercial properties in 1996 for approximately
$3.2 million. The sales resulted in an aggregate pre-tax gain of approximately
$1.1 million and provided approximately $1.8 million of additional cash for
operations.
The Company owns certain undeveloped properties in New Jersey, Florida,
California and Pennsylvania. These properties include 60 acres of commercial
property in Manalapan, New Jersey; 14 acres consisting of two parcels in Orange
County, Florida; and three other properties, two in Pennsylvania and one in
California. Each of these properties are currently available for sale except
for one of the Pennsylvania properties, which has certain acreage under
contract for sale.
Joint Ventures
The Company has participated in joint ventures in the past that were engaged in
land and residential housing development. During 1996, the Company received
$460,000 of a fully reserved note receivable from a previous joint venture and
received $725,000 from the liquidation of a joint venture in which it
previously participated. However, as of November 30, 1996, the Company had no
involvement in any active joint ventures.
Competition
The Company's business is highly competitive. Homebuilders compete for
desirable properties, financing, raw materials and skilled labor among other
things. The Company competes in each of the geographic areas in which it
operates with numerous real estate developers, ranging from small local to
larger regional and national builders and developers, some of which have
greater sales and financial resources than the Company. Resales of housing
provide additional competition. The Company competes primarily on the basis of
quality, features, value, reputation, price, location, design and amenities.
Regulation and Environmental Matters
The Company is subject to various local state and federal statutes, ordinances,
rules and regulations concerning zoning, building design, construction and
similar matters, including local regulation which imposes restrictive zoning
and density requirements in order to limit the number of homes that can
eventually be built within the boundaries of a particular locality. In
addition, the Company is subject to registration and filing requirements in
connection with the construction, advertisement and sale of its communities in
certain states and localities in which it operates even if any or all necessary
government approvals have been obtained. Generally, the Company must obtain
numerous government approvals, licenses, permits, and agreements before it can
commence development and construction. Certain governmental authorities impose
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fees as a means of defraying the cost of providing certain governmental
services to developing areas, or have required developers to donate land to the
municipality or make certain off-site land improvements. The Company may also
be subject to periodic delays or may be precluded entirely from developing
communities due to building moratoriums that could be implemented in the future
in the states in which it operates. Generally, such moratoriums relate to
insufficient water or sewage facilities.
The Company is also subject to a variety of local, state and federal statutes,
ordinances, rules and regulations concerning protection of health and the
environment ("environmental laws"). The particular environmental laws which
apply to any given community vary greatly according to the community site, the
site's environmental conditions and the present and former uses of the site.
These environmental laws may result in delays, may cause the Company to incur
substantial compliance and other costs, and can prohibit or severely restrict
development in certain environmentally sensitive regions or areas. For example,
in July 1987, New Jersey adopted the Fresh Water Wetlands Protection Act which
restricts building in or near certain protected geographic areas designated as
fresh water wetlands. The preservation of wetlands located within a project may
lessen the number of units that may be built in a particular project. The
Company has planned all of its projects containing wetlands to comply with the
regulations adopted under the Fresh Water Wetlands Protection Act and does not
believe that this legislation will adversely affect its present development
activities in New Jersey.
The State of Florida has adopted a wide variety of other environmental
protection laws. The laws regulate developments of substantial size and
developments in or near certain specified geographic areas within the State of
Florida, including the Big Cypress, Green Swamp and Florida Keys areas,
imposing requirements for development approvals which are more stringent than
those which the Company would have to meet in Florida for development outside
of these geographic areas. Further, the State of Florida regulates certain
types of developments located in or near certain types of geographic areas,
plant life or animal life. The Company does not believe that any land owned by
it that is planned for development is the site of any protected plant or animal
life. Although the Company owns land in or near certain protected types of
geographic areas, the Company designs its various communities to avoid
disturbing such areas so that certain regulations with respect to these areas
are not applicable. When the Company undertakes development activity in or near
or which may have an impact on any protected areas, it is required to satisfy
more stringent requirements for developmental approval than would otherwise be
applicable. In addition, the laws of the State of Florida require the use of
construction materials which reduce the energy consumption required for heating
and cooling.
The Florida Growth Management Act of 1985 requires that an infrastructure,
including roads, sewer and water lines, must be in existence or funded
concurrently with the construction of the development. If such infrastructure
will not be concurrently available or funded, then the project cannot be
developed. This will have an effect on limiting the amount of land available
for development and may delay construction and completion of some developments.
In July 1985, New Jersey adopted the Fair Housing Act which established an
administrative agency to adopt criteria by which municipalities will determine
and provide for their fair share of low and moderate income housing ("Mt.
Laurel" housing). This agency promulgated regulations with respect to such
criteria effective August 1986.
-11-
The Company may be required to set aside Mt. Laurel housing in certain
municipalities in which it owns or has the right to acquire land. In order to
comply with such requirements, the Company may be required to (i) sell some
homes at prices which would result in no gain or loss and an operating margin
less than would have resulted otherwise, or (ii) contribute to public funding
of affordable housing, which contribution will increase the costs of homes to
be developed in a community. The Company attempts to recover some of these
potential losses or reduced margins through increased density, certain cost
saving construction and land development measures and reduced land prices for
the sellers of property.
Despite the Company's past ability to obtain necessary permits and development
approvals for its communities, it can be anticipated that increasingly
stringent requirements will be imposed on developers and homebuilders in the
future. Although the Company cannot predict the effect of these requirements,
they could result in time consuming and expensive compliance programs and
substantial expenditures for pollution and water quality control, which could
materially adversely affect the Company. In addition, the continued
effectiveness of permits already granted or development approvals already
obtained is dependent upon many factors, some of which are beyond the Company's
control, such as changes in policies, rules and regulations and their
interpretation and application.
The foregoing does not purport to be a full description of all of the
legislation and regulations impacting the business of the Company. The Company
may be subject to numerous other governmental rules and regulations regarding
building standards, labor practices, environmental matters and other aspects of
real estate development in each jurisdiction in which it does business.
Employees
As of March 31, 1997, the Company employed approximately 116 full-time
personnel, including 15 corporate employees, 63 employees in the Northeast
division and 38 employees in the Florida division. The Company also employs
approximately 20 part-time employees in various locations. The Company believes
its employee relations are satisfactory.
Item 2. COMPANY FACILITIES
The Company leases approximately 19,413 square feet of office space (of which
3,629 square feet are sublet to tenants) and 6,200 square feet of storage space
in a two-story office building in Manalapan, New Jersey, which houses the
Company's corporate headquarters and its Northeast division. In addition, the
Company leases 5,280 square feet of office space in Florida. Management
believes that these arrangements provide adequate space for the Company to
conduct its operations.
The Company also has remote sales offices when not utilizing a model home and
construction offices on each of its project sites, some of which include mobile
units which are leased for terms varying from one month to one year. From time
to time the Company also leases model homes in some of its communities which
the Company has previously sold to third parties under a lease-back
arrangement. The current leases on model homes have terms up to two years.
-12-
Item 3. LEGAL PROCEEDINGS
In July 1994, an action was filed against Calton Homes, Inc., the Township of
Plainsboro, New Jersey and its planning board, certain real estate brokers and
certain unnamed officers of Calton Homes, Inc., by approximately 60 purchasers
in the Company's Princeton Manor development seeking compensatory and punitive
damages arising out of an alleged failure to disclose that a portion of the
property adjacent to the community could be developed by Plainsboro Township as
a public works site. The Company is vigorously contesting this matter and,
although there can be no assurances, does not believe that the case will have
any material effect on the financial position, results of operations or cash
flows of the Company. In addition, the Company believes that it is
contractually entitled to indemnification from Plainsboro Township in the event
that any liability should arise.
In June 1996, the Federal Deposit Insurance Corporation (the "FDIC"), in its
capacity as Liquidating Agent/Receiver of Eliot Savings Bank, instituted an
action in the United States District Court, District of Massachusetts, seeking
recovery of amounts owed under a $5.7 million promissory note (the "Note")
issued to Eliot Savings Bank by the Residences at the Surf joint venture (the
"Joint Venture"), an entity in which a Talcon, L.P. ("Talcon") subsidiary had
an interest. This action relates to a loan on property owned by the Joint
Venture. The loan was placed on the property before Talcon was formed.
Accordingly, in connection with the creation of Talcon, the interest in the
Joint Venture was transferred upstream to Calton, Inc. and then transferred
downstream into Talcon, and eventually into the Talcon subsidiary. In its suit,
the FDIC alleges, among other things, that Calton, by virtue of the assignment
of the interest in the Joint Venture to Calton in 1987, has liability as a
general partner in the Joint Venture and is seeking to collect approximately
$8.7 million in principal and interest from Calton and other parties. While no
discovery has occurred to date, based upon a preliminary analysis of this
matter, Calton believes that the FDIC's position is contrary to applicable law
and that Calton does not have any obligations under the Note by virtue of the
assignment of the interest in the Joint Venture to Calton or otherwise. The
Company will vigorously contest this matter but there can be no assurances that
the case will not have a material adverse effect on the Company's financial
position, results of operations or cash flows.
Calton and its subsidiaries are involved from time to time in routine
litigation. Management does not believes that any of this litigation is
material to the financial position, results of operations or cash flows of the
Company.
Calton's by-laws contain provisions which provide indemnification rights to
officers, directors and employees under certain circumstances with respect to
liabilities and damages incurred in connection with any proceedings brought
against such persons by reason of their being officers, directors or employees
of Calton.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
During the fourth quarter of 1996, no matter was submitted to a vote of
security holders through the solicitation of proxies or otherwise.
-13-
PART II
Item 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
MATTERS
Information pertaining to the market for the Registrant's Common Stock, high
and low sales prices of the Common Stock in 1996 and 1995 and the number of
holders of Common Stock is presented on page 24 of the 1996 Annual Report to
Shareholders, which information is incorporated herein by reference.
The Company has not paid dividends on its capital stock in the past. In
addition, the terms of the Facility prohibit the payment of dividends.
Item 6. SELECTED FINANCIAL DATA
The financial highlights data is presented on page one of the 1996 Annual
Report to Shareholders, which information is incorporated herein by reference.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The information required by this item is presented on pages 5 through 11 of the
1996 Annual Report to Shareholders, which information is incorporated herein by
reference.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements, including the Report of Independent
Accountants thereon and the unaudited Quarterly Financial Results, are
presented on pages 12 through 24 of the 1996 Annual Report to Shareholders,
which information is incorporated herein by reference.
Item 9. CHANGES IN AND DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
-14-
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Company as of March 31, 1997 are
listed below and brief summaries of their business experience and certain other
information with respect to them is set forth in the following table and in the
information which follows the table.
Name Age Position
Anthony J. Caldarone 59 Chairman, President and
Chief Executive Officer
Robert A. Fourniadis 39 Senior Vice President-
Legal and Secretary
Bradley A. Little 46 Senior Vice President-
Finance, Treasurer and
Chief Financial Officer
J. Ernest Brophy 72 Director
Mark N. Fessel 40 Director
Frank Cavell Smith, Jr. 51 Director
Mr. Caldarone was reappointed as Chairman, President and Chief Executive
Officer of Calton in November 1995, having previously served in such capacities
from the inception of the Company in 1981 through May 1993 when the Company
consummated the Reorganization. From June 1993 through October 1995, Mr.
Caldarone served as a Director of the Company.
Mr. Fourniadis was named Senior Vice President, Secretary and Corporate Counsel
of Calton in June 1993 following the consummation of the Reorganization. Prior
thereto, Mr. Fourniadis served as Vice President and Corporate Counsel of
Calton Homes from 1988 to 1993.
Mr. Little was named Senior Vice President, Treasurer and Chief Financial
Officer of Calton in June 1993 following the consummation of the
Reorganization. Prior thereto, Mr. Little had served as Vice President of
Accounting of Calton from 1989 to June 1993.
Mr. Brophy, a self-employed attorney and certified public accountant
specializing in tax consultation to clients engaged in the construction
business, was reappointed as a Director of Calton in November 1995, having
served in such capacity from March 1983 through November 1985 and from April
1986 until through May 1993 when the Company consummated the Reorganization.
-15-
Since 1992, Mr. Brophy has served as Chief Financial Officer and a director of
Hurdy-Gurdy International, Inc., a company that markets sorbet products.
Mr. Fessel was designated as a Director of Calton by the holders of a majority
in outstanding principal amount of the Company's 12-5/8% Subordinated Notes
(the "Subordinated Notes") pursuant to the Reorganization in May 1993. Since
1985, Mr. Fessel has owned and operated a real estate company and has acted as
principal in numerous commercial and residential real estate developments
throughout the northeast. In 1984, Mr. Fessel served as the Vice President of
Acquisitions of the Meredith Organization, a nationally recognized real estate
developer.
Mr. Smith was designated as a Director of Calton by the holders of a majority
in outstanding principal amount of Subordinated Notes pursuant to the
Reorganization in May 1993. Since 1990, Mr. Smith has been associated with the
MEG Companies as a Senior Consultant responsible for corporate real estate
consulting activities. From 1977 to 1990, Mr. Smith served as a Real Estate
Consultant and Real Estate Development Manager for The Spaulding Co., Inc. Mr.
Smith also is an adjunct faculty member at Boston University and a member of
the Board of Trustees of Shelter, Inc.
Item 11. EXECUTIVE COMPENSATION
The following table sets forth information concerning the annual and long-term
compensation for services in all capacities to the Company and its subsidiaries
for the fiscal years ended November 30, 1996, 1995 and 1994, of the Chief
Executive Officer of the Company in fiscal 1996 and the other executive
officers of the Company who earned salary and bonuses in fiscal 1996 in excess
of $100,000 (collectively, the "Named Officers"):
SUMMARY COMPENSATION TABLE
Long
Term
Compen-
sation
Awards
Securities All Other
Under- Compen-
Name and Salary Bonus lying sation
Principal Position (1) Year ($)(2) ($)(2) Options (#) ($)(4)(5)
- ---------------------- ---- -------- --------- ----------- ----------
Anthony J. Caldarone 1996 $250,000 $ 20,000 -- $13,007(6)
Chairman, Chief 1995 7,692 -- 500,000(7) 240
Executive Officer & 1994 -- -- -- --
President(8)
Bradley A. Little 1996 140,000 15,000 25,000 7,586
Sen. Vice President- 1995 137,917 -- 185,000(9) 14,004
Finance & Treasurer 1994 126,250 100,000 60,000 11,922
Robert A. Fourniadis 1996 122,500 10,000 10,000 7,014
Sen. Vice President- 1995 120,417 -- 185,000(9) 13,812
Legal & Secretary 1994 108,333 90,000 60,000 11,470
___________________
(1) Each of the individuals named in the above table served as an officer of
the Company's wholly owned subsidiary, Calton Homes, Inc. ("Calton
Homes"), during all or a portion of the three years ended November 30,
1996. All cash compensation included in the above table was paid or
accrued by Calton Homes.
-16-
(2) Represents amounts accrued in fiscal 1994 and fiscal 1996 and payable in
the subsequent fiscal year to the Named Officers pursuant to the Company's
Incentive Compensation Plan (the "Incentive Plan"). No Incentive Plan
Awards were made with respect to fiscal 1995. The Incentive Plan provides
for an incentive compensation pool equal to ten percent (10%) of the
Company's annual pre-tax income, subject to certain adjustments to pre-tax
income that may be made by the Compensation Committee to remove the effect
of events or transactions not in the ordinary course of the Company's
operations. No such adjustments were made for the fiscal years 1994 or
1996, and the incentive compensation pools for such years were $656,000 in
fiscal 1994 (of which $620,000 was awarded) and $120,000 in fiscal 1996
(of which $119,000 was awarded). Officers and key operations and senior
corporate management employees (the "Eligible Employees") of the Company
and its subsidiaries are eligible for participation in the Incentive Plan.
In addition, up to 10% of the incentive compensation pool established
under the Incentive Plan may be used for bonuses to full time employees
who do not otherwise have an opportunity for commissions or bonuses. The
Eligible Employees are determined each fiscal year by the Compensation
Committee based on the recommendations of the President and Chief
Executive Officer of the Company. An Eligible Employee may not receive a
distribution from the incentive compensation pool for any fiscal year that
exceeds the lesser of twenty percent (20%) of the available incentive
compensation pool or one hundred percent (100%) of the Eligible Employee's
base salary for such fiscal year, unless otherwise provided in the
Eligible Employee's employment agreement with the Company. The
Compensation Committee ultimately determines the percentage, if any, of
the incentive compensation pool for a fiscal year to be awarded to an
Eligible Employee.
(3) Includes amounts contributed by the Company under its 401(k) Plan (the
"401(k) Plan"). All full-time employees who have completed more than one
year of service with the Company are eligible to participate in the 401(k)
Plan which allows eligible employees to save up to 18% of their pre-tax
compensation (subject to a maximum amount per year established annually
pursuant to the Internal Revenue Code of 1986, as amended) through a pay-
roll deduction. Subject to the discretion of its Board of Directors, the
Company may make matching contributions to the 401(k) Plan in the form of
cash or Common Stock. The Company's matching contribution for fiscal 1996
was made primarily in Common Stock and the Company anticipates that its
matching contribution for the next fiscal year will be made in the form of
Common Stock. Amounts contributed by the Company to the accounts of the
Named Officers for fiscal 1996 (including the dollar value of contri-
butions made in the form of Common Stock) were as follows: Mr. Caldarone
- $475; Mr. Little - $475; and Mr. Fourniadis - $273.
(4) Includes the reimbursement by the Company of automobile expenses in fiscal
1996 as follows: Mr. Caldarone - $8,040; Mr. Little - $6,000; and Mr.
Fourniadis - $6,000.
(5) Includes cost of premiums paid by the Company under a program which
provides officers of the Company with additional life insurance
(supplementing the coverage available under the Company's group life
insurance plan) as follows: Mr. Caldarone - $3,450; Mr. Little - $1,111;
and Mr. Fourniadis - $741.
(6) Includes $1,042 paid to Mr. Caldarone in connection with his election not
to participate in the Company's group health insurance plan.
(7) Represents options to purchase Common Stock which were granted to Mr.
Caldarone effective January 31, 1996 pursuant to his employment agreement
with the Company.
(8) Mr. Caldarone was reappointed Chairman, President and Chief Executive
Officer of the Company on November 21, 1995 having previously served in
such capacities from the Company's inception until June 1993.
-17-
(9) Represents 25,000 shares underlying options granted in January 1996 for
services rendered in fiscal 1995 and 160,000 shares underlying options
granted in respect of prior fiscal years which were repriced in 1995.
Directors' Compensation
Members of the Board of Directors who are not full time employees of Calton
were each entitled in fiscal 1996 to annual compensation of $20,000 for service
as a director. Calton paid or accrued a total of $69,000 in director fees to
members of the Board of Directors during fiscal year 1996. Directors are
reimbursed for travel expenses incurred in connection with attendance at Board
and committee meetings. Directors who are not full time employees are paid a
participation fee of $1,000 for each committee meeting attended. In addition,
under the terms of the Company's 1996 Equity Incentive Plan (the "1996 Option
Plan") each non-employee director who has attended 75% or more of the Board
meetings and meetings of the committees on which he serves is awarded options
to purchase 10,000 shares of the Company's Common Stock each time such director
is re-elected to the Board of Directors. Options to purchase an aggregate of
30,000 shares of Common Stock at an exercise price of $.53125 per share (the
fair market value of the Common Stock on the date of grant) were granted to
non-employee directors pursuant to the 1996 Option Plan in fiscal 1996. The
exercise price of these options was adjusted to $.41 per share (the fair market
value of the Common Stock on the date of the adjustment) in January 1997.
Employment Agreement with Chief Executive Officer
Effective November 21, 1995, the Company entered into an Employment Agreement
(the "Employment Agreement") with Anthony J. Caldarone, Chairman, President and
Chief Executive Officer of the Company. The term of the Employment Agreement
will end on November 30, 1998; provided, that such term will be automatically
extended annually for periods of one (1) year unless a notice of non-extension
is issued by the Company or Mr. Caldarone. Pursuant to the Employment
Agreement, Mr. Caldarone will receive a minimum annual salary of $250,000
("Base Compensation") which may be increased by the Board or a committee
thereof. Mr. Caldarone is entitled to participate in any bonus compensation or
benefit plan or arrangement provided by the Company to its employees or senior
level executives, including the Company's Incentive Plan. Under the Employment
Agreement, Mr. Caldarone may be awarded up to thirty percent (30%) of the
Incentive Plan's designated incentive compensation for any fiscal year and,
subject to such limitation, is entitled to not less than one-half of the
average percentage that all awards to other Eligible Participants are of the
respective Eligible Participants' base salary for the relevant fiscal year. Mr.
Caldarone is entitled to be reimbursed by the Company for certain automobile
expenses and was granted options to purchase 500,000 shares of Common Stock
under the 1996 Option Plan pursuant to the Employment Agreement.
If the Employment Agreement is terminated by reason of Mr. Caldarone's death,
the Company is obliged to reimburse Mr. Caldarone's designated beneficiaries
the cost of COBRA benefits, other than long-term disability coverage, for a
period of 18 months following the date of death. If the Employment Agreement is
-18-
terminated by reason of Mr. Caldarone's disability, Mr. Caldarone will be
entitled to receive a lump sum cash payment equal to one years' Base
Compensation (the "Severance Compensation") from the Company as well as the
cost of COBRA benefits, other than long-term disability, for him and his family
for a period of 18 months following the date of termination, and continue to
participate in any group life insurance or supplemental life insurance program
of the Company then in effect for a period of 18 months following the date of
termination (collectively, the "Severance Benefits"). The Company may terminate
the Employment Agreement for just cause in the event Mr. Caldarone is convicted
of a felony in connection with his duties as an officer of the Company, if the
commission of such felony resulted in a personal financial benefit to Mr.
Caldarone. Upon termination for just cause by the Company, Mr. Caldarone is not
entitled to receive any Severance Compensation or Severance Benefits. If the
Company terminates the Employment Agreement without just cause, Mr. Caldarone
is entitled to the Severance Compensation and Severance Benefits. If the
Company terminates the Employment Agreement by issuing a notice of
non-extension, Mr. Caldarone is entitled to receive a lump sum cash payment
equal to one years' Base Compensation as well as the Severance Benefits. Mr.
Caldarone may terminate the Employment Agreement for just cause and receive
Severance Compensation and Severance Benefits, if (i) the Board fails to
re-elect him as each of Chairman, President and Chief Executive Officer of the
Company, (ii) the Board significantly reduces the nature and scope of his
authorities, powers, duties and functions, (iii) the Company breaches any
material covenant of the Employment Agreement, or (iv) the Company consents to
Mr. Caldarone's retirement. If Mr. Caldarone terminates the Employment
Agreement without just cause or by issuing a notice of non-extension, he is not
entitled to the Severance Compensation or Severance Benefits. After the date of
termination of Mr. Caldarone' employment for any of the reasons specified
herein and in the Employment Agreement, Mr. Caldarone will not receive any
further salary payments under the Employment Agreement.
For the term of the Employment Agreement and for a period of twelve (12) months
following termination of Mr. Caldarone' employment, other than for just cause
by the Company or without just cause by Mr. Caldarone, Mr. Caldarone is
restricted from competing with the Company in certain regions in which the
Company is actively engaged in business.
Severance Policy Arrangements For Senior Executives
The Company has established a severance compensation policy for senior level
executives who have been employed by the Company for more than one year (the
"Severance Policy"). To become eligible to participate in the Severance Policy,
a senior level executive must be selected by the Company's Compensation
Committee and approved by the Board of Directors ("Eligible Participants").
Under the Severance Policy, an Eligible Participant whose employment is
terminated is entitled to receive one month's base salary for each year
employed by the Company, pro rated for any partial year, but in no event less
than six month's base salary; provided, however, that the Eligible Participants
who were designated to participate in the Severance Policy in August 1993 (Mr.
Little and Mr. Fourniadis) are entitled to receive twelve month's base salary.
In addition, the Company will pay all amounts required to be paid by the
-19-
Eligible Participants to continue insurance coverage under COBRA for a period
of time equal to the number of months on which the severance compensation is
based. The severance compensation for Eligible Participants who are parties to
employment agreements will be governed by the terms of such agreements.
Eligible Participants who resign voluntarily or who are terminated for cause
(as defined in the Severance Policy) will not be eligible for severance
compensation.
Option Grants
Shown below is further information with respect to grants during fiscal 1996 of
stock options to the Named Officers by the Company which are reflected in the
Summary Compensation Table set forth under the caption "Executive
Compensation."
Individual Grants
------------------
% of
Total Potential
Options Realizable
Granted Value at Assumed
to Exer- Annual Rates
No. of Employ- cise of Stock Price
Securities ees or Appreciation for
Underlying in Base Option Term
Options Fiscal Price Expiration -----------------
Name Granted (#) Year ($/Sh) Date (1) 5% ($) 10% ($)
- -------------------- ---------- ----- ------- ---------- -------- --------
Bradley A. Little 25,000(1) 3.2% $.53125(2) 4/24/2006 $8,353 $21,166
Robert A. Fourniadis 10,000(2) 1.3% .53125(2) 4/24/2006 3,341 8,467
(1) Represents shares of Common Stock underlying options granted in April
1996. The options are exercisable cumulatively in five equal annual
installments commencing on the first anniversary of the date of grant.
(2) The exercise price of these options was adjusted to $.41 per share in
January 1997. The potential realizable value of the adjusted options held
by the individuals identified in the above table is as follows: Mr. Little
- $5,849 (assuming a 5% annual appreciation rate) and $14,523 (assuming a
10% annual appreciation rate); and Mr. Fourniadis - $2,340 (assuming a 5%
annual appreciation rate) and $5,809 (assuming a 10% appreciation rate).
Option Exercises and Fiscal Year-End Values
Shown below is information with respect to unexercised options to purchase the
Company's Common Stock held by the Named Officers at November 30, 1996. On such
date, the exercise price of each of such options equaled or exceeded the
closing price of the Company's Common Stock on the American Stock Exchange
($.3125 per share) on November 29, 1996 (the last day of fiscal 1996 on which
the Common Stock was traded on the American Stock Exchange). No options were
exercised in fiscal 1996.
Number of Securities
Underlying Unexercised
Options Held at FY-End (#)(1)
-----------------------------
Exercisable Unexercisable
----------- -------------
Anthony J. Caldarone 500,000 ---
Bradley A. Little 120,000 90,000
Robert A. Fourniadis 120,000 75,000
-20-
Compensation Committee Interlocks and Insider Participation
The Compensation Committee currently consists of Mark N. Fessel and Frank
Cavell Smith, Jr. No such person was an officer or employee of the Company
during fiscal 1996 or was formerly an officer of the Company.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth information concerning beneficial ownership of
the Company's Common Stock as of March 31, 1997 by (i) each person known by the
Company to be the beneficial owner (as defined in Rule 13d-3 ("Rule 13d-3") of
the Securities Exchange Act of 1934) of more than five percent (5%) of the
Company's Common Stock and (ii) each of the Named Officers who was employed by
the Company at March 31, 1997. Except as set forth in the footnotes to the
table, the shareholders have sole voting and investment power over such shares:
Amount and Nature of Percent
Name of Beneficial Owner Beneficial Ownership of Class
- ------------------------ -------------------- --------
Anthony J. Caldarone 7,433,618(1) 27.5%
Joyce P. Caldarone 4,775,618(2) 17.7%
Apollo Homes Partners, L.P.(3) 2,658,000(4) 10.0%
Frederick J. Jaindl(5) 2,195,350 8.3%
Goldman Sachs & Co.(6) 1,344,600 5.1%
Robert A. Fourniadis 168,919(7) (8)
Bradley A. Little 166,276(9) (8)
J. Ernest Brophy 23,770(10) (8)
Mark N. Fessel 14,390(10) (8)
Frank Cavell Smith, Jr. 10,000(10) (8)
All Directors and Executive
Officers as a Group
(6 persons)(1)(7)(9)(10) 7,816,973 28.7%
____________________
(1) Includes an aggregate of 1,395,209 shares held by Joyce P. Caldarone, Mr.
Caldarone's wife, as to which shares he disclaims any beneficial interest,
500,000 shares subject to currently exercisable options granted under the
Company's 1996 Equity Incentive Plan (the "1996 Option Plan"), 8,837
shares held through the Company's 401(k) Plan and 2,658,000 shares held by
Apollo Homes Partners, L.P. ("Apollo Homes"), which Mr. Caldarone has the
right to vote in the election of directors pursuant to a proxy granted to
him by Apollo Homes. In addition, under the terms of a stock purchase
agreement between Mr. Caldarone and Apollo Homes, Mr. Caldarone was
granted certain rights of first offer with respect to the shares of Calton
Common Stock owned by Apollo. The agreement also grants Apollo certain
"tag-along rights" to sell shares of Calton Common Stock in the event of,
and along with, certain transfers of Common Stock made by Mr. and/or Mrs.
Caldarone, and contains provisions requiring (a) Apollo, under certain
circumstances, to sell the Common Stock owned by it in the event that Mr.
and Mrs. Caldarone sell all of the securities of the Company that they own
and (b) Mr. and Mrs. Caldarone to offer to Apollo, under certain
circumstances, the opportunity to purchase a pro rata portion of
additional securities acquired by Mr. and/or Mrs. Caldarone from the
Company.
-21-
(2) Includes an aggregate of 3,380,409 shares beneficially owned by Anthony J.
Caldarone, Mrs. Caldarone's husband, as to which shares she disclaims any
beneficial interest.
(3) The sole general partner of Apollo Homes is AIF II, L.P., a Delaware
limited partnership. The managing general partner of AIF II, L.P. is
Apollo Advisors, whose principal offices are located at Two Manhattanville
Road, Purchase, New York 10577. Apollo Capital Management, Inc. ("ACM") is
the general partner of Apollo Advisors. Shareholdings information is based
upon Apollo Homes' Schedule 13D, as amended to November 21, 1995.
(4) See note 1 above for a description of certain rights granted by Apollo
Homes to Anthony J. Caldarone with respect to these shares.
(5) Such holder maintains an address at c/o Jaindl Farms, 3150 Coffeetown
Road, Orefield, Pennsylvania 12609. Shareholdings information is based
upon the Schedule 13D of such holder, as amended to January 14, 1997.
(6) The principal offices of such shareholder are located at 85 Broad Street,
New York, New York 10004. Shareholdings information is based upon the
Schedule 13D, as amended to May 5, 1995, of Goldman Sachs & Co., the
direct owner, and The Goldman Sachs Group, L.P., which indicates that each
of such entities is a beneficial owner of such shares.
(7) Includes 148,333 shares subject to currently exercisable options granted
under the Company's Amended and Restated 1993 Non-Qualified Stock Option
Plan (the "1993 Option Plan" and 20,586 shares held through the Company's
401(k) Plan.
(8) Shares beneficially owned do not exceed 1% of the Company's outstanding
Common Stock.
(9) Includes 148,333 shares subject to currently exercisable options granted
under the 1993 Option Plan and 17,943 shares held through the Company's
401(k) Plan.
(10) Includes 10,000 shares subject to currently exercisable options granted
under the 1996 Option Plan.
Item 13. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Goldman, Sachs & Co. is the beneficial owner of more than 5% of the Company's
Common Stock and is affiliated with one of the lenders under the Facility. This
affiliate held a 22.5% interest in amounts outstanding under the Facility,
which totaled $39.5 million, at November 30, 1996.
-22-
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
Page
(a) 1. and 2. Financial statements and financial
statement schedules
Reference is made to the Index of Financial
Statements and Financial Statement Schedules
hereinafter contained F-1
3. Exhibits
Reference is made to the Index of
Exhibits hereinafter contained F-5
and
F-6
(b) Reports on Form 8-K
None
-23-
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
CALTON, INC.
(Registrant)
By: /s/ Bradley A. Little
BRADLEY A. LITTLE,
Senior Vice President-Finance
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
Signature Title Date
/s/ Anthony J. Caldarone Chairman, Chief Executive April 11, 1997
(Anthony J. Caldarone) Officer and President
(Principal Executive Officer)
/s/ Bradley A. Little Senior Vice President-Finance April 11, 1997
(Bradley A. Little) & Treasurer (Principal Financial
& Accounting Officer)
/s/ J. Ernest Brophy Director April 11, 1997
(J. Ernest Brophy)
/s/ Mark N. Fessel Director April 11, 1997
(Mark N. Fessel)
/s/ Frank Cavell Smith, Jr. Director April 11, 1997
(Frank Cavell Smith, Jr.)
-24-
CALTON, INC. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES
Page
Number
Consolidated Balance Sheet at November 30, 1996 and 1995. . . . . . . .*
Consolidated Statement of Operations for the years ended
November 30, 1996, 1995 and 1994. . . . . . . . . . . . . . . . . . .*
Consolidated Statement of Cash Flows for the years
ended November 30, 1996, 1995 and 1994. . . . . . . . . . . . . . . .*
Consolidated Statement of Shareholders' Equity for
the years ended November 30, 1996, 1995 and 1994. . . . . . . . . . .*
Notes to Consolidated Financial Statements. . . . . . . . . . . . . . .*
Report of Independent Accountants . . . . . . . . . . . . . . . . . *,F-2
Consent of Independent Accountants. . . . . . . . . . . . . . . . . . .F-3
Schedules**
II-Valuation and Qualifying Accounts. . . . . . . . . . . . . . . . . .F-4
* The financial statements and notes thereto together with the Report of
Independent Accountants on pages 12 through 24 of the 1996 Annual Report to
Shareholders are incorporated herein by reference.
** Schedules other than the schedule listed above have been omitted because of
the absence of the conditions under which they are required or because the
required information is presented in the financial statements or the notes
thereto.
F-1
REPORT OF INDEPENDENT ACCOUNTANTS
Our report on the consolidated financial statements of Calton, Inc. and
Subsidiaries, dated January 10, 1997, except for Notes 1 and 5, as to which the
date is April 11, 1997, has been incorporated by reference in this Form 10-K
from page 24 of the 1996 Annual Report to Shareholders of Calton, Inc. In
connection with our audits of such financial statements, we have also audited
the related financial statement schedule listed in the Index on page F-1 of
this Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
/s/ Coopers & Lybrand L.L.P.
Princeton, New Jersey
January 10, 1997
F-2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statements of
Calton, Inc. and Subsidiaries on Form S-8 (Nos. 33-35176 and 33-75184) of our
report, dated January 10, 1997, except for Notes 1 and 5, as to which the date
is April 11, 1997, on our audits of the consolidated financial statements and
financial statement schedule of Calton, Inc. and Subsidiaries as of November
30, 1996, and 1995 and for the years ended November 30, 1996, 1995 and 1994,
which report has been incorporated by reference in this Annual Report on Form
10-K.
/s/ Coopers & Lybrand L.L.P.
Princeton, New Jersey
April 11, 1997
F-3
SCHEDULE II
CALTON, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
(Amounts in Thousands)
Additions
----------------------
Balance Charged Balance
at Begin- to Costs Charged to at
ning of and to Other End of
Description Year Expenses Accounts Deductions Year
- -------------------- -------- -------- ----------- ---------- ------
Year ended
November 30, 1994:
Net realizable
value reserves
for inventory $ -- $ 400 $ -- $ -- $ 400
======== ======== =========== ========== =======
Valuation allowance
for net deferred
tax asset $ 39,365 $ -- $ -- $ 2,473 $36,892
======== ======== =========== ========== =======
Year ended
November 30, 1995:
Net realizable
value reserves
for inventory $ 400 $ 1,593 $ -- $ -- $ 1,993
======== ======== =========== ========== =======
Valuation allowance
for net deferred
tax asset $ 36,892 $ -- $ -- $ 18,245(A) $18,647
======== ======== =========== ========== =======
Year ended
November 30, 1996:
Net realizable
value reserves
for inventory $ 1,993 $ -- $ -- $ 880 $ 1,113
======== ======== =========== ========== =======
Valuation allowance
for net deferred
tax asset $ 18,647 $ -- $ 981 $ -- $19,628
======== ======== =========== ========== =======
(A) Represents the impact of the recalculation of the Section 382
limitation and the utilization against taxable income attributable to
Talcon, L.P.
F-4
INDEX TO EXHIBITS
2. Plan of Reorganization of the Registrant and Subsidiaries
incorporated by reference to Exhibit 2 to Amendment No. 1 to
Form S-1 Registration Statement under the Securities act of
1933, Registration No. 33-60022.
3.1 Amended and Restated Certificate of Incorporation of the
Registrant filed with the Secretary of State, State of New
Jersey on May 28, 1993, incorporated by reference to Exhibit
3.2 to Amendment No. 1 to Form S-1 Registration Statement
under the Securities Act of 1933, Registration No. 33-60022
and Certificate Amendment to Amended and Restated
Certificate of Incorporation of Registrant filed with the
Secretary of State, State of New Jersey on April 27, 1994,
incorporated by reference to Exhibit 3(b) to Form S-1
Registration Statement under the Securities Act of 1933,
Registration No. 33-76312.
3.2 By Laws of Registrant, as amended, incorporated by reference
to Exhibit 3.1 of Form 10-K of Registrant for the fiscal
year ended November 30, 1990.
4. Second Amended and Restated Loan and Security Agreement
dated as of April 10, 1997, among the Registrant, Calton
Funding, Inc. and a group of financial institutions. Upon
request of the Securities and Exchange Commission, the
Registrant agrees to furnish a copy of the exhibits and
schedules identified in such agreement.
(*)10.1 1996 Equity Incentive Plan.
(*)10.3 Registrant's Amended and Restated 1993 Non-Qualified Stock
Option Plan, incorporated by reference to Exhibit 10.3 to
Form 10-K of Registrant for the fiscal year ended November
30, 1995.
(*)10.4 Incentive Compensation Plan of Registrant.
(*)10.6 Severance Policy for Senior Executives of Registrant
incorporated by reference to Exhibit 10.6 of Form 10-K of
Registrant for the fiscal year ended November 30, 1994.
(**)10.7 Executive Employment Agreement dated as of November 21, 1995
between Registrant and Anthony J. Caldarone, incorporated by
reference to Exhibit 10.7 to Form 10-K of Registrant for the
fiscal year ended November 30, 1995.
(**)10.8 Supplemental Executive Compensation Agreement dated as of
May 12, 1995 between the Registrant and Douglas T. Noakes,
incorporated by reference to Exhibit 10.8 to Form 10-K of
Registrant for the fiscal year ended November 30, 1995.
(**)10.9 Supplemental Executive Compensation Agreement dated as of
May 12, 1995 between the Registrant and Bradley A. Little,
incorporated by reference to Exhibit 10.9 to Form 10-K of
Registrant for the fiscal year ended November 30, 1995. An
agreement substantially identical in term and content and
executed by the Registrant and Robert A. Fourniadis has not
been reproduced herein.
13. Certain pages of Registrant's 1996 Annual Report to
Shareholders which, except for those portions expressly
incorporated herein by reference, are not deemed filed a
part hereof.
21. Subsidiaries of the Registrant.
27. Financial Data Schedule.
(*) Constitutes a compensatory plan required to be filed as an
exhibit pursuant to Item 14(c) of Form 10-K.
(**) Constitutes a management contract required to be filed
pursuant to Item 14(c) of Form 10-K.<PAGE>
F-5
EXHIBIT 4
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated As Of April 10, 1997
Amending the Amended and Restated Loan and Security Agreement
Dated as of May 28, 1993, as Amended
Among
Calton, Inc.,
as Borrower,
Calton Funding, Inc.
as Borrower,
The Subsidiaries of Calton, Inc. Listed Herein, as Guarantors,
The Lenders Listed Herein,
as Lenders,
The Chase Manhattan Bank, as Agent, and
The Chase Manhattan Bank,
as Collateral Agent
NOTE: Please refer to the end of Exhibit 4 for an index to this
Agreement, Exhibits and Schedules
CALTON, INC.
This Second Amended and Restated Loan and Security Agreement (this
"Amended Loan Agreement") dated as of April 10, 1997, amending and restating
the Original Loan Agreement (as defined below), as amended prior to the date
hereof, is entered into among (Company) Calton, Inc., a New Jersey corporation
("Company"), Calton Funding, Inc., a New Jersey corporation ("Calton Funding;"
Company and Calton Funding are sometimes each referred to herein individually
as a "Borrower" and collectively as "Borrowers"), each subsidiary of Company
identified herein as a Guarantor (each a "Guarantor" and collectively
"Guarantors"), the financial institutions listed on the signature pages hereof
(each a "Lender" and collectively "Lenders"), The Chase Manhattan Bank, a New
York banking corporation formerly known as Chemical Bank ("Chase"), in its
capacity as agent for the Lenders (the "Agent") and Chase, in its capacity as
collateral agent for the Lenders (the "Collateral Agent").
BACKGROUND
1. The Amended and Restated Loan and Security Agreement (the "Original
Loan Agreement") was entered into as of May 28, 1993 among Company, Calton
Funding, the financial institutions listed on the signature pages thereof as
lenders, Chemical Bank, in its capacity as agent for the lenders, and Chemical
Bank in its capacity as collateral agent for the lenders.
2. The Original Loan Agreement has been amended by nine previous
amendments thereto: the First Amendment to Amended and Restated Loan and
Security Agreement dated as of September 27, 1993; the Second Amendment to
Amended and Restated Loan and Security Agreement dated as of October 14, 1993;
the Third Amendment to Amended and Restated Loan and Security Agreement dated
as of January 19, 1994; the Fourth Amendment to Amended and Restated Loan and
Security Agreement dated as of February 28, 1994; the Fifth Amendment to
Amended and Restated Loan and Security Agreement dated as of February 23, 1995;
the Sixth Amendment to Amended and Restated Loan and Security Agreement dated
as of May 31, 1995; the Seventh Amendment to Amended and Restated Loan and
Security Agreement dated as of February 23, 1996; the Eighth Amendment to
Amended and Restated Loan and Security Agreement dated as of January 31, 1997;
the Ninth Amendment to Amended and Restated Loan and Security Agreement dated
as of February 28, 1997; and the Tenth Amendment to Amended and Restated Loan
and Security Agreement dated as of March 31, 1997. (The Original Loan
Agreement, as amended to the date hereof, is referred to herein as the
"Existing Loan Agreement").
3. Borrowers, Guarantors, Lenders, Agent, and Collateral Agent desire to
amend and restate the Existing Loan Agreement in its entirety in order to
provide, among other things, that (i) the aggregate amount of the Tranche A
Commitments and Tranche B Commitments shall be reduced on the Effective Date to
$46,000,000; (ii) on the Effective Date, all outstanding Tranche A Loans and
Tranche B Loans under the Existing Loan Agreement shall be continued as Tranche
A Loans and Tranche B Loans hereunder; (iii) the interest rates payable on the
Loans shall be revised as set forth herein; (iv) the scheduled reductions in
Commitments shall be revised as set forth herein; (v) the financial covenants
shall be revised as set forth herein; and (vi) the terms and provisions of the
Existing Loan Agreement shall otherwise be modified as set forth herein.
4. On the Effective Date, Borrowers will confirm and agree that their
existing pledge and grant of a security interest in substantially all of their
present and future real and personal property will continue as security for the
payment and performance of the Obligations of Borrowers.
5. On the Effective Date, Guarantors will confirm and agree that (i) the
existing guaranty by such Guarantor of the obligations of Borrowers under the
Existing Loan Agreement will continue as a guaranty of the Obligations
hereunder and (ii) the existing grant of a security interest by Guarantors in
substantially all of their respective assets to secure such guaranty will
continue as security for the payment and performance of such guaranty.
6. The parties hereto wish to amend and restate the Existing Loan
Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Guarantors, Lenders,
Agent and Collateral Agent agree that, upon the satisfaction of the conditions
to effectiveness set forth in Section 4.1 hereof, the Existing Loan Agreement,
as heretofore amended, shall be amended and restated to read in its entirety as
follows:
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Account Collateral" means (a) all rights with respect to the
Concentration Accounts and all amounts from time to time on deposit
therein; (b) all investments related thereto made by Collateral Agent
pursuant to the terms of Section 5 of the Account Collateral Security
Agreement, including all certificates, instruments and securities from
time to time representing or evidencing such investments and any account
or accounts in which such investments may be held by, or in the name of,
Collateral Agent for or on behalf of any Credit Party; (c) all notes,
certificates of deposit, checks and other instruments and all deposits and
uncertified securities from time to time hereafter transferred to or
otherwise possessed by, or held in the name of, Collateral Agent for or on
behalf of any Credit Party in substitution for or in addition to any or
all of the Account Collateral; (d) all interest, dividends, cash,
instruments, securities and other property from time to time received,
receivable, or otherwise distributed in respect of or in exchange for any
or all of the Account Collateral; and (e) to the extent not covered by
clauses (a) through (d) above, all proceeds of any or all of the foregoing
Account Collateral.
"Account Collateral Security Agreement" means the Account Collateral
Security Agreement dated as of May 28, 1993, executed and delivered by the
Credit Parties pursuant to the Existing Loan Agreement, pursuant to which
Company and its Subsidiaries established the Concentration Accounts and
granted to Collateral Agent on behalf of Lenders a first priority security
interest in such accounts, as such Account Collateral Security Agreement
has been amended and as it may hereafter be amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof
and thereof.
"Acknowledgement and Confirmation" means an Acknowledgement and
Confirmation Agreement dated as of the Effective Date, substantially in
the form of Exhibit I hereto, pursuant to which each Credit Party shall
acknowledge and confirm that its obligations under the Guaranty Agreement
and the Security Documents to which it is a party shall continue to
guaranty or secure, as the case may be, the Obligations of Borrowers
hereunder, as such Acknowledgement and Confirmation Agreement may
hereafter be amended, supplemented or otherwise modified from time to
time.
"Additional Mortgaged Property" has the meaning assigned to that term
in subsection 3.2D(i)(b).
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract
or otherwise.
"Agent" means The Chase Manhattan Bank, as agent for the Lenders, and
also means and includes any successor Agent appointed pursuant to
subsection 9.5.
"Amended Loan Agreement" means this Second Amended and Restated Loan
and Security Agreement dated as of April 10, 1997 amending and restating
the Existing Loan Agreement, as the same may be further amended,
supplemented or otherwise modified from time to time.
"Asset Sale" means the sale by Company or any of its Subsidiaries to
any Person other than a Credit Party of (i) any of the stock of any of its
Subsidiaries, (ii) any assets of Company or any of its Subsidiaries with
an aggregate Book Value in excess of $500,000, except for sales of single
houses with Book Values in excess of $500,000 in the ordinary course of
business, (iii) any assets of Company or any of its Subsidiaries at a
price which is less than seventy percent (70%) of the Book Value of such
assets, or (iv) any other assets of Company or any of its Subsidiaries
outside of the ordinary course of business.
"Assignment and Assumption" means an Assignment and Assumption
entered into by a Lender and an Eligible Assignee, and accepted by Agent,
in substantially the form of Exhibit C annexed hereto.
"Auditor's Letter" means a letter substantially in the form of
Exhibit D annexed hereto delivered to Lenders by Coopers & Lybrand
pursuant to subsection 4.1C.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the Prime Rate plus 2.50% per annum.
"Bi-Weekly Inventory Release Reports" means the inventory release
reports to be delivered to Agent, Collateral Agent and, upon request, the
Lenders on a bi-weekly basis pursuant to subsection 6.1(i)(b).
"Book Value" means, for any property, the value for such property
calculated by Company for financial accounting purposes according to GAAP
and consistent with past practices.
"Borrower Pledge Agreement" means that certain Borrower Pledge
Agreement dated as of May 28, 1993, executed and delivered by Borrowers
and Collateral Agent pursuant to the Existing Loan Agreement, as the same
has been amended to the date hereof and as it may hereafter be amended,
supplemented, or otherwise modified from time to time.
"Borrower Security Agreement" means that certain Borrower Security
Agreement dated as of May 28, 1993, executed and delivered by Borrowers
and Collateral Agent pursuant to the Existing Loan Agreement, as the same
has been amended to the date hereof and as it may hereafter be amended,
supplemented, or otherwise modified from time to time.
"Borrowers" means Company and Calton Funding, Inc., a New Jersey
corporation, as joint and several obligors.
"Borrowing Base" means, as of any date, an amount equal to the sum of
(i) 80% of the Eligible Inventory Cost of each Eligible Property shown on
the most recent Borrowing Base Certificate plus (ii) 30% of the remaining
principal amount owed to the Credit Parties under the Mays Landing
Mortgage.
"Borrowing Base Certificate" means a certificate of the chief
financial officer of Company in substantially the form of Exhibit G
annexed hereto.
"Borrowing Base Deficiency" means as of any day the amount, if any,
by which (i) the Total Utilization on such day exceeds (ii) the Borrowing
Base on such day.
"Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means (i) marketable direct obligations issued by
the United States Government and backed by the full faith and credit of
the United States, in each case maturing within 30 days from the date of
acquisition thereof; (ii) commercial paper maturing no more than 30 days
from the date of creation thereof and (x) issued by Chase (to the extent
available for issuance to Borrowers) or (y) at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's Corporation and at
least P-1 from Moody's Investors Service, Inc.; and (iii) certificates of
deposit or bankers' acceptances maturing within 30 days from the date of
acquisition thereof issued by any Lender.
"Cash Proceeds" means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale.
"Change of Control" means an event or series of events by which any
Person or Persons and any Affiliates of such Person or Persons otherwise
acting in concert shall, whether in a single transaction or a series of
related transactions, acquire, directly or indirectly, an amount of
capital stock of Company necessary to enable such Person or Persons to
cast more than 50% of the votes necessary for the election of directors of
Company or possessing in excess of 50% of the total voting power of the
voting capital stock of Company (in each case, on a fully diluted basis);
provided that a Change of Control shall not be deemed to occur if the
acquisition of capital stock otherwise causing a Person, Persons or their
Affiliates to meet or exceed the levels of voting power specified above is
caused solely by the purchase by any Person of capital stock of Company
from Company.
"Chase" has the meaning assigned to that term in the introduction to
this Amended Loan Agreement.
"Collateral" means, collectively, all real, personal and mixed
property collateral securing the Obligations pursuant to the Security
Documents in accordance with Section 3.
"Collateral Agent" means Chase, as collateral agent for the benefit
of the Lenders, and also means and includes any successor Collateral Agent
appointed pursuant to subsection 10.4.
"Commitment Reduction Date" means the first date on which (i) the
Commitments have been permanently reduced to an amount not exceeding
$20,000,000, (ii) the Total Utilization has been reduced to an amount not
exceeding $20,000,000, and (iii) no Event of Default shall have occurred
that has not been either waived by Lenders in accordance with subsection
11.6 or (with respect to Events of Default that can be cured) cured by
Borrowers.
"Commitment Termination Date" means the earlier of (i) the Scheduled
Expiry Date and (ii) the date on which all Obligations are paid in full,
including the repayment, expiration, termination or cash collateralization
of all Letters of Credit, and the Commitments are reduced to zero.
"Commitments" means, collectively, the Tranche A Commitments and the
Tranche B Commitments.
"Company" means Calton, Inc., a New Jersey corporation.
"Company Common Stock" means the common stock of Company, par value
$0.01 per share.
"Compliance Certificate" means a certificate substantially in the
form annexed hereto as Exhibit H delivered to Lenders by Borrowers
pursuant to subsection 6.1(vi).
"Concentration Account A" means account no. 808-010689 established by
the Company with the Collateral Agent and maintained pursuant to the terms
of the Account Collateral Security Agreement for the deposit of certain
cash receipts of the Credit Parties pursuant to the terms of the Account
Collateral Security Agreement.
"Concentration Account B" means account no. 808-010697 established by
the Company with the Collateral Agent and maintained pursuant to the terms
of the Account Collateral Security Agreement for the deposit of certain
cash receipts of the Credit Parties pursuant to the terms of the Account
Collateral Security Agreement.
"Concentration Accounts" means Concentration Account A and
Concentration Account B.
"Consolidated Adjusted EBITDA" means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provisions
for taxes based on income, (iii) Consolidated Interest Expense net of
capitalized interest, (iv) capitalized interest amortized, (v) total
depreciation expense, (vi) total amortization expense, excluding
capitalized interest amortized, and (vii) other non-cash items reducing
Consolidated Net Income less the sum of non-cash items increasing
Consolidated Net Income, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with
GAAP.
"Consolidated Adjusted Tangible Net Worth" means, as at any date of
determination, the excess of (i) all amounts which, in conformity with
GAAP, would be included in shareholder's equity on such date over (ii) the
sum of (a) the aggregate amount of all Investments in Joint Ventures on
such date, plus (b) the aggregate amount of all Deferred Charges of
Company and its Subsidiaries as of such date, plus (c) the aggregate
stated balance sheet amount of any goodwill of Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Capital Expenditures" means, for any period, the sum of
(i) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of
Capital Leases which is capitalized on the consolidated balance sheet of
Company and its Subsidiaries) by Company and its Subsidiaries during that
period that, in conformity with GAAP, are included in "additions to
property, plant or equipment" or comparable items reflected in the
consolidated statement of cash flows of Company and its Subsidiaries plus
(ii) to the extent not covered by clause (i) hereof, the aggregate of all
expenditures by Company and its Subsidiaries during that period to acquire
(by purchase or otherwise) the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense but excluding, however, amortization of
discount, deferred financing costs and interest expense not payable in
cash.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accor-
dance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of
Company and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under
Interest Rate Agreements.
"Consolidated Land Acquisition Costs" means, for any period, the
aggregate of all Land Acquisition Costs for Company and its Subsidiaries
during that period.
"Consolidated Land Development Costs" means for any period, the
aggregate of all Land Development Costs for Company and its Subsidiaries
during that period.
"Consolidated Net Income" means, for any period, the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or loss) of
any Person (other than a Subsidiary of Company) in which any other Person
(other than Company or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions
actually paid to Company or any of its Subsidiaries by such Person during
such period, (ii) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of Company or is merged into or consolidated
with Company or any of its Subsidiaries or that Person's assets are
acquired by Company or any of its Subsidiaries, (iii) the income of any
Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (iv) any after-tax
gains or losses attributable to Asset Sales or returned surplus assets of
any Pension Plan, and (v) (to the extent not included in clauses
(i) through (iv) above) any net extraordinary gains or net non-cash
extraordinary losses.
"Consolidated Rental Payments" means, for any period, the aggregate
amount of all rents paid under all Capital Leases and Operating Leases of
Company and its Subsidiaries as lessee.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and
its Subsidiaries, determined on a consolidated basis in accordance with
GAAP.
"Contingent Obligation", as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of
another if the primary purpose or intent thereof by the Person incurring
the Contingent Obligation is to provide assurance to the obligee of such
obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with,
or that the holders of such obligation will be protected (in whole or in
part) against loss in respect thereof, (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings, or (iii) under Interest
Rate Agreements and Currency Agreements. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation
to make take-or-pay or similar payments if required regardless of non-
performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any
agreement (contingent or otherwise) (x) to purchase, repurchase or other-
wise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise) or
(y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described
under subclauses (x) or (y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of
any Contingent Obligation shall be equal to the amount of the obligation
so guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of
its properties is bound or to which it or any of its properties is
subject.
"Credit Parties" means, collectively, the Borrowers and the
Guarantors, each a "Credit Party."
"Deemed Voting Lender" has the meaning set forth in Subsection 11.6A.
"Deferred Charges" means, for any period, the sum of the amounts for
such period of prepaid amounts with respect to directors and officers
insurance, prepaid architectural fees and prepaid property taxes.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate
of deposit.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Effective Date" means the date on or before April 15, 1997, when
each of the conditions to effectiveness set forth in Section 4.1 has been
satisfied or waived by Requisite Lenders (or, in the case of the
conditions set out in clauses 4.1E or 4.1F, satisfaction thereof shall
have been waived by all Lenders).
"Eligible Assignee" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United
States or any state thereof; (iii) a commercial bank organized under the
laws of any other country, or a political subdivision thereof; provided
that (x) such bank is acting through a branch or agency located in the
United States or (y) such bank is organized under the laws of a country
that is a member of the Organization for Economic Cooperation and
Development or a political subdivision of such country; and (iv) any other
entity which is an "accredited investor" (as defined in Regulation D under
the Securities Act) which extends credit or buys loans as one of its
businesses including, but not limited to, insurance companies, mutual
funds and lease financing companies, in each case (under clauses (i)
through (iv) above) that has a net worth or net asset value of at least
$100,000,000 and (B) any Lender.
"Eligible Inventory Cost" means, at any time, with respect to any
Eligible Property, the sum of the Land Acquisition Costs and Land
Development Costs incurred with respect to such Eligible Property through
such time less (i) all fresh start reserve adjustments incurred with
respect to such Eligible Property, (ii) all adjustments required to
determine the net realizable value of such Eligible Property in accordance
with GAAP and all other reserves required by FASB 121 for such Eligible
Property, and (iii) all new Soft Costs incurred with respect to such
Eligible Property in respect of the period, commencing immediately
following the date as of which the fresh start adjustments were made,
through such date of determination.
"Eligible Property" means any Real Estate Project owned in fee by a
Credit Party which is subject to no Liens other than (i) a first priority
Lien granted to the Collateral Agent for the benefit of the Lenders and
(ii) Liens of the types set forth in clauses (i) and (iv) of the
definition of Permitted Encumbrances, and with respect to which Collateral
Agent has received from a title insurer reasonably satisfactory to
Collateral Agent a binding commitment to issue a Mortgage Policy complying
with subsection 3.2D(i)(d).
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is, or was at any time, maintained or
contributed to by any Credit Party or any of their ERISA Affiliates.
"Environmental Claim" means any accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person for
any damage, including, without limitation, personal injury (including
sickness, disease or death), tangible or intangible property damage,
contribution, indemnity, indirect or consequential damages, damage to the
environment or to natural resources, nuisance, pollution, contamination or
other adverse effects on the environment, or for fines, penalties or
restrictions, in each case relating to, resulting from or in connection
with Hazardous Materials and relating to Company, any of its Subsidiaries,
any of their respective Affiliates or any Facility.
"Environmental Laws" means all statutes, ordinances, orders, rules,
regulations, plans, policies or decrees and the like relating to
(i) environmental matters, including, without limitation, those relating
to the evaluation of the environmental impacts of Real Estate Projects,
development of natural habitat such as wetlands, development within the
coastal zone, preservation of aquifers, conformance to regional or
community plans, clean up of industrial sites upon a transfer, fines,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of
Hazardous Materials, (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal
health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any or their respective properties, including, without
limitation, the Industrial Site Recovery Act (N.J.S.A. Sec. 13:1K-6 et
seq.), the National Environmental Policy Act (42 U.S.C. Sec. 4324 et seq.),
the Coastal Zone Management Act (16 U.S.C. Sec. 1451 et seq.), the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. Sec. 9601 et seq.), the Hazardous Materials Transportation Act (49
U.S.C. Sec. 1801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. Sec. 6901 et seq.), the Federal Water Pollution Control Act (33
U.S.C. Sec. 1251 et seq.), the Clean Air Act (42 U.S.C. Sec. 7401 et seq.),
the Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Sec.136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Sec. 11001 et
seq.), each as amended or supplemented, and any analogous future or
present local, state and federal statutes and regulations promulgated
pursuant thereto, each as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled group
of corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which that Person is, or was at any time, a member;
(ii) any trade or business (whether or not incorporated) which is, or was
at any time, a member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Internal Revenue Code
of which that Person is, or was at any time, a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause
(ii) above is, or was at any time, a member.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect
to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to
meet the minimum funding standard of Section 412 of the Internal Revenue
Code with respect to any Pension Plan (whether or not waived in accordance
with Section 412(d) of the Internal Revenue Code) or the failure to make
by its due date a required installment under Section 412(m) of the
Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Sections 4063 or 4064 of
ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of
liability on Company or any of its ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal by Company or any of its ERISA
Affiliates in a complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is
any potential liability therefor, or the receipt by Company or any of its
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that it intends to terminate or has terminated under Section 4041A or 4042
of ERISA; (viii) the occurrence of an act or omission which could give
rise to the imposition on Company or any of its ERISA Affiliates of fines,
penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA
in respect of any Employee Benefit Plan; (ix) the assertion of a material
claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit
Plan intended to be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal Revenue Code, or the
failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 401(a) of the Internal Revenue Code;
or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.
"Event of Default" means each of the events set forth in Section 8.
"Excess Funding Borrower" has the meaning assigned to that term in
subsection 11.21.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Existing Letter of Credit" means each Letter of Credit (as defined
in the Existing Loan Agreement) outstanding on the Effective Date that has
not expired or been cancelled as of the Effective Date.
"Existing Loan Agreement" means the Original Loan Agreement as
amended and in effect immediately prior to the Effective Date.
"Existing Loan Documents" means the Account Collateral Security
Agreement, the Borrower Pledge Agreement, the Borrower Security Agreement,
the Existing Mortgages, the Guarantor Pledge Agreement, the Guarantor
Security Agreement, the Guaranty Agreement and that certain Subordination
Agreement dated as of May 28, 1993 made by the Company and each of its
subsidiaries identified as a Credit Party therein, in favor of the Lenders.
"Existing Loans" means the Existing Tranche A Loans and Existing
Tranche B Loans.
"Existing Mortgages" means the Mortgages listed on Schedule 5.22
annexed hereto, each issued by a Borrower or Guarantor to the Collateral
Agent with respect to certain real property owned by such Borrower or
Guarantor, and filed in the locations indicated on Schedule 5.22 annexed
hereto.
"Existing Mortgaged Properties" means the parcels of real property
listed on Schedule 5.22 annexed hereto, each encumbered by an Existing
Mortgage pursuant to the Existing Loan Agreement by a Borrower or
Guarantor to the Collateral Agent.
"Existing Notes" has the meaning assigned to that term in subsection
2.1.
"Existing Tranche A Loan" has the meaning specified in subsection
2.1E.
"Existing Tranche B Loan" has the meaning specified in subsection
2.1E.
"Facilities" means any and all real property (including, without
limitation, all buildings, fixtures and other improvements located
thereon) now, hereafter or heretofore, owned, leased, operated or used by
Company or any of its Subsidiaries or any of their respective predecessors
or Affiliates.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
Agent from three Federal funds brokers of recognized standing selected by
Agent.
"Florida Division" means all tangible assets of the Company and its
Subsidiaries located in Florida, including the assets of Calton Homes of
Florida, Inc., and the capital stock of Calton Homes of Florida, Inc.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on application thereof set
forth in subsection 1.2, generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession, that are applicable to
the circumstances as of the date of determination.
"General Release" means a General Release Agreement dated as of the
Effective Date, substantially in the form of Exhibit N hereto, executed
and delivered by the Credit Parties.
"Government Authorization" means any permit, entitlement, license,
order, approval, exemption, authority, certification, franchise, building
permit, plot plan approval, subdivision approval, site plan review,
environmental approval (including an environmental impact statement or
report if required under applicable law), sewer and waste discharge
permit, national pollutant discharge elimination system permit, water
permit, zoning and land use entitlement or other authorization whether now
existing or hereafter issued or obtained by the Company or any of its
Subsidiaries given or issued by any federal, state, local, or other
governmental authority, department, commission, court, board, bureau,
agency or instrumentality.
"Guarantor Pledge Agreement" means the Guarantor Pledge Agreement
dated as of May 28, 1993, executed and delivered by Guarantors (other than
the Restricted Talpro Entities) and Collateral Agent pursuant to the
Existing Loan Agreement, as such agreement has been amended to the date
hereof and as the same may hereafter be further amended, supplemented or
otherwise modified from time to time.
"Guarantor Security Agreement" means the Guarantor Security Agreement
dated as of May 28, 1993, executed and delivered by Guarantors (other than
the Restricted Talpro Entities) and Collateral Agent pursuant to the
Existing Loan Agreement, as such agreement has been amended to the date
hereof and as the same may hereafter be further amended, supplemented or
otherwise modified from time to time.
"Guaranty Agreement" means that certain Amended and Restated Guaranty
and Security Agreement dated as of May 28, 1993, executed and delivered by
Guarantors pursuant to the Existing Loan Agreement, as the same has been
amended to the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time.
"Guarantors" means each of the Credit Parties that is a party to the
Guaranty Agreement including any Persons added after the Effective Date
pursuant to subsection 3.2(E), but excluding Persons identified in
subsection 5.24 that are dissolved after the Effective Date pursuant to
subsection 6.12.
"Hazardous Materials" means (i) any chemical, material or substance
at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials," "extremely
hazardous waste", "restricted hazardous waste," "infectious waste," "toxic
substances" or any other formulations intended to define, list or classify
substances by reason of deleterious properties such as ignitibility,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
"TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws or publications promulgated pursuant
thereto; (ii) any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) asbestos in any form;
(vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; (ix) pesticides and
herbicides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or
which may or could pose a hazard to the health and safety of the owners,
occupants or any Persons in the vicinity of the Facilities.
"Indebtedness", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to
Capital Leases that is properly classified as a liability on a balance
sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations
for borrowed money, (iv) any obligation owed for all or any part of the
deferred purchase price of property or services (excluding any such
obligations incurred under ERISA), which purchase price is (A) due more
than six months from the date of incurrence of the obligation in respect
thereof or (B) evidenced by a note or similar written instrument, and
(v) all indebtedness secured by any Lien on any property or asset owned or
held by that Person regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is nonrecourse to the credit of
that Person. Obligations under Interest Rate Agreements constitute
Contingent Obligations and not Indebtedness.
"Indemnitee" has the meaning assigned to that term in
subsection 11.3.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for
the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the condition (financial or otherwise),
business or operations of Company and its Subsidiaries, taken as a whole.
"Intercompany Loan" means any loan, advance or other extension of
credit made by any Borrower to another Credit Party.
"Intercompany Loan Recipient" means the recipient of an Intercompany
Loan.
"Intercompany Note" means an intercompany note evidencing
indebtedness owed by any Credit Party to a Borrower, substantially in the
form of Exhibit K annexed hereto.
"Interest Payment Date" means the first Business Day of each month
commencing on the first such date to occur after the Effective Date.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Inventory Property" means any real property, or interest in real
property, together with all improvements thereon held for sale or lease by
any Credit Party in the ordinary course of its business.
"Inventory Property Closing" means the closing of the sale by a
Credit Party of an Inventory Property (or portion thereof) in the ordinary
course of its business.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person, or (ii) any
direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution
by Company or any of its Subsidiaries to any other Person, including all
Indebtedness and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"Issuing Lender" means Chase with respect to any Letter of Credit
issued by Chase pursuant to the terms of Section 2.8 hereof.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form;
provided that, as to any such arrangement in corporate form, such
corporation shall not, as to any Person of which such corporation is a
Subsidiary, be considered to be a Joint Venture to which such Person is a
party.
"Land Acquisition Costs" means any expenditures (whether paid in cash
or other consideration or accrued as a liability) to acquire real property
or interests in real property, whether by purchase or otherwise, other
than Land Development Costs and expenditures funded from proceeds of
Purchase Money Mortgage Obligations permitted by Section 7.1 hereof.
"Land Development Costs" means any expenditures (whether paid in cash
or other consideration or accrued as a liability) to develop or improve
real property, including without limitation, carrying costs, development
and planning costs, direct construction costs, direct engineering costs
and direct costs of obtaining governmental approvals.
"Leasehold Consent" has the meaning assigned to that term in
subsection 3.2D(i)(c).
"Lender" and "Lenders" means the Tranche A Lenders and the Tranche B
Lenders and, with respect to Letters of Credit, the Issuing Lender and the
Lenders purchasing participations therein.
"Letter of Credit Usage" means as of any date of determination, with
respect to all outstanding Letters of Credit, the sum of (i) the maximum
aggregate amount which is or at any time thereafter may become available
for drawing under such Letters of Credit plus (ii) the aggregate amount of
all drawings under such Letters of Credit honored by the Issuing Lender
thereof and not theretofore reimbursed by Borrowers.
"Letters of Credit" means any of the standby letters of credit issued
or to be issued by Issuing Lender for the account of Borrowers pursuant to
subsection 2.8.
"Lien" means any lien, mortgage, deed of trust, pledge, assignment,
security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the
nature thereof, and any agreement to give any security interest) and any
option, trust or other preferential arrangement having the practical
effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Revolving Loans or any
combination thereof.
"Loan Documents" means this Amended Loan Agreement, the Existing Loan
Documents, the New Loan Documents and, to the extent not included in the
foregoing, the Security Documents.
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from
time to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company and its Subsidiaries taken as a whole
or (ii) the impairment of the ability of any Credit Party to perform, or
of Agent, Collateral Agent or Lenders to enforce, the Obligations.
"Monthly Date" means the first day of each month commencing with the
first such date immediately following the Effective Date.
"Monthly Inventory Activity Report" means the inventory activity
reports delivered to Agent, Collateral Agent, and, upon request, the
Lenders, on a monthly basis pursuant to subsection 6.1(i)(a).
"Monthly Inventory Certification Reports" means the inventory
certification reports to be delivered to Agent, Collateral Agent and, upon
request, the Lenders on a monthly basis pursuant to subsection
6.1(i)(c)(1).
"Mortgage Policies" has the meaning assigned to that term in
subsection 3.2D(i)(d).
"Mortgaged Properties" means the Existing Mortgaged Properties and
any Additional Mortgaged Properties.
"Mortgages" shall mean each of the mortgages, deeds of trust,
leasehold mortgages, leasehold deeds of trust, collateral assignment of
leases or other real estate security documents (including any Existing
Mortgages as amended by any Mortgage Amendments) heretofore, now or
hereafter delivered by any Credit Party to Collateral Agent (or its
subagent) with respect to any Mortgaged Properties or Additional Mortgaged
Properties, as the same may be amended, supplemented or otherwise modified
from time to time. Any mortgage or leasehold mortgage shall be
substantially in the form of the Existing Mortgages, as modified by the
Mortgage Amendments.
"Mortgage Amendments" has the meaning assigned thereto in subsection
6.14.
"Multiemployer Plan" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which any Credit Party or any of its ERISA
Affiliates is contributing, or ever has contributed, or to which a Credit
Party or any of its ERISA Affiliates has, or ever has had, an obligation
to contribute.
"Net Cash Proceeds" means, with respect to any Asset Sale, Cash
Proceeds of such Asset Sale net of bona fide direct costs of sale
including (i) income taxes reasonably estimated to be actually payable as
a result of such Asset Sale within two years of the date of such Asset
Sale and (ii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans)
required to be repaid under the terms thereof as a result of such Asset
Sale.
"Net Closing Proceeds" means, with respect to any sale of a Release
Property or any other Real Estate by a Credit Party, the gross sales price
to be paid by the purchaser for such property less sums attributable to
(i) closing costs, including without limitation, legal costs of the seller
in connection with the sale of such property, transfer taxes, fees for
recording the applicable lien release, and typical closing adjustments for
real property closing (such as prorations for real property taxes and
utility charges), in each case to the extent customarily paid by sellers
of real property in the relevant jurisdiction and in reasonable amounts,
(ii) in the case of any property subject to a Purchase Money Mortgage
approved by the Lenders, any amount which must be applied in repayment of
the related Purchase Money Mortgage Obligation pursuant to the terms of
the documents governing such Purchase Money Mortgage Obligation, and (iii)
such other items as shall have been pre-approved as to item and amount by
the Agent and Requisite Lenders.
"Net Realizable Value" means, with respect to any real property, the
net realizable value of such real property as calculated by Company for
financial accounting purposes, according to GAAP and consistent with past
practices of Company.
"New Loan Documents" means this Amended Loan Agreement, the Notes,
the General Release, the Acknowledgement and Confirmation, and all other
new agreements to be executed by the Credit Parties on the Effective Date.
"Notes" means one or more of the Revolving Notes.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit M annexed hereto delivered by Borrowers to Agent and each Lender
pursuant to subsection 2.1B with respect to a proposed borrowing.
"Notice of Issuance/Amendment" means a notice delivered by Borrowers
substantially in the form of Exhibit O annexed hereto with respect to a
proposed issuance or amendment of a Letter of Credit.
"Obligations" means all obligations of every nature of each Credit
Party from time to time owed to Agent, Collateral Agent, Lenders or any of
them under the Loan Documents, whether for principal, interest, fees,
expenses, indemnification or otherwise.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the
board (if an officer) or its president or one of its vice presidents and
by its chief financial officer or its treasurer; provided that every
Officers' Certificate with respect to the compliance with a condition
precedent to the effectiveness of the Amended Loan Agreement or the making
of any Loans or issuing of any Letters of Credit hereunder shall include
(i) a statement that the officer or officers making or giving such
Officers' Certificate have read such condition and any definitions or
other provisions contained in this Amended Loan Agreement relating
thereto, (ii) a statement that, in the opinion of the signers, they have
made or have caused to be made such examination or investigation as is
necessary to enable them to express an informed opinion as to whether or
not such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signers, such condition has been complied
with.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any property (whether real, personal or mixed) that
is not a Capital Lease other than any such lease under which that Person
is the lessor.
"Original Loan Agreement" means the Amended Loan and Security
Agreement dated as of May 28, 1993 among Company, Calton Funding, Inc.,
the financial institutions listed therein as Lenders and Chemical Bank, as
agent and collateral agent for the Lenders.
"Other Borrower Obligations" has the meaning assigned to that term in
subsection 11.21.
"Partial Release" means a lien release executed by the Collateral
Agent releasing the Lien held by the Collateral Agent in an Inventory
Property (or a portion thereof) in connection with an Inventory Property
Closing, all pursuant to the terms of subsection 3.2D(ii).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"Permitted Encumbrances" means the following types of Liens (other
than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3;
(ii) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by
law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if bonded to the extent
required to preserve the Liens granted to the Collateral Agent (for
the benefit of the Lenders) under the Loan Documents, and if such
reserve or other appropriate provision, if any, as shall be required
by GAAP shall have been made therefor;
(iii)Liens on personal property incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of vendors, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
provided that (x) Liens other than deposits shall be unperfected or,
if perfected, shall be junior to the Liens granted to the Collateral
Agent (for the benefit of the Lenders) unless such Liens are validly
perfected and of record immediately prior to the Effective Date and
(y) the aggregate amount of such deposits shall not exceed $5,000,000
at any time;
(iv) Any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8;
(v) Easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
ordinary conduct of the business of Company or any of its
Subsidiaries and, as to the property affected by such Lien, not
interfering with the intended use and development of that property;
(vi) Any interest or title of a lessor or sublessor under any
lease permitted by subsection 7.9;
(vii)Liens in favor of the Collateral Agent (for the benefit of
the Lenders) created pursuant to the terms of the Loan Documents; and
(viii)Liens set forth on Schedule 5.8 annexed hereto.
"Person" means and includes natural persons, corporations, limited
partnerships, limited liability companies, general partnerships, joint
stock companies, Joint Ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"Prime Rate" means the rate that Chase announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is
a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Chase or any other Lender may make
commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Pro Rata Share" means, with respect to all computations and other
matters relating to the Commitments of any Lender or any payments,
computations or other matters with respect to the Revolving Loans of any
Lender, the participation of any Lender in a Letter of Credit, and the
indemnification obligation of any Lender, the percentage obtained by
dividing (x) the Commitments of that Lender by (y) the aggregate
Commitments of all Lenders, as such percentage may be adjusted by
assignments or conversions permitted pursuant to subsection 11.1. The
initial Pro Rata Share of each Lender is set forth opposite the name of
that Lender in Schedule 2.1 annexed hereto.
"Public Information" means (i) all reports, proxy statements and
other statements or schedules that have been filed with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), by Company or any of its Subsidiaries (except
reports filed pursuant to Section 16(a) of the 1934 Act); (ii) all
registration statements and prospectuses that have been filed by Company
or any of its Subsidiaries with the SEC under the Securities Act, as
amended, except those on Form S-8; (iii) any reports and other information
that have been disseminated generally to holders of any class of Company's
publicly traded equity or debt securities; and (iv) any press releases
that have been issued by Company or any of its Subsidiaries.
"Purchase Money Mortgage Lien" means a Lien on a real estate asset of
Company or one of its Subsidiaries securing Purchase Money Mortgage
Obligations incurred in connection with the acquisition of such real
estate asset.
"Purchase Money Mortgage Obligations" means any Indebtedness of
Calton or any of its Subsidiaries incurred in connection with the
acquisition of a real estate asset which is non-recourse to such Person
and secured only by a Lien on such real estate asset.
"Real Estate" means any and all real property (including, without
limitation, all buildings, fixtures and other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by
Company or any of its Subsidiaries or any of their respective predecessors
or Affiliates.
"Real Estate Project" means each parcel of real property of Company
or any of its Subsidiaries, which constitutes, or will be developed as, a
single subdivision or development (including in each case all buildings,
fixtures and other improvements located thereon).
"Redeemable Preferred Stock" means the redeemable preferred stock of
Company, par value $0.10 per share.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or
outdoor environment (including, without limitation, the abandonment or
disposal of any barrels, containers or other closed receptacles containing
any Hazardous Materials), or into or out of any Facility, including the
movement of any Hazardous Material through the air, soil, surface water,
groundwater or property.
"Release Property" means an Inventory Property (or part thereof)
released pursuant to a Partial Release from a lien of Collateral Agent for
the benefit of the Lenders.
"Renaissance Real Estate Project" means a Real Estate Project in
Manchester Township, Ocean County, New Jersey, for an approximately 2,300
unit active adult community development.
"Requisite Lenders" means Requisite Tranche A Lenders and Requisite
Tranche B Lenders.
"Requisite Tranche A Lenders" means Tranche A Lenders having (i) 66-
2/3% or more of the Tranche A Commitments or (ii) if the Tranche A
Commitments have been terminated, Tranche A Lenders holding 66-2/3% or
more of the Tranche A Loans.
"Requisite Tranche B Lenders" means (i) Tranche B Lenders having 66-
2/3% or more of the Tranche B Commitments or (ii) if the Tranche B
Commitments have been terminated, Tranche B Lenders holding 66-2/3% or
more of the Tranche B Loans.
"Restricted Credit Party" means Calton California Equity Corp.,
Calton Capital, Inc., Calton Capital II, Inc., Calton General, Inc.,
Calton Homes Finance, Inc., Calton Homes Finance II, Inc., Calcap
Commercial Management, Inc., Calcap X, Inc., Calcap XV, Inc., Calcap XXXI,
Inc., Calcap XXXII, Inc., Calcap XXXIII, Inc., Calcap 36, Inc., Talcon
Title, L.P., Talpro 31, L.P., Talpro 32, L.P., Talpro 33, L.P.
"Restricted Talpro Entities" means Talpro 31, L.P., Talpro 32, L.P.
and Talpro 33, L.P.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of Company or any of its Subsidiaries now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock to the
holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company or any of its
Subsidiaries now or hereafter outstanding, and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock of Company or any
of its Subsidiaries now or hereafter outstanding.
"Revolving Loans" means one or more of the Tranche A Loans or the
Tranche B Loans or any combination thereof.
"Revolving Notes" means the promissory notes of Company issued
pursuant to subsection 2.1D, to evidence the Tranche A Loans and Tranche B
Loans of Lenders, substantially in the form of Exhibit A annexed hereto,
as they may be amended, supplemented or otherwise modified from time to
time.
"Sales and Closing Reports" means the reports to be delivered to the
Lenders on a monthly basis pursuant to the terms of subsection 6.1(ii)(b).
"Sales/Acquisition Forecasts" means the forecasts to be delivered to
Agent, Collateral Agent and, upon request, the Lenders on a monthly basis
pursuant to the terms of subsection 6.1(i)(c)(2).
"Scheduled Expiry Date" means the date determined pursuant to
subsection 2.1F.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of inter-
est, shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Security Documents" means the Account Collateral Security Agreement,
the Borrower Security Agreement, the Guarantor Security Agreement, the
Borrower Pledge Agreement, the Guarantor Pledge Agreement, the Mortgages,
the Mortgage Policies, the Leasehold Consents and all deeds of trust,
mortgages, security agreements, pledge agreements, assignments, licenses,
landlord consents and releases and all other instruments or documents
(including, without limitation, UCC-1 financing statements, fixture
filings or similar documents required in order to perfect the security
interests created by the Security Documents and/or any other Loan
Document) delivered by a Credit Party pursuant to this Amended Loan
Agreement or any other Loan Document in order to grant to Collateral Agent
on behalf of Lenders Liens in real, personal or mixed property of that
Credit Party.
"Soft Costs" means, with respect to any Eligible Property, all
capitalized interest expense, marketing costs and administrative expenses
attributable to such Eligible Property.
"Solvent" means, with respect to any Person, that as of the date of
determination both (A) (i) the then fair saleable value of the property of
such Person is (y) greater than the total amount of liabilities (including
Contingent Obligations) of such Person and (z) greater than the amount
that will be required to pay the probable liabilities on such Person's
then existing debts as they become absolute and matured considering all
financing alternatives and potential asset sales reasonably available to
such Person; (ii) such Person's capital is sufficient to carry on its
business or any contemplated or undertaken transaction; and (iii) such
Person does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such debts as
they become due; and (B) such Person is "solvent" within the meaning given
that term and similar terms under applicable laws relating to preferential
or fraudulent transfers and conveyances.
"Spec Unit" means any dwelling units under development by Company and
its Subsidiaries that have progressed beyond the foundation/slab/utility
connection stage and are not subject to an executed contract of sale with
a bona fide third party purchaser who has made a cash deposit with the
appropriate Credit Party in an amount consistent with the Credit Parties'
normal practices.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity of which
more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the
management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof; provided, however,
that (i) for purposes of subsections 4.1, 5.1, 5.10, the term "Subsidiary"
shall not include Calton Homes of Tampa, Inc., or Calcap 42, Inc. and
(ii) for purposes of Sections 7.1, 7.2A, 7.3, 7.4, 7.9, 7.12, 8.2 and 8.8,
the term "Subsidiary" shall not include Calton Capital, Inc., Calcap
VII, Inc., Calcap XV, Inc., Calcap XXII, Inc., Calcap XXIV, Inc., Calcap
XXVI, Inc., Calcap 35, Inc., Haddon General, Inc. and Calcap 46, Inc.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided that "Tax on the overall net income" of a
Person shall be construed as a reference to a tax imposed by the
jurisdiction in which that Person's principal office (and/or, in the case
of a Lender, its lending office) is located on all or part of the net
income, profits or gains of that Person (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or to
relate to a particular jurisdiction, or otherwise).
"Total Utilization" means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Loans, and (ii)
the Letter of Credit Usage.
"Tranche A Commitments" means the commitments of Tranche A Lenders to
make Tranche A Loans as set forth in subsection 2.1A.
"Tranche A Lender" means those persons identified as "Tranche A
Lenders" on Schedule 2.1 annexed hereto, together with their successors
and permitted assigns, pursuant to subsection 11.1; provided, however,
that if at any time a Tranche A Lender fails to satisfy the requirements
of subsection 11.1D(i), such Lender shall automatically be a Tranche B
Lender hereunder; and provided, further, that if at any time a Tranche B
Lender satisfies the requirements of subsection 11.1D(i), such Lender may,
pursuant to the terms of subsection 11.1D(ii) hereof, elect to become a
Tranche A Lender hereunder. The term "Tranche A Lenders," when used in
the context of a particular Commitment, shall mean Lenders having that
Commitment.
"Tranche A Letter of Credit Usage" means, as of any date of
determination, the product of (i) the Letter of Credit Usage as of such
date multiplied by (ii) a ratio, the numerator of which is the Pro Rata
Shares of all Tranche A Lenders and the denominator of which is the Pro
Rata Shares of all Lenders.
"Tranche A Loans" means the Revolving Loans made by Tranche A Lenders
pursuant to subsection 2.1A(i); provided that, upon any conversion of a
Lender from one tranche to another, such Lender's Revolving Loans shall
automatically convert to the appropriate tranche.
"Tranche A Utilization" means, as of any date of determination, the
sum of (i) the aggregate principal amount of all Tranche A Loans
outstanding, plus (ii) the Tranche A Letter of Credit Usage as of such
date.
"Tranche B Commitments" means the commitments of Tranche B Lenders to
make Tranche B Loans as set forth in subsection 2.1A.
"Tranche B Lender" means those Persons identified as "Tranche B
Lenders" on Schedule 2.1 annexed hereto, together with their successors
and permitted assigns, pursuant to subsection 11.1; provided, however,
that if at any time a Tranche A Lender fails to satisfy the requirements
of subsection 11.1D(i), such Lender shall automatically be a Tranche B
Lender hereunder; and provided, further, that if at any time a Tranche B
Lender satisfies the requirements of subsection 11.1D(i), such Lender may,
pursuant to the terms of subsection 11.1D(ii) hereof, elect to become a
Tranche A Lender hereunder. The term "Tranche B Lenders," when used in
the context of a particular Commitment, shall mean Lenders having that
Commitment.
"Tranche B Letter of Credit Usage" means, as of any date of
determination, the product of (i) the Letter of Credit Usage as of such
date multiplied by (ii) a ratio, the numerator of which is the Pro Rata
Shares of all Tranche B Lenders and the denominator of which is the Pro
Rata Shares of all Lenders.
"Tranche B Loans" means the Revolving Loans made by Tranche B Lenders
pursuant to subsection 2.1A(ii); provided that, upon any conversion of a
Lender from one tranche to another, such Lender's Revolving Loans shall
automatically convert to the appropriate tranche.
"Tranche B Utilization" means, as of any date of determination, the
sum of (i) the aggregate principal amount of all Tranche B Loans
outstanding, plus (ii) the Tranche B Letter of Credit Usage as of such
date.
"Weekly Inventory Activity Reports" means the inventory activity
reports to be delivered to Agent, Collateral Agent and, upon request, the
Lenders on a weekly basis pursuant to subsection 6.1(i)(a).
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.
Except as otherwise expressly provided in this Amended Loan Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (iii), (iv),
(v) and (xv) of subsection 6.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(vii)). Calculations
in connection with the definitions, covenants and other provisions of this
Amended Loan Agreement shall utilize accounting principles and policies in
conformity with those used to prepare the financial statements referred to in
subsection 5.6.
1.3 Other Definitional Provisions.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Amended Loan Agreement unless otherwise
specifically provided. Any of the terms defined in subsection 1.1 may, unless
the context otherwise requires, be used in the singular or the plural,
depending on the reference.
SECTION 2.
AMOUNTS AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1 Commitments; Revolving Loans.
A. Commitments. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of the Credit Parties
herein set forth, each Lender hereby severally agrees to make the Revolving
Loans described in this subsection 2.1A.
(i) Tranche A Loans. Each Tranche A Lender severally agrees,
subject to the limitations set forth in subsection 2.1A(iii) below with
respect to the maximum amount of Loans permitted to be outstanding from
time to time, to lend to Borrowers, as joint and several obligors, from
time to time during the period from the Effective Date to but excluding
the Commitment Termination Date an aggregate amount not exceeding its Pro
Rata Share of the aggregate Commitments to be used for the purposes
identified in subsection 2.5A. Each Tranche A Lender's commitment to make
Tranche A Loans to Borrowers pursuant to this subsection 2.1A is herein
called its "Tranche A Commitment" and such commitments of all Tranche A
Lenders in the aggregate are herein called the "Tranche A Commitments."
The amount of each Lender's Tranche A Commitment as of the Effective Date
is set forth opposite its name on Schedule 2.1 hereto and the aggregate
Tranche A Commitments as of the Effective Date are $35,650,000; provided,
that the amount of the Tranche A Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection
2.4. Each Lender's Tranche A Commitment shall expire on the Commitment
Termination Date and all Tranche A Loans and all other amounts owed
hereunder shall be paid in full no later than that date. Amounts borrowed
under this subsection 2.1A(i) may be repaid and reborrowed to but
excluding the Commitment Termination Date.
(ii) Tranche B Loans. Each Tranche B Lender hereby severally agrees,
subject to the limitations set forth in subsection 2.1A(iii) below with
respect to the maximum amount of Loans permitted to be outstanding from
time to time, to lend to Borrowers, as joint and several obligors, from
time to time during the period from the Effective Date to but excluding
the Commitment Termination Date an aggregate amount not exceeding its Pro
Rata Share of the aggregate Commitments to be used for the purposes
identified in subsection 2.5A. Each Tranche B Lender's commitment to make
Tranche B Loans to Borrowers pursuant to this subsection 2.1A is herein
called its "Tranche B Commitment" and such commitments of all Tranche B
Lenders in the aggregate are herein called the "Tranche B Commitments."
The amount of each Lender's Tranche B Commitment as of the Effective Date
is set forth opposite its name on Schedule 2.1 hereto and the aggregate
Tranche B Commitments as of the Effective Date is $10,350,000; provided,
that the amount of the Tranche B Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection
2.4. Each Lender's Tranche B Commitment shall expire on the Commitment
Termination Date and all Tranche B Loans and all other amounts owed
hereunder shall be paid in full no later than that date. Amounts borrowed
under this subsection 2.1A may be repaid and reborrowed to but excluding
the Commitment Termination Date.
(iii)Limitations on Loans.
(a) The Loans and the Commitments shall be subject to the
following limitations in the amounts and during the periods
indicated: (1) the Total Utilization may not at any time exceed the
Borrowing Base as in effect at such time; (2) the Total Utilization
may not at any time exceed the Commitments; (3) the amount otherwise
available for borrowing under the Tranche A Commitments as of any
time of determination (other than to reimburse the Issuing Lender for
the amount of any drawings under any Letters of Credit honored by
Issuing Lender and not theretofore reimbursed by Borrowers) shall be
reduced by the Tranche A Letter of Credit Usage as of such time of
determination; and (4) the amount otherwise available for borrowing
under the Tranche B Commitments as of any time of determination
(other than to reimburse the Issuing Lender for the amount of any
drawings under any Letters of Credit honored by the Issuing Lender
and not theretofore reimbursed by Borrowers) shall be reduced by the
Tranche B Letter of Credit Usage as of such time of determination.
(b) Borrowers shall not make any borrowing under this
subsection 2.1A the proceeds of which are used to make an
Intercompany Loan unless, as of the date of the making of such
Intercompany Loans: (1) the Intercompany Loan shall be permitted by
subsection 7.1(iv) and shall be made as a direct loan to the
Intercompany Loan Recipient and shall be reflected as a loan on the
books and accounts of both the Intercompany Loan Recipient and the
Person making the Intercompany Loan; and (2) the obligation of the
Intercompany Loan Recipient to repay the Intercompany Loan (x) shall
be evidenced by an Intercompany Note, which shall be pledged to
Collateral Agent to secure the Obligations, and (y) shall be
subordinated in right and time of payment to the payment in full of
the Obligations, and any payment by such Intercompany Loan Recipient
under its Guaranty, if any, shall result in a pro tanto reduction of
the amount owing by such Intercompany Loan Recipient to Borrowers in
respect of Intercompany Loans.
B. Borrowing Mechanics. Revolving Loans made on any Funding Date shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess of that amount. Whenever Borrowers desire that Lenders make
Revolving Loans, they shall deliver to Agent and each Lender a Notice of
Borrowing no later than 12:00 noon (New York time) at least three Business Days
in advance of the proposed Funding Date. The Notice of Borrowing shall specify
(i) the proposed Funding Date (which shall be a Business Day), and (ii) the
amount of Revolving Loans requested. In lieu of delivering the above-described
Notice of Borrowing, a Borrower may give Agent and each Lender telephonic
notice by the required time of any proposed borrowing under this subsection
2.1B; provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Borrowing to Agent and each Lender on or before the
applicable Funding Date.
Neither Agent nor any Lender shall incur any liability to Borrowers in
acting upon any telephonic notice referred to above that Agent or such Lender
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of a Borrower or for otherwise acting in
good faith under this subsection 2.1B, and upon funding of Revolving Loans by
Lenders in accordance with this Amended Loan Agreement pursuant to any such
telephonic notice Borrowers shall have effected Revolving Loans hereunder.
C. Disbursement of Funds. Except as otherwise provided in the next
sentence, all Revolving Loans under this Amended Loan Agreement shall be made
by Tranche A Lenders and Tranche B Lenders simultaneously and proportionately
to their respective Pro Rata Shares of the aggregate Commitments, it being
understood that no Lender shall be responsible for any default by any other
Lender in that other Lender's obligation to make a Revolving Loan requested
hereunder nor shall the Commitment of any Lender to make a Revolving Loan
requested hereunder be increased or decreased as a result of a default by any
other Lender in that other Lender's obligation to make a Loan requested hereun-
der. If any conditions to funding set forth in Section 4 hereof have not been
satisfied in connection with a borrowing requested pursuant to subsection 2.1B
and Requisite Tranche A Lenders or Requisite Tranche B Lenders, as the case may
be, have agreed to waive such conditions with respect to funding for their
tranche in accordance with subsection 11.6, (i) Lenders in such tranche shall
simultaneously fund their Pro Rata Shares of the borrowing requested pursuant
to subsection 2.1B, and (ii) Lenders in the other tranche shall have no
obligation to fund the remaining portion of such requested borrowing. Promptly
after receipt by each Lender of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof), and upon satisfaction or waiver of
the conditions precedent specified in Section 4 with respect to a particular
tranche, Lenders in such tranche shall make the proceeds of Revolving Loans in
such tranche available to the Borrowers on the Funding Date by causing an
amount of same day funds equal to the proceeds of all such Revolving Loans to
be credited to the account of Borrowers at the office of Agent specified in the
preceding sentence.
D. Revolving Notes. Borrowers shall execute and deliver to each Lender
(or to Agent for that Lender) on the Effective Date a Revolving Note
substantially in the form of Exhibit A hereto to evidence that Lender's Tranche
A Loans and Tranche B Loans, in the principal amount of that Lender's
Commitments. The Tranche A Loans and Tranche B Loans made or continued
hereunder shall be evidenced by such Revolving Notes. Upon the execution and
delivery to any Lender of a Revolving Note pursuant to this subsection 2.1D,
the Revolving Note that was executed and delivered to such Lender pursuant to
the Existing Loan Agreement (the "Existing Note") shall be null and void, and
such Lender shall promptly return such Existing Note to Borrowers for
cancellation.
Agent may deem and treat the payee of any Revolving Note as the owner
thereof for all purposes hereof unless and until an Assignment and Assumption
effecting the assignment or transfer thereof shall have been accepted by Agent
as provided in subsection 11.1B(iii). Any request, authority or consent of any
person or entity who, at the time of making such request or giving such
authority or consent, is the holder of any Revolving Note shall be conclusive
and binding on any subsequent holder, assignee or transferee of that Revolving
Note or of any Revolving Note or Notes issued in exchange therefor.
E. Conversion of Existing Tranche A Loans and Existing Tranche B Loans
into Tranche A Loans and Tranche B Loans. Upon satisfaction or written
waiver by Requisite Lenders of the conditions set forth in subsections 4.1 and
4.3, as of the Effective Date all Tranche A Loans and Tranche B Loans (as
defined in the Existing Loan Agreement) outstanding under the Existing Loan
Agreement as of, and at the time of, the Effective Date (such loans being the
"Existing Tranche A Loans" and "Existing Tranche B Loans," respectively) shall
be converted into and deemed to be Tranche A Loans and Tranche B Loans,
respectively, for all purposes under this Amended Loan Agreement. Any amounts
of accrued interest or other amounts owed (whether or not presently due and
payable) by Borrowers to the Lenders under or in respect of the Existing
Tranche A Loans and Existing Tranche B Loans shall, as of the Effective Date,
continue to be due and payable to the Lenders under the Revolving Notes issued
to the Lenders under this Amended Loan Agreement. The conversion of the
Existing Tranche A Loans and Existing Tranche B Loans hereunder shall not be
deemed to be repayment thereof, and Borrowers shall not be required to deliver
any notice of prepayment or notice of borrowing or to satisfy any other
condition relating to required amounts of prepayments or borrowings hereunder
with respect to such conversion of the Existing Tranche A Loans and Existing
Tranche B Loans.
F. Extension of Scheduled Expiry Date. On the Effective Date, the
Scheduled Expiry Date is February 28, 1998. If the Commitment Reduction Date
occurs on or before February 28, 1998, the Scheduled Expiry Date shall
automatically and without further action by the Borrowers or the Lenders be
extended from February 28, 1998 to August 31, 1998.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.2C and
2.6, each Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at the
Base Rate; provided, that from and after the Commitment Reduction Date, subject
to the provisions of subsections 2.2C and 2.6, each Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity
(whether by acceleration or otherwise) at the Base Rate minus 0.50% per annum.
B. Interest Payments. Subject to the provisions of subsection 2.2C,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date, upon any prepayment of that Loan (to the extent accrued on the
amount being prepaid) and at maturity (including final maturity).
C. Post Maturity Interest. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans and any fees and other amounts owed hereunder not paid when due,
in each case whether at stated maturity, by notice of prepayment, by
acceleration or otherwise, shall thereafter bear interest (including post-
petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable upon demand at a rate that is 2% per annum
in excess of the Base Rate; provided, however, that the increased rate of
interest provided for in this subsection 2.2C shall not apply (i) with respect
to Tranche A Loans if Requisite Tranche A Lenders have agreed in writing to
waive such increased interest with respect to their Loans and (ii) with respect
to Tranche B Loans if Requisite Tranche B Lenders have agreed in writing to
waive such increased interest with respect to their Loans. Payment or
acceptance of the increased rates of interest provided for in this sub-
section 2.2C is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of Agent, Collateral Agent or any Lender.
D. Computation of Interest. Interest on the Loans shall be computed on
the basis of a 360-day year for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the immediately preceding Interest Payment Date shall be
included, and the date of payment of such Loan or, on an Interest Payment Date,
such Interest Payment Date shall be excluded; provided that if a Loan is repaid
on the same day on which it is made, one day's interest shall be paid on that
Loan.
2.3 Fees.
A. Commitment Fees. Borrowers jointly and severally agree to pay to
Lenders in proportion to each Lender's Pro Rata Share, commitment fees for the
period from and including the Effective Date to and excluding the Commitment
Termination Date in an aggregate amount equal to the average of the daily
excess of the Commitments over the aggregate amount of Total Utilization
multiplied by 1/2 of 1% per annum, such commitment fees to be calculated on the
basis of a 360-day year and the actual number of days elapsed and to be payable
monthly in arrears on the first day of each month, commencing on the first such
date to occur after the Effective Date, and on the Commitment Termination Date.
B. Letter of Credit Fees. Borrowers jointly and severally agree to pay
the following amounts to the Issuing Lender with respect to each Letter of
Credit issued by it:
(i) an annual administrative fee equal to the greater of (i) $5,000
and (ii) 1/4 of 1% per annum of the maximum amount available from time to
time to be drawn under each Letter of Credit, payable quarterly in arrears
on each March 31, June 30, September 30 and December 31 of each year and
upon expiration of such Letter of Credit and calculated on the basis of a
360-day year and the actual number of days elapsed;
(ii) a commission equal to 2.00% per annum of the maximum amount
available from time to time to be drawn under any Letter of Credit,
payable quarterly in arrears on each March 31, June 30, September 30 and
December 31 of each year and upon expiration of such Letter of Credit and
calculated on the basis of a 360-day year and the actual number of days
elapsed;
(iii)with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by the Issuing Lender in
respect of each such drawing from the date of the drawing through the date
such amount is reimbursed by Borrowers (including any such reimbursement
out of the proceeds of Loans pursuant to subsection 2.8(C)) at a rate
which is at all times equal to 2% per annum in excess of the Base Rate;
and
(iv) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder (without duplication of
the fees payable under subdivision (1) above), documentary and processing
charges in accordance with the Issuing Lender's standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or
drawing, as the case may be, or as otherwise agreed to be the Issuing
Lender.
Promptly upon receipt by Issuing Lender of any amount described in clauses
(ii) or (iii) of this subsection 2.3B with respect to a Letter of Credit, the
Issuing Lender shall distribute to each Lender which has purchased a
participation in such Letter of Credit pursuant to subsection 2.8A, its Pro
Rata Share of such amount.
C. Restructure Fees. Borrowers jointly and severally agree to pay to
Agent for distribution to Lenders in proportion to their Pro Rata Shares a
Restructuring Fee in the amount of $1,350,000, which shall be payable on the
following dates and in the following amounts: $225,000 shall be due and payable
on the Effective Date; $112,500 shall be due and payable on August 30, 1997;
$112,500 shall be due and payable on September 30, 1997, $450,000 shall be due
and payable on October 30, 1997; and $450,000 shall be due and payable on
November 30, 1997; provided, however, that any installment of such Restructure
Fee that is scheduled to become due and payable on or after the Commitment
Reduction Date shall be waived.
D. Interest and Fees Due Under Existing Loan Agreement. Borrowers shall
pay to Agent for distribution to the Lenders (i) all interest and commitment
fees that have accrued under the Existing Loan Agreement through the Effective
Date, (ii) all accrued and unpaid fees and commissions with respect to all
Existing Letters of Credit that have accrued through the Effective Date and
(iii) all other fees and amounts owed under the Existing Loan Agreement (other
than the portion of the principal amount of the Existing Loans that shall
continue to be owed hereunder and under the Revolving Notes). All such
interest shall be due and payable on the first Interest Payment Date after the
Effective Date. All such commitment fees shall be due and payable together
with the first payment of commitment fees under subsection 2.3A. All such
unpaid fees and commissions with respect to all Existing Letters of Credit
shall be due and payable on June 30, 1997. All such other fees and amounts
owed under the Existing Credit Agreement shall be due and payable on June
30, 1997.
E. Other Fees. Borrowers jointly and severally agree to pay to Agent
and/or Collateral Agent such other fees in the amounts and at the times
separately agreed upon between Borrowers, Agent, and/or Collateral Agent.
2.4 Prepayments; Reductions in Commitments; General Provisions Regarding
Payments.
A. Voluntary Prepayments. Borrowers may, upon not less than three
Business Days' prior written or telephonic notice confirmed in writing to Agent
and each Lender, at any time and from time to time prepay the Loans in whole or
in part on any Business Day in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans specified in
such notice shall become due and payable on the prepayment date specified
therein.
B. Voluntary Reductions of Commitments. Borrowers may, upon not less
than three Business Days' prior written or telephonic notice confirmed in
writing to Agent and each Lender, at any time and from time to time terminate
in whole or permanently reduce in part, without premium or penalty, the
Commitments in an amount up to the amount by which the Commitments exceed the
Total Utilization at the time of such proposed termination or reduction;
provided that any such partial reduction of the Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess of that amount. Borrowers' notice to Agent and Lenders shall designate
the date (which shall be a Business Day) of such termination or reduction and
the amount of any partial reduction, and such termination or reduction of the
Commitments shall be effective on the date specified in Borrowers' notice and
shall reduce the Commitment of each Lender proportionately to its Pro Rata
Share.
C. Mandatory Reductions of Commitments.
(i) Scheduled Reductions. The aggregate Commitments will be reduced
(but not increased) on each date set forth below to the amount set forth
opposite such date:
Date Commitments
July 15, 1997 $43,000,000
August 31, 1997 $40,000,000
November 30, 1997 $30,000,000
(ii) Reductions from Asset Sales (other than Florida Division). No
later than the second Business Day following the date of receipt by
Company or any of its Subsidiaries of Cash Proceeds of any Asset Sale, the
Commitments shall be permanently reduced in an amount equal to 80% of the
Net Cash Proceeds of such Asset Sale provided, however, that the reduction
in the Commitments set forth in this subsection 2.4C(ii) shall not apply
with respect to (y) the sale of the Florida Division or any portion
thereof (which sales are subject subsection 2.4C(v)) or (z) any real
property purchased by the Borrowers or any of their Subsidiaries after the
Effective Date if, prior to consummation of such purchase, (x) the
Borrower or Subsidiary, as the case may be, has entered into one or more
valid and binding written agreements to sell such real property to one or
more third party purchasers not affiliated with the Borrowers or any of
their Subsidiaries, and (y) the sale to the third party of such real
property actually takes place within thirty (30) calendar days of the
closing of the purchase thereof by the Borrower or Subsidiary, as the case
may be. Concurrently with any reduction of the Commitments pursuant to
this subsection 2.4C(ii), Borrowers shall deliver to Agent an Officers'
Certificate demonstrating the derivation of the Net Cash Proceeds of the
correlative Asset Sale from the gross sales price thereof. In the event
that Borrowers shall, at any time after receipt of Cash Proceeds of any
Asset Sale requiring a reduction of the Commitments pursuant to this
subsection 2.4C(ii), determine that the reductions of the Commitments
previously made in respect of such Asset sale were in an aggregate amount
less than that received by the terms of this subsection 2.4C(ii),
Borrowers shall promptly deliver to Agent an Officers' Certificate
demonstrating the derivation of the additional Net Cash Proceeds resulting
in such deficit and the Commitments shall be permanently reduced on the
date such notice is delivered in an amount equal to the amount of any such
deficit.
(iii)Reductions Due to Receipt of Insurance or Condemnation Awards.
On the date of receipt by Company or any of its Subsidiaries of any
payment from an insurance company or any condemnation award relating to
any of such Person's assets, the Commitments shall be permanently reduced
in an amount (the "Net Award Amount") equal to 100% of such insurance
company payment or condemnation award, net of any costs incurred in
obtaining such payment or award (without taking into account the costs of
maintaining insurance such as premiums), including any incremental taxes
payable as a result thereof.
(iv) Reductions Due to Reversion of Surplus Assets of Pension Plans.
On the date of return to Company or any of its Subsidiaries of any surplus
assets of any pension plan of Company or any of its Subsidiaries, the
Commitments shall be permanently reduced in an amount (the "Net Reversion
Amount") equal to 100% of such returned surplus assets, net of transaction
costs and expenses incurred in obtaining such return, including
incremental taxes payable as a result thereof.
(v) Reductions due to Sale of Florida Division. No later than the
second Business Day following the date of receipt by Company or any of its
Subsidiaries of Cash Proceeds of any Asset Sale of the Florida Division or
any portion thereof, the Commitments shall be permanently reduced in an
amount equal to the following:
(1) If the aggregate amount of Net Cash Proceeds received by
Company and its Subsidiaries from all Asset Sales of the Florida
Division (the "Total Florida Division Proceeds") as of the date of
receipt of such Cash Proceeds is less than $15,000,000, then 100% of
the Net Cash Proceeds of such Asset Sale; or
(2) if the Total Florida Division Proceeds as of the date of
receipt of such Cash Proceeds is equal to or greater than $15,000,000
but is less than $17,000,00, then the sum of (x) $15,000,000 plus (y)
80% of the amount of such excess; or
(3) if the Total Florida Division Proceeds as of the date of
receipt of such Cash Proceeds is equal to or greater than $17,000,000
but is less than $20,000,00, then the sum of (x) $16,600,000 plus (y)
65% of the amount of such excess; or
(4) if the Total Florida Division Proceeds as of the date of
receipt of such Cash Proceeds is equal to or greater than
$20,000,000, then the sum of (x) $18,550,000 plus (y) 50% of the
amount of such excess.
Concurrently with any reduction of the Commitments pursuant to this
subsection 2.4C(v), Borrowers shall deliver to Agent an Officers'
Certificate demonstrating the derivation of the Net Cash Proceeds of the
Asset Sale of the Florida Division from the gross sales price thereof. In
the event that Borrowers shall, at any time after receipt of Cash Proceeds
of the Asset Sale of the Florida Division requiring a reduction of the
Commitments pursuant to this subsection 2.4C(v), determine that the
reductions of the Commitments previously made in respect of such Asset
Sale were in an aggregate amount less than that required by the terms of
this subsection 2.4C(v), Borrowers shall promptly deliver to Agent an
Officers' Certificate demonstrating the derivation of the additional Net
Cash Proceeds resulting in such deficit and the Commitments shall be
permanently reduced on the date such notice is delivered in an amount
equal to the amount of any such deficit.
D. Mandatory Prepayments Due to Reductions or Restrictions of
Commitments; Restrictions of Borrowing Base; Cash Collateral
Restrictions.
Borrowers shall from time to time prepay the Loans to the extent
necessary (1) so that the Total Utilization shall not at any time exceed the
Commitments then in effect; (2) so that the Total Utilization shall not at any
time exceed the Borrowing Base then in effect; and (3) so that the aggregate
amount on deposit in the Concentration Accounts does not at any time exceed
$6,000,000; provided that the Borrowers shall not be required to make any
prepayment under clause (3) of this subsection 2.4D to the extent such
prepayment would be less than $500,000. Prepayments based on reductions of the
Commitments shall be due on the date the Commitments are reduced. Prepayments
required to comply with the Borrowing Base shall be due on the date the
Borrowing Base Certificate (showing a Borrowing Base Deficiency) is delivered.
E. Repayment at Maturity. On the Commitment Termination Date, Borrowers
shall repay all Revolving Loans and all other Obligations then outstanding.
F. Application of Certain Prepayments; Reductions of Commitments.
(i) Application of Commitment Reductions to Tranche A Commitments
and Tranche B Commitments. All reductions in Commitments pursuant to
subsection 2.4B or 2.4C shall be applied to the Tranche A Commitments and
Tranche B Commitments ratably in proportion to the amounts of such
Commitments.
(ii) Application to Loans and Letters of Credit. All prepayments
shall be applied first to repay the Loans to the full extent thereof, and
second to fully secure outstanding Letters of Credit.
(iii)Application to Principal and Interest. All prepayments shall
include payment of accrued interest on the principal amount being prepaid
and shall be applied to the payment of interest before application to
principal.
G. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Borrowers of
principal, interest, fees and other Obligations hereunder and under the
other Loan Documents shall be made in same day funds and without defense,
set off or counterclaim, free of any restriction or condition, and
delivered to the appropriate Lender not later than 12:00 Noon (New York
time) on the date due at such Lender's principal address set forth below
its name on the signature pages hereof or at such other place as such
Lender may from time to time designate (with verification of such payment
to Agent); funds received by such Lender after that time on such due date
shall be deemed to have been paid by Borrowers on the next succeeding
Business Day. Borrowers hereby authorize Agent to charge their accounts
with Agent in order to cause timely payment to be made to Agent and
Lenders of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that
purpose).
(ii) Apportionment of Payments. Principal and interest payments
shall be apportioned among all outstanding Loans and amounts due with
respect to Letters of Credit proportionately to the amounts then due and
owing each Lender according to the Lender's respective Pro Rata Shares of
the Loans or other amounts due with respect to Letters of Credit to which
such payments relate.
(iii)Payments on Business Days. Whenever any payment to be made
hereunder or under any other Loan Document shall be stated to be due on a
day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in
the computation of the payment of interest hereunder or of the fees
hereunder, as the case may be.
(iv) Notation of Payment. Each Lender agrees that before disposing
of any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the obliga-
tions of Borrowers hereunder or under such Note with respect to any Loan
or any payments of principal or interest on such Note.
2.5 Use of Proceeds.
A. Loans. The proceeds of the Loans shall be applied by Borrowers for
general corporate purposes, which may include the making of intercompany loans
to any of the Guarantors, in accordance with subsections 2.1A(iii)(b) and
7.1(iv), for their own general corporate purposes.
B. Letters of Credit. Letters of Credit shall be issued solely for the
purpose of supporting (i) the obligations of third party insurers of a Credit
Party arising by virtue of the laws of any jurisdiction requiring third party
insurers, and (ii) performance, payment, deposit or surety obligations of a
Credit Party, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry; provided that
Letters of Credit may not be issued for the purpose of supporting trade
payables.
C. Margin Regulations. No portion of the proceeds of any borrowing
under this Amended Loan Agreement shall be used by Company or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation G, Regulation T, Regulation U or Regula-
tion X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board or to violate the Exchange Act, in each case as in
effect on the date or dates of such borrowing and such use of proceeds.
D. Benefits to Guarantors. In consideration for the Guaranty Agreement,
Borrowers have and agree to continue to make certain of the benefits of the
Loans and Letters of Credit available to the Subsidiaries of Company executing
and delivering such Guaranty Agreement in accordance with subsections
2.1A(iii)(b) and 7.1(iv).
2.6 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. In the event that any
Lender shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Amended Loan Agreement or any of the Loans or
any of its obligations hereunder, or changes the basis of taxation of
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder (except for changes
in the rate of Tax on the overall net income of such Lender or its
applicable lending office);
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender; or
(iii)imposes any other condition on or affecting such Lender (or its
applicable lending office) or its obligations hereunder;
and the result of any of the foregoing is to increase the cost to such Lender
of agreeing to make, making or maintaining Loans hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, Borrowers agree, jointly and
severally, to promptly pay to such Lender, upon demand, such additional amount
or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender on an after-tax basis
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Borrowers a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts
owed to such Lender under this subsection 2.6A, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers
under this Amended Loan Agreement and the other Loan Documents shall be
paid free and clear of and (except to the extent required by law) without
any deduction or withholding on account of any Tax imposed, levied,
collected, withheld or assessed by or within the United States of America
or any political subdivision in or of the United States of America or any
other jurisdiction from or to which a payment is made by or on behalf of
Borrowers or by any federation or organization of which the United States
of America or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Borrowers or any other Person is
required by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by Borrowers to Agent, Collateral
Agent or any Lender under any of the Loan Documents:
(a) Borrowers shall notify Agent of any such requirement or any
change in any such requirement as soon as such Borrowers become aware
of it;
(b) Borrowers, jointly and severally, shall pay any such Tax
before the date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on either Borrower) for its
own account or (if that liability is imposed on Agent, Collateral
Agent or such Lender, as the case may be) on behalf of and in the
name of Agent, Collateral Agent or such Lender;
(c) the sum payable by Borrowers in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of
that deduction, withholding or payment, Agent, Collateral Agent or
such Lender, as the case may be, receives on the due date and retains
(free from any liability in respect of any such deduction, with-
holding or payment) a net sum equal to what it would have received
and so retained had no such deduction, withholding or payment been
required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Tax which it is required by
clause (b) above to pay, Borrowers shall deliver to Agent evidence
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to be paid to
Agent, Collateral Agent or any Lender under clause (c) above except to the
extent that any change after the Effective Date in any such requirement
for a deduction, withholding or payment as is mentioned therein shall
result in an increase in the rate of such deduction, withholding or
payment from that in effect at the Effective Date in respect of payments
to such Lender, Agent or Collateral Agent.
(iii)U.S. Tax Certificates. Each Lender that is organized under the
laws of any jurisdiction other than the United States or any state or
other political subdivision thereof shall deliver to Agent for
transmission to Borrowers, on or prior to the Effective Date (in the case
of each Lender listed on the signature pages hereof) or on the date of the
Assignment and Assumption pursuant to which it becomes a Lender (in the
case of each other Lender), and at such other times as may be necessary in
the determination of Borrowers or Agent (each in the reasonable exercise
of its discretion), such certificates, documents or other evidence,
properly completed and duly executed by such Lender (including, without
limitation, Internal Revenue Service Form 1001 or Form 4224 or any other
certificate or statement of exemption required by Treasury Regulations
Section 1.1441-4(a) or Section 1.1441-6(c) or any successor thereto) to
establish that such Lender is not subject to deduction or withholding of
United States federal income tax under Section 1441 or 1442 of the
Internal Revenue Code or otherwise (or under any comparable provisions of
any successor statute) with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Loan
Documents.
C. Capital Adequacy Adjustment. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
therein or in the 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 (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or other obligations hereunder to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after demand by such Lender (with a copy of such demand to Agent),
Borrowers shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis
for such reduction. Each Lender, upon determining in good faith that any
additional amounts will be payable pursuant to this subsection 2.6C, will give
prompt written notice thereof to Borrowers, which notice shall set forth the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish any of Borrowers'
obligations to pay additional amounts under this subsection 2.6C.
D. Lenders' Obligation to Mitigate. Each Lender agrees that, as
promptly as practicable after the officer of such Lender responsible for
administering the Loans under this Amended Loan Agreement becomes aware of the
occurrence of an event or the existence of a condition that would entitle such
Lender to receive payments under subsection 2.6A or 2.6C, it will, to the
extent not inconsistent with such Lender's internal policies, use reasonable
efforts (i) to make, fund or maintain the Commitments of such Lender or the
affected Loans of such Lender through another lending office of such Lender, or
(ii) take such other measures as such Lender may deem reasonable, if as a
result thereof the additional amounts which would otherwise be required to be
paid to such Lender pursuant to subsection 2.6A or 2.6C would be materially
reduced and if, as determined by such Lender in its sole discretion, the
making, funding or maintaining of such Commitments or Loans through such other
lending office or in accordance with such other measures, as the case may be,
would not otherwise materially adversely affect such Commitments or Loans or
the interests of such Lender; provided that such Lender will not be obligated
to utilize such other lending office pursuant to this subsection 2.6D unless
Borrowers agree to pay all expenses incurred by such Lender in utilizing such
other lending office. A certificate as to the amount of any such expenses
payable by Borrowers pursuant to this subsection 2.6D (setting forth in
reasonable detail the basis for requesting such amount) submitted by such
Lender to Borrowers shall be conclusive absent manifest error.
E. Issuing Lender. For purposes of this subsection 2.6, references to
Loans shall be deemed to include any Letter of Credit.
2.7 [Omitted]
2.8 Letters of Credit
A. Letters of Credit. In addition to Borrowers requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A, Borrowers may request, in
accordance with the provisions of this subsection 2.8 on or after the Effective
Date to but excluding the Commitment Termination Date, that the Issuing Lender
issue Letters of Credit for the account of Borrowers on the terms and con-
ditions set forth in this subsection 2.8; provided that Borrowers shall not
request that the Issuing Lender issue (and the Issuing Lender shall not issue)
any Letter of Credit if, after giving effect to such issuance, (i) the Total
Utilization would exceed the Commitments; (ii) the Total Utilization would
exceed the Borrowing Base; or (iii) the Letter of Credit Usage would exceed
$5,000,000. In no event shall the Issuing Lender issue any Letter of Credit
having an expiration date later than the earlier of (x) the Commitment
Termination Date, (y) the date which is one year from the date of issuance of
such Letter of Credit; provided that this clause (y) shall not prevent the
Issuing Lender from agreeing that a Letter of Credit will automatically be
extended for a period not to exceed one year unless the Issuing Lender elects
not to extend for such additional period. Each Letter of Credit shall be in a
minimum stated amount of at least $100,000. It shall be a condition precedent
to the issuance of any Letter of Credit in accordance with the provisions of
this subsection 2.8 that each condition set forth in subsections 4.2 and 4.3
shall have been satisfied.
Immediately upon the issuance of each Letter of Credit, the Issuing
Lender shall promptly notify Agent and each Lender of such issuance and each
Tranche A Lender and Tranche B Lender shall be deemed to, and hereby agrees to,
have irrevocably purchased from the Issuing Lender a participation in such
Letter of Credit and drawings thereunder in an amount equal to such Lender's
Pro Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder.
Each Letter of Credit may provide that the Issuing Lender may (but
shall not be required to) pay the beneficiary thereof upon the occurrence of an
Event of Default and the acceleration of the maturity of the Tranche A Loans or
the Tranche B Loans or, if payment is not then due to the beneficiary, provide
for the deposit of funds by Borrowers in an amount sufficient to secure payment
to the beneficiary of the Letter of Credit if conditions to such payment are
satisfied, which amount shall be returned to the Issuing Lender for distribu-
tion to Lenders (or, if all Obligations shall have been indefeasibly paid in
full, to Borrowers) if no payment to the beneficiary has been made and the
final date available for drawings under the Letter of Credit has passed. Each
payment or deposit of funds by the Issuing Lender as provided in this paragraph
shall be treated for all purposes of this Amended Loan Agreement as a drawing
duly honored by the Issuing Lender under the related Letter of Credit.
B. Notice of Issuance or Amendment. Whenever either of the Borrowers
desires to cause the Issuing Lender to issue or amend a Letter of Credit, such
Borrower shall deliver to the Issuing Lender, Agent and each Lender a Notice of
Issuance/Amendment no later than 12:00 noon (New York time) at least seven
Business Days in advance of the proposed date of issuance or amendment or such
shorter time as may be acceptable to the Issuing Lender. The notice shall
specify (i) the proposed date of issuance or amendment (which shall be a
Business Day), (ii) the face amount of the Letter of Credit, (iii) the
expiration date of the Letter of Credit, and (iv) the name and address of the
beneficiary, and shall include such other documents or materials as the Issuing
Lender may reasonably request, and the verbatim text of the proposed Letter of
Credit or the proposed terms and conditions, including a precise description of
any documents required to be complied with by the beneficiary which, if so
complied with prior to the expiration date of the Letter of Credit, would
require the Issuing Lender to make payment under the Letter of Credit. The
Issuing Lender, in its reasonable discretion, may require changes in any such
documentation and shall not be required to issue or amend any Letter of Credit
that by its terms requires payment thereunder prior to the third Business Day
following receipt by the Issuing Lender of such documentation.
Promptly upon the issuance or amendment of a Letter of Credit, the
Issuing Lender shall notify each other Lender of the issuance or amendment and
the amount of each such other Lender's respective participation therein
determined in accordance with subsection 2.8A.
C. Payment of Amounts Drawn Under Letter of Credit. In determining
whether to honor any request for drawing under the Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to determine
that the documentation required to be delivered under the Letter of Credit has
been delivered and that it complies on its face with the requirements of such
Letter of Credit. In the event the Issuing Lender has determined to honor such
a request for drawing, the Issuing Lender shall immediately notify Borrowers,
Agent and each Lender, and Borrowers shall reimburse the Issuing Lender on the
day on which such drawing is honored in an amount in same day funds equal to
the amount of such drawing. Anything contained in this Amended Loan Agreement
to the contrary notwithstanding, (i) unless prior to 12:00 noon (New York time)
on the date of such drawing (a) Borrowers shall have notified the Issuing
Lender, Agent and each Lender that Borrowers intend to reimburse the Issuing
Lender for the amount of such drawing with funds other than the proceeds of
Revolving Loans or (b) Borrowers shall have delivered a Notice of Borrowing
requesting Loans in an amount equal to the amount of such drawing, Borrowers
shall be deemed to have given a Notice of Borrowing to Agent and each Lender
requesting Tranche A Lenders and Tranche B Lenders to make Revolving Loans on
the date on which such drawing is honored in an amount equal to the amount of
such drawing, and (ii) if a Notice of Borrowing has been given or is deemed to
have been given by Borrowers, Tranche A Lenders and Tranche B Lenders shall, on
the date of such drawing, make Revolving Loans in the amount of such drawing,
the proceeds of which shall be applied directly by Agent to reimburse the
Issuing Lender for the amount of such drawing. If for any reason proceeds of
Loans are not received by the Issuing Lender on such date in an amount equal to
the amount of such drawing, Borrowers shall reimburse the Issuing Lender, on
the Business Day immediately following the date of such drawing, in an amount
in same day funds equal to the excess of the amount of such drawing over the
amount of such Loans, if any, which are so received, plus accrued interest on
such amount at the rate set forth in subsection 2.3B(3).
D. Payment by Lenders. If Borrowers shall fail to reimburse the Issuing
Lender, for any reason, as provided in subsection 2.8C (including, without
limitation, by means of the making of Loans by Tranche A Lenders and Tranche B
Lenders pursuant to the terms of subsection 2.8C) in an amount equal to the
amount of any drawing honored by the Issuing Lender under a Letter of Credit
issued by it, the Issuing Lender shall promptly notify each Tranche A Lender
and Tranche B Lender of the unreimbursed amount of such drawing and of such
Lender's respective participation therein based on such Lender's Pro Rata
Share. Each Tranche A and Tranche B Lender shall make available to the Issuing
Lender an amount equal to its respective participation, in same day funds, at
the office of the Issuing Lender specified in such notice, not later than 12:00
noon (New York time) on the Business Day after the date notified by the Issuing
Lender. If any Lender fails to make available to the Issuing Lender the amount
of such Lender's participation in such Letter of Credit as provided in this
subsection 2.8D, the Issuing Lender shall be entitled to recover such amount on
demand from such Lender together with interest at the Federal Funds Effective
Rate for one Business Day and thereafter at the Base Rate. Nothing in this
subsection 2.8D shall be deemed to prejudice the right of any Lender to recover
from the Issuing Lender any amounts made available by such Lender to the
Issuing Lender pursuant to this subsection 2.8D if it is determined by a court
of competent jurisdiction that the payment with respect to a Letter of Credit
by the Issuing Lender in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of the Issuing
Lender. The Issuing Lender shall distribute to each other Lender which has
paid all amounts payable by it under this subsection 2.8D with respect to any
Letter of Credit issued by the Issuing Lender such other Lender's proportionate
share (based upon the aggregate amount of payments made by the Lender under the
Letter of Credit to which such amounts relate to the aggregate amount of all
payments made by Lenders thereunder) of all payments received by the Issuing
Lender from Borrowers in reimbursement of drawings honored by the Issuing
Lender under such Letter of Credit when such payments are received.
E. Obligations Absolute. The obligation of Borrowers to reimburse the
Issuing Lender for drawings made under the Letters of Credit issued by it and
to repay any Loans made by Lenders pursuant to subsection 2.8C and the
obligations of Tranche A Lenders and Tranche B Lenders under subsection 2.8D
shall be unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Amended Loan Agreement under all circumstances
including, without limitation, the following circumstances.
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which a Borrower or a Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any persons or entities for
whom any such transferee may be acting), any Lender or any other Person or
in the case of a Lender, against a Borrower or any of its Subsidiaries,
whether in connection with this Amended Loan Agreement, the transactions
contemplated herein or any unrelated transaction including any underlying
transaction between a Borrower or any of its Subsidiaries and the
beneficiary for which the Letter of Credit was procured);
(iii)any draft, demand, certificate 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;
(iv) payment by the Issuing Lender under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;
(v) any adverse change in the condition (financial or otherwise) of
Company or any of its Subsidiaries;
(vi) any breach of this Amended Loan Agreement or any other Loan
Document by any party thereto;
(vii)any other circumstance or happening whatsoever, which is similar
to any of the foregoing; or
(viii)the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided that neither Borrowers nor any Lender shall be required to pay any
such amounts to the extent they arise from the gross negligence or willful
misconduct of the Issuing Lender (as determined by a court of competent
jurisdiction).
F. Indemnification; Nature of Issuing Lender's Duties. In addition to
amounts payable as elsewhere provided in this subsection 2.8, Borrowers hereby
jointly and severally agree to protect, indemnify, pay and save harmless the
Issuing Lender and each other Lender from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable fees and disbursements of counsel) which the Issuing Lender or any
other Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit, other than as a result of gross
negligence or willful misconduct of the Issuing Lender or the Issuing Lender
failing to use reasonable care to determine that the documents and certificates
required to be delivered under such Letter of Credit had been delivered and
that they complied on their face with the requirements of that Letter of Credit
as determined by a court of competent jurisdiction or (ii) the failure of the
Issuing Lender to honor a drawing under any Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future de jure
or de facto government or governmental authority (all such acts or omissions
herein called "Government Acts"). Each Tranche A Lender and Tranche B Lender,
proportionately to its Pro Rata Share, severally agrees to indemnify Issuing
Lender to the extent Issuing Lender shall not have been reimbursed in
accordance with the terms of the Loan Documents for drawings under any Letter
of Credit, for and against any of the foregoing claims, demands, liabilities,
damages, losses, costs, charges and expenses to which Issuing Lender is
entitled to reimbursement under the Loan Documents.
As between Borrowers and the Issuing Lender, Borrowers assume all
risks of the acts and omissions of, or misuse of such Letters of Credit issued
by, the beneficiary or beneficiaries of such Letter of Credit. In furtherance
and not in limitation of the foregoing, the Issuing Lender shall not be
responsible (absent gross negligence or willful misconduct (as determined by a
court of competent jurisdiction)) for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
such Letter of Credit to comply fully with conditions required in order to draw
upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
documents required in order to make a drawing under any such Letter of Credit
or of the proceeds thereof; (vii) the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any drawing under such Letter of
Credit; and (viii) any consequences arising from causes beyond the control of
the Issuing Lender, including, without limitation, any Government Acts, and
none of the above shall affect impair, or prevent the vesting of any of the
Issuing Lender's rights or powers hereunder.
G. Existing Letters of Credit. Each Existing Letter of Credit
outstanding on the Effective Date shall be deemed to be a Letter of Credit
hereunder.
Section 3. GUARANTY; SECURITY INTERESTS.
3.1 Guaranty.
On the Effective Date, each of the Guarantors shall execute and
deliver to Collateral Agent on behalf of Lenders the Acknowledgement and
Confirmation confirming the continuing guaranty by the Guarantors under the
Guaranty Agreement of the full performance of the Obligations.
3.2 Security for Obligations.
A. Borrower Security. On the Effective Date, each of the Borrowers
shall execute and deliver to Collateral Agent on behalf of Lenders the
Acknowledgement and Confirmation confirming the continuing grant of security
interest in property of such Borrower created pursuant to the terms of the
Existing Loan Agreement and related documents (including, without limitation,
the Borrower Pledge Agreement, the Borrower Security Agreement and the Existing
Mortgages) in favor of the Collateral Agent for the benefit of the Lenders and
shall further grant a first priority Lien in favor of the Collateral Agent for
the benefit of the Lenders on all property of such Borrower now owned or
hereafter acquired, subject only to validly perfected and enforceable Permitted
Encumbrances or otherwise permitted under the terms of this Amended Loan
Agreement.
B. Security for Guaranties. On the Effective Date, each Guarantor
shall execute and deliver to Collateral Agent on behalf of Lenders the
Acknowledgement and Confirmation confirming the continuing grant of security
interest in property of such Guarantor created pursuant to the Security
Documents to which it is a party (including, without limitation, the Guarantor
Pledge Agreement, the Guarantor Security Agreement and the Existing Mortgages)
in favor of the Collateral Agent for the benefit of the Lenders and shall
further grant a first priority Lien in favor of the Collateral Agent for the
benefit of the Lenders on all property of such Guarantor now owned or hereafter
acquired, subject only to validly perfected and enforceable Permitted
Encumbrances of record immediately prior to the Effective Date listed on
Schedule 5.8 hereto or otherwise permitted under the terms of this Amended Loan
Agreement.
C. Cash Collateral.
Each Credit Party shall comply with the terms of the Account
Collateral Security Agreement and all Net Closing Proceeds from the sale
of Inventory Properties shall be deposited directly in the appropriate
Concentration Account in accordance with the terms of the Account
Collateral Security Agreement and all other receipts of cash, monies and
cash equivalents by the Credit Parties will be deposited directly into the
appropriate Concentration Account or as otherwise provided in the Account
Collateral Security Agreement. The Concentration Accounts shall be under
the sole dominion and control of the Collateral Agent (for the benefit of
the Lenders).
D. Real Estate.
(i) Confirmation and Granting of Liens.
(a) [intentionally omitted].
(b) In connection with any acquisition of real property by a
Credit Party after the Effective Date, such Credit Party shall (x) at
least thirty (30) days prior to the closing of the acquisition deliver to
the Collateral Agent and the Lenders the following items, each in form and
substance satisfactory to the Collateral Agent (i) a feasibility study for
such real property, including comparisons with other similar projects,
(ii) a report outlining the approval status of such real property
(indicating expiration dates of approvals), (iii) a legal description of
such real property sufficient for a mortgage and establishing that the
property constitutes a legal lot or parcel under applicable subdivision
laws, (iv) a report by an independent consultant satisfactory to Agent
regarding investigation of such property for Hazardous Materials and
compliance with Environmental Laws, with such report in form and substance
satisfactory to Agent, (v) a cash flow schedule for such real property,
(vi) a summary report updating land acquisition activity year-to-date,
including a description of all future development commitments, and (vii)
such other documents, instruments and information with respect to such
real property as the Collateral Agent or any Lender shall reasonably
request, and (y) no more than thirty (30) days after the closing of the
acquisition deliver to the Collateral Agent and the Lenders, in a form and
substance satisfactory to the Collateral Agent, a current appraisal of
such real property performed by an appraiser satisfactory to Agent.
Collateral Agent may from time to time designate any real property of any
Credit Party which is not Mortgaged Property (including any real property
acquired after the Effective Date) as "Additional Mortgaged Property," in
which case such Credit Party shall as promptly as possible (and in any
event within thirty (30) days after such designation) deliver to
Collateral Agent a fully executed Mortgage, in form and substance
satisfactory to Collateral Agent together with title insurance policies
and surveys as required by subsections 3.2D(i)(d) and 3.2D(i)(e) and any
other documents or instruments as Collateral Agent shall reasonably
request to perfect a valid and enforceable first priority mortgage on the
respective Additional Mortgage Property, free and clear of all defects and
encumbrances except for validly perfected and enforceable Permitted
Encumbrances.
(c) Concurrently with the placement of a Mortgage on any
Additional Mortgage Property, the Collateral Agent shall receive such
estoppel letters, consents and waivers from the landlords and non-
disturbance agreements from any holders of mortgages or deeds of trust on
such real estate ("Leasehold Consents") as may be requested by Collateral
Agent, which documents shall be in form and substance satisfactory to
Collateral Agent.
(d) Within thirty (30) days following delivery of any Mortgage
with respect to Additional Mortgaged Property, Company shall deliver or
cause to be delivered to Collateral Agent ALTA lenders title insurance
policies issued by title insurers reasonably satisfactory to Collateral
Agent (the "Mortgage Policies"), in form and substance, and in amounts,
reasonably satisfactory to Collateral Agent assuring Lenders that the
Mortgages are valid and enforceable first priority mortgage liens on the
respective Additional Mortgaged Properties, free and clear of all defects
and encumbrances except Permitted Encumbrances. The Mortgage Policies
shall be in form and substance reasonably satisfactory to Collateral Agent
and shall include a last dollar endorsement (to the extent permitted by
applicable laws and regulations) and an endorsement for future advances
under this Amended Loan Agreement, the Notes and the other Loan Documents,
for mechanics' liens and for any other matter that Collateral Agent may
reasonably request, and shall provide for affirmative insurance and such
reinsurance as Collateral Agent may request all of the foregoing in form
and substance satisfactory to Collateral Agent.
(e) Within thirty (30) days following delivery of any Mortgage
with respect to any Additional Mortgaged Property, Company shall deliver
or cause to be delivered to Collateral Agent current surveys, certified by
a licensed surveyor (or, with the Collateral Agent's consent, current
approved subdivision maps), for such Mortgaged Property. All such surveys
shall be certified to the Collateral Agent and the title insurer as having
been prepared in accordance with the minimum standard detail requirement
for land title surveys as adopted by the American Land Title Association
and by the American Congress of Surveying and Mapping.
(f) Collateral Agent may obtain, at the Borrowers' expense,
(i) appraisals of any Mortgaged Property and Additional Mortgaged Property
and (ii) annual updates to appraisals (including updates of any appraisals
obtained pursuant to clause (i) of this subsection 3.2D(i)(f)). All such
appraisals shall be in form and substance satisfactory to Collateral
Agent. Collateral Agent may also obtain, at the Borrowers' expense, such
audits of the Collateral as Collateral Agent may request; provided that
the Collateral Agent may not request more than four audits in any Fiscal
Year. Such audits may include, without limitation, on site inspections of
the Collateral. Such audits will be conducted by Collateral Agent,
Lenders or, in Collateral Agent's discretion, third parties satisfactory
to Collateral Agent.
(ii) Release Of Liens.
(a) Provided that no Event of Default or Potential Event of
Default has occurred and is continuing, on a bi-weekly basis, Collateral
Agent shall deliver to either the General Counsel of Calton, a title
insurance company acceptable to the Collateral Agent, or such other Person
as shall be acceptable to the Collateral Agent, in each case as escrow
agent, a Partial Release prepared and delivered by Borrowers to Collateral
Agent for each Inventory Property, listed on the most recent Bi-Weekly
Inventory Release Report delivered pursuant to subsection 6.1(i)(b),
subject to an Inventory Property Closing during the fifteen (15) day
period beginning on the day the next Bi-Weekly Inventory Release Report is
due. Unless such escrow agent has been notified that an Event of Default
or Potential Event of Default has occurred hereunder, a Partial Release
may be released from escrow and delivered for recording at the applicable
Inventory Property Closing. If a Partial Release has been delivered to an
escrow agent (on behalf of a Credit Party) for an Inventory Property
Closing and the Inventory Property Closing is cancelled and not
rescheduled or is delayed and does not occur within seventy (70) days from
the date of such delivery, the Partial Release shall be promptly returned
to Collateral Agent. Upon the occurrence of an Event of Default or
Potential Event of Default, releases of Partial Releases from escrow shall
be suspended and all Partial Releases held in escrow at such time shall be
promptly returned to the Collateral Agent.
(b) The Net Closing Proceeds from the sale of any Inventory
Property shall be deposited directly into the appropriate Concentration
Account according to the terms of the Account Collateral Security
Agreement and all other receipts of cash, monies and cash equivalents by
the Credit Parties shall be deposited directly into the appropriate
Concentration Account or as otherwise provided under the terms of the
Account Collateral and Security Agreement.
E. Further Assurances Regarding Security; Additional Security; Addition
of New Guarantors. Each Credit Party shall, from time to time, execute and
deliver to Collateral Agent on behalf of Lenders, such additional Security
Documents, statements, documents, agreements and reports as Collateral Agent
may from time to time reasonably request to evidence, perfect or otherwise
implement or assure the security for repayment of the Obligations. Company
will notify Collateral Agent promptly in the event (i) a Person becomes a
Subsidiary of Company after the date hereof, or (ii) any Credit Party proposes
to make an Investment in a Subsidiary of Company. Company at any time, at
Collateral Agent's request, shall cause any Subsidiary to execute and deliver
to Collateral Agent on behalf of Lenders such documents as shall be required in
the discretion of the Collateral Agent to join such person as a Guarantor under
the Guaranty Agreement and such Security Documents, and the appropriate Credit
Party shall execute such further Security Documents, as may be required to
grant and perfect a security interest in all of the capital stock and assets of
such Subsidiary, all as may be requested by Collateral Agent.
Section 4. CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS AND LETTERS OF
CREDIT
The effectiveness of this Amended Loan Agreement and the obligations
of Lenders to make Loans and of Issuing Lender to issue Letters of Credit
hereunder are subject to the satisfaction of all of the following conditions.
4.1 Conditions to Effectiveness.
The Amended Loan Agreement shall become effective on the date (the
"Effective Date") on which all of the conditions specified in Section 4.1 below
shall have been satisfied or the satisfaction thereof shall have been waived by
Requisite Lenders (or, in the case of the conditions set out in clauses 4.1E
and 4.1F, all Lenders).
A. Credit Party Documents. On or before the Effective Date, each Credit
Party shall deliver or cause to be delivered to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, unless otherwise noted, for each of the
Credit Parties and dated the Effective Date:
(i) If such Credit Party is a corporation, signature and incumbency
certificates of its officers executing each of the New Loan Documents to
which it is a party;
(ii) Executed originals of each of the New Loan Documents to which it
is a party; and
(iii) Such other documents as Agent may reasonably request.
B. Opinions of Credit Parties' Counsel. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions of Giordano, Halleran & Ciesla, counsel for the Credit
Parties, in form and substance reasonably satisfactory to Agent and its
counsel, dated as of the Effective Date and setting forth substantially the
matters in the opinions designated in Exhibit R annexed hereto and as to such
other matters as Agent acting on behalf of Lenders may reasonably request.
C. Intentionally omitted.
D. Intentionally omitted.
E. Intentionally omitted.
F. Reduction in Principal amount of Existing Loans. Borrowers shall
have paid to Agent for distribution to the Lenders under the Existing Loan
Agreement principal on the Existing Tranche A Loans in an amount equal to the
excess of the aggregate principal amount of such loans on the Effective Date
over $35,650,000. Borrowers shall have paid to Agent for distribution to the
Lenders under the Existing Loan Agreement principal on the Existing Tranche B
Loans in an amount equal to the excess of the aggregate principal amount of
such loans on the Effective Date over $10,350,000. Borrowers shall have paid
to Agent for distribution to Lenders under the Existing Loan Agreement all
principal and interest on the Standby Loans, if any, as such term is defined in
the Existing Loan Agreement.
G. No Material Adverse Effect. Since November 30, 1995, no Material
Adverse Effect (in the sole reasonable opinion of Agent) shall have occurred.
If the Company shall have complied with its obligations under the Existing Loan
Agreement to prepay the Existing Tranche A Loans and Existing Tranche B Loans
from the proceeds of Asset Sales (as such term is defined in the Existing Loan
Agreement), no Asset Sale shall constitute a Material Adverse Effect for
purposes of this subsection 4.1G.
H. Representations and Warranties; Performance of Agreements. Each
Credit Party shall have delivered to Agent an Officer's Certificate, in form
and substance satisfactory to Agent, to the effect that the representations and
warranties made by such Credit Party in the Loan Documents are true, correct
and complete in all material respects on and as of the Effective Date to the
same extent as though made on and as of that date and that such Credit Party
shall have performed in all material respects all agreements and satisfied all
conditions which any of the Loan Documents provides shall be performed or
satisfied by it on or before the Effective Date except as otherwise disclosed
to and agreed to in writing by Agent and Requisite Lenders.
I. Insurance. Each of the Lenders shall have received an insurance
report performed by experts satisfactory to the Lenders and such insurance
certificates and endorsements as the Lenders shall reasonably request, each in
form and substance reasonably satisfactory to the Lenders.
J. Borrowing Base Certificate. Each of the Lenders shall have received
a Borrowing Base Certificate certified by the chief financial officer of
Company and dated the Effective Date (i) calculating the Borrowing Base as of
the last day of the most recent month ending more than 30 days prior to the
Effective Date (the "Initial Borrowing Base") and demonstrating compliance
hereunder with the Initial Borrowing Base after giving effect to the making of
Loans hereunder, if any, and the other transactions contemplated by the Loan
Documents to occur on the Effective Date and (ii) containing a statement by the
chief financial officer of Company that he or she is aware of no circumstances
which would lead him or her to reasonably believe that a Borrowing Base
calculated as of the Effective Date would have a materially lower value than
the Initial Borrowing Base.
K. Corporate and Capital Structure. The composition of the board of
directors of Company and the corporate structure, capital structure and
management of Company and its Subsidiaries on the Effective Date shall be
reasonably satisfactory to the Lenders.
L. Intentionally omitted.
M. Payment of Fees and Expenses. Borrowers shall have paid to Agent,
for distribution to Lenders in accordance with their Pro Rata Shares, the
installment of the Restructure Fee in the amount of $225,000 due on the
Effective Date as set forth in subsection 2.3C. Borrowers shall have paid all
of the actual costs and expenses, including reasonable attorneys' fees
(including outside counsel's fees, printing, reproduction, document delivery
and communication costs, and all allocated costs of Lenders' in-house counsel),
incurred by Lenders in connection with the negotiation and/or preparation of
the Loan Documents, the termsheets and commitment letters relating thereto, and
any other contracts, instruments and documents required hereunder and the
perfection of the Liens and other actions required pursuant to subsection 4.1L.
N. Completion of Other Proceedings. All other corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Agent may reasonably request.
4.2 Conditions to Letters of Credit.
The obligation of the Issuing Lender to issue any Letter of Credit
is, in addition to the conditions precedent specified in subsections 4.1 and
4.3, subject to the further condition precedent that on or before the date of
issuance of such Letter of Credit, the Issuing Lender shall have received, in
accordance with the provisions of subsection 2.8B, a notice requesting the
issuance of such Letter of Credit and all other information specified in
subsection 2.8B, and such other documents as such Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
4.3 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date are, in
addition to the conditions precedent to effectiveness set forth in Section 4.1,
subject to the satisfaction of each of the following further conditions
precedent:
A. Agent shall have received before that Funding Date, in accordance
with the provisions of subsection 2.1B, an originally executed Notice of
Borrowing, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of each Borrower or by any executive officer
of the such Borrower designated by any of the above-described officers on
behalf of such Borrower in a writing delivered to Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event
of Default;
(iii)Each Borrower shall have performed in all material respects all
agreements and satisfied all conditions which this Amended Loan Agreement
provides shall be performed or satisfied by it on or before that Funding
Date;
(iv) No order, judgment or decree of any court, arbitrator or govern-
mental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date shall not
violate any law including, without limitation, Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System;
(vi) There shall not be pending or, to the knowledge of either
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries that
has not been disclosed by Borrowers in writing pursuant to subsection 5.9
or 6.1(xii) prior to the making of the last preceding Loans (or, in the
case of the initial Loans following the Effective Date, prior to the
Effective Date), and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental investigation
or arbitration so disclosed, that, in either event, could reasonably be
expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to enjoin
or otherwise prevent the consummation of, or to recover any damages or
obtain relief as a result of, the transactions contemplated by this
Amended Loan Agreement;
(vii)Agent and Collateral Agent shall have received on behalf of
Lenders such approvals, filings, opinions and documents as Agent or
Collateral Agent may reasonably request; and
(viii)No event or change shall have occurred that would cause or
evidence, either in any case or in the aggregate, a Material Adverse
Effect.
The acceptance by Borrowers of the proceeds of any Loans shall be
deemed to constitute, as of the date of such acceptance, (i) a representation
and warranty by Borrowers that the conditions in this Section 4.3 have been
satisfied and (ii) a confirmation by Borrowers of the granting and continuance
of the Collateral Agent's Lien (on behalf of the Lenders) in the Collateral
pursuant to the Loan Documents.
Section 5. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amended Loan Agreement
and to make the Loans and issue Letters of Credit hereunder, each Credit Party
jointly and severally represents and warrants to each Lender, on the Effective
Date and on each Funding Date, that the following statements are true, correct
and complete:
5.1 Corporate Existence and Qualifications; Compliance with Law.
A. Schedule 5.1(a) annexed hereto lists the state of organization
of Company and each Subsidiary of Company and all other states or jurisdictions
in which Company or such Subsidiary is qualified to do business as a foreign
corporation or partnership. Company and each Subsidiary of Company (i) is a
corporation or partnership duly organized, validly existing and in good
standing under the laws of the state of its organization; (ii) is duly
qualified as a foreign corporation or partnership and is in good standing under
the laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification (except for jurisdictions
in which such failure to so qualify or to be in good standing could not
reasonably be expected to have a Material Adverse Effect); (iii) has the
requisite corporate or partnership power and authority and the legal right to
own, pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease, and to conduct its business as now,
heretofore and proposed to be conducted; and (iv) is in compliance with its
certificate or articles of incorporation and bylaws or partnership agreement,
as applicable.
B. Company and each Subsidiary of Company (i) has, or will by the
Effective Date have, all material licenses, permits, consents or approvals from
or by, and has made all material filings with, and has given all material
notices to, all governmental authorities having jurisdiction, to the extent
required for the ownership, operation and conduct of its properties and
business as now, heretofore and proposed to be owned, operated and conducted;
and (ii) is in compliance with all applicable provisions of law, the failure to
comply with which would have a Material Adverse Effect.
5.2 Executive Offices.
The respective current locations of Company's and each of its
Subsidiaries' chief executive offices and principal places of business are set
forth on Schedule 5.2 annexed hereto.
5.3 Subsidiaries.
Schedule 5.3 sets forth all Subsidiaries of Company, together with
(i) in the case of Subsidiaries of Company which are corporations, the
authorized and outstanding capital stock of each such Subsidiary, by class and
number and percentage of each class legally owned by Company or a Subsidiary of
Company or any other Person, or to be so owned by the Effective Date and (ii)
in the case of all other Subsidiaries of Company, all issued and outstanding
ownership interests of each such Subsidiary by class and number and percentage
of each class owned by Company or a Subsidiary of Company or any other Person,
or to be so owned by the Effective Date. There are no options, warrants,
rights to purchase or similar rights covering capital stock or other ownership
interests for any such Subsidiary.
5.4 Conduct of Business.
Company and its Subsidiaries are engaged only in the businesses
permitted to be engaged in pursuant to subsection 7.13.
5.5 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance
of the Loan Documents have been duly authorized by all necessary corporate or
partnership action on the part of each Credit Party thereto.
B. No Conflict. The execution, delivery and performance by each Credit
Party of the Loan Documents to which it is a party and the consummation of the
transactions contemplated by the Loan Documents do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
such Credit Party or any order, judgment or decree of any arbitrator, court or
other agency of government binding on such Credit Party, (ii) violate any
provision of the Certificate or Articles of Incorporation or Bylaws of such
Credit Party if it is a corporation or of the general partner or other person
authorized to act on behalf of such Credit Party if it is not a corporation,
(iii) violate any provision of its partnership, joint venture or similar
organizational agreement if such Credit Party is not a corporation,
(iv) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of such
Credit Party, (v) result in or require the creation or imposition of any Lien
upon any of the properties or assets of such Credit Party (other than any Liens
created under any of the Loan Documents in favor of Collateral Agent on behalf
of Lenders), or (vi) require any approval of stockholders, any partner or any
approval or consent of any Person under any Contractual Obligation of such
Credit Party, except for such approvals or consents which will be obtained on
or before the Effective Date and disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery and performance by
each Credit Party of the Loan Documents to which such Credit Party is a party
and the consummation of the transactions contemplated by the Loan Documents do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other govern-
mental authority or regulatory body.
D. Binding Obligation. Each of the Loan Documents has been duly
executed and delivered by each Credit Party which is a party thereto and is the
legally valid and binding obligation of such Credit Party, enforceable against
each such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
5.6 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) a financial forecast dated
February 27, 1997, for Company and its Subsidiaries for the period through
November 30, 1999, (ii) the audited consolidated and consolidating balance
sheets of Company and its Subsidiaries as at November 30, 1995, and the related
consolidated and consolidating statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for the Fiscal Year then ended and
(iii) the unaudited consolidated and consolidating balance sheets of Company
and its Subsidiaries as at January 30, 1997, and the related unaudited
consolidated and consolidating statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for the three months then ended.
All such statements were prepared in conformity with GAAP and fairly present
the financial position (on a consolidated and, where applicable, consolidating
basis) of the entities described in such financial statements as at the
respective dates thereof and the results of operations and cash flows (on a
consolidated and, where applicable, consolidating basis) of the entities
described therein for each of the periods then ended, subject, in the case of
any such unaudited financial statements, to changes resulting from audit and
normal year-end adjustments. Company does not (and will not following the
Effective Date) have any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not reflected in the foregoing financial statements or the notes
thereto and which in any such case is material in relation to the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company and its Subsidiaries taken as a whole.
5.7 No Material Adverse Change; No Restricted Junior Payments.
Since November 30, 1995, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so.
5.8 Title to Properties; Liens.
Company and its Subsidiaries have, and following the Effective Date
will have, good, marketable and legal title, subject only to Permitted
Encumbrances, to all of their respective properties and assets reflected in the
financial statements referred to in subsection 5.6 or in the most recent
financial statements delivered pursuant to subsection 6.1, except for assets
disposed of since the date of such financial statements in the ordinary course
of business or as otherwise permitted under subsection 7.7. Except as
permitted by this Amended Loan Agreement, all such properties and assets are,
and following the Effective Date will be, free and clear of Liens. Except for
the Guarantors, no Subsidiary of Company has, or following the Effective Date
will have, assets with a fair market value in excess of $50,000. The Liens
granted to the Collateral Agent (for the benefit of the Lenders) will be fully
perfected first priority Liens in and to the Collateral on the Effective Date
and thereafter, subject only to any validly perfected and enforceable Permitted
Encumbrances of record immediately prior to the Effective Date identified on
Schedule 5.8 annexed hereto.
5.9 Litigation; Adverse Facts.
Except as described in Schedule 5.9 annexed hereto, there is no
action, suit, proceeding, arbitration or governmental investigation (whether or
not purportedly on behalf of Company or any of its Subsidiaries) at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or, to the knowledge of any Credit Party, threatened against
or affecting Company or any of its Subsidiaries or any property of Company or
any of its Subsidiaries that has had, or could reasonably be expected to result
in, a Material Adverse Effect. Neither Company nor any of its Subsidiaries is
(i) in violation of any applicable law that has had, or could reasonably be
expected to result in, a Material Adverse Effect or (ii) subject to or in
default with respect to any final judgment, writ, injunction, decree, rule or
regulation of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that has had, or could reasonably be expected to result in, a Material
Adverse Effect.
5.10 Payment of Taxes.
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them
have been timely filed, and all taxes, assessments, fees and other governmental
charges upon Company and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been
paid when due and payable. No Credit Party knows of any proposed tax assess-
ment against Company or any of its Subsidiaries (other than any proposed tax
assessment which Company or such Subsidiary expects to pay in the ordinary
course of its business when due) which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall
be required in conformity with GAAP shall have been made or provided therefor.
5.11 Performance of Agreements; Materially Adverse Agreements.
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect,
of such default or defaults, if any, would not have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had, or could reasonably be expected to result
in, individually or in the aggregate, a Material Adverse Effect.
5.12 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act or the Investment Company Act of 1940 or under any
other federal or state statute or regulation which may limit its ability to
incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable.
5.13 Securities Activities.
Neither Company nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock.
5.14 Employee Benefit Plans.
A. The Credit Parties and each of their ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of any Credit Party or any of their ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), does not exceed $250,000.
5.15 Certain Fees.
No broker's or finder's fee or commission will be payable with
respect to this Amended Loan Agreement or any of the transactions contemplated
hereby, and Borrowers hereby indemnify Lenders against, and agree that they
will hold Lenders harmless from, any claim, demand or liability for any such
broker's or finder's fees alleged to have been incurred in connection herewith
or therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand or
liability.
5.16 Environmental Protection.
Except as set forth in Schedule 5.16 annexed hereto:
(i) the operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions at or in the
Facilities) comply in all material respects with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to their
respective current operations and have no reason to believe they will be
unable to obtain all Governmental Authorizations under Environmental Laws
necessary to their respective future operations, and all such current
Governmental Authorizations are in good standing, and Company and each of
its Subsidiaries are in compliance with all material terms and conditions
of such Governmental Authorizations;
(iii)neither Company nor any of its Subsidiaries has received (a) any
notice or claim to the effect that it is or may be liable to any Person as
a result of or in connection with any Hazardous Materials or (b) any
letter or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. 9604)
or comparable state laws, and, to the best of each Credit Party's
knowledge, none of the operations of Company or any of its Subsidiaries is
the subject of any federal or state investigation relating to or in
connection with any Hazardous Materials at any Facility or at any other
location;
(iv) none of the operations of Company or any of its Subsidiaries is
subject to any judicial or administrative proceeding alleging the
violation of or liability under any Environmental Laws which if adversely
determined is reasonably likely to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written
order or agreement with any governmental authority or private party
relating to (a) any Environmental Laws or (b) any Environmental Claims;
(vi) neither Company nor any of its Subsidiaries has, to the best
knowledge of each Credit Party, any contingent liability in connection
with any Release of any Hazardous Materials by Company or any of its
Subsidiaries;
(vii)neither Company nor any of its Subsidiaries nor, to the best
knowledge of each Credit Party, any predecessor of Company or any of its
Subsidiaries (including without limitation any prior owner or operator of
any Facility) has filed any notice under any Environmental Law indicating
past or present treatment or Release of Hazardous Materials at any
Facility, and none of Company's or any of its Subsidiaries' operations
nor, to the best knowledge of each Credit Party, any predecessor of
Company or any of its Subsidiaries (including without limitation any prior
owner or operator of any Facility) involves the generation,
transportation, treatment, storage or disposal of Hazardous Materials;
(viii)no Hazardous Materials exist on, under or about any Facility in
a manner that has a reasonable possibility of giving rise to an
Environmental Claim having a Material Adverse Effect, and neither Company
nor any of its Subsidiaries has filed (or should have filed) any notice or
report of a Release of any Hazardous Materials that has a reasonable
possibility of giving rise to an Environmental Claim having a Material
Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to the best
knowledge of each Credit Party, any of their respective predecessors
(including without limitation any prior owner or operator of a Facility)
has disposed of any Hazardous Materials in a manner that has a reasonable
possibility of giving rise to an Environmental Claim having a Material
Adverse Effect;
(x) to the best knowledge of each Credit Party, no underground
storage tanks or surface impoundments are on, under or at any Facility;
and
(xi) no Lien in favor of any Person relating to or in connection with
any Environmental Claim has been filed or has been attached to any
Facility.
5.17 Employee Matters.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that may have a Material Adverse
Effect.
5.18 Outstanding Stock.
On the Effective Date, the authorized capital of Company will consist
of (i) 53,700,000 shares of Company Common Stock, of which approximately
26,550,000 shares will be issued and outstanding, and (ii) 2,600,000 shares of
Redeemable Preferred Stock, of which no shares will be outstanding, and (iii)
10,000,000 shares of Class A Preferred Stock, of which none will be issued or
outstanding. Schedule 5.18 identifies each Person who on the Effective Date
will hold beneficially 5% or more of the Company Common Stock or the Redeemable
Preferred Stock or who will hold Securities representing 5% or more of the
combined voting power of all Securities of Company entitled to vote in the
election of directors. On the Effective Date, Company will have no outstanding
rights, options, warrants, or agreements pursuant to which it may be required
to issue or sell any capital stock or other equity security, except as set
forth in Schedule 5.18.
5.19 Insurance Policies.
Schedule 5.19 lists all insurance of any nature maintained for
current occurrences by Company and its Subsidiaries, as well as a summary of
the terms of such insurance. All of such policies are in full force and effect
and provide coverage of such risks and for such amounts as is customarily
maintained for businesses of the scope and size of that of Company and its
Subsidiaries.
5.20 Schedule of Deposit Accounts.
Schedule 5.20 lists all material Deposit Accounts, of Company and its
Subsidiaries, and such Schedule 5.20 correctly identifies the name and address
of each depository, the name in which the account is held, the purpose of the
account and the complete account number.
5.21 Solvency.
On the Effective Date each Credit Party will be and, upon the
incurrence of any Obligations by such Credit Party on any date on which this
representation is made, will be, Solvent.
5.22 Mortgaged Properties.
All of the Real Estate owned or leased by the Credit Parties and
their Subsidiaries is described in Schedule 5.22 annexed hereto. Except as set
forth on Schedule 5.22, all of the Real Estate described in said Schedule
constitutes the Mortgaged Properties.
5.23 Disclosure.
No representation or warranty of any Credit Party contained in any
Loan Document or in any other document, certificate or written statement fur-
nished to Lenders by or on behalf of such Credit Party for use in connection
with the transactions contemplated by this Amended Loan Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to
such Credit Party, in the case of any document not furnished by it) necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. Any projections and
pro forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by the Credit Parties to be reasonable
at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results. There is no fact known (or which should upon the reasonable exercise
of diligence be known) to any Credit Party (other than matters of a general
economic nature) that has had, or could reasonably be expected to result in, a
Material Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.24 Financial Condition of Certain Subsidiaries.
On the Effective Date each of the following entities has no assets
and on the date of the dissolution thereof pursuant to subsection 6.12, each of
the following entities shall have no assets: Calton Homes of Tampa, Inc.;
Calcap 42, Inc.; Calton Lindenwood Corporation; Calton Manzanita Corporation;
Calton California Equity Corporation; Calton Tamarack Corporation; Calcap
XXXIII, Inc.; Calcap Commercial Management Inc.; Calton General Inc.; Talpro
31, L.P.; Talpro 32, L.P.; Calcap XXXII, Inc.; Talpro 33, L.P.; Calcap X,
Inc.; and Calcap XXI, Inc.
5.25 Survival of Rights Created under Existing Loan Agreement.
Notwithstanding the modification or deletion of certain
representations and warranties of Borrowers contained in the Existing Loan
Agreement (including, without limitation, the deletion of representations and
warranties as to the future consequences of certain events which occurred prior
to the date of this Amended Loan Agreement), but subject to the waiver of
certain Events of Default provided in subsection 11.23 hereof, each Borrower
acknowledges and agrees that any choses in action or other rights created in
favor of any Lender and their respective successors and assigns arising out of
the representations and warranties of Borrowers contained in or delivered
(including representations and warranties delivered in connection with the
making of loans thereunder) in connection with the Existing Loan Agreement,
shall survive the execution and delivery of this Amended Loan Agreement. Each
Borrower and Lenders acknowledge that certain representations and warranties
made by Borrowers under the Existing Loan Agreement (including representations
and warranties as to the future consequences of certain events which occurred
prior to the date of this Amended Loan Agreement) were made subject to changes
in the facts and conditions on which such representations and warranties were
based, which such changes were permitted or required under the Existing Loan
Agreement or this Amended Loan Agreement and any such representations and
warranties incorporated herein are so incorporated subject to such changes
permitted or required under the Existing Loan Agreement or this Amended Loan
Agreement.
Section 6. CREDIT PARTIES' AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all
of the Loans and other Obligations and the repayment in full of all amounts due
under, or the cancellation or expiration of all Letters of Credit and all other
amounts owing hereunder, such Credit Party shall perform, and shall cause each
of its Subsidiaries to perform, all covenants in this Section 6 applicable to
it.
6.1 Financial Statements and Other Reports.
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Lenders (or, in the case of
subsection 6.1(i), to Agent, Collateral Agent and, upon request, Lenders):
(i) Inventory Reports:
(a) on a monthly basis, with reports due by the 5th day of each
month commencing with the first such date after the Effective Date, a
report in form and substance reasonably satisfactory to Agent, certified
by the chief financial officer of Company (each a "Monthly Inventory
Activity Report"), listing (1) all sales of Real Estate by Company or any
of its Subsidiaries during the previous month, providing reasonable detail
on a per unit (lot) basis regarding the date on which the closing of the
sale of the unit (lot) occurred, the gross sales price of the unit (lot),
the amount of settlement costs paid by the seller, the amount of Net
Closing Proceeds received by the seller, the account number of the
Concentration Account into which the Net Closing Proceeds were deposited
(together with reasonable detail regarding sales of Inventory Properties
to which such deposit relates), the date of such deposit, and (2) all
acquisitions of Real Estate or interests in Real Estate (including
information on the acquisition of options on Real Estate and the exercise
of options on Real Estate), during the previous month, providing
reasonable detail on a per unit (lot) basis regarding the date the closing
of the acquisition of the unit (lot) occurred, the purchase price paid,
and the date and place (including book and page) of recording of real
estate security instruments granting Liens to the Collateral Agent;
provided that if Collateral Agent determines in its sole discretion that
the Monthly Inventory Activity Report does not provide the Collateral
Agent information on a timely enough basis to accurately determine the
status of lots that have been released or other inventory information, on
the written request of Collateral Agent, such reports shall thereafter be
delivered on a weekly basis with such reports due by the first Business
Day of each week (such reports, if delivered on a weekly basis shall be
referred to hereunder as "Weekly Inventory Activity Reports");
(b) on a bi-weekly basis, with reports due by the 1st and 15th day
of each month commencing with the first such date after the Effective
Date, a schedule signed by an officer of the Company or its legal counsel
(each a "Bi-Weekly Inventory Release Report"), identifying all Partial
Releases required for scheduled closings for the two week period beginning
on the date the next Bi-Weekly Inventory Release Report is due;
(c) on a monthly basis, with the reports due by the 15th day of each
month commencing with the first such date after the Effective Date, (1) a
certificate in form and substance reasonably satisfactory to Agent and
signed by the chief financial officer of Company (each a "Monthly
Inventory Certification Report") verifying the accuracy of the most recent
inventory report prepared by the Collateral Agent and submitted to Company
with respect to the Real Estate of Company and its Subsidiaries (together,
if necessary, with a schedule containing such additions or deletions to
the inventory report as the party certifying its accuracy shall deem
necessary for an accurate description of such Real Estate), and (2) a
forecast of sales and acquisition activity for the next month in form and
substance satisfactory to the Agent and certified by the chief financial
officer of Company (each a "Sales/Acquisition Forecast") listing (A) all
planned real property closings (on a lot/unit basis) for the next month
with reasonable detail regarding the projected closing dates, sales
prices, settlement costs to be paid by the seller and net sales proceeds
to be received by the seller and (B) all planned real property
acquisitions for the next month (with lot/unit data if applicable) and
reasonable detail regarding the projected closing dates and acquisition
costs; and
(ii) Borrowing Base Certificate; Sales and Closing Report: as soon
as available and in any event within 30 days after the end of each month
ending after the Effective Date (a) a borrowing base certificate in form
and substance satisfactory to Agent and certified by the chief financial
officer of Company (each a "Borrowing Base Certificate") listing in
summary fashion (on a division basis) the Eligible Inventory Cost and Net
Realizable Value of each Eligible Property and demonstrating in reasonable
detail compliance with the Borrowing Base restrictions contained in
subsection 2.4D with an attached schedule listing in reasonable detail
borrowing base information for each Real Estate Project of Company and its
Subsidiaries, including the project name, project location, project type,
status, lot information (including total lots, lots closed, Spec Units and
total lots remaining) and inventory value information (including Eligible
Inventory Cost, Net Realizable Value, inventory reserves and 80%
availability figures), all as of the end of the previous month, and (b) a
summary report in form and substance satisfactory to Agent and signed by
the chief financial officer of Company (each a "Sales and Closing Report")
listing all sales and deliveries of Real Estate by Company and its
Subsidiaries on a weekly basis for the three month period ending as of the
end of the previous month; and
(iii)Monthly Financials: as soon as available and in any event
within 30 days after the end of the first two months of each fiscal
quarter of each Fiscal Year after the Effective Date and within 45 days
after the end of each month ending a fiscal quarter after the Effective
Date, (a) the consolidated and, upon request by any Lender, consolidating
balance sheets of Company and its Subsidiaries as at the end of such month
and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such month and for the period from the beginning of the then current
Fiscal Year to the end of such month, setting forth in each case in
comparative form the corresponding figures for the corresponding periods
of the previous Fiscal Year and the corresponding figures from the
consolidated plan and financial forecast for the current Fiscal Year
delivered pursuant to subsection 6.1(xv), to the extent prepared on a
monthly basis, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present the financial condi-
tion of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, and (b) at the request of Agent, a narrative report
describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such month and for the
period from the beginning of the then current Fiscal Year to the end of
such month; and
(iv) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each fiscal quarter of each Fiscal Year,
(a) the consolidated and consolidating balance sheets of Company and its
Subsidiaries as at the end of such fiscal quarter and the related
consolidated and consolidating statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current Fiscal Year to the
end of such fiscal quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the consolidated plan and
financial forecast for the current Fiscal Year delivered pursuant to
subsection 6.1(xv), all in reasonable detail and certified by the chief
financial officer of Company that they fairly present the financial
condition of Company and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, and (b) at the request of Agent, a narrative report
describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such fiscal quarter and
for the period from the beginning of the then current Fiscal Year to the
end of such fiscal quarter;
(v) Year-End Financials: within 10 days after the Effective Date
(in the case of the Fiscal Year ended November 30, 1996) and as soon as
available and in any event within 90 days after the end of each Fiscal
Year thereafter, (a) the consolidated and consolidating balance sheets of
Company and its Subsidiaries as at the end of such Fiscal Year and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal
Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding figures from
the consolidated plan and financial forecast for the current Fiscal Year
delivered pursuant to subsection 6.1(xv), all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated, (b) a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for
presentation to senior management for such Fiscal Year, and (c) in the
case of such consolidated financial statements, a report thereon of
Coopers & Lybrand or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Agent, which report shall be unqualified, shall express no doubts about
the ability of Company and its Subsidiaries to continue as a going
concern, and shall state that such consolidated financial statements
fairly present the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
provided, however, that Company shall deliver preliminary drafts of the
financial statements referred to in clause (a) above within 45 days after
the end of such Fiscal Year;
(vi) Officers' and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (iii), (iv) and (v) above, (a) an Officers' Certificate of
Company stating that the signers have reviewed the terms of this Amended
Loan Agreement and have made, or caused to be made under their super-
vision, a review in reasonable detail of the transactions and condition of
Company and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signers do
not have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof
and what action Company has taken, is taking and proposes to take with
respect thereto; and (b) a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of the applicable
accounting periods with the restrictions contained in Section 7;
(vii)Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.6, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions, (iii), (iv), (v) or (xv) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been
made, then (a) together with the first delivery of financial statements
pursuant to subdivision (iii), (iv), (v) or (xv) of this subsection 6.1
following such change, consolidated financial statements of Company and
its Subsidiaries for (y) the current Fiscal Year to the effective date of
such change and (z) the two full Fiscal Years immediately preceding the
Fiscal Year in which such change is made, in each case prepared on a pro
forma basis as if such change had been in effect during such periods, and
(b) together with each delivery of financial statements pursuant to
subdivision (iii), (iv), (v) or (xv) of this subsection 6.1 following such
change, a written statement of the chief accounting officer or chief
financial officer of Company setting forth the differences which would
have resulted if such financial statements had been prepared without
giving effect to such change;
(viii)Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (v) above, a written statement by the independent certified
public accountants giving the report thereon stating whether, in
connection with their audit examination, anything has come to their
attention that caused them to believe that the Company has failed to
comply with any term or provisions hereof and if any such failure to
comply has come to their attention, specifying the nature and period of
existence thereof; provided that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course of
their audit examination;
(ix) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted by such
accountants to management in connection with their annual audit;
(x) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8
or a similar form) and prospectuses, if any, filed by Company or any of
its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally
by Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(xi) Events of Default, etc.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an
Event of Default or Potential Event of Default, or becoming aware that any
Lender, Agent or Collateral Agent has given any notice or taken any other
action with respect to a claimed Event of Default or Potential Event of
Default, (b) that any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to a claimed default
or event or condition of the type referred to in subsection 8.2, (c) of
any condition or event that would be required to be disclosed in a current
report filed by Company with the Securities and Exchange Commission on
Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the Exchange
Act, or (d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officers' Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes to take with
respect thereto;
(xii)Litigation: (a) promptly upon any officer of Company obtaining
knowledge of (X) the institution of, or non-frivolous threat of, any
action, suit, proceeding, governmental investigation or arbitration
against or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries (collectively, "Proceedings") not
previously disclosed in writing by Company to Lenders or (Y) any material
development in any Proceeding that, in any case:
(1) if adversely determined, is reasonably likely to cause a
Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of,
or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) within twenty days after the end of each
fiscal quarter of Company, a schedule of all Proceedings involving an
alleged liability of, or claims against or affecting, Company or any of
its Subsidiaries equal to or greater than $500,000, and promptly after
request by Agent such other information as may be reasonably requested by
Agent to enable Agent and its counsel to evaluate any of such Proceedings;
(xiii)ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action the applicable Credit Party or
any of its ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(xiv)ERISA Notices: with reasonable promptness, copies of (a) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Credit Party or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all notices
received by any Credit Party or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (c) such other
documents or governmental reports or filings relating to any Employee
Benefit Plan as Agent shall reasonably request;
(xv) Financial Plans: as soon as practicable and in any event no
later than 30 days prior to the beginning of each Fiscal Year, a
consolidated and consolidating plan and financial forecast for the next 2
succeeding Fiscal Years, including, without limitation, (a) forecasted
consolidated and consolidating balance sheets and forecasted consolidated
and consolidating statements of income and cash flows of Company and its
Subsidiaries for such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based, (b) forecasted consolidated
and consolidating statements of income and cash flows of Company and its
Subsidiaries for each quarter of such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based, and (c)
such other information and projections as any Lender may reasonably
request;
(xvi)Insurance: as soon as practicable and in any event by the last
day of each Fiscal Year, a report in form and substance satisfactory to
Agent outlining all material insurance coverage maintained as of the date
of such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in the
immediately succeeding Fiscal Year;
(xvii)Environmental Audits and Reports: as soon as practicable
following receipt thereof, copies of all environmental audits and reports,
whether prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, which relate to an Environmental Claim which
could result in a Material Adverse Effect, or with respect to
environmental matters at any Facility;
(xviii)Board of Directors: with reasonable promptness, written
notice of any change in the Board of Directors of Company or any of its
Subsidiaries; and
(xix)Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by any Lender.
6.2 Corporate Existence, etc.
Each Credit Party will, and will cause each of its Subsidiaries to,
at all times preserve and keep in full force and effect its corporate existence
and all rights and franchises material to its business; provided, however, that
(i) no Credit Party shall be required to preserve the corporate existence,
rights or franchises of any of its Subsidiaries which are not Credit Parties
where the preservation thereof is no longer desirable in the context of the
business of Company and its Subsidiaries taken as a whole and where such
modification or elimination would not have a Material Adverse Effect and (ii)
the Credit Parties identified in subsection 5.24 may be dissolved.
6.3 Payment of Taxes and Claims; Tax Consolidation.
A. Each Credit Party will, and will cause each of its Subsidiaries to,
pay all taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided that no such charge or
claim need be paid if being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
B. No Credit Party will, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance.
A. Each Credit Party will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the
business of such Credit Party and its Subsidiaries and from time to time will
make or cause to be made all appropriate repairs, renewals and replacements
thereof.
B. Each Credit Party will maintain or cause to be maintained, with
financially sound and reputable insurers, insurance with respect to its
properties and businesses and the properties and businesses of its Subsidiaries
against loss or damage of the kinds customarily carried or maintained under
similar circumstances by corporations of established reputation engaged in
similar businesses. Without limiting the generality of the foregoing, each of
the Credit Parties will maintain the following policies of insurance with
respect to their properties and businesses and the properties and businesses of
their Subsidiaries, in form and substance reasonably satisfactory to Collateral
Agent:
(i) with respect to any improvements on the Real Estate as to which
construction has commenced but has not been completed and any personal
property used or to be used in connection with such improvements,
builder's "all risk" insurance ("completed value" form), including "course
of construction" coverage;
(ii) with respect to any improvements on the Real Estate as to which
construction has been completed and any personal property used or to be
used in connection with such improvements, property "all risk" insurance;
(iii)commercial general liability insurance in favor of Company and
its Subsidiaries (and naming Collateral Agent as an additional insured) in
an aggregate amount not less than $11,000,000 (or such greater amount as
may be specified by Collateral Agent from time to time) combined single
limit; and
(iv) such other insurance as may be required by applicable statutes,
ordinances, orders, rules, regulations, decrees or the like (including
worker's compensation and employer's liability insurance) or as Collateral
Agent may reasonably require from time to time (including comprehensive
form boiler and machinery insurance, if applicable).
In addition, each Credit Party shall, and shall cause each of its
Subsidiaries to, cause each contractor and subcontractor engaged to perform
work in connection with the Real Estate to maintain a policy of commercial
general liability insurance and, upon request by Collateral Agent, shall cause
architects and engineers engaged to perform work in connection with the Real
Estate to maintain policies of professional liability insurance, in each case
for such periods and in such amounts as Collateral Agent may reasonably require
from time to time.
Each policy of property insurance required by this subsection 6.4
shall be in an amount not less than the full replacement cost of the property
covered by such policy, shall contain a "full replacement cost" endorsement and
an agreed value clause, shall insure against flood loss risk if the Real Estate
(or any part thereof) is located in a Flood Hazard Area, and shall contain a
mortgage clause insuring Collateral Agent pursuant to Form BFU 438 or other
form approved by Collateral Agent. Each policy of commercial general liability
insurance required by this subsection 6.4 shall cover personal injury, property
damage, owner/contractor protective, blanket contractual liability and (where
applicable) completed operations, with x, c and u exclusions deleted, shall
name Collateral Agent as an additional insured, and such insurance shall be
primary and non-contributing with any other insurance available to Collateral
Agent. All insurance policies shall be in form and substance and issued by
insurers reasonably satisfactory to Collateral Agent, and shall contain such
deductibles and such endorsements as Collateral Agent may reasonably require.
Upon request by Collateral Agent from time to time, Company shall deliver or
cause the delivery to Collateral Agent of originals or copies of all such
insurance policies and certificates evidencing such policies. Each such policy
of insurance shall provide for at least 30 days prior written notice to Agent
and Collateral Agent of any modification or cancellation of such policy. On or
before the end of the first fiscal quarter of each Fiscal Year, Company shall
submit to Agent (i) an Officer's Certificate setting forth in detail the type
and amount of insurance maintained pursuant to this subsection 6.4 and (ii) a
certificate from an independent insurance brokerage confirming that such
insurance satisfies the requirements of this subsection 6.4.
6.5 Inspection; Lender Meeting.
Each Credit Party shall, and shall cause each of its Subsidiaries to,
permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of such Credit Party or any of its Subsidiaries,
including its and their financial and accounting records, and to make copies
and take extracts therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that such Credit Party may, if it so chooses, be present at or
participate in any such discussion), all upon reasonable notice and at such
reasonable times during normal business hours and as often as may be reasonably
requested. Without in any way limiting the foregoing, each Credit Party will,
upon the request of Agent, Requisite Lenders, Requisite Tranche A Lenders, or
Requisite Tranche B Lenders, participate in a meeting of Agent and Lenders,
Agent and Tranche A Lenders or Agent and Tranche B Lenders, as requested, to be
held at Company's corporate offices (or such other location as may be agreed to
by such Credit Party and Agent) at such time as may be agreed to by such Credit
Party and Agent.
6.6 Compliance with Laws, etc.
Each Credit Party shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which is reasonably
likely to cause a Material Adverse Effect and with the requirements of all
Governmental Authorizations affecting any Facility or Real Estate Project
noncompliance with which is reasonably likely to cause a Material Adverse
Effect.
6.7 Environmental Disclosure and Inspection.
A. Each Credit Party shall, and shall cause each of its Subsidiaries to,
exercise all due diligence in order to comply and cause (i) all tenants under
any leases or occupancy agreements affecting any portion of the Facilities and
(ii) all other Persons on or occupying such property, to comply with all
Environmental Laws.
B. Each Credit Party agrees that Agent may, from time to time and in its
sole and absolute discretion, retain, at Borrowers' expense, an independent
professional consultant to review any report relating to Hazardous Materials
prepared by or for Company or any of its Subsidiaries and to conduct its own
investigation of any Facility currently or proposed to be owned, leased,
operated or used by Company or any of its Subsidiaries, and each Credit Party
agrees to use its best efforts to obtain permission for Agent's professional
consultant to conduct its own investigation of any Facility previously owned,
leased, operated or used by Company or any of its Subsidiaries. Each Credit
Party hereby grants to Agent and its agents, employees, consultants and
contractors the right to enter into or on to the Facilities currently owned,
leased, operated or used by Company or any of its Subsidiaries to perform such
tests on such property as are reasonably necessary to conduct such a review
and/or investigation. Any such investigation of any Facility shall be
conducted, unless otherwise agreed to by Company and Agent, during normal
business hours and, to the extent reasonably practicable, shall be conducted so
as not to interfere with the ongoing operations at any such Facility or to
cause any damage or loss to any property at such Facility. Each Credit Party
and Agent hereby acknowledge and agree that any report resulting from any
investigation conducted at the request of Agent pursuant to this subsection
6.7B will be obtained and shall be used by Agent and Lenders for the purposes
of Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests and Liens, created by the Loan Documents
and to maintain the security for the Loans free from liability for
Environmental Claims. Agent agrees to deliver a copy of any such report to
Company with the understanding that each Borrower acknowledges and agrees that
(i) Borrowers will indemnify and hold harmless Agent and each Lender from any
costs, losses or liabilities relating to the use of or reliance on such report
by Company, (ii) neither Agent nor any Lender makes any representation or
warranty with respect to such report, and (iii) by delivering such report to
Company, neither Agent nor any Lender is requiring or recommending the
implementation of any suggestions or recommendations contained in such report.
C. Each Credit Party shall promptly advise Lenders in writing and in
reasonable detail of (i) any Release of any Hazardous Materials required to be
reported by it to any federal, state or local governmental or regulatory agency
under any applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims that have a reasonable
possibility of giving rise to a Material Adverse Effect or with respect to any
Release of Hazardous Materials required to be reported to any federal, state or
local governmental or regulatory agency, (iii) any remedial action taken by
such Credit Party or any other Person in response to (x) any Hazardous
Materials on, under or about any Facility, the existence of which has a
reasonable possibility of resulting in an Environmental Claim having a Material
Adverse Effect, or (y) any Environmental Claim that could have a Material
Adverse Effect, (iv) such Credit Party's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility
that could cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws, and (v) any request for information from any
governmental agency that suggests such agency is investigating whether such
Credit Party or any of its Subsidiaries may be potentially responsible for a
Release of Hazardous Materials.
D. Each Credit Party shall promptly notify Lenders of (i) any proposed
acquisition of stock, assets, or property by such Credit Party or any of its
Subsidiaries that could reasonably be expected to expose such Credit Party or
any of its Subsidiaries to, or result in, Environmental Claims that could have
a Material Adverse Effect or that could reasonably be expected to have a
material adverse effect on any Governmental Authorization then held by such
Credit Party or any of its Subsidiaries and (ii) any proposed action to be
taken by such Credit Party or any of its Subsidiaries to commence
manufacturing, industrial or other operations that could reasonably be expected
to subject such Credit Party or any of its Subsidiaries to additional laws,
rules or regulations, including, without limitation, laws, rules and
regulations requiring additional environmental permits or licenses.
E. Each Credit Party shall, at its own expense, provide copies of such
documents or information as Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 6.7.
6.8 Credit Parties' Remedial Action Regarding Hazardous Materials.
Each Credit Party shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and Governmental Authorizations. In the
event a Credit Party or any of its Subsidiaries undertakes any remedial action
with respect to any Hazardous Materials on, under or about any Facility, such
Credit Party or such Subsidiary shall conduct and complete such remedial action
in compliance with all applicable Environmental Laws, and in accordance with
the policies, orders and directives of all federal, state and local
governmental authorities except when, and only to the extent that, such Credit
Party's or such Subsidiary's liability for such presence, storage, use,
disposal, transportation or discharge of any Hazardous Materials is being
contested in good faith by such Credit Party or such Subsidiary.
6.9 Environmental Indemnity.
Borrowers shall fully and promptly pay, perform, discharge, defend,
indemnify and hold harmless each Indemnitee from and against any action, suit,
proceeding, claim or loss suffered or incurred by that Indemnitee under or on
account of any Environmental Claims; provided that Borrowers shall have no
obligation to pay, perform, discharge, defend, indemnify or hold harmless any
Indemnitee hereunder to the extent that the claim or loss suffered or incurred
by such Indemnitee arose solely from the gross negligence or willful misconduct
of such Indemnitee, all as evidenced by a final judgment of a court of
competent jurisdiction.
6.10 Security for Obligations.
Each Credit Party shall, and shall cause each of its Subsidiaries, to
comply with each of the agreements and undertakings set forth in Section 3
hereof applicable to it.
6.11 [omitted]
6.12 Dissolution of Certain Subsidiaries.
As soon as reasonably practicable, Company shall cause the corporate
or partnership dissolution and liquidation of each of the entities identified
in subsection 5.24, and shall deliver to Agent copies of certificates of
dissolution for each such entity filed with the secretary of state of the state
of incorporation or organization for each such entity. Company shall cause
each such entity to have no assets on and after the Effective Date. After the
dissolution thereof, each such entity shall cease to be a Guarantor or a Credit
Party.
6.13 Other Land and Sale Options
Borrowers shall use their best efforts to complete the Land and Land
Option sales identified in "strategy one" as set forth in that certain business
analysis and corporate restructuring strategy - Phase 1 Report, dated January,
1997, in the form delivered to the Lenders before the date hereof.
6.14 Post-Closing Matters.
A. Perfection of Security Interests. Not more than 30 days after the
Effective Date Each Credit Party shall have taken or caused to be taken (and
Collateral Agent shall have received satisfactory evidence thereof) such
actions in such a manner so that, as of such date, Collateral Agent has, on
behalf of the Lenders, valid and perfected first priority Liens in the entire
Collateral (except to the extent any such security interest cannot be granted
under applicable laws), subject only to valid, perfected and enforceable
Permitted Encumbrances. Such actions shall include, without limitation, the
following:
(i) The receipt by the Collateral Agent of (a) evidence
satisfactory to it that amendments ("Mortgage Amendments")
to each Existing Mortgage have been executed and acknowledged and
will be recorded in all jurisdictions as may be necessary or,
in the opinion of Collateral Agent, desirable to effectively
create or maintain in effect valid and perfected Liens created
by the Existing Mortgages securing the Obligations, as such
Obligations have been amended or modified by this Amended Loan
Agreement; and (b) favorable written opinions of counsel in
the states of New Jersey, Florida, and Pennsylvania (who shall
be reasonably satisfactory to Collateral Agent) regarding the
execution, delivery, enforceability and effect of the Mortgage
Amendments, and as to such other matters as Collateral Agent
may reasonably request, in form and substance satisfactory to
Collateral Agent; and (c) title reports obtained by Company in
respect of each Mortgaged Property.
(ii) The receipt by the Collateral Agent of evidence that
fully executed and acknowledged Mortgages covering the real property
(including fixtures) designated on Schedule 5.22 annexed hereto have
been recorded in all places to the extent necessary or desirable, in
the judgment of Collateral Agent, so as to effectively create a valid
and enforceable first priority perfected Lien on the Mortgaged
Properties in favor of Collateral Agent (or in favor of a mortgagee
acting on behalf of Collateral Agent or a trustee for the benefit
of the Collateral Agent as may be required or desired under local
law) for the benefit of Lenders subject only to any valid,
perfected and enforceable Permitted Encumbrances.
(iii) The receipt by the Collateral Agent of evidence
satisfactory to it that all other filings, recordings and other
actions Collateral Agent deems necessary or advisable to establish,
preserve and perfect the first priority Liens subject only to valid,
perfected and enforceable Permitted Encumbrances granted to
Collateral Agent in the Collateral (including, without limitation,
Collateral subject to the Lien of any Collateral Document executed
and delivered pursuant to the Existing Loan Agreement) shall have
been made.
B. Payment of Fees and Expenses. Not more than 30 days after the
Effective Date, Borrowers shall have paid all of the actual costs and
expenses, including reasonable attorneys' fees (including outside counsel's
fees, printing, reproduction, document delivery and communication costs, and
all allocated costs of Lenders' in-house counsel), incurred by Lenders in
connection with the actions required by subsection 6.14A.
C. Other Post Closing Matters. Not later than the 30th day after
the Effective Date, Borrowers shall have complied with each of the covenants
set forth on Schedule 6.14 hereto.
Section 7. CREDIT PARTIES' NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until payment in full of
all of the Loans and other Obligations and the repayment in full of all amounts
due under, or the cancellation or expiration of all Letters of Credit and all
other amounts owing hereunder, such Credit Party shall perform, and shall cause
each of its Subsidiaries to perform, all covenants in this Section 7 applicable
to it.
7.1 Indebtedness.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) the Credit Parties may become and remain liable with respect to
Contingent Obligations permitted by subsection 7.4 and, upon any matured
obligations actually arising pursuant thereto, the Indebtedness corre-
sponding to the Contingent Obligations so extinguished;
(iii)the Credit Parties may become and remain liable with respect to
Indebtedness in respect of Capital Leases; provided that such Capital
Leases are permitted under the terms of subsection 7.9;
(iv) any Guarantor may become and remain liable with respect to
Indebtedness to either Borrower to the extent permitted by subsection 7.3;
provided that (a) all such intercompany Indebtedness shall be evidenced by
Intercompany Notes, which shall be pledged to the Collateral Agent to
secure the obligations pursuant to the Security Documents, (b) the
obligations of each obligor for all such intercompany Indebtedness shall
be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or an
intercompany subordination agreement, and (c) any payment by any Guarantor
under any guaranty of the Obligations shall result in a pro tanto
reduction of the amount of any intercompany Indebtedness owed by such
Guarantor to either Borrower;
(v) the Credit Parties may remain liable with respect to
Indebtedness described in Schedule 7.1 annexed hereto;
(vi) the Credit Parties may become and remain liable with respect to
Purchase Money Mortgage Obligations; provided that (A) in each case such
Purchase Money Mortgage Obligation has been expressly approved in writing
by all Lenders and (B) the aggregate amount of such Purchase Money
Mortgage Obligations does not at any time exceed $5,000,000; and
(vii)the Credit Parties may become and remain liable with respect to
other Indebtedness, not described in clauses (i) through (vi) above, in an
aggregate principal amount not to exceed $250,000 at any time.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Each Credit Party shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods or
accounts receivable) of Company or any of its Subsidiaries, whether now owned
or hereafter acquired, or any income or profits therefrom, or record or permit
the recording of any mortgage or file or permit the filing of any financing
statement or other similar notice of any Lien with respect to any such
property, asset, income or profits under the recording laws or the Uniform
Commercial Code of any State or under any similar recording or notice statute,
except:
(i) Permitted Encumbrances;
(ii) Purchase Money Mortgage Liens securing Purchase Money Mortgage
Obligations; provided that the Purchase Money Mortgage Obligations to
which such Liens relate are permitted by the terms of Section 7.1 and the
purchase of the asset subject to such Lien is permitted under the terms of
subsection 7.7;
(iii)Liens described in Schedule 5.8 annexed hereto;
(iv) Liens securing purchase money obligations to vendors of
appliances incurred in the ordinary course of business, provided that the
amount of obligations secured by such Liens shall not exceed $250,000 in
the aggregate at any time and such Liens shall cover only appliances sold
by such vendors;
(v) Liens on cash deposited with bonding companies securing
Contingent Obligations with respect to performance and surety bonds
permitted by subsection 7.4(vii), provided, that the aggregate amount of
cash deposited with bonding companies subject to such Liens shall not at
any time exceed $4,000,000; and
(vi) Liens granted in favor of Collateral Agent for the benefit of
Lenders pursuant to the Security Documents.
B. No Further Negative Pledges. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, each Credit
Party shall not, and shall not permit any of its Subsidiaries to, enter into
any agreement prohibiting the creation or assumption of any Lien upon any of
its properties or assets, whether now owned or hereafter acquired.
C. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Except as provided herein, each Credit Party shall not, and
shall not permit any of its Subsidiaries to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any Subsidiary of Company to (i) pay dividends or
make any other distributions on any of such Subsidiary's capital stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company.
7.3 Investments; Joint Ventures.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) the Credit Parties may make and own Investments in Cash
Equivalents in an aggregate amount not to exceed $6,500,000 at any time;
(ii) the Borrowers may make Intercompany Loans to Guarantors to the
extent permitted under subsection 7.1(iv), provided that (x) the aggregate
amount of Intercompany Loans made to Restricted Credit Parties shall not
at any time exceed $500,000, unless consented to in writing by the Lenders
and (y) no Intercompany Loans may be made to any Restricted Talpro Entity
until such entity shall have entered into Security Documents and/or
amendments to Security Documents in form and substance reasonably
satisfactory to Agent and Requisite Lenders, creating a validly perfected
and enforceable security interest in all assets of such Restricted Talpro
Entity subject only to Permitted Encumbrances and other Liens permitted by
the terms of this Amended Loan Agreement;
(iii)the Credit Parties may make or incur Consolidated Capital
Expenditures, Consolidated Land Acquisition Costs and Consolidated Land
Development Costs permitted by subsection 7.8, provided that this clause
(iii) shall not permit an Investment by a Credit Party in any Person that
is not otherwise permitted by the terms of this Section 7.3;
(iv) the Credit Parties may continue to own the Investments owned by
them and described in Schedule 7.3(iv) annexed hereto;
(v) [intentionally omitted];
(vi) the Credit Parties may make and own other Investments in any of
their wholly-owned Subsidiaries in an aggregate amount not at any time to
exceed $50,000, provided that prior to making any such Investment the
Subsidiary receiving such Investment shall have been added as a Guarantor
hereunder and shall have granted to the Collateral Agent (for the benefit
of the Lenders) a valid and enforceable first priority Lien in all of its
assets, real, personal and mixed, in accordance with the terms of
subsection 3.2E.
7.4 Contingent Obligations.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) the Credit Parties may become and remain liable with respect to
Contingent Obligations pursuant to the Loan Documents;
(ii) the Credit Parties may become and remain liable with respect to
Contingent Obligations resulting from the endorsement of negotiable
instruments for collection in the ordinary course of business;
(iii)[omitted]
(iv) the Credit Parties may become and remain liable with respect to
Contingent Obligations in respect of customary indemnification and
purchase price adjustment obligations incurred in connection with Asset
Sales or other sales of assets;
(v) the Credit Parties may become and remain liable with respect to
Contingent Obligations under guarantees in the ordinary course of business
of the obligations of suppliers, customers, franchisees and licensees of
Company and its Subsidiaries in an aggregate amount not to exceed at any
time $500,000;
(vi) the Credit Parties may become and remain liable with respect to
Contingent Obligations in respect of any Indebtedness permitted by
subsection 7.1 (other than subsection 7.1(ii));
(vii)the Credit Parties may become liable with respect to Contingent
Obligations in respect of performance and surety bonds incurred in the
ordinary course of business and customary indemnification obligations to
bonding companies incurred in connection with the issuance of such bonds;
provided that the aggregate amount of such Contingent Obligations does
not, at any time before November 30, 1997 exceed $30,000,000 and does not
at any time on or after that date exceed $20,000,000; and
(viii)Company and its Subsidiaries, as applicable, may remain liable
with respect to Contingent Obligations described in Schedule 7.4 annexed
hereto.
7.5 Restricted Junior Payments.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment.
7.6 Financial Covenants.
A. Minimum Consolidated Adjusted EBITDA. The Credit Parties shall not
permit Consolidated Adjusted EBITDA for the four quarter periods ending on the
dates set forth below to be less than the correlative amount indicated:
Minimum Consolidated
Date Adjusted EBITDA
February 28, 1997 $ 7,000,000
May 31, 1997 $ 6,500,000
August 31, 1997 $ 7,500,000
November 30, 1997 $ 7,250,000
February 28, 1998 $ 8,500,000
May 31, 1998 $ 9,500,000
August 31, 1998 $ 9,500,000
B. Minimum Consolidated Adjusted Tangible Net Worth. The Credit Parties
shall not permit Consolidated Adjusted Tangible Net Worth as of each of the
dates set forth below to be less than the correlative amount indicated:
Minimum Consolidated
Date Adjusted Tangible Net Worth
February 28, 1997 $24,800,000
May 31, 1997 $22,500,000
August 31, 1997 $25,000,000
November 30, 1997 $27,000,000
February 28, 1998 $28,000,000
May 31, 1998 $28,000,000
August 31, 1998 $29,000,000
C. Minimum Consolidated Interest Expense Coverage Ratio. The Credit
Parties shall not permit the ratio of (i) Consolidated Adjusted EBITDA to (ii)
Consolidated Cash Interest Expense for the four fiscal quarter periods ending
on the dates set forth below to be less than the correlative amount indicated:
Date Minimum Interest Coverage
February 28, 1997 1.35:1.0
May 31, 1997 1.20:1.0
August 31, 1997 1.35:1.0
November 30, 1997 1.11:1.0
February 28, 1998 1.40:1.0
May 31, 1998 1.87:1.0
August 31, 1998 2.45:1.0
7.7 Restriction on Fundamental Changes; Asset Sales.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, alter the corporate, capital or legal structure of Company or
any of its Subsidiaries, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any liqui-
dation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or
any part of its business, property or fixed assets, whether now owned or
hereafter acquired, or acquire (other than in the ordinary course of business)
by purchase or otherwise all or any portion of the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person,
except:
(i) any Guarantor may be merged or consolidated with or into
Company or any other Guarantor (which is not a Restricted Credit
Party), or be liquidated, wound up or dissolved, or all or any
substantial part of its business, property or assets may be conveyed,
sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any other Guarantor (which
is not a Restricted Credit Party); provided that, in the case of such
a merger or consolidation, Company or such other Guarantor (which is
not a Restricted Credit Party) shall be the continuing or surviving
corporation;
(ii) the Credit Parties may make or incur Consolidated Capital
Expenditures, Consolidated Land Acquisition Costs, and Consolidated
Land Development Costs permitted under subsection 7.8;
(iii)subject to subsection 7.12, the Credit Parties may sell or
otherwise dispose of assets in the ordinary course of business in
transactions which do not constitute Asset Sales; provided, in each
case, that the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof;
(iv) the Credit Parties may make Asset Sales of assets; provided
that the lesser of Book Value and fair market value of each such Asset
Sale (or group of assets sold over time that constitute a unified
transaction) does not exceed $500,000; and provided further that
(x) the consideration received for such assets shall be in an amount
at least equal to the fair market value thereof; (y) the sole
consideration received shall be cash; and (z) the proceeds of such
Asset Sales shall be applied as required by subsection 2.4C(ii);
(v) the Credit Parties may make Asset Sales of assets of the
Florida Division; provided that (x) the consideration received for
such assets shall be in an amount at least equal to the greater of (1)
the fair market value thereof and (2) 80% of the Eligible Inventory
Cost of such assets, as reflected on the most recent Borrowing Base
Certificate; (y) the sole consideration received shall be cash; and
(z) the proceeds of such Asset Sales shall be applied as required by
subsection 2.4C(v); and
(vi) any wholly-owned Subsidiary of any Credit Party which is not
a Credit Party may enter into a transaction of merger or consolidation
with, or transfer all or any part of its assets to, a Credit Party or
another wholly-owned Subsidiary of a Credit Party; provided that, in
the case of a merger with a Credit Party, the Credit Party shall be
the surviving corporation and after giving effect to such merger no
Event of Default or Potential Event of Default would exist hereunder.
7.8 Certain Expenditure Limits.
A. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any fiscal
quarter of the Company, in an amount in excess of $400,000 for period from
December 1, 1996 to November 30, 1997 or in excess of $100,000 for each fiscal
quarter ending after November 30, 1997.
B. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to make or incur any Land Acquisition Costs or Land Development
Costs with respect to any Real Estate Project unless the Credit Party which
owns such Real Estate shall have complied with the terms of Section 3.2(D);
C. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to make or incur Consolidated Land Acquisition Costs, in any
period set forth below, in an aggregate amount in excess of the corresponding
amount (the "Maximum Consolidated Land Acquisition Costs") set forth below for
such period.
Maximum Consolidated
Period Land Acquisition Costs
December 1, 1996 to
November 30, 1997 $22,000,000
December 1, 1997 to
February 28, 1998 3,500,000
March 1, 1998 to May 31, 1998 500,000
June 1, 1998 to August 31, 1998 2,700,000
D. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to, make or incur Consolidated Land Development Costs, in any
period set forth below, in an aggregate amount in excess of the corresponding
amount (the "Maximum Consolidated Land Development Costs") set forth below for
such period:
Maximum Consolidated
Period Land Development Costs
December 1, 1996 to
November 30, 1997 $17,000,000
December 1, 1997 to
February 28, 1998 2,700,000
March 1, 1998 to May 31, 1998 2,200,000
June 1, 1998 to August 31, 1998 1,800,000
E. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to make or incur any expenditures in an aggregate amount in excess
of $2,000,000 with respect to any Real Estate Project if all Government
Authorizations required for development of such Real Estate Project have not
been obtained.
F. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to make or incur Land Acquisition Costs or any other expenditures
for the acquisition of land (including amounts funded through Purchase Money
Mortgage Obligations) in an aggregate amount in excess of $4,000,000 with
respect to any Real Estate Project other than the Renaissance Real Estate
Project.
G. The Credit Parties shall not, and shall not permit any of their
Subsidiaries to make or incur Land Acquisition Costs or any other expenditures
for the acquisition of land (including amounts funded through Purchase Money
Mortgage Obligations) with respect to the Renaissance Real Estate Project in an
aggregate amount in excess of $7,000,000 for period from December 1, 1996 to
November 30, 1997 or in excess of $6,000,000 for the period from December 1,
1997 to August 31, 1998.
7.9 Restriction on Leases.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, become liable in any way, whether directly or by assignment or
as a guarantor or other surety, for the obligations of the lessee under any
lease, whether an Operating Lease or a Capital Lease (other than intercompany
leases between Credit Parties which are not Restricted Credit Parties) unless,
immediately after giving effect to the incurrence of liability with respect to
such lease, the Consolidated Rental Payments at the time in effect during the
then current Fiscal Year or any future period of 12 consecutive calendar months
shall not exceed $2,000,000.
7.10 Sales and Lease-Backs.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or
as guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which Company or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than a Credit Party which is not a Restricted Credit Party) or
(ii) which Company or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by Company or any of its Subsidiaries to any Person (other than a
Credit Party which is not a Restricted Credit Party) in connection with such
lease, except for the sale and lease-back of model homes in the ordinary course
of business to the extent permitted by subsection 7.9.
7.11 Transactions with Shareholders and Affiliates.
Each Credit Party shall not, and shall not permit any of its Sub-
sidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5%
or more of any class of equity Securities of Company or with any Affiliate of
Company or of any such holder, on terms that are less favorable to Company or
that Subsidiary, as the case may be, than those that might be obtained at the
time from Persons who are not such a holder or Affiliate; provided that the
foregoing restriction shall not apply to (i) any transaction between any Credit
Parties (other than between Credit Parties and Restricted Credit Parties) or
(ii) reasonable and customary fees paid to members of the Boards of Directors
of Company and its Subsidiaries.
7.12 Disposal of Subsidiary Stock.
Except as required by the Loan Documents, no Credit Party shall:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries, except to qualify directors if
required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock or other equity Securities of any of its Subsidiaries
(including such Subsidiary), except to a Credit Party (other than a
Restricted Credit Party), or to qualify directors, if required by
applicable law.
7.13 Conduct of Business.
Except as set forth on Schedule 7.13, from and after the Effective
Date, each Credit Party shall not, and shall not permit any of its Subsidiaries
to, (a) engage in any business other than (i) the businesses engaged in by the
Credit Parties and their Subsidiaries on the Effective Date and similar or
related businesses, and (ii) such other lines of business as may be consented
to by Requisite Lenders or (b) engage in any business in any jurisdiction other
than (i) New Jersey, (ii) Pennsylvania, (iii) California, (iv) Florida, (v)
Illinois and (vi) such other jurisdictions as may be consented to by Requisite
Lenders.
7.14 [intentionally omitted].
7.15 Fiscal Year.
The Credit Parties shall not change their Fiscal Year-end from
November 30.
7.16 Restrictions On Purchase of Environmentally Contaminated Property.
Each Credit Party shall not, and shall not permit any of its
Subsidiaries to, purchase, lease or otherwise acquire any Facility with respect
to which an environmental audit or other report (as referred to in subsection
3.2D(i)(b)(iv)) by an independent consultant satisfactory to Agent regarding
investigation of such Facility for Hazardous Materials and compliance with
Environmental Laws shows the presence of Hazardous Materials in such quantities
or concentrations as may materially reduce the value of such property or
materially impair the ability of such Credit Party or its Subsidiary to
develop, operate or dispose of such property free from any Environmental Claim
or may otherwise subject such Credit Party or its Subsidiary to an
Environmental Claim.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur:
8.1 Failure to Make Payments When Due.
Failure to pay any installment of principal of or interest on any
Loan when due, whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; failure to pay any amount payable in reimbursement of
an Issuing Lender in respect of a Letter of Credit when due or failure to pay
any fee or any other amount due under this Amended Loan Agreement or any other
Loan Document within five days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of any Credit Party or any of its respective
Subsidiaries to pay when due (a) any principal of or interest on any
Indebtedness (other than Indebtedness referred to in subsection 8.1) in an
individual principal amount of $500,000 or more or any items of Indebtedness
with an aggregate principal amount of $500,000 or more or (b) any Contingent
Obligation in an individual principal amount of $500,000 or more or any
Contingent Obligations with an aggregate principal amount of $500,000 or more,
in each case beyond the end of any grace period provided therefor; or
(ii) breach or default by any Credit Party or any of its respective
Subsidiaries with respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $500,000 or more or any items
of Indebtedness with an aggregate principal amount of $500,000 or more or any
Contingent Obligation in an individual principal amount of $500,000 or more or
any Contingent Obligations with an aggregate principal amount of $500,000 or
more or (b) any loan agreement, mortgage, indenture or other agreement relating
to such Indebtedness or Contingent Obligation(s), if the effect of such breach
or default is to cause, or to permit the holder or holders of that Indebtedness
or Contingent Obligation(s) (or a trustee on behalf of such holder or holders)
to cause, that Indebtedness or Contingent Obligation(s) to become or be
declared due and payable prior to its stated maturity or the stated maturity of
any underlying obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
Failure of any Credit Party to perform or comply with any term or
condition contained in subsection 2.4, 2.5, 6.2, 6.4, 6.9 or Section 7 of this
Amended Loan Agreement; or
8.4 Breach of Warranty.
Any material representation, warranty, certification or other
statement made by any Credit Party or any of its respective Subsidiaries in any
Loan Document or in any statement or certificate at any time given by any
Credit Party or any of its respective Subsidiaries in writing pursuant hereto
or thereto or in connection herewith or therewith shall be false in any
material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Credit Party shall default in the performance of or compliance
with any material term contained in this Amended Loan Agreement or any of the
other Loan Documents, other than any such term referred to in any other
subsection of this Section 8, and such default shall not have been remedied or
waived within 10 days after the earlier of (i) an officer of the applicable
Credit Party becoming aware of such default or (ii) receipt by the applicable
Credit Party of notice from Agent or any Lender of such default; provided that
any such default which is not capable of being cured by a Credit Party within
10 days shall not constitute an Event of Default under this subsection 8.5 if,
within 10 days of the earlier of the events described in clauses (i) and (ii)
above, the applicable Credit Party shall have commenced appropriate efforts to
cure such default and thereafter diligently pursued such efforts and such
Default shall have been remedied or waived within 30 days of the earlier of the
events described in clauses (i) and (ii) above; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Credit Party or any of their
respective Subsidiaries in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against any Credit Party or any of their
respective Subsidiaries under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of
a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over any Credit Party or any of their respective
Subsidiaries, or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of any Credit Party or any of
their respective Subsidiaries for all or a substantial part of its property; or
a warrant of attachment, execution or similar process shall have been issued
against any substantial part of the property of any Credit Party or any of
their respective Subsidiaries, and any such event described in this clause (ii)
shall continue for 60 days unless dismissed, bonded or discharged; provided,
however, that any such actions described in this subsection 8.6 relating solely
to any Subsidiaries of Company which are not Credit Parties shall not
constitute an Event of Default under this subsection 8.6 unless such actions
(either individually or in the aggregate) would have a Material Adverse Effect;
or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Any Credit Party or any of their respective Subsidiaries
shall have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its property; or any Credit
Party or any of their respective Subsidiaries shall make any assignment for the
benefit of creditors; or (ii) any Credit Party or any of their respective Sub-
sidiaries shall be unable or shall fail, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of any Credit Party or any of their respective Subsidiaries (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to in clause (i) above or this clause (ii);
provided, however, that any such actions described in this subsection 8.7
relating solely to any Subsidiaries of Company which are not Credit Parties
shall not constitute an Event of Default under this subsection 8.7 unless such
actions (either individually or in the aggregate) would have a Material Adverse
Effect; or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar
process involving in an individual case or in the aggregate at any time an
amount in excess of $500,000 (not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage) shall be
entered or filed against any Credit Party or any of their respective Subsid-
iaries or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of 60 days (or in any event later
than five days prior to the date of any proposed sale thereunder); provided,
however, that any such money judgment, writ or warrant of attachment or similar
process relating to the matters described on Schedule 5.9 hereto under item K
and not involving liability against any Credit Party other than Calton Capital,
Inc. (and for which adequate reserves have been established) shall not
constitute an Event of Default under this subsection 8.8; or
8.9 Dissolution.
Any order, judgment or decree shall be entered against any Credit
Party or any of their respective Subsidiaries decreeing the dissolution or
split up of such Credit Party or that Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of 30 days; provided, however,
that any such order, judgment or decree entered against any Subsidiary of
Company which is not a Credit Party shall not constitute an Event of Default
under this subsection 8.9 unless such decree, order or judgment individually or
together with any other such decrees, orders or judgments against Subsidiaries
of Company would have a Material Adverse Effect; or
8.10 Employee Benefit Plans.
There shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of any Credit Party or any of their respective ERISA Affiliates in
excess of $250,000 during the term of this Amended Loan Agreement; or there
shall exist an amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), which exceeds $250,000; or
8.11 Material Adverse Effect.
Any event or change shall occur that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect; or
8.12 Change in Control.
Any Change of Control shall occur; or
8.13 Invalidity of Guaranty Agreement.
The Guaranty Agreement for any reason, other than the satisfaction
in full of all Obligations, ceases to be in full force and effect (other than
in accordance with its terms) or is declared to be null and void, or any Credit
Party denies that it has any further liability, including without limitation
with respect to future advances by Lenders, under any Loan Document to which it
is a party, or gives notice to such effect; or
8.14 Failure of Security.
Any Security Document shall, at any time, cease to be in full
force and effect (other than by reason of a release of collateral in accordance
with the terms hereof and thereof) or shall be declared null and void, or the
validity or enforceability thereof shall be contested by any Credit Party, or
the Collateral Agent shall not have or cease to have a valid and perfected
first priority Lien on the Collateral (subject only to validly perfected and
enforceable Permitted Encumbrances of record immediately prior to the Effective
Date or otherwise permitted under the terms of this Amended Loan Agreement);
THEN (i) upon the occurrence of any Event of Default described in the foregoing
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans (b) an amount equal to the maximum amount that may at any
time be drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any Letter of Credit shall have been presented or be entitled
to present, the drafts and other documents required to draw under the Letter of
Credit), and (c) all other Obligations shall automatically become immediately
due and payable, without presentment, demand, protest or other requirements of
any kind, all of which are hereby expressly waived by each Borrower, and the
obligation of each Lender to make any Loan or to issue any Letter of Credit
shall thereupon terminate, provided that the foregoing shall not affect in any
way the obligations of Tranche A Lenders and Tranche B Lenders under subsection
2.8D, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Agent shall (a) upon the written request of Requisite Tranche
A Lenders, by written notice to Company, declare all or any portion of the
Tranche A Loans and the amounts described in clauses (i)(b) and (i)(c) above
(other than the Tranche B Loans unless Tranche B Lenders have accelerated
Tranche B Loans) to be, and the same shall forthwith become, immediately due
and payable, and the obligation of each Tranche A Lender to make any Tranche A
Loan and the obligation of the Issuing Lender to issue any Letter of Credit
shall thereupon terminate provided, that the foregoing shall not affect in any
way the obligations of Tranche A Lenders and Tranche B Lenders under subsection
2.8D and (b) upon written request of Requisite Tranche B Lenders, by written
notice to Company, declare all or any portion of the Tranche B Loans and the
amounts described in clauses (i)(b) and (i)(c) above (other than the Tranche A
Loans unless Tranche A Lenders have accelerated Tranche A Loans) to be, and the
same shall forthwith become, immediately due and payable, and the obligation of
each Tranche B Lender to make any Tranche B Loan and the obligation of the
Issuing Lender to issue any Letter of Credit shall thereupon terminate,
provided that the foregoing shall not affect in any way the obligations of
Tranche A Lenders and Tranche B Lenders under subsections 2.8D. So long as any
Letter of Credit shall remain outstanding, any amounts described in clause
(i)(b) above with respect to Letters of Credit, when received by the Issuing
Lender, shall be held by the Issuing Lender, pursuant to such documentation as
the Issuing Lender shall request, as cash collateral for the obligation of
Borrowers to reimburse the Issuing Lender in the event of any drawing under
such Letters of Credit, and so much of such funds shall at all times remain on
deposit as cash collateral as aforesaid as shall equal the maximum amount
available at any time for drawing under all Letters of Credit (the "Maximum
Available Amount"); provided further that in the event of cancellation or
expiration of any Letter of Credit or any reduction in the Maximum Available
Amount, the Issuing Lender shall apply the difference between the Maximum
Available Amount immediately prior to such cancellation, expiration or
reduction and the Maximum Available Amount immediately after such cancellation,
expiration or reduction first to the payment of any outstanding Obligations,
and then to the payment to whomsoever shall be lawfully entitled to receive
such funds.
Section 9. AGENT
9.1 Appointment.
Chase is hereby appointed Agent hereunder and under the other Loan
Documents and each Tranche A Lender and Tranche B Lender hereby authorizes
Agent to act as its agent in accordance with the terms of this Amended Loan
Agreement and the other Loan Documents. Agent agrees to act upon the express
conditions contained in this Amended Loan Agreement and the other Loan
Documents, as applicable. The provisions of this Section 9 are solely for the
benefit of Agent and Lenders and neither Company nor any of its Subsidiaries
shall have rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties under this Amended Loan
Agreement, Agent shall act solely as an agent of Tranche A Lenders and Tranche
B Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or
any of its Subsidiaries.
9.2 Powers; General Immunity.
A. Duties Specified. Each Tranche A Lender and Tranche B Lender
irrevocably authorizes Agent to take such action on such Lender's behalf and to
exercise such powers hereunder and under the other Loan Documents as are
specifically delegated to Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto. Agent shall have only those
duties and responsibilities that are expressly specified in this Amended Loan
Agreement and the other Loan Documents and it may perform such duties by or
through its agents or employees. Agent shall not have, by reason of this
Amended Loan Agreement or any of the other Loan Documents, a fiduciary
relationship in respect of any Lender; and nothing in this Amended Loan
Agreement or any of the other Loan Documents, expressed or implied, is intended
to or shall be so construed as to impose upon Agent any obligations in respect
of this Amended Loan Agreement or any of the other Loan Documents except as
expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Agent shall not be
responsible to any Tranche A Lender or Tranche B Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Amended Loan Agreement or any other Loan Document or for
any representations, warranties, recitals or statements made herein or therein
or made in any written or oral statement or in any financial or other
statements, instruments, reports or certificates or any other documents
furnished or made by Agent to Lenders or by or on behalf of Company or any of
its Subsidiaries to Agent or any Lender in connection herewith or therewith,
nor shall Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Event of Default or Potential Event
of Default. Anything contained in this Amended Loan Agreement to the contrary
notwithstanding, Agent shall not have any liability arising from confirmations
of the amount of outstanding Loans.
C. Exculpatory Provisions. Neither Agent nor any of its officers,
directors, employees or agents shall be liable to Tranche A Lenders and Tranche
B Lenders for any action taken or omitted hereunder or in connection herewith
by Agent except to the extent caused by Agent's gross negligence or willful
misconduct. If Agent shall request instructions from Lenders, Tranche A
Lenders or Tranche B Lenders, as applicable, with respect to any act or action
(including any decision not to act) in connection with this Amended Loan
Agreement or any of the other Loan Documents, Agent shall be entitled to
refrain from such act or taking such action unless and until Agent shall have
received instructions from Requisite Lenders, Requisite Tranche A Lenders or
Requisite Tranche B Lenders in accordance with subsection 11.6B. Without
prejudice to the generality of the foregoing, (i) Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication, instru-
ment or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and shall be entitled to rely
and shall be protected in relying on opinions and judgments of attorneys (who
may be attorneys for Company and its Subsidiaries), accountants, experts and
other professional advisors selected by it; and (ii) no Tranche A Lender or
Tranche B Lender shall have any right of action whatsoever against Agent as a
result of Agent acting or (where so instructed) refraining from acting under
this Amended Loan Agreement or any of the other Loan Documents in accordance
with the instructions of Requisite Lenders, Requisite Tranche A Lenders, or
Requisite Tranche B Lenders in accordance with subsection 11.6B. Agent shall
be entitled to refrain from exercising any power, discretion or authority
vested in it under this Amended Loan Agreement or any of the other Loan
Documents unless and until it has obtained the instructions of Requisite
Lenders, Requisite Tranche A Lenders or Requisite Tranche B Lenders, as
applicable, in accordance with subsection 11.6B.
D. Agent Entitled to Act as Lender. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans, Agent shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as though it were not performing the duties and functions delegated to it
hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless
the context clearly otherwise indicates, include Agent in its individual
capacity. Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Company and its subsidiaries for services in connection with this Amended Loan
Agreement and otherwise without having to account for the same to Lenders.
Without limiting the generality of the foregoing, Agent in its individual
capacity as a Lender hereunder shall be entitled to meet separately with any
other Lender or Lenders and shall have no obligation to disclose such
discussions to any Lenders not a party thereto.
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.
Each Tranche A Lender and Tranche B Lender represents and warrants
that it has made its own independent investigation of the financial condition
and affairs of Company and its Subsidiaries in connection with the making of
the Loans hereunder and has made and shall continue to make its own appraisal
of the creditworthiness of Borrowers. Agent shall not have any duty or
responsibility either initially or on a continuing basis to make any such
investigation or any such appraisal on behalf of Tranche A Lenders and Tranche
B Lenders or to provide any Tranche A Lender or Tranche B Lender with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter,
and Agent shall not have any responsibility with respect to the accuracy of or
the completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Tranche A Lender and Tranche B Lender, in proportion to its
Pro Rata Share of the aggregate Commitments, severally agrees to indemnify
Agent, to the extent that Agent shall not have been reimbursed by Borrowers,
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against
Agent in performing its duties hereunder or under the other Loan Documents or
otherwise in its capacity as Agent in any way relating to or arising out of
this Amended Loan Agreement or the other Loan Documents; provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's gross negligence or willful misconduct.
If any indemnity furnished to Agent for any purpose shall, in the opinion of
Agent, be insufficient or become impaired, Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
9.5 Successor Agent.
Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders and Company, and Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to Company and Agent and signed by Requisite Lenders. Upon any such
notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Company, to appoint a successor
Agent. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, that successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from its
duties and obligations under this Amended Loan Agreement. After any retiring
or removed Agent's resignation or removal hereunder as Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Amended Loan Agreement.
Section 10. COLLATERAL AGENT
10.1 Appointment.
Chase is hereby appointed Collateral Agent hereunder and under the
other Loan Documents and each Tranche A Lender and Tranche B Lender hereby
authorizes Collateral Agent to act as its agent in accordance with the terms of
this Amended Loan Agreement and the other Loan Documents. Collateral Agent
agrees to act upon the express conditions contained in this Amended Loan
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 10 are solely for the benefit of Collateral Agent (and its subagents)
and Lenders and neither Company nor any of its Subsidiaries shall have rights
as a third party beneficiary of any of the provisions thereof. In performing
its functions and duties under this Amended Loan Agreement, Collateral Agent
shall act solely as an agent of Tranche A Lenders and Tranche B Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Company or any of its
Subsidiaries.
10.2 Powers; General Immunity.
A. Duties Specified. Each Tranche A Lender and Tranche B Lender
irrevocably authorizes Collateral Agent to take such action on such Lender's
behalf and to exercise such powers hereunder and under the other Loan Documents
as are specifically delegated to Collateral Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.
Collateral Agent shall have only those duties and responsibilities that are ex-
pressly specified in this Amended Loan Agreement and the other Loan Documents
and it may perform such duties by or through its agents or employees.
Collateral Agent shall not have, by reason of this Amended Loan Agreement or
any of the other Loan Documents, a fiduciary relationship in respect of any
Lender; and nothing in this Amended Loan Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Collateral Agent any obligations in respect of this Amended Loan
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. Collateral Agent may delegate its duties hereunder to
affiliates, agents, attorneys-in-fact, receivers (which term includes receivers
as managers) and, if required by applicable law, mortgagees or co-mortgages or
trustees with respect to any Lien selected in good faith by Collateral Agent,
and may grant to such Persons the same rights and powers, indemnities and
exculpations as are granted to Collateral Agent hereunder.
B. No Responsibility for Certain Matters. Collateral Agent shall not
be responsible to any Tranche A Lender or Tranche B Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Amended Loan Agreement or any other Loan Document or for
any representations, warranties, recitals or statements made herein or therein
or made in any written or oral statement or in any financial or other
statements, instruments, reports or certificates or any other documents
furnished or made by Collateral Agent to Lenders or by or on behalf of Company
or any of its Subsidiaries to Collateral Agent or any Lender in connection
herewith or therewith, nor shall Collateral Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the
use of the proceeds of the Loans or of the existence or possible existence of
any Event of Default or Potential Event of Default.
C. Exculpatory Provisions. Neither Collateral Agent nor any of its
officers, directors, employees or agents shall be liable to Tranche A Lenders
or Tranche B Lenders for any action taken or omitted hereunder or in connection
herewith by Collateral Agent except to the extent caused by Collateral Agent's
gross negligence or willful misconduct. If Collateral Agent shall request
instructions from Lenders, Tranche A Lenders or Tranche B Lenders with respect
to any act or action (including any decision not to act) in connection with
this Amended Loan Agreement or any of the other Loan Documents, Collateral
Agent shall be entitled to refrain from such act or taking such action unless
and until Collateral Agent shall have received instructions from Requisite
Lenders, Requisite Tranche A Lenders or Requisite Tranche B Lenders, as
applicable, in accordance with subsection 11.6B. Without prejudice to the
generality of the foregoing, (i) Collateral Agent shall be entitled to rely,
and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and shall be entitled to rely and shall
be protected in relying on opinions and judgments of attorneys (who may be
attorneys for Company and its Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Tranche A Lender or Tranche B
Lender shall have any right of action whatsoever against Collateral Agent as a
result of Collateral Agent acting or (where so instructed) refraining from
acting under this Amended Loan Agreement or any of the other Loan Documents in
accordance with the instructions of Requisite Lenders, Requisite Tranche A
Lenders or Requisite Tranche B Lenders, as applicable, in accordance with
subsection 11.6B. Collateral Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it under this Amended
Loan Agreement or any of the other Loan Documents unless and until it has
obtained the instructions of Requisite Lenders, Requisite Tranche A Lenders or
Requisite Tranche B Lenders, as applicable, in accordance with subsection
11.6B.
D. Collateral Agent Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Collateral Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the
Loans, Collateral Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include Collateral Agent in its individual capacity. Collateral
Agent and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company or
any of its Subsidiaries for services in connection with this Amended Loan
Agreement and otherwise without having to account for the same to Lenders.
10.3 Right to Indemnity.
Each Tranche A Lender and Tranche B Lender, in proportion to its
Pro Rata Share of the aggregate Commitments, severally agrees to indemnify
Collateral Agent, to the extent that Collateral Agent shall not have been
reimbursed by Borrowers, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Collateral Agent in performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as
Collateral Agent in any way relating to or arising out of this Amended Loan
Agreement or the other Loan Documents; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
Collateral Agent's gross negligence or willful misconduct. If any indemnity
furnished to Collateral Agent for any purpose shall, in the opinion of
Collateral Agent, be insufficient or become impaired, Collateral Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
10.4 Successor Collateral Agent.
Collateral Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company, and Collateral Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Company and Collateral Agent and signed by
Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days' notice to
Company, to appoint a successor Collateral Agent. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, that
successor Collateral Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed
Collateral Agent and the retiring or removed Collateral Agent shall be dis-
charged from its duties and obligations under this Amended Loan Agreement.
After any retiring or removed Collateral Agent's resignation or removal
hereunder as Collateral Agent, the provisions of this Section 10 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Collateral Agent under this Amended Loan Agreement.
10.5 Collateral Agent; Security Documents.
Each Tranche A Lender and Tranche B Lender hereby further
authorizes Collateral Agent to enter into the Security Documents on behalf of
and for the benefit of Lenders and agrees to be bound by the terms of the
Security Documents; provided that Collateral Agent shall not enter into or
consent to any amendment, modification, termination or waiver of any provision
contained in the Security Documents without the prior consent of the Requisite
Lenders in accordance with subsection 11.6B. Each Tranche A Lender and Tranche
B Lender agrees that no Lender shall have any right individually to realize
upon the Guaranty Agreement or the security granted by the Security Documents,
it being understood and agreed that such rights and remedies may be exercised
by Collateral Agent for the benefit of the Tranche A Lenders and Tranche B
Lenders and the other beneficially interested parties under the Security
Documents and the other Loan Documents in accordance with the terms of
subsection 11.6B and the terms of such other agreements.
Section 11. MISCELLANEOUS
11.1 Assignments and Participations in Loans and Notes.
A. General. Each Lender shall have the right, subject to the
provisions of subsections 11.1B and 11.1C below, at any time to (i) sell,
assign, transfer or negotiate to any Eligible Assignee, or (ii) sell
participations to any Person in, all or any part of any Loan or Loans made by
it or its Commitments or any other interest herein or in its Notes or any other
Obligations owed to it; provided that no such assignment or participation
shall, without the consent of Company, require either Borrower to file a
registration statement with the Securities and Exchange Commission or apply to
qualify such assignment or participation of the Loans, the Notes or the other
Obligations under the securities laws of any state. Except as otherwise
provided in this subsection 11.1, no Lender shall, as between Borrowers and
such Lender, be relieved of any of its obligations hereunder as a result of any
sale, assignment, transfer or negotiation of, or any granting of participations
in, all or any part of the Loans, the Commitments, the Notes or the other
Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Loan, Commitment,
Note or other Obligation may (a) be assigned in any amount (of a
constant and not a varying percentage) to another Lender, (b) be
assigned in an amount (of a constant and not a varying percentage) of
not less than $5,000,000 to any other Eligible Assignee, with the
giving of notice to Borrowers and Agent. To the extent of any such
assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to
its Loans, Commitments, Notes or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall
execute and deliver to Agent, for its acceptance, an Assignment and
Assumption, together with a processing fee of $5,000. Upon such
execution, delivery and acceptance, from and after the effective date
specified in such Assignment and Assumption, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment and Assumption, shall have the rights and obligations of a
Lender hereunder and (z) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Assumption, relinquish its rights and
be released from its obligations under this Amended Loan Agreement
(and, in the case of an Assignment and Assumption covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Amended Loan Agreement, such Lender shall cease to be a
party hereto). The Commitments hereunder shall be modified to reflect
the Commitments of such assignee and any remaining Commitments of such
assigning Lender and, if any such assignment occurs after the issuance
of the Notes hereunder, new Notes shall, upon surrender of the
assigning Lender's Notes, be issued to the assignee and to the
assigning Lender pursuant to subsection 2.1D as necessary to reflect
the new Commitments of the assignee and the assigning Lender.
(ii) Agreements of Assignor and Assignee. By executing and
delivering an Assignment and Assumption, the assigning Lender
thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (a) other than as
provided in such Assignment and Assumption, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Amended Loan Agreement or any other Loan Document
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Amended Loan Agreement or any other
instrument or document furnished pursuant hereto; (b) such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Company or
any of its Subsidiaries or the performance or observance by Company or
any of its Subsidiaries of any of their respective obligations under
this Amended Loan Agreement or any other Loan Document; (c) such
assignee confirms that it has received a copy of this Amended Loan
Agreement, together with copies of the most recent financial
statements referred to in subsections 5.6 and 6.1 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
Assumption; (d) such assignee will, independently and without reliance
upon Agent, Collateral Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Amended Loan Agreement;
(e) such assignee (if other than a Lender) confirms that it is an
Eligible Assignee; (f) such assignee appoints and authorizes Agent and
Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Amended Loan Agreement and the other
Loan Documents as are delegated to Agent and Collateral Agent,
respectively, by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (g) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Amended Loan Agreement are
required to be performed by it as a Lender.
(iii)Acceptance by Agent. Upon its receipt of an Assignment and
Assumption executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the
processing fee referred to in subsection 11.1B(i), Agent shall, if
such Assignment and Assumption has been completed and is in
substantially the form of Exhibit C annexed hereto, (a) accept such
Assignment and Assumption and (b) give prompt notice thereof to
Company. Agent shall maintain a copy of each Assignment and
Assumption delivered to and accepted by it as provided in this
subsection 11.1B(iii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation, (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation or (iii) a release
of all or a substantial portion of the Collateral other than releases in the
ordinary course of business, and all amounts payable by Borrowers hereunder
shall be determined as if such Lender had not sold such participation. Each
Borrower hereby acknowledges and agrees that any participation will give rise
to a direct obligation of Borrowers to the participant and the participant
shall, for purposes of subsections 2.6, 2.8F, 11.5 and 11.6, be considered to
be a "Lender"; provided that no participant shall be entitled to receive any
greater amount pursuant to subsection 2.6 or 2.8 than the transferor Lender
would have been entitled to receive in respect of the amount of the participa-
tion effected by such transferor Lender to such participant had no such
participation occurred.
D. Eligibility as Tranche A Lender or Tranche B Lender; Conversion
among Tranches.
(i) Eligibility. Any Lender which holds, or has an Affiliate
that holds, either directly or indirectly, any Company Common Stock,
other equity securities of Company or rights to acquire equity
securities of Company, shall not qualify as a Tranche A Lender. Each
Tranche A Lender agrees that upon request from Agent such Lender will
deliver to Agent such certificates and other evidence as Agent shall
request, all duly executed by an officer of such Lender, to establish
that such Lender qualifies as a Tranche A Lender. Any Lender which
does not qualify as a Tranche A Lender shall, subject to the
provisions of subsection 11.1D(ii), be a Tranche B Lender.
(ii) Conversions.
(a) Tranche A to Tranche B. If at any time a Lender holding
Tranche A Loans shall fail to satisfy the eligibility requirements for
Tranche A Lenders set forth in subsection 11.1D(i), such Lender's
Tranche A Loans shall automatically be converted to Tranche B Loans,
such Lender's Tranche A Commitment shall automatically be converted to
a Tranche B Commitment and such Lender shall become a Tranche B Lender
hereunder. Each Tranche A Lender agrees that it will provide notice
to the Agent if at any time it fails to satisfy the requirements of
subsection 11.1D(i). Until such notice is received by Agent, Agent
shall be entitled to assume that no events have occurred causing a
conversion pursuant to this subsection 11.1D(ii).
(b) Tranche B to Tranche A. If at any time a Lender holding
Tranche B Loans shall satisfy the eligibility requirements for Tranche
A Lenders set forth in subsection 11.1D(i), such Lender may, upon ten
(10) days advance written notice to Agent, elect to have its Tranche B
Loans converted to Tranche A Loans and to have its Tranche B
Commitment converted to a Tranche A Commitment and to become a Tranche
A Lender hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and partici-
pants), subject to subsection 11.19.
11.2 Expenses.
Whether or not the transactions contemplated hereby shall be
consummated, Borrowers agree, jointly and severally, to pay promptly (i) all
the actual and reasonable costs and expenses of preparation of the Loan
Documents; (ii) all the costs of furnishing all opinions by counsel for the
Credit Parties (including without limitation any opinions requested by Lenders
as to any legal matters arising hereunder) and of each Credit Party's perfor-
mance of and compliance with all agreements and conditions on its part to be
performed or complied with under this Amended Loan Agreement and the other Loan
Documents including, without limitation, with respect to confirming compliance
with environmental and insurance requirements; (iii) [omitted]; (iv) the
reasonable fees, expenses and disbursements of counsel to Agent or Collateral
Agent (including allocated costs of internal counsel), one law firm engaged by
Tranche A Lenders and one law firm engaged by Tranche B Lenders in connection
with the negotiation, preparation, execution and administration of the Loan
Documents and the Loans and any consents, amendments, waivers or other
modifications hereto or thereto and any other documents or matters requested by
any Credit Party; (v) all other actual and reasonable costs and expenses
incurred by Agent, Collateral Agent or Lenders in connection with the negotia-
tion, preparation and execution of the Loan Documents and the transactions con-
templated hereby and thereby; and (vi) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel) and costs of settlement,
incurred by Agent, Lenders and Collateral Agent in enforcing any Obligations of
or in collecting any payments due from a Credit Party hereunder or under the
Notes or the other Loan Documents or any Letter of Credit by reason of such
Event of Default or in connection with any refinancing or restructuring of the
credit arrangements provided under this Amended Loan Agreement in the nature of
a "work-out" or pursuant to any insolvency or bankruptcy proceedings.
11.3 Indemnity.
In addition to the payment of expenses pursuant to subsection
11.2, whether or not the transactions contemplated hereby shall be consummated,
Borrowers agree, jointly and severally, to indemnify, pay and hold Agent,
Collateral Agent and Lenders and any holder of any of the Notes, and the
officers, directors, employees, agents and affiliates of Agent, Collateral
Agent, Lenders and such holders (collectively called the "Indemnitees")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding com-
menced or threatened by any Person, whether or not any such Indemnitee shall be
designated as a party or a potential party thereto), that may be imposed on,
incurred by, or asserted against any such Indemnitee, in any manner relating to
or arising out of this Amended Loan Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby, Lenders' agreement to make the
Loans hereunder or to issue Letters of Credit or the use or intended use of the
proceeds of any of the Loans or Letters of Credit (collectively called the
"Indemnified Liabilities"); provided that Borrowers shall not have any
obligation to any Indemnitee hereunder with respect to any Indemnified Liabili-
ties to the extent such Indemnified Liabilities arise solely from the gross
negligence or willful misconduct of that Indemnitee as finally determined by a
court of competent jurisdiction. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, each
Borrower shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them.
11.4 Set Off.
In addition to any rights now or hereafter granted under
applicable law or the Security Documents and not by way of limitation of any
such rights, upon the occurrence of any Event of Default each Lender and each
subsequent holder of any Note is hereby authorized by each Credit Party at any
time or from time to time, without notice to such Credit Party or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender or that subsequent holder
to or for the credit or the account of such Credit Party against and on account
of the Obligations of such Credit Party to that Lender or that subsequent
holder under this Amended Loan Agreement and the Notes, including, but not
limited to, all claims of any nature or description arising out of or connected
with this Amended Loan Agreement, the Notes or any other Loan Document,
irrespective of whether or not (i) that Lender or that subsequent holder shall
have made any demand hereunder or (ii) the principal of or the interest on the
Loans or the Notes or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said Obligations, or any of them,
may be contingent or unmatured. The exercise of any right of set off against
any Credit Party shall not impair any Lien securing the Obligations of any
Credit Party to the Lenders and will not affect in any manner the continuing
effectiveness and enforceability of such Obligations.
11.5 Sharing of Payments.
Lenders and each subsequent holder by acceptance of a Note hereby
agree among themselves that if any of them shall, whether by voluntary payment,
by realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment
or reduction of a proportion of the aggregate amount of principal, interest,
fees and other amounts then due and owing to that Lender or holder hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender or holder) which is greater than the proportion received by any
other Lender or holder of the Notes in respect of the Aggregate Amounts Due to
such other Lender or holder, then the Lender or holder of the Notes receiving
such proportionately greater payment shall (i) notify Agent and each other
Lender of the receipt of such payment and (ii) apply a portion of such payment
to purchase participations (which it shall be deemed to have purchased from
each seller of a participation simultaneously upon the receipt by such seller
of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders and holders so that all such recoveries of Aggregate Amounts Due shall
be shared by all Lenders and holders of the Notes in proportion to the
Aggregate Amounts Due to them; provided that if all or part of such
proportionately greater payment received by such purchasing Lender or holder is
thereafter recovered from such Lender or holder upon the bankruptcy or
reorganization of any Credit Party or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender or holder ratably to the extent of such
recovery, but without interest. Borrowers expressly consent to the foregoing
arrangement and agree that any holder of a participation so purchased may
exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Borrowers to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
11.6 Amendments and Waivers; Instructions to Agent and Collateral Agent.
A. Amendments and Waivers. No amendment, modification, termination
or waiver of any provision of this Amended Loan Agreement or of the Notes or
consent to any departure by the Credit Parties therefrom, shall be effective
without the written concurrence of Requisite Lenders; provided that (i) any
amendment, modification, termination or waiver of or with respect to: the
amount of the Commitments or the principal amount of the Loans; each Lender's
Pro Rata Share; any definition set forth in subsection 1.1 hereof; any
provision expressly requiring the approval or concurrence of all Lenders; the
scheduled final maturity dates of the Loans; the dates and amounts of any
scheduled payments (but not prepayments) of principal of the Loans; the dates
on which interest or any fees are payable; decreases in the interest rates
borne by the Loans or in the amount of any fees payable hereunder; and the
provisions contained in subsections 4.1E, 4.1F, 8.1 and 11.6 shall be effective
only if evidenced by a writing signed by or on behalf of all Lenders, (ii) any
waiver of any of the provisions contained in subsection 4.1 (other than
subsections 4.1E and 4.1F) shall be effective and binding upon Lenders if
evidenced by a writing signed by or on behalf of Agent and Requisite Lenders,
(iii) any waiver of any of the provisions contained in subsection 4.3 by
Tranche A Lenders (with respect to funding Tranche A Loans) shall be effective
and binding upon Tranche A Lenders if evidenced by a writing signed by Agent
and Requisite Tranche A Lenders, (iv) any waiver of any of the provisions
contained in subsection 4.3 by Tranche B Lenders (with respect to funding
Tranche B Loans) shall be effective and binding upon Tranche B Lenders if
evidenced by a writing signed by Agent and Requisite Tranche B Lenders, (v) no
amendment, modification, termination or waiver of any provision of Section 9 or
of any other provision of this Agreement expressly requiring the approval or
concurrence of Agent shall be effective without the written concurrence of
Agent and (vi) no amendment, modification, termination or waiver of any
provision of Section 10 or any other provision of this Agreement expressly
requiring the approval or concurrence of Collateral Agent shall be effective
without the written concurrence of Collateral Agent. Agent may, but shall have
no obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on any Credit Party in
any case shall entitle the Credit Parties to any other or further notice or
demand in similar or other circumstances. Except as set forth above in clauses
(iii) and (iv) with respect to waivers binding only upon Tranche A Lenders or
Tranche B Lenders, as the case may be, any amendment, modification, termi-
nation, waiver or consent effected in accordance with this subsection 11.6
shall be binding upon each Lender at the time outstanding and each future
Lender. Any amendment, modification, termination, waiver or consent effected
in accordance with this Subsection 11.6 and signed by the Credit Parties shall
be binding on the Credit Parties. Notwithstanding any provision of this
Subsection 11.6A to the contrary, each Tranche B Lender other than any
Tranche B Lender which has given notice to Company and Agent in accordance with
the penultimate sentence of this Subsection 11.6A (each Tranche B Lender which
has not sent such written notice, a "Deemed Voting Lender") agrees that such
Deemed Voting Lender shall be deemed to cast its vote on any request, of which
it has prior written notice, for amendment, modification, termination or waiver
of any provision of the Amended Loan Agreement or any other Loan Document,
proportionately according to the votes cast on such request by all Tranche B
Lenders which are not Deemed Voting Lenders and any amendment, modification,
termination, waiver or consent signed by an appropriate percentage of Tranche B
Lenders which are not Deemed Voting Lenders shall be binding on Deemed Voting
Lenders, provided that if all Tranche B Lenders are Deemed Voting Lenders, such
that there remain no Tranche B Lenders exercising voting rights, each Deemed
Voting Lender shall be deemed to cast its vote proportionately according to
such votes cast by Tranche A Lenders, under the same terms and conditions and
with the same binding effect as if such votes had been cast by Tranche B
Lenders. Tranche B Lenders which are not Deemed Voting Lenders and Tranche A
Lenders shall have no affirmative obligation to Deemed Voting Lenders to vote,
and in no event shall Deemed Voting Lenders have any claim or recourse against
such Tranche B Lenders which are not Deemed Voting Lenders or Tranche A Lenders
with respect to any votes cast or not cast, or the consequences of any action
taken or omitted to be taken, by any such Tranche B Lender which is not a
Deemed Voting Lender or Tranche A Lender. Each Tranche B Lender may, by
written notice to Company and Agent, revoke its election to have its vote
deemed cast in the manner described above, provided, that such revocation shall
not be effective with respect to any request for amendment, modification,
termination or waiver if notice of such revocation is not received by Company
and Agent at least three Business Days prior to the effective date of such
amendment, waiver, modification or termination. Following written notice in
accordance with the preceding sentence such Tranche B lender shall no longer be
a Deemed Voting Lender hereunder.
B. Instructions to Agent and Collateral Agent. Agent and Collateral
Agent shall be entitled to act (or refrain from acting) on instructions from
Requisite Tranche A Lenders or Requisite Tranche B Lenders. If Agent or
Collateral Agent shall receive conflicting instructions from Requisite Tranche
A Lenders and Requisite Tranche B Lenders, Agent or Collateral Agent shall be
entitled to refrain from acting until directed by Requisite Lenders; provided
that (i) with respect to waiving conditions to funding under subsection 4.3
with respect to Tranche A Loans, Agent may act (or refrain from acting) on the
instructions of Requisite Tranche A Lenders and (ii) with respect to waiving
conditions to funding under subsection 4.3 with respect to Tranche B Loans,
Agent may act (or refrain from acting) on the instructions of Requisite Tranche
B Lenders. In addition, if Agent or Collateral Agent shall receive conflicting
instructions from Requisite Tranche A Lenders and Requisite Tranche B Lenders
with respect to any exercise of remedies hereunder or under any of the other
Loan Documents, Agent and Collateral Agent shall be entitled to act (or refrain
from acting) on instructions from Requisite Tranche A Lenders with respect to
such matters.
11.7 Independence of Covenants.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of
an Event of Default or Potential Event of Default if such action is taken or
condition exists.
11.8 Notices.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telecopy or telex, or four Business Days
after depositing it in the United States mail, registered or certified, with
postage prepaid and properly addressed; provided that notices to Agent or
Collateral Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to any Credit Party, Agent
or Collateral Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Agent.
11.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Amended Loan Agreement, the making
of the Loans hereunder and the execution and delivery of the Notes.
B. Notwithstanding anything in this Amended Loan Agreement or implied
by law to the contrary, the agreements of Borrowers set forth in subsections
2.6, 2.8F, 6.9, 11.2 and 11.3 and the agreements of Lenders set forth in
subsections 2.6D, 9.2C, 9.4, 10.2C, 10.3, 11.4 and 11.5 shall survive the
payment of the Loans and the Notes and the termination of this Amended Loan
Agreement.
11.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any Lender or any holder of any
Note or interest in any Letter of Credit in the exercise of any power, right or
privilege hereunder or under the Notes or Letters of Credit shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Amended Loan Agreement, the Notes, the Letters of Credit and the other Loan
Documents are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
11.11 Marshalling; Payments Set Aside.
None of Agent, Collateral Agent or any Lender shall be under any
obligation to marshal any assets in favor of Borrowers or any other party or
against or in payment of any or all of the Obligations. To the extent that any
Credit Party makes a payment or payments to Agent, Collateral Agent or Lenders
(or to Agent or Collateral Agent for the benefit of Lenders), or Collateral
Agent or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be fraudu-
lent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be
revived and continued in full force and effect as if such payment or payments
had not been made or such enforcement or setoff had not occurred.
11.12 Severability.
In case any provision in or obligation under this Amended Loan
Agreement or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
11.13 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Amended Loan Agreement and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
11.14 Headings.
Section and subsection headings in this Amended Loan Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Amended Loan Agreement for any other purpose or be given any
substantive effect.
11.15 Applicable Law.
THIS AMENDED LOAN AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
11.16 Successors and Assigns.
This Amended Loan Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. The
terms and provisions of this Amended Loan Agreement shall inure to the benefit
of any assignee or transferee of any of the Loans or the Notes, and in the
event of any such transfer or assignment the rights and privileges herein
conferred upon Lenders shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. None
of the Credit Parties' rights or obligations hereunder nor any interest therein
may be assigned or delegated by the Credit Parties without the prior written
consent of all Lenders. Lenders' rights of assignment are subject to
subsection 11.1.
11.17 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST A CREDIT PARTY ARISING
OUT OF OR RELATING TO THIS AMENDED LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ANY OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURIS-
DICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AMENDED
LOAN AGREEMENT EACH CREDIT PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURIS-
DICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AMENDED LOAN AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH
OBLIGATION. Each Credit Party designates and appoints CT Corporation System,
and such other Persons as may hereafter be selected by such Credit Party
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by such Credit Party to be effective and
binding service in every respect. A copy of any such process so served shall
be mailed by registered mail to such Credit Party at its address provided in
subsection 11.8; provided that, unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of such
process. If any agent appointed by any Credit Party refuses to accept service,
such Credit Party hereby agrees that service of process sufficient for personal
jurisdiction in any action against such Credit Party in the State of New York
may be made by registered or certified mail, return receipt requested, to such
Credit Party at its address provided in subsection 11.8, and such Credit Party
hereby acknowledges that such service shall be effective and binding in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of any Lender to bring pro-
ceedings against any Credit Party in the courts of any other jurisdiction.
11.18 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AMENDED LOAN AGREEMENT HEREBY AGREES
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AMENDED LOAN AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a
material inducement to enter into a business relationship, that each has
already relied on this waiver in entering into this Amended Loan Agreement, and
that each will continue to rely on this waiver in their related future
dealings. Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AMENDED LOAN
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Amended Loan Agreement may be filed as a written consent to a trial by the
court.
11.19 Confidentiality.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Amended Loan Agreement which has been
identified as confidential by Company in accordance with such Lender's
customary procedures for handling confidential information of this nature and
in accordance with safe and sound banking practices, it being understood and
agreed by each Credit Party that in any event a Lender may make disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participation therein or as required or requested by any govern-
mental agency or representative thereof or pursuant to legal process; provided
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify Company of any request by any governmental agency or repre-
sentative thereof (other than any such request in connection with any examina-
tion of the financial condition of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such
information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of
its Subsidiaries.
11.20 Limitations on Transmission of Non-Public Information.
The Credit Parties, Agent, Collateral Agent and Lenders agree that
any Lender, by written notice to Company and Agent, may elect to receive only
Public Information. Any such election shall constitute a waiver of such
Lender's rights to receive reports and other information under the provisions
of the Loan Documents, including the reporting covenants under this Amended
Loan Agreement. The election by any Lender hereunder to receive only Public
Information may be revoked at any time by written notice to Company and Agent
and shall remain in full force and effect until notice of revocation has been
received by Company and Agent. Notwithstanding anything in this Section 11.20
to the contrary, (i) Borrowers shall continue to forward to any Lender electing
to receive only Public Information Notices of Borrowing and Notices of
Issuance/Amendment at the same time such notices are forwarded to other
Lenders, provided that (x) any such Notice of Borrowing forwarded to Lenders
electing to receive only Public Information shall not contain the statements
set forth in clauses (i) through (vii) of the second paragraph of the form of
Notice of Borrowing and instead shall contain a certification indicating
whether the conditions to funding set forth in Section 4 of this Amended Loan
Agreement have or have not been satisfied and (y) any Notice of
Issuance/Amendment forwarded to Lenders electing to receive only Public
Information shall not contain the statements set forth in clauses (i) through
(vii) of the third paragraph of the form of Notice of Issuance/Amendment and
shall instead contain a certification indicating whether the conditions to
funding set forth in Section 4 of this Amended Loan Agreement have or have not
been satisfied, (ii) Agent shall continue to forward to any Lender electing to
receive only Public Information (x) any statements or reconciliations regarding
outstanding Loans or Letters of Credit, interest or fee calculations or similar
matters which are forward to other Lenders, (y) notices of the existence of any
Event of Default or Potential Event of Default of which Agent has actual
knowledge which notice shall indicate only that an Event of Default or
Potential Event of Default exists (and not the reason therefor) and whether
such Event of Default or Potential Event of Default is a payment default under
Section 8.1 of this Amended Loan Agreement and (z) copies of (1) any effective
waivers, amendments or modifications of Loan Documents or (2) any supplementary
Loan Documents entered into after the date hereof, and (iii) Agent, at its
option, may from time to time, as deemed necessary or desirable by Agent in its
sole discretion, contact any Lender which has elected to receive only Public
Information and, with the consent of such Lender, forward information,
including non-public information, to such Lender; provided, however, that Agent
shall not incur any liability hereunder for failure to forward any of the items
described in clause (ii) hereof to the applicable Lenders or to otherwise
comply with provisions of this sentence, except to the extent such failure is
caused by Agent's gross negligence or wilful misconduct as determined in a
final proceeding by a court of competent jurisdiction.
11.21 Joint and Several Liability; Rights of Contribution.
The Borrowers shall have joint and several liability in respect of
all Obligations. The Borrowers hereby acknowledge that this Amended Loan
Agreement is the independent and several obligation of each Borrower and may be
enforced against each Borrower separately, whether or not enforcement of any
right or remedy hereunder has been sought against the other Borrower. Each
Borrower hereby expressly waives, with respect to any extension of credit made
to the other Borrower hereunder and any of the amounts owing hereunder by such
other Borrower in respect of such extension of credit (collectively, the "Other
Borrower Obligations"), diligence presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Agent or any Lender
exhaust any right, power or remedy or proceed against such other Borrower under
this Amended Loan Agreement or the Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of such Other Borrower Obligations. The
Borrowers hereby agree, as between themselves, that if either Borrower (an
"Excess Funding Borrower") shall repay Obligations in excess of the portion of
the then outstanding Obligations which have arisen in respect of extensions of
credit the proceeds of which have been advanced to or for the benefit of the
Excess Funding Borrower, the other Borrower shall, on demand (but subject to
the next sentence hereof), pay to the Excess Funding Borrower an amount equal
to its respective relative shares of such excess (such relative shares to be
determined based upon the respective relative portion of the then outstanding
Obligations that have arisen in respect of extensions of credit the proceeds of
which have been advanced to or for the respective benefit of the other
Borrower). The payment obligation of either Borrower to any Excess Funding
Borrower under this Section 11.21 shall be subordinate and subject in right of
payment to the prior payment in full of the Obligations of the other Borrower
under the other provisions of this Amended Loan Agreement and such Excess
Funding Borrower shall not exercise any right or remedy with respect to such
excess until payment and satisfaction in full of all such Obligations; in
addition, no Borrower shall be obligated to pay to the Excess Funding Borrower
an amount under this Section 11.21 greater than the amount which, when taken
together with the aggregate of the Obligations paid by it under this Amended
Loan Agreement and all other payments under this Section 11.21, would exceed
the portion of the then outstanding Obligations which have arisen in respect of
extensions of credit the proceeds of which have been advanced to or for the
benefit of such Borrower.
11.22 Counterparts; Effectiveness.
This Amended Loan Agreement and any amendments, waivers, consents
or supplements hereto or in connection herewith may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document. This Amended Loan Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Agent of written or telephonic notification
of such execution and authorization of delivery thereof and the satisfaction of
waiver of the conditions set forth in subsection 4.1. At the time of the
effectiveness of this Amended Loan Agreement, this Amended Loan Agreement shall
amend and restate the Existing Loan Agreement, all obligations of Borrowers
under the Existing Loan Agreement that have not been paid as of the Effective
Date shall become Obligations of Borrowers hereunder, and the commitments under
the Existing Loan Agreement shall terminate.
11.23 Waiver of Certain Existing Events of Default. At the time of the
effectiveness of this Amended Loan Agreement, all Events of Default described
in Schedule 11.23 shall be waived.
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BORROWERS:
CALTON, INC.
By: /s/ Robert A. Fourniadis
Title: Senior Vice President
Notice Address:
Calton, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
CALTON FUNDING, INC.
By: /s/ Robert A. Fourniadis
Title: Senior Vice President
Notice Address:
Calton Funding, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
GUARANTORS:
Calton California Equity Corp.
Calton Capital, Inc.
Calton Capital II, Inc.
Calton General, Inc.
Calton Homes, Inc.
Calton Homes of California, Inc.
Calton Homes of Florida, Inc.
Calton Homes of Pennsylvania,
Inc.
Calton Homes of Pennsylvania at Pennway, Inc.
Calton Homes of Tampa, Inc.
Calton Lindenwood Corporation
Calton Manzanita Corporation
Calton Tamarack Corporation
Calcap Commercial Management,
Inc.
Calcap X, Inc.
Calcap XV, Inc.
Calcap XXXI, Inc.
Calcap XXXII, Inc.
Calcap XXXIII, Inc.
Calcap 36, Inc.
Calcap 42, Inc.
Calcap 48, Inc.
Calton Homes of Chicago, Inc.
Each by: /s/ Robert A. Fourniadis
Title: President
Notice Address:
[Name of Guarantor]
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Calton Homes Finance, Inc.
Calton Homes Finance II, Inc.
Each by: /s/ Robert A. Fourniadis
Title: Senior Vice President
Notice Address:
[Name of Guarantor]
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talcon Title Agency, L.P.
By: Calton General, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address:
Talcon Title Agency, L.P.
c/o Calton General, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talpro 31, L.P.
By: Calcap XXXI, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address:
Talpro 31, L.P.
c/o Calcap XXXI, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talpro 32, L.P.
By: Calcap XXXII, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address:
Talpro 32, L.P.
c/o Calcap XXXII, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talpro 33, L.P.
By: Calcap XXXIII, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address;
Talpro 33, L.P.
c/o Calcap XXXIII, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talpro 48, L.P.
By: Calcap 48, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address:
Talpro 48, L.P.
c/o Calcap 48, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
Talpro 36, L.P.
By: Calcap 36, Inc.,
its General Partner
By: /s/ Robert A. Fourniadis
Title: President
Notice Address:
Talpro 36, L.P.
c/o Calcap 36, Inc.
500 Craig Road
Manalapan, NJ 07726
Attention: Robert A. Fourniadis
LENDERS:
THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank),
individually as a Lender and as Agent and
Collateral Agent
By: /s/ Jane E. Orndahl
Title: Vice President
Notice Address:
The Chase Manhattan Bank
270 Park Avenue
30th Floor, Special Loan Group
New York, New York 10017
Attention: Jane E. Orndahl
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
39th Floor, Legal Department
New York, New York 10017
Attention: E. Lee Smith, Esq.
KLEINWORT BENSON LIMITED,
as a Lender
By: /s/ Iain Leigh
Title: Senior Vice President
Notice Address:
Kleinwort Benson Limited
c/o Dresdner Kleinwort Benson North America
LLC
75 Wall Street
New York, New York 10005
Attention: Anne L.C. Weiss
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ Karen S. Sandler
Title: Vice President
Notice Address:
Foothill Capital Corporation,
11111 Santa Monica Boulevard - 15th Floor
Los Angeles, CA 90025
Attention: Karen S. Sandler
GOLDMAN SACHS CREDIT PARTNERS (formerly known as
Pearl Street, L.P.), as a Lender
By: /s/ John E. Urban
Title: Authorized Signature
Notice Address:
Goldman Sachs Credit Partners, L.P.
85 Broad Street - 26th Floor
New York, New York 10004
Attention: Ms. Marnie Gordon
Mr. Stephen Golden
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS . . . . . . . . . . . . . . .
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . .
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement . . . . . . . . . . . . . . . .
1.3 Other Definitional Provisions. . . . . . . . . . . . . . . .
SECTION 2.
AMOUNTS AND TERMS OF LOANS AND LETTERS OF CREDIT . . . . . .
2.1 Commitments; Revolving Loans . . . . . . . . . . . . . . . .
A. Commitments . . . . . . . . . . . . . . . . . . . . . . .
B. Borrowing Mechanics . . . . . . . . . . . . . . . . . . .
C. Disbursement of Funds . . . . . . . . . . . . . . . . . .
D. Revolving Notes . . . . . . . . . . . . . . . . . . . . .
E. Conversion of Existing Tranche A Loans and Existing
Tranche B Loans into Tranche A Loans and Tranche B
Loans . . . . . . . . . . . . . . . . . . . . . . . . . .
F. Extension of Scheduled Expiry Date. . . . . . . . . . . .
2.2 Interest on the Loans. . . . . . . . . . . . . . . . . . . .
A. Rate of Interest. . . . . . . . . . . . . . . . . . . . .
B. Interest Payments . . . . . . . . . . . . . . . . . . . .
C. Post Maturity Interest. . . . . . . . . . . . . . . . . .
D. Computation of Interest . . . . . . . . . . . . . . . . .
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Commitment Fees . . . . . . . . . . . . . . . . . . . . .
B. Letter of Credit Fees . . . . . . . . . . . . . . . . . .
C. Restructure Fees. . . . . . . . . . . . . . . . . . . . .
D. Other Fees. . . . . . . . . . . . . . . . . . . . . . . .
2.4 Prepayments; Reductions in Commitments; General
Provisions Regarding Payments. . . . . . . . . . . . . . . .
A. Voluntary Prepayments . . . . . . . . . . . . . . . . . .
B. Voluntary Reductions of Commitments . . . . . . . . . . .
C. Mandatory Reductions of Commitments . . . . . . . . . . .
D. Mandatory Prepayments Due to Reductions or
Restrictions of Commitments; Restrictions of
Borrowing Base; Cash Collateral Restrictions. . . . . . .
E. Repayment at Maturity . . . . . . . . . . . . . . . . . .
F. Application of Certain Prepayments; Reductions of
Commitments . . . . . . . . . . . . . . . . . . . . . . .
G. General Provisions Regarding Payments . . . . . . . . . .
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . .
A. Loans . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Letters of Credit . . . . . . . . . . . . . . . . . . . .
C. Margin Regulations. . . . . . . . . . . . . . . . . . . .
D. Benefits to Guarantors. . . . . . . . . . . . . . . . . .
2.6 Increased Costs; Taxes; Capital Adequacy . . . . . . . . . .
A. Compensation for Increased Costs and Taxes. . . . . . . .
B. Withholding of Taxes. . . . . . . . . . . . . . . . . . .
C. Capital Adequacy Adjustment . . . . . . . . . . . . . . .
D. Lenders' Obligation to Mitigate . . . . . . . . . . . . .
E. Issuing Lender. . . . . . . . . . . . . . . . . . . . . .
2.7 [Omitted]. . . . . . . . . . . . . . . . . . . . . . . . . .
2.8 Letters of Credit. . . . . . . . . . . . . . . . . . . . . .
A. Letters of Credit . . . . . . . . . . . . . . . . . . . .
B. Notice of Issuance. . . . . . . . . . . . . . . . . . . .
C. Payment of Amounts Drawn Under Letter of Credit . . . . .
D. Payment by Lenders. . . . . . . . . . . . . . . . . . . .
E. Obligations Absolute. . . . . . . . . . . . . . . . . . .
F. Indemnification; Nature of Issuing Lender's Duties. . . .
G. Existing Letters of Credit. . . . . . . . . . . . . . . .
Section 3. GUARANTY; SECURITY INTERESTS. . . . . . . . . . . . . . .
3.1 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . .
3.2 Security for Obligations . . . . . . . . . . . . . . . . . .
A. Borrower Security . . . . . . . . . . . . . . . . . . . .
B. Security for Guaranties . . . . . . . . . . . . . . . . .
C. Cash Collateral . . . . . . . . . . . . . . . . . . . . .
D. Real Estate . . . . . . . . . . . . . . . . . . . . . . .
E. Further Assurances Regarding Security; Additional
Security; Addition of New Guarantors. . . . . . . . . . .
Section 4. CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS AND
LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . .
4.1 Conditions to Effectiveness. . . . . . . . . . . . . . . . .
A. Credit Party Documents. . . . . . . . . . . . . . . . . .
B. Opinions of Credit Parties' Counsel . . . . . . . . . . .
C. [Omitted] . . . . . . . . . . . . . . . . . . . . . . .
D. [Omitted] . . . . . . . . . . . . . . . . . . . . . . . .
E. [Omitted] . . . . . . . . . . . . . . . . . . . . . . . .
F. Reduction in Principal amount of Existing Loans . . . . .
G. No Material Adverse Effect. . . . . . . . . . . . . . . .
H. Representations and Warranties; Performance of
Agreements. . . . . . . . . . . . . . . . . . . . . . . .
I. Insurance . . . . . . . . . . . . . . . . . . . . . . . .
J. Borrowing Base Certificate. . . . . . . . . . . . . . . .
K. Corporate and Capital Structure . . . . . . . . . . . . .
M. Payment of Fees and Expenses. . . . . . . . . . . . . . .
N. Completion of Other Proceedings . . . . . . . . . . . . .
4.2 Conditions to Letters of Credit. . . . . . . . . . . . . . .
4.3 Conditions to All Loans. . . . . . . . . . . . . . . . . . .
Section 5. CREDIT PARTIES' REPRESENTATIONS AND WARRANTIES . . . . . . .
5.1 Corporate Existence and Qualifications; Compliance with
Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2 Executive Offices. . . . . . . . . . . . . . . . . . . . . .
5.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . .
5.4 Conduct of Business. . . . . . . . . . . . . . . . . . . . .
5.5 Authorization of Borrowing, etc. . . . . . . . . . . . . . .
A. Authorization of Borrowing. . . . . . . . . . . . . . . .
B. No Conflict . . . . . . . . . . . . . . . . . . . . . . .
C. Governmental Consents . . . . . . . . . . . . . . . . . .
D. Binding Obligation. . . . . . . . . . . . . . . . . . . .
5.6 Financial Condition. . . . . . . . . . . . . . . . . . . . .
5.7 No Material Adverse Change; No Restricted Junior
Payments . . . . . . . . . . . . . . . . . . . . . . . . . .
5.8 Title to Properties; Liens . . . . . . . . . . . . . . . . .
5.9 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . .
5.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . .
5.11 Performance of Agreements; Materially Adverse Agreements . .
5.12 Governmental Regulation. . . . . . . . . . . . . . . . . . .
5.13 Securities Activities. . . . . . . . . . . . . . . . . . . .
5.14 Employee Benefit Plans . . . . . . . . . . . . . . . . . . .
5.15 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . .
5.16 Environmental Protection . . . . . . . . . . . . . . . . . .
5.17 Employee Matters . . . . . . . . . . . . . . . . . . . . . .
5.18 Outstanding Stock. . . . . . . . . . . . . . . . . . . . . .
5.19 Insurance Policies . . . . . . . . . . . . . . . . . . . . .
5.20 Schedule of Deposit Accounts . . . . . . . . . . . . . . . .
5.21 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . .
5.22 Mortgaged Properties . . . . . . . . . . . . . . . . . . . .
5.23 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . .
5.24 Financial Condition of Certain Subsidiaries. . . . . . . . .
5.25 Survival of Rights Created under Existing Loan Agreement . .
Section 6. CREDIT PARTIES' AFFIRMATIVE COVENANTS. . . . . . . . . . . .
6.1 Financial Statements and Other Reports . . . . . . . . . . .
6.2 Corporate Existence, etc.. . . . . . . . . . . . . . . . . .
6.3 Payment of Taxes and Claims; Tax Consolidation . . . . . . .
6.4 Maintenance of Properties; Insurance . . . . . . . . . . . .
6.5 Inspection; Lender Meeting . . . . . . . . . . . . . . . . .
6.6 Compliance with Laws, etc. . . . . . . . . . . . . . . . . .
6.7 Environmental Disclosure and Inspection. . . . . . . . . . .
6.8 Credit Parties' Remedial Action Regarding Hazardous
Materials. . . . . . . . . . . . . . . . . . . . . . . . . .
6.9 Environmental Indemnity. . . . . . . . . . . . . . . . . . .
6.10 Security for Obligations . . . . . . . . . . . . . . . . . .
6.11 [omitted]. . . . . . . . . . . . . . . . . . . . . . . . . .
6.12 Dissolution of Certain Subsidiaries. . . . . . . . . . . . .
6.13 Other Land and Sale Options. . . . . . . . . . . . . . . . .
6.14 Post-Closing Matters . . . . . . . . . . . . . . . . . . . .
Section 7. CREDIT PARTIES' NEGATIVE COVENANTS . . . . . . . . . . . . .
7.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . .
7.2 Liens and Related Matters. . . . . . . . . . . . . . . . . .
A. Prohibition on Liens. . . . . . . . . . . . . . . . . . .
B. No Further Negative Pledges . . . . . . . . . . . . . . .
C. No Restrictions on Subsidiary Distributions to
Company or Other Subsidiaries . . . . . . . . . . . . . .
7.3 Investments; Joint Ventures. . . . . . . . . . . . . . . . .
7.4 Contingent Obligations . . . . . . . . . . . . . . . . . . .
7.5 Restricted Junior Payments . . . . . . . . . . . . . . . . .
7.6 Financial Covenants. . . . . . . . . . . . . . . . . . . . .
A. Minimum Consolidated Adjusted EBITDA. . . . . . . . . . .
B. Minimum Consolidated Adjusted Tangible Net Worth. . . . .
C. Minimum Consolidated Interest Expense Coverage Ratio. . .
7.7 Restriction on Fundamental Changes; Asset Sales. . . . . . .
7.8 Certain Expenditure Limits . . . . . . . . . . . . . . . . .
7.9 Restriction on Leases. . . . . . . . . . . . . . . . . . . .
7.10 Sales and Lease-Backs. . . . . . . . . . . . . . . . . . . .
7.11 Transactions with Shareholders and Affiliates. . . . . . . .
7.12 Disposal of Subsidiary Stock . . . . . . . . . . . . . . . .
7.13 Conduct of Business. . . . . . . . . . . . . . . . . . . . .
7.14 [intentionally omitted]. . . . . . . . . . . . . . . . . . .
7.15 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . .
7.16 Restrictions On Purchase of Environmentally Contaminated
Property . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . .
8.1 Failure to Make Payments When Due. . . . . . . . . . . . . .
8.2 Default in Other Agreements. . . . . . . . . . . . . . . . .
8.3 Breach of Certain Covenants. . . . . . . . . . . . . . . . .
8.4 Breach of Warranty . . . . . . . . . . . . . . . . . . . . .
8.5 Other Defaults Under Loan Documents. . . . . . . . . . . . .
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.. . . .
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.. . . . .
8.8 Judgments and Attachments. . . . . . . . . . . . . . . . . .
8.9 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . .
8.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . .
8.11 Material Adverse Effect. . . . . . . . . . . . . . . . . . .
8.12 Change in Control. . . . . . . . . . . . . . . . . . . . . .
8.13 Invalidity of Guaranty Agreement . . . . . . . . . . . . . .
8.14 Failure of Security. . . . . . . . . . . . . . . . . . . . .
Section 9. AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . .
9.2 Powers; General Immunity . . . . . . . . . . . . . . . . . .
A. Duties Specified. . . . . . . . . . . . . . . . . . . . .
B. No Responsibility for Certain Matters . . . . . . . . . .
C. Exculpatory Provisions. . . . . . . . . . . . . . . . . .
D. Agent Entitled to Act as Lender . . . . . . . . . . . . .
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness. . . . . . . . . . . . . . . .
9.4 Right to Indemnity . . . . . . . . . . . . . . . . . . . . .
9.5 Successor Agent. . . . . . . . . . . . . . . . . . . . . . .
Section 10. COLLATERAL AGENT . . . . . . . . . . . . . . . . . . . . . .
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . .
10.2 Powers; General Immunity . . . . . . . . . . . . . . . . . .
A. Duties Specified. . . . . . . . . . . . . . . . . . . . .
B. No Responsibility for Certain Matters . . . . . . . . . .
C. Exculpatory Provisions. . . . . . . . . . . . . . . . . .
D. Collateral Agent Entitled to Act as Lender. . . . . . . .
10.3 Right to Indemnity . . . . . . . . . . . . . . . . . . . . .
10.4 Successor Collateral Agent . . . . . . . . . . . . . . . . .
10.5 Collateral Agent; Security Documents . . . . . . . . . . . .
Section 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . .
11.1 Assignments and Participations in Loans and Notes. . . . . .
A. General . . . . . . . . . . . . . . . . . . . . . . . . .
B. Assignments . . . . . . . . . . . . . . . . . . . . . . .
C. Participations. . . . . . . . . . . . . . . . . . . . . .
D. Eligibility as Tranche A Lender or Tranche B Lender;
Conversion among Tranches . . . . . . . . . . . . . . . .
E. Information . . . . . . . . . . . . . . . . . . . . . . .
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . .
11.3 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . .
11.4 Set Off. . . . . . . . . . . . . . . . . . . . . . . . . . .
11.5 Sharing of Payments. . . . . . . . . . . . . . . . . . . . .
11.6 Amendments and Waivers; Instructions to Agent and
Collateral Agent . . . . . . . . . . . . . . . . . . . . . .
A. Amendments and Waivers. . . . . . . . . . . . . . . . . .
B. Instructions to Agent and Collateral Agent. . . . . . . .
11.7 Independence of Covenants. . . . . . . . . . . . . . . . . .
11.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .
11.9 Survival of Representations, Warranties and Agreements . . .
11.10 Failure or Indulgence Not Waiver; Remedies Cumulative. . . .
11.11 Marshalling; Payments Set Aside. . . . . . . . . . . . . . .
11.12 Severability . . . . . . . . . . . . . . . . . . . . . . . .
11.13 Obligations Several; Independent Nature of Lenders'
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .
11.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . .
11.15 Applicable Law . . . . . . . . . . . . . . . . . . . . . . .
11.16 Successors and Assigns . . . . . . . . . . . . . . . . . . .
11.17 Consent to Jurisdiction and Service of Process . . . . . . .
11.18 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . .
11.19 Confidentiality. . . . . . . . . . . . . . . . . . . . . . .
11.20 Limitations on Transmission of Non-Public Information. . . .
11.21 Joint and Several Liability; Rights of Contribution. . . . .
11.22 Counterparts; Effectiveness. . . . . . . . . . . . . . . . .
11.23 Waiver of Certain Existing Events of Default . . . . . . . .
EXHIBITS
Exhibit A Form of Revolving Note
Exhibit B [Omitted]
Exhibit C Form of Assignment and Assumption
Exhibit D Form of Auditor's Letter
Exhibit E [Omitted]
Exhibit F [Omitted]
Exhibit G Form of Borrowing Base Certificate
Exhibit H Form of Compliance Certificate
Exhibit I Form of Acknowledgement and Confirmation
Exhibit J [Omitted]
Exhibit K Form of Intercompany Note
Exhibit L [Omitted]
Exhibit M Form of Notice of Borrowing
Exhibit N Form of General Release
Exhibit O Form of Notice of Issuance/Amendment
Exhibit P [Omitted]
Exhibit Q [Omitted]
Exhibit R Form of Opinion of Credit Parties' Counsel
Exhibit S [Omitted]
Exhibit T [Omitted]
Exhibit U Form of Consent to Jurisdiction and Service of Process
SCHEDULES
Schedule 2.1 Tranche A Lenders; Tranche B Lenders; Commitments; Pro
Rata Shares; Existing Loans
Schedule 5.1(a) States of Organization
Schedule 5.2 Executive Offices
Schedule 5.3 Subsidiaries
Schedule 5.8 Permitted Encumbrances
Schedule 5.9 Litigation
Schedule 5.16 Compliance with Environmental Laws
Schedule 5.18 Beneficial Owners
Schedule 5.19 Insurance Policies
Schedule 5.20 Deposit Accounts
Schedule 5.22 Location of Mortgage Filings
Schedule 6.14 Post Closing Matters
Schedule 7.1 Indebtedness
Schedule 7.3(iv) Investments
Schedule 7.4 Contingent Obligations
Schedule 7.13 Conduct of Business
Schedule 11.23 Existing Events of Default
CALTON, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1996
EXHIBIT 10-1
1996 EQUITY INCENTIVE PLAN
1. Definitions.
In this Plan, the following definitions apply:
1.01. "Appreciation Rights Election" means the method of exercising an
Option pursuant to which shares of Common Stock subject to the Option are sold
to cover the payment to the Company of the Option's aggregate exercise price
and the payment of fifty percent (50%) of the Appreciated Value in cash to the
Participant, with the Participant receiving the remaining fifty percent (50%)
of the amount of the Appreciated Value in shares of Common Stock (as such
proportion may be adjusted by the Committee pursuant to Section 10 of the
Plan).
1.02. "Appreciated Value" means an amount equal to the difference between
the aggregate fair market value of the shares of Common Stock subject to the
Option and the aggregate exercise price of the Option on the date of exercise.
For purposes of this definition, fair market value of the shares of the Common
Stock shall be the price at which such shares are sold on the date of exercise.
1.03. "Board" means the Board of Directors of the Company.
1.04. "Change in Control" means (a) an event or series of events by which
any "person" (as such term is defined in Section 2(2) of the Securities Act of
1933, as amended), or any affiliate of such Person (when applied to any Person,
an affiliate shall mean any other Person directly or indirectly controlling,
controlled by, or under common control with that Person), or Persons and
affiliates of such Persons acting in concert, shall, whether in a single
transaction or a series of related transactions, acquire directly or indirectly
an amount of the Company's voting stock representing thirty-five percent (35%)
or more of the total voting power of the outstanding voting securities of the
Company having the right under ordinary circumstances to vote in an election of
the Board, or (b) the consummation of a merger, reorganization or
recapitalization in which the Company is the surviving entity, and in which,
after the consummation of the transaction, the shareholders of the Company
immediately prior to the consummation of the transaction shall not continue to
beneficially own securities representing sixty-five percent (65%) or more of
the total voting power of the outstanding voting securities of the Company
having the right under ordinary circumstances to vote in an election of the
Board.
1.05. "Code" means the Internal Revenue Code of 1986, as amended, and the
rule and regulations promulgated thereunder.
1.06. "Committee" means the Compensation Committee of the Board, all of
the members of which shall be "disinterested persons" as defined in Rule
16b-3(c)(2)(i) under the Securities Exchange Act of 1934, as amended, or any
similar successor rule, and "outside directors" as defined in proposed rule
1.162-27(e)(3) under the Code or any final or similar successor rule.
1.07. "Company" means Calton, Inc.
1.08. "Corporate Transaction" means a transaction such as a merger (other
than a merger intended solely to change the Company's jurisdiction of
incorporation), consolidation, reorganization, recapitalization, or sale of all
or substantially all of the Company's assets (other than a sale of assets to a
Subsidiary or other affiliated entity of the Company).
1.09. "Director" shall mean a member of the Company's Board.
1.10. "Exercise Sell" means the method of exercising an Option pursuant
to which shares of Common Stock subject to the Option are sold to cover payment
of the Option's aggregate exercise price.
1.11. "Fair Market Value" means the arithmetic average of the highest and
lowest sales prices of the Common Stock reported by the American Stock Exchange
on a particular date, or if there is no sale on such date, then the average of
such high and low sales prices on the last previous date on which a sale of the
Common Stock is reported.
1.12. "Incentive Stock Option" means an option granted under the Plan
that qualifies as an incentive stock option under Section 422 of the Code and
that the Committee designates as such when granting the option.
1.13. "Just Cause" shall mean: (i) a Participant's conviction for a
felony or for fraud; (ii) a Participant engaging in any conduct, by way of act
or omission, which in the opinion of the Board has the potential to cause, or
does cause, a material adverse effect on the Company's business; (iii) a
Participant failing to return from authorized leave from the Company; (iv) a
Participant being found to be under the influence of, or to have distributed,
any illegal narcotic substance while on the Company's premises, including any
project site of the Company; (v) a Participant acting dishonestly or committing
theft of Company property; or (vi) the work performance of a Participant
failing to meet Company standards.
1.14. "Nonqualified Stock Option" means an Option granted under the Plan
that is not an Incentive Stock Option and that the Committee designates as such
when granting the Option, or an Option granted under the Plan that does not
qualify as an Incentive Stock Option.
1.15. "Option" means an option to purchase shares of Common Stock granted
under the Plan in accordance with the terms of the Plan and related Option
Agreement, if any.
1.16. "Option Agreement" means a written agreement which the Committee
may authorize the Company to enter into with a Participant in order to
implement a grant of an Option by the Committee.
1.17. "Participant" means an employee of the Company or a Director to
whom an Option has been granted.
1.18. "Plan" means the Calton, Inc. 1996 Equity Incentive Plan.
1.19. "Subsidiary" means a corporation in which the Company owns a
majority of the total combined voting power of all classes of stock, either
directly or through one or more other Subsidiaries.
1.20. "Tax Withholding Amount" means the amount, if any, which, upon the
exercise of an Option or an election by a Participant under Section 83(b) of
the Code, the Company or a Subsidiary may be required to withhold in order to
obtain a federal and/or state income tax deduction, such amount which shall be
paid to the Company by the Participant.
1.21. "Tender Offer" means a tender offer for fifty percent (50%) or more
of the Company's voting stock regardless of whether or not the Company will
continue as a separate entity upon the consummation of the Tender Offer.
2. Purpose.
The purpose of this Plan is to advance the interests of the shareholders
of the Company by enhancing the ability of the Company to (i) induce certain
employees, who are in a position to make significant contributions to the
Company and its Subsidiaries, to remain in the employ of the Company and its
Subsidiaries; (ii) attract and retain new employees who can make significant
contributions to the success of the Company and its Subsidiaries; (iii) attract
and retain the services of experienced and knowledgeable Directors; and (iv)
more closely align the interests of such employees and Directors with the
Company's shareholders and to encourage such employees and Directors to take
into account the long-term interests of the Company by securing or increasing
on reasonable terms their stock ownership in the Company. The Plan will also
serve as a vehicle for the issuance of registered shares of Common Stock to any
Director who elects to receive the annual retainer fee, Board meeting fees and
Board committee fees in the form of shares of Common Stock as provided for in
Section 17 of this Plan.
3. Shares Subject to Plan.
The aggregate number of shares of Common Stock reserved for issuance under
the Plan shall be two million (2,000,000), subject to any adjustment pursuant
to Section 11 herein. The shares of Common Stock to be issued under the Plan
upon the exercise of an Option shall be made available either from authorized
but unissued shares of the Company's Common Stock or from shares of the
Company's Common Stock held by the Company as treasury shares, including shares
of Common Stock acquired by the Company in open market and private
transactions.
The shares of Common Stock issued under the Plan shall be subject to the
terms and conditions specified in the Plan and related Option Agreements, if
any, and to such other terms and conditions as the Committee may provide. If
any Option expires or terminates for any reason without having been exercised
in full, a new Option may thereafter be granted to acquire the unpurchased
shares of Common Stock subject to such expired or terminated Option.
4. Administration.
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have complete authority, in its
discretion, to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to determine the terms and provisions of any
related Option Agreements, to determine the employees of the Company and its
Subsidiaries who will be selected as Participants under the Plan, to determine
the terms and prices at which Options shall be granted, the number of shares of
Common Stock to be subject to each Option, the periods during which each Option
shall be exercisable, whether such Option shall be an Incentive Stock Option or
a Nonqualified Stock Option, and to make all other determinations necessary or
advisable for the administration of the Plan. In making such determinations,
the Committee may take into account the nature of the services rendered by the
Participants to the Company and its Subsidiaries, their present and potential
contributions to the success of the Company and its Subsidiaries and such other
factors as the Committee, in its discretion, shall deem relevant.
The Committee's determination of the matters referred to herein shall be
final and conclusive. Any dispute or disagreement which may arise under or as
a result of or with respect to any Option shall be determined by the Committee,
in its sole discretion, and any interpretations by the Committee of the terms
of any Option shall be final, binding and conclusive.
No member of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan. In addition to such other rights
of indemnification as they may have as members of the Board or as members of
the Committee, the members of the Committee shall be indemnified by the Company
against the reasonable expenses, including attorney's fees, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, in which any Committee
member may be a party by reason of any action taken or failure to act in
connection with the Plan or any Option granted under the Plan, and against all
amounts reasonably paid by them in settlement thereof or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, if such
Committee member acted in good faith and in a manner which the member believed
to be in, and not opposed to, the best interests of the Company and its
shareholders.
5. Eligibility.
The Committee may grant Options under the Plan to (a) employees of the
Company or a Subsidiary, including employees who are members of the Board, and
(b) employees of a corporation or noncorporate entity which has been acquired
by the Company or a Subsidiary, who hold options with respect to the stock or
other equity interests of such corporation or noncorporate entity which the
Company or a Subsidiary has agreed to assume. Nonqualified Stock Options shall
be granted to non-employee Directors as formula awards pursuant to the terms
set forth in Section 18 of this Plan. Further, the Committee can authorize the
issuance of shares of Common Stock to any member of the Board who has elected
to receive the annual retainer fee for serving on the Board, Board meeting fees
or Board committee fees in the form of shares of the Company's Common Stock as
provided for in Section 17 of this Plan.
6. Option Price.
The exercise price of an Option shall be equal to the Fair Market Value of
the Common Stock on the date of grant; provided, however, that (i) with respect
to a Participant who owns more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company, the option price of an
Incentive Stock Option granted to such Participant shall not be less than one
hundred and ten percent (110%) of the Fair Market Value of the Common Stock on
the date of grant, and (ii) with respect to any Option repriced by the
Committee, the exercise price shall be equal to the Fair Market Value of the
Common Stock on the date such Option is repriced.
7. Option Term.
Except as otherwise provided in Section 18 hereof, an Option shall be
granted for such term as the Committee shall determine, not in excess of ten
(10) years from the date of grant thereof; provided, however, that a
Participant who owns more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company may not be granted an Incentive
Stock Option with a term greater than five (5) years from the date of grant.
8. Limitation on Amount of Options Granted.
The Chief Executive Officer of the Company, may not be granted Options for
more than fifty percent (50%) of all shares of Common Stock reserved for
issuance under the Plan. Each other Participant under the Plan may not be
granted options for more than thirty-five percent (35%) of all shares of Common
Stock reserved for issuance under the Plan.
9. Exercise of Options.
Except as otherwise provided in Sections 11, 12 and 18 hereof, and except
as otherwise provided below with respect to an Incentive Stock Option, upon
granting an Option, the Committee shall determine the date or dates on which
such Option shall become exercisable. The Options and the shares issuable upon
the exercise of such Options may be subject to such conditions and forfeiture
provisions as the Committee may determine, including, but not limited to, the
achievement of business objectives and individual, division and Company
performance. To the extent exercisable, an Option may be exercised either in
whole at any time or in part from time to time. With respect to an Incentive
Stock Option granted to a Participant, the Fair Market Value of the shares of
Common Stock on the date of grant which are exercisable for the first time by a
Participant during any calendar year shall not exceed $100,000.
10. Methods of Exercise and Payment of Option Price.
An Option may be exercised only by a written notice of intent to exercise
such Option with respect to a specific number of shares of Common Stock subject
to such Option and payment to the Company of the aggregate amount of the
exercise price for the number of shares of Common Stock so specified in the
notice. Payment of the Option's exercise price can be made in cash, by
cashier's check or certified bank check, in kind by the delivery of shares of
Common Stock having a Fair Market Value on the date preceding the date of
exercise equal to the portion of the option price so paid and which have been
owned and held by the Participant for a period not less than six (6) months.
Upon receipt of written notice evidencing a Participant's intent to exercise an
Option, or an election by a Participant under Section 83(b) of the Code, the
Company will inform the Participant of the Amount of the Tax Withholding
Amount, if any, which the Participant shall be required to remit to the Company
before the shares of Common Stock will be issued to the Participant.
With respect to Nonqualified Stock Options granted under the Plan and held
by the Participant for six (6) months or longer, a Participant can also pay all
or part of any such Option's exercise price pursuant to the Exercise Sell or
Appreciation Rights Election methods; provided, however, that if a Participant
chooses to pay all or part of the exercise price pursuant to the Appreciation
Rights Election method, the Committee shall have the sole discretion to
determine the form in which payment of the Appreciated Value will be made to
the Participant, including all cash, all shares of Common Stock or any other
combination thereof. Fractional shares will not be issued to a Participant who
exercises an Option pursuant to the Appreciation Rights Election method. The
value of any fractional shares shall be paid in cash to the Participants.
The shares of Common Stock to be sold in order to pay (i) the exercise
price under the Exercise Sell method, or (ii) the exercise price and amount of
the cash payment of the Appreciated Value under the Appreciation Rights
Election method shall be sold by or on behalf of the Participant in an open
market transaction on the date of exercise and the Participant shall not be
liable for any cost of such sale. If a Participant elects to exercise an
Option pursuant to the Exercise Sell or Appreciation Rights Election method,
then the Tax Withholding Amount, if any, shall, in the Participant's
discretion, also be covered by the sale of shares of Common Stock subject to
the Option being exercised. The Participant shall be entitled to receive any
remaining proceeds from the sale of shares of Common Stock which are not
applied against the exercise price and Tax Withholding Amount under the
Exercise Sell method, or the exercise price, cash portion of the Appreciated
Value and the Tax Withholding Amount under the Appreciation Rights Election
method.
11. Adjustment of Shares.
11.01. In the event there is any change in the capital stock of the
Company pursuant to a stock split, share combination, stock dividend or
Corporate Transaction in which the Company is the surviving entity, except as
otherwise provided in Subsection 11.02 below, each outstanding Option shall
apply to the securities to which a holder of the number of shares of Common
Stock subject to an Option shall be entitled to receive in connection with any
such transaction. The Committee shall also have the discretion to make any
other changes to an Option, including, without limitation, additional changes
in the number or character of the shares of Common Stock subject to an Option,
or in the exercise price of an Option, in order to protect such Option from
dilution or diminution in value upon the occurrence of any of the above
transactions.
11.02. In the event of a Corporate Transaction in which the Company is not
the surviving entity, or a Corporate Transaction in which the Company is the
surviving entity and in which the outstanding shares of Common Stock shall be,
pursuant to the operation of law or terms of the Corporate Transaction, changed
into or exchanged for securities of another corporation, interests in a
noncorporate entity, other property (including cash), or any combination of the
foregoing, a Participant can elect within thirty (30) days of receipt of notice
of such Corporate Transaction to accelerate all unvested Options and exercise
them or any part thereof. The Participant's exercise of any Options and the
issuance of shares of Common Stock to the Participant in connection with any
such Corporate Transaction shall be conditioned upon the consummation of the
Corporate Transaction; provided, however, that such condition shall not
preclude the Participant from receiving, with respect to the shares of Common
Stock issuable upon the exercise of such Option, the consideration issuable or
payable in respect of the shares of Common Stock pursuant to such Corporate
Transaction. If, in exercising a Nonqualified Stock Option as a result of a
Corporate Transaction, the Exercise Sell or Appreciation Rights Election method
is not available to a Participant for any reason including, without limitation,
the absence of a trading market for the Common Stock on the date of
consummation of the Corporate Transaction, the Participant shall be entitled to
receive, without the payment of consideration, the number of shares of Common
Stock issuable upon exercise of the Option less the number of shares having an
aggregate Fair Market Value equal to the aggregate exercise price on the date
the election to exercise the Option is made by the Participant.
Alternatively, within ten (10) days of receiving notice of the Company's
decision to enter into any such Corporate Transaction, a Participant may
provide the Company with written notice that the Board shall provide that the
surviving entity will grant the Participant substitute options to purchase
securities of the surviving entity in exchange for the Participant's Options.
The underlying securities of such substitute options shall have a fair market
value equal to the highest aggregate Fair Market Value of all shares of Common
Stock subject to the Participant's Options, whether exercisable or not, for the
period commencing with the date of the public announcement of the Corporate
Transaction and ending with the effective date of the Corporate Transaction.
The substitute options shall be issued with an aggregate exercise price equal
to the aggregate exercise price of the shares of Common Stock subject to the
Participant's Options and with terms and conditions comparable to the terms and
conditions of the Plan and any related Option Agreement.
However, if a Participant elects to have the Board provide substitute
options, the Board, in its discretion, may elect, within ten (10) days of
receiving notice from the Participant, to repurchase all of the Participant's
Options, whether exercisable or not, within sixty (60) days of the effective
date of the Corporate Transaction. The amount paid the Participant for the
repurchase of the Participant's Options shall be equal to the difference
between the highest aggregate Fair Market Value of the shares of Common Stock
subject to the Participant's Options for the period commencing with the date of
public announcement of the Corporate Transaction and ending with the effective
date of the Corporate Transaction and the aggregate exercise price of the
Participant's Options. This repurchase right can also be exercised by the
surviving entity.
If the Board notifies a Participant of its decision to exercise this
repurchase right, then a Participant shall be entitled to elect to exercise all
of the Participant's Options during the remainder of the thirty (30) day period
from the receipt of notice of the Corporate Transaction as described in the
first paragraph of this Subsection 11.02.
11.03. In the event of a Tender Offer, all of a Participant's Options
shall become immediately exercisable, and may be exercised at any time prior to
the expiration date of such Options. Alternatively, within ten (10) days of
receiving notice of the commencement of a Tender Offer, the Participant can
provide the Company with written notice that the Company shall repurchase all
of the Participant's Options, whether exercisable or not, for an amount equal
to the difference between the highest aggregate Fair Market Value of the shares
of Common Stock subject to the Participant's Options for the period commencing
with the date of public announcement of the Tender Offer and ending with the
effective date of the Tender Offer and the aggregate exercise price of the
Participant's Options. The Company's obligation to repurchase the
Participant's Options shall be subject to any restriction, limitation, or
prohibition contained in any agreement to which the Company is a party.
11.04. In the event of a Change in Control, all of a Participant's Options
shall become immediately exercisable and may be exercised at any time prior to
the expiration dates of such Options. Alternatively, within ten (10) days of
receipt of notice from the Company of a Change in Control, such notice which
shall be furnished promptly upon the Company receiving notice thereof, the
Participant can provide the Company with written notice that the Company shall
repurchase all of the Participant's Options, whether exercisable or not, for an
amount equal to the difference between the aggregate Fair Market Value of the
shares of Common Stock subject to the Participant's Options on the date of the
Change in Control and the aggregate exercise price of the Participant's
Options. The Company's obligation to repurchase the Participant's Options
shall be subject to any restriction, limitation or prohibition contained in any
agreement to which the Company is a party.
11.05. In the event of the dissolution or liquidation of the Company
(except a dissolution or liquidation relating to a sale of assets or other
reorganization of the Company referred to in Subsection 11.02 of this Section),
all outstanding Options under the Plan shall terminate as of a date fixed by
the Committee; provided, however, that not less than thirty (30) days written
notice of the date so fixed shall be given to each Participant, and each such
Participant shall have the right during such period to exercise all of the
Participant's outstanding Options, whether exercisable or not.
11.06. Notwithstanding the exercise provisions in Subsections 11.01 -
11.05 of this Section 11, if the Company's legal counsel should determine that
an extension of time for the exercise of any Option is necessary in order to
allow the Participant to acquire the shares of Common Stock subject to the
option in compliance with federal and state securities laws, the Committee
shall extend said time of exercise for whatever additional period of time is
necessary, in counsel's judgment, to allow such compliance. In the event the
treatment of any Incentive Stock Option under Subsections 11.01 - 11.05 of this
Section 11 could be determined to be a disqualifying disposition with respect
to the favorable tax consequences of Incentive Stock Options under Sections 421
and 422 of the Code, the Company shall promptly notify each Participant as to
whether or not the desired treatment of the Participant's Incentive Stock
Options could result in a disqualifying disposition and the effect thereof.
12. Death, Disability, Retirement and Termination.
12.01. In the event the employment relationship between the Participant
and the Company or any of its Subsidiaries is terminated by reason of the
Participant's death or "disability" (as such term is defined in Section
22(e)(3) of the Code), all of the Participant's Options shall become
immediately exercisable. The Participant, or the Participant's designated
beneficiary or estate, shall have two (2) years from such date of termination
to exercise all or any part of a Nonqualified Stock Option, and one (1) year
from such date of termination to exercise all or any part of an Incentive Stock
Option.
12.02. If a Participant resigns as an employee from the Company or any
Subsidiary, the Participant shall have one (1) year for a Nonqualified Stock
Option, or three (3) months for an Incentive Stock Option, from such date of
termination to exercise all or any part of such Option which is fully vested on
or before the date of termination.
12.03. In the event a Participant, who has been employed by the Company or
a Subsidiary for one (1) year or more, is terminated by the Company for any
reason other than for Just Cause, each Option, or any part thereof, scheduled
to vest on the succeeding anniversary date of the grant of the Option following
the date of termination shall become immediately exercisable, and the
Participant shall have two (2) years from the date of termination to exercise
all or any part of a Nonqualified Stock Option, or three (3) months from such
date of termination to exercise all of any part of an Incentive Stock Option.
For any Participant who has been employed by the Company or a Subsidiary for
less than one (1) year, the Participant shall have thirty (30) days, or seven
(7) months (except for an Incentive Stock Option) if the Participant is an
officer, Director or more than ten percent (10%) beneficial owner of the
Company, from the date of such termination in which to exercise all or part of
those Options which is fully vested on or before such date of termination.
12.04. If the Participant is terminated by the Company for Just Cause, the
Participant shall have thirty (30) days, or seven (7) months (except for an
Incentive Stock Option) if such Participant is an officer, Director or ten
percent (10%) beneficial owner of the Company, from the date of termination to
exercise all or part of those Options which is fully vested on or before the
date of termination.
12.05. With respect to Nonqualified Stock Options granted to non-employee
Directors as formula awards pursuant to Section 18 of this Plan, upon the death
or "disability" (as such term is defined in Section 22(e)(3) of the Code) of
the Director, the Director, or the Director's designated beneficiary or Estate,
shall have two (2) years from the date of death or disability to exercise all
or any part of a Nonqualified Stock Option. If a non-employee Director resigns
from the Board or does not stand for reelection to the Board, or, if a
non-employee Director is removed from the Board for any reason, including if
the Director is not reelected to the Board by the shareholders, the Director
shall have ninety (90) days from the date on which the Director ceases to be a
member of the Board to exercise any portion of a Nonqualified Stock Option
which is fully vested on or before such date the Director ceases to be a member
of the Board.
13. Non-Transferability of Option.
No Option shall be transferable (including pledged or encumbered) by a
Participant otherwise than by will or by the laws of descent and distribution,
and each Option shall be exercisable during a Participant's lifetime only by
the Participant.
14. Amendments and Discontinuance.
Except as provided for in Section 18 of this Plan with respect to the
formula award provisions, the Board may amend, suspend, discontinue, or
terminate the Plan, subject to shareholder approval if so required by any
applicable federal or state securities laws, tax laws or corporate statute. No
action of the Board, however, may, without the consent of a Participant alter
or impair any Option previously granted to the Participant under the Plan.
15. Successors and Assigns.
The provisions of the Plan shall be binding upon all successors and
assigns of any Participant acquiring shares of Common Stock under the Plan,
including, without limitation, the estate of any such Participant and the
executors, administrators or trustees of such estate, and any receiver, trustee
in bankruptcy or representative of the creditors of any such Participant.
16. Effective Date and Termination Date of the Plan.
The Plan shall be effective as of January 31, 1996, and shall terminate on
January 30, 2006. No Options shall be granted under the Plan subsequent to
such date. Options granted on or before the termination date shall remain
exercisable after the termination of the Plan in accordance with their
respective terms.
17. Director's Fees.
Subject to the limitation contained in Section 3 of this Plan on the
number of shares of Common Stock which may be issued pursuant to this Plan, any
member of the Board who provides written notice to the Company shall be
entitled to receive all or a portion of the member's annual board retainer fee,
Board meeting fees, and Board committee fees in the form of shares of the
Company's Common Stock. Any member of the Board who desires to receive all or
any part of such Board fees in shares of Common Stock must provide the Chief
Financial Officer of the Company with written notice of the member's election
(an "Election") to receive payment of Board fees in this form no later than
five (5) business days prior to the payment of such fees. Shares of Common
Stock with an aggregate Fair Market Value, on the date preceding the date of
payment of Board fees, equal to the aggregate amount of such Board fees shall
be issued to the Board member no later than fifteen (15) business days
following the date of payment of such Board fees by the Company.
18. Formula Awards.
Each time an individual, who is not an employee of the Company or any
Subsidiary, is elected or reelected as a Director by the shareholders of the
Company, the Director shall receive, on such date of election or reelection as
the case may be, a grant of Nonqualified Stock Options to acquire ten thousand
(10,000) shares of Common Stock, and each such Option shall have a per share
exercise price equal to the Fair Market Value of the Common Stock on such date
of grant. Each Nonqualified Stock Option granted to a non-employee Director
pursuant to this Section 18 shall have a term of five (5) years from the date
of grant and shall vest and become fully exercisable on the first anniversary
of such date of grant. In order for a non-employee Director to be granted the
Nonqualified Stock Options upon reelection to the Board, the Director must have
attended seventy-five percent (75%) of all Board meetings and seventy-five
percent (75%) of all Board committee meetings, of which the Director is a
member, called and held during the previous twelve (12) months while such
Director was a member of the Board and committee(s). The provisions of this
Section 18 of the Plan shall not be amended more than once every six (6)
months, other than to comport with changes in the Internal Revenue Code of
1986, as amended, the Employee Retirement Income Security Act of 1974, or the
rules thereunder.
19. Miscellaneous.
19.01. Any and all funds held by the Company under the Plan may be used
for any corporate purpose.
19.02. Nothing contained in the Plan, any Option Agreement executed in
connection with the Plan, or any Option granted under the Plan, shall confer
upon a Participant any right to be continued in the employment of the Company
or any Subsidiary, or interfere in any way with the right of the Company or its
Subsidiaries to terminate the employment relationship at any time.
19.03. No Options may be granted nor may Common Stock be purchased under
this Plan until the Company has taken all actions then required to comply with
the Securities Act of 1933, as amended, and any other applicable state
securities laws and any exchange on which the Common Stock may be listed.
19.04. The Company shall take any reasonable and appropriate action which
is necessary, including, without limitation, the filing of a Form S-8
Registration Statement with the Securities and Exchange Commission, to effect
the registration of the shares of Common Stock reserved for issuance under this
Plan under the Securities Act of 1933, as amended.
As Amended through January 30, 1997
CALTON, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1996
EXHIBIT 10-4
CALTON, INC. INCENTIVE COMPENSATION PLAN
1. PURPOSE
Pursuant to Calton's ("Calton" or the "Company") philosophy of providing
compensation to its employees which is competitive with the compensation
offered by similar companies operating in the same regions and emphasizing
incentive compensation as a result of the cyclical nature of the Company's
business, the Company has established the Calton, Inc. Incentive Compensation
Plan (the "Plan") to promote the interests of Calton and its shareholders by
enhancing the Company's ability to attract, retain and motivate highly
qualified individuals to serve the Company and its subsidiaries by providing
such individuals the opportunity to earn meaningful additional compensation
based on the operating results of the Company.
2. EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall be effective as of June 1, 1993, subject to the approval of
the Company's Board of Directors (the "Board"), and it shall terminate on
November 30, 1998 (the "Term"). The Board, in its sole discretion, may renew,
for up to two (2) fiscal years upon each such renewal, the Term of the Plan and
the provisions hereunder.
3. PARTICIPATION
All officers of the Company and its subsidiaries and all managers that
participate in the Company's Management Objective Bonus Program are eligible
for participation in the Plan. In addition, up to 10% of the Incentive Pool
(as defined below) may be used for bonuses to other full time employees of the
Company and its subsidiaries who are not otherwise eligible for commissions or
bonuses. The employees that are eligible to participate in the Plan (the
"Eligible Employees") shall be determined each fiscal year by the Compensation
Committee of the Board (the "Committee") based on the recommendations of the
President and Chief Executive Officer of the Company. The determination of
Eligible Employees entitled to participate in the Plan shall be made by the
Committee no later than the end of the first quarter of any fiscal year;
provided, however, that an Eligible Employee hired after the end of the first
quarter of any fiscal year may be considered by the Committee for participation
in the Plan. Participation in the Plan during any one fiscal year does not
imply or guarantee participation in any other fiscal year during the Term of
the Plan.
4. INCENTIVE COMPENSATION
The available pool of incentive compensation (the "Incentive Pool") under
this Plan during any particular fiscal year shall be equal to ten percent (10%)
of the Company's pre-tax income as reported in the Company's Form 10-K for a
particular fiscal year, subject to certain non-operating adjustments (the
"Adjustments") that may be made to the Incentive Pool at the discretion of the
Committee to remove the effect of events or transactions not in the ordinary
course of the Company's operations.
5. DISTRIBUTION OF INCENTIVE COMPENSATION
The President and Chief Executive Officer of the Company shall recommend
the dollar amount of an award from the Incentive Pool (the "Incentive Award")
to be granted to each Eligible Employee participating in the Plan; provided,
however, that an Eligible Employee participating in the Plan may not receive an
Incentive Award during any particular fiscal year that exceeds the lesser of
twenty (20%) of the Incentive Pool or one hundred percent (100%) of the
Eligible Employee's base salary compensation for the same fiscal year;
provided, however, that the Committee reserves the right to make special,
supplemental grants that exceed one hundred percent (100%) of an Eligible
Employee's base salary for a particular fiscal year. The Committee shall then
review and approve, with the power to alter, modify or disapprove in whole or
in part, the proposed Incentive Award for each Eligible Employee participating
in the Plan no later than February 15 of the succeeding fiscal year, or the
fifteenth day of the last month of the first quarter of the succeeding fiscal
year if the end of such preceding fiscal year is other than November 30. An
Eligible Employee selected for participation in the Plan who was hired by the
Company or one of its subsidiaries subsequent to the commencement of the
relevant fiscal year shall only be entitled to a pro-rata portion of any
Incentive Award. An Eligible Employee participating in the Plan shall not be
entitled to receive any Incentive Award until the grant of any such Incentive
Award has been approved by the Committee. Any Incentive Award shall be
distributed and paid to an Eligible Employee in accordance with the Company's
ordinary payroll policies and procedures during the last pay period of February
of each fiscal year, or during the last pay period of the last month of the
first quarter of the fiscal year if the end of such preceding fiscal year is
other than November 30. All approved and paid Incentive Awards shall be
subject to all tax withholding and reporting requirements.
6. TERMINATION
(a) Upon termination of employment without just cause of an Eligible
Employee selected to participate in the Plan, the Eligible Employee, in the
sole discretion of the Committee, shall be entitled to receive an Incentive
Award for the year of such termination in an amount not to exceed fifty percent
(50%) of the average Incentive Award made to Eligible Employees for the
particular fiscal year in which such termination occurred; provided, however,
that if any Incentive Award is granted, such Incentive Award shall be prorated
for the actual number of days the Eligible Employee was employed by the Company
during the particular fiscal year. For purposes of the Plan, termination of an
Eligible Employee "without just cause" shall include, without limitation,
retirement with consent of the Company, death, permanent disability, and
termination by the Company for any reason other than for just cause as defined
in (b) hereinbelow.
(b) Upon the termination of employment of an Eligible Employee selected
to participate in the plan for a particular fiscal year for just cause by the
Company, the Committee shall not grant, and the Eligible Employee shall not be
entitled to, an Incentive Award for the fiscal year in which termination
occurred. For purposes of the Plan, the term "just cause" includes: (i) an
Eligible Employee's conviction for a felony or for fraud; (ii) an Eligible
Employee engaging in any conduct, by way of act or omission, which in the
opinion of the Company's Board has the potential to cause, or does cause, a
material adverse effect on the Company's business; (iii) an Eligible Employee
failing to return from authorized leave from the Company; (iv) an Eligible
Employee being found to be under the influence of, or to have distributed, any
illegal narcotic substance while on the Company's premises, including any
project site of the Company; (v) an Eligible Employee acting dishonestly or
committing theft of Company property; or (vi) the work performance of an
Eligible Employee failing to meet established Company standards; provided,
however, that the definition of "just cause" in any employment agreement
between an Eligible Employee and the Company, if any, shall supersede and take
the place of the preceding definition.
7. AMENDMENT OR DISCONTINUANCE
At any time during the Term of the Plan, the Committee may alter, amend,
suspend or discontinue the Plan.
8. OTHER AGREEMENTS
In the event that any term or condition of this Plan varies from, or is in
any way dissimilar to or in contrast with, any term, condition or provision of
any other agreement between the Company and an Eligible Employee, such as an
employment agreement, the relevant terms, conditions and/or provisions of such
other agreement will control.
9. SUCCESSORS
The provisions of the Plan shall be binding upon all successors of any
Eligible Employee granted an Incentive Award under the Plan, including, without
limitation, the estate of any such Eligible Employee and the executors,
administrators or trustees of such estate, and any receiver, trustee in
bankruptcy or representative of the creditors of any such Eligible Employee.
Any obligations with respect to Incentive Awards granted pursuant to the Plan
shall be expressly assumed by any successor in interest to the Company.
10. GOVERNING LAW AND JURISDICTION OF NEW JERSEY COURTS
This Plan and any agreement entered into in connection therewith shall be
construed and its provisions enforced and administered in accordance with the
laws of the State of New Jersey.
The foregoing reflects amendments made through January 30, 1996.
Financial Highlights
(in thousands, except per share amounts)
Six Six
Months Months Year
Ended Ended Ended
Selected Years Ended November 30, Nov. 30, May 31, Nov. 30,
Operating Data 1996 1995 1994 1993 1993 1992
- ------------------- -------- -------- -------- -------- -------- --------
Revenues $122,435 $180,843 $168,723 $83,351 $76,555 $135,421
Gross profit 16,790 19,560 28,984 15,878 4,867 5,460
Income (loss)
from operations 1,837 (1,225) 8,595 5,560 (15,593) (25,630)
Income (loss)
before income
taxes and extra-
ordinary gain 1,031 (2,307) 6,560 4,756 (56,494) (38,611)
Income (loss)
before extra-
ordinary gain 453 (3,138) 4,193 2,872 (56,494) (38,611)
Net income (loss) 453 (3,138) 4,193 2,872 1,817 (38,611)
Income (loss) per
share before
extraordinary gain .02 (.12) .16 .11 (1.67) (1.14)
Net income (loss)
per share .02 (.12) .16 .11 .05 (1.14)
At At
Selected Balance At November 30, May 31, Nov. 30,
Sheet Data 1996 1995 1994 1993 1993 1992
- ------------------- -------- -------- -------- -------- -------- --------
Total assets $88,757 $91,416 $122,144 $110,930 $117,462 $187,909
Total debt 43,945 46,227 69,398 62,792 70,242 141,828
Shareholders'
equity (deficit) 28,086 27,013 29,045 23,893 21,000 (452)
The selected operating data for the years ended November 30, 1996, 1995 and
1994 and the six months ended November 30, 1993 and selected balance sheet data
at and subsequent to May 31, 1993 are separated by a black line since, due to
the adoption of fresh-start accounting and reporting to reflect the effects of
the Reorganization as of May 31, 1993, these amounts are not comparable to the
amounts reflected for prior periods.
-1-
Management's Discussion And Analysis Of Financial Condition
And Results Of Operations
RESULTS OF OPERATIONS
=====================
RESULTS OF OPERATIONS FOR THE YEARS ENDED NOVEMBER 30, 1996 AND 1995
- --------------------------------------------------------------------
Revenues for the year ended November 30, 1996 were $122.4 million compared to
revenues of $180.8 million for the year ended November 30, 1995. Deliveries of
549 homes resulted in housing revenues of $110.3 million for the year ended
November 30, 1996. For the year ended November 30, 1995, the Company delivered
749 homes which generated $171.3 million of housing revenues. Housing revenues
decreased for the year ended November 30, 1996 by $61.0 million or thirty-six
percent (36%) compared to the year ended November 30, 1995 reflecting a
decrease in deliveries and average selling prices realized on the deliveries to
$201,000 in 1996 from $229,000 in 1995. Housing revenues decreased primarily
due to a fifty percent (50%) decrease in homes delivered by the Company's
Northeast division. The Northeast division deliveries were adversely impacted
by a significantly lower level of backlog entering 1996 compared to 1995, the
close out of seven communities during the year, and the opening and timing of
fewer replacement communities as a result of conserving cash, repositioning the
Northeast to one division and refocusing on the division's target markets.
These results were partially offset by a sixty-five percent (65%) and forty-two
percent (42%) increase in 1996 in the Florida division housing revenues and
home deliveries, respectively, compared to the prior year. The Florida division
benefited in 1996 from higher sales activity due to more communities open for
sale including five new communities opened during the first half of 1996 which
contributed to the improved delivery levels realized in the fourth quarter of
1996. The decrease in the average sales price is attributable to the greater
proportion of the Company's homes delivered in 1996 coming from the Florida
division, where average selling prices are typically lower than in the
communities served in the Northeast. Revenues include the sales of land,
options, and commercial land and buildings of $12.0 million for the period
ended November 30, 1996 compared to $8.5 million for 1995.
The Company's gross profit margin on homes delivered was approximately thirteen
percent (13%) during the year ended November 30, 1996, compared to a gross
profit on homes, excluding the $1.6 million provision for net realizable value,
of twelve percent (12%) in the year ended November 30, 1995. The gross profit
margin on homes delivered in 1996 was favorably impacted by the increased
deliveries and related gross profit from the Company's Florida division. The
Company's gross profit margin from the Northeast division also improved from
the prior year due to deliveries from new communities reflecting the division's
current strategy to focus on the second and third time move-up buyer and its
marketing strategy to emphasize quality, features and value. However, the
overall gross profit margin for the year reflects intensive competition and
sales incentives to homebuyers. Housing gross profit declined by $5.8 million
for the year ended November 30, 1996, due to the decreased deliveries in the
Northeast which was partially offset by the Florida division increases in
deliveries and related gross profit. Included in the Company's gross profit is
the profit from the sales of land and commercial land and buildings for the
years ended 1996 and 1995 of $2.3 million and $500,000, respectively. The
Company has continued to sell its commercial land and buildings and certain
inventory in markets where its land position is in excess of estimated demand
levels over two years.
During the year ended November 30, 1996, the Company resolved certain issues
relating to sales tax, litigation and construction obligations and, therefore,
reversed approximately $440,000 in accrued liabilities. These reductions are
reflected in Cost of revenues.
During the second quarter of fiscal 1995, as a result of the consolidation of
the New Jersey-North and New Jersey-South divisions and economic and market
conditions including a decreased sales pace, the Company decided not to incur
further preacquisition costs on nine properties controlled under option. These
actions resulted in a pre-tax charge of approximately $1.1 million that is
reflected in Cost of revenues. Also included in Cost of revenues is a
$1.1 million pre-tax credit realized from the reversal of a reserve previously
provided on a community completed in 1995. This reserve related to a
$1.1 million payable that the Company, in finalizing the accounting for this
-5-
community in the second quarter of 1995, determined, based upon further review
and advice of counsel, had been discharged by reason of the creditor's failure
to take certain actions in connection with the Company's bankruptcy
reorganization.
In the year ended November 30, 1995, the Company recorded non-cash charges to
the Provision for estimated net realizable value of $1.6 million to reflect
certain inventory, primarily two properties, at their estimated net realizable
value. This determination was based upon decreased sales absorption levels in
the Northeast which continued into the fourth quarter of 1995 and the
reevaluation of the ultimate use of a parcel in Florida. Estimated net
realizable value has been determined based upon the amount the Company expects
to realize through sale or development based on management's plans for each
property. The estimation process involved in the determination of estimated net
realizable value is inherently subjective since it requires estimates as to
future events and conditions. The estimated net realizable value of a property
may exceed the value which could be obtained through the immediate sale of the
property if development plans for such property support a higher cost recovery.
For 1996, there were no provisions recorded for estimated net realizable value.
Selling, general and administrative expenses decreased to $15.0 million (12% of
revenues) for the year ended November 30, 1996, compared to $18.9 million (10%
of revenues) for the year ended November 30, 1995, reflecting a $3.9 million
decrease. The decrease is principally due to a reduction in selling costs
resulting from lower levels of home deliveries and fewer communities open for
sales and deliveries in 1996, lower advertising and employee costs due to the
winddown of the Chicago operations, the consolidation of the Northeast division
and the continued efforts of management to reduce fixed costs. The increase in
selling, general and administrative expenses as a percentage of revenues is
principally due to lower delivery levels and related revenues for 1996.
In November 1995, the Company decided to wind down the Chicago division due to
unfavorable results and prospects. As a result, a primarily non-cash
$1.1 million charge was recorded in the fourth quarter of 1995 and is included
in Restructuring charges. Also included in Restructuring charges in 1995 is
$840,000 in severance benefits, $200,000 of which resulted from the March 1995
rightsizing, primarily from the consolidation of the New Jersey-North and New
Jersey-South divisions, that resulted in the reduction of approximately twenty
percent (20%) of the Company's workforce; and $640,000 that resulted from a
severance arrangement entered into with the Company's former President in
November 1995, which required the Company to make a lump sum payment and pay
the remaining premium on a whole life insurance policy in January 1996.
During 1996, the Company substantially completed the winddown of the Chicago
division by the build out and sale of certain lots and bulk sale of the
remaining finished lots. As of November 30, 1996, four homes remain to be sold
and delivered which the Company believes will be completed in the first half of
1997.
Gross interest cost was approximately $5.5 million for the year ended
November 30, 1996, compared to $7.1 million for the year ended November 30,
1995, respectively. The decrease in gross interest cost for the year ended
November 30, 1996 resulted from substantially lower average loan balances
throughout the year compared to the year ended November 30, 1995. The weighted
average debt outstanding under the Company's Revolving Credit Facility was
$45.4 million for the year ended November 30, 1996 compared to $58.1 million
for the prior year. Interest capitalized in the year ended November 30, 1996
was $4.1 million compared to $5.0 million in the year ended November 30, 1995.
The decrease in capitalized interest is primarily a result of lower inventory
levels. The capitalized amounts will reduce future gross profit levels assuming
no relative increases in selling prices.
Included in Other income (expense) for the year ended November 30, 1996 is
$460,000 that represents payments received during the year on a note previously
reserved. During 1995, the Company received $890,000 that represents payments
received primarily in the fourth quarter in connection with the dissolution and
liquidation of Talcon, L.P. ("Talcon") in complete satisfaction of Talcon's
debt obligations to the Company. The Company had previously established a
reserve for all amounts owed to it by Talcon due to the uncertainty of
collection that resulted from the fact that Talcon had commenced dissolution
proceedings in 1994 and was in default with respect to approximately
$8.3 million of borrowings under a loan agreement with its bank lender.
The Company, primarily as a result of the adoption of fresh-start accounting
and reporting in connection with its reorganization in 1993 (the
"Reorganization"), has a tax basis in its assets held as it exited its
-6-
Reorganization substantially in excess of the carrying value of these assets
used for financial reporting purposes. As a result of this difference in basis,
the Company will realize a tax benefit over time against future earnings. In
accordance with The American Institute of Certified Public Accountants
Statement of Position 90-7, the Company is required to provide a provision in
lieu of taxes notwithstanding the fact that there are no significant taxes
payable. Results for the year ended November 30, 1996 reflect a provision in
lieu of taxes for financial reporting purposes of $578,000 which is primarily
non-cash and, therefore, does not impact the Company's cash position, tangible
net worth or earnings before interest, taxes, depreciation and amortization
("EBITDA"). In 1995, a provision in lieu of taxes was also recorded in the
amount of $831,000. The net operating loss carryforwards and other deferred tax
assets are subject to utilization limitations as a result of the changes in
control of the Company that occurred in 1993 and 1995. The Company's ability to
use the annual net operating loss ("NOL") to offset future income is
approximately $1.6 million per year or approximately $26.5 million.
Net sales contracts of $114.5 million (548 homes) were recorded by the Company
during the year ended November 30, 1996, representing increases in the dollar
value of contracts of five percent (5%) and contracts of ten percent (10%)
compared to $108.7 million (496 homes) in the same period in 1995. At
November 30, 1996, the backlog of homes under contract totalled 165 homes
having an aggregate dollar value of $40.2 million, compared to 166 homes at
November 30, 1995 having an aggregate dollar value of $36.0 million
representing an increase of twelve percent (12%) in backlog value. Current year
net sales activity benefited from the opening of seven new communities in the
Florida division contributing to a fifty-six percent (56%) and sixty-nine
percent (69%) increase in net home sales and dollars, respectively, compared to
1995. At November 30, 1996, the Florida division represented approximately
fifty percent (50%) and thirty-two percent (32%) of total backlog homes and
backlog value, respectively, compared to thirty-one percent (31%) and twenty-
two percent (22%) of total backlog homes and backlog value, respectively, at
November 30, 1995. Partially offsetting these increases is the reduction in
Northeast division net sales during 1996 from 1995 attributable to the winddown
of seven communities during the year, the opening of fewer replacement
communities and the timing of such openings. As of November 30, 1996, eight
active communities were open for sales in the Northeast division compared to
eleven at November 30, 1995. The average price per home in backlog at
November 30, 1996 increased by twelve percent (12%) to approximately $244,000
from $217,000, which is primarily attributable to higher-priced homes in the
Northeast division resulting from net sales associated with the division's four
new communities opened in the fourth quarter of 1995 and during 1996 which
reflects the division's focus on the second and third time move-up buyer and
its marketing strategy to emphasize quality, features and value. The backlog in
both years includes contracts containing financing and other contingencies
customary in the industry, including contracts that are contingent on the
purchaser selling their existing home. Due to changes in product offerings, the
uncertainty of future market conditions and the general economic environment,
the sales backlog, homes delivered, average selling prices and gross profit
achieved in the current and prior periods may not be indicative of those to be
realized in succeeding periods.
The Company has begun its entry into the active adult housing market in Ocean
County, New Jersey, in a community that will be marketed under the name
Renaissance. The Company has the contractual right to purchase up to 2,000
finished lots on a rolling option basis, with the land seller funding the
construction of the amenities that will be offered in this 600 acre community.
The Company expects Renaissance, which will be a major part of the Northeast
division's new focus on both the active adult community and move-up buyer
markets, to be a significant contributor to the division's future results.
In March 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to Be Disposed Of," which requires
impairment losses to be recorded on long-lived assets used in operations when
indicators of impairment are present and the undiscounted cash flows estimated
to be generated by those assets are less than the assets' carrying amount. The
provisions of this statement are effective for fiscal years beginning after
December 15, 1995. If the Company adopted this statement currently, it would
not have a material effect on the Company's financial position, results of
operations or cash flows.
In October 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 123, "Accounting for Stock Based
Compensation." The provisions of this statement are effective for fiscal years
beginning after December 15, 1995. The Company intends to implement the
-7-
disclosure-only provision of this statement. Accordingly, if the Company
adopted this statement currently, it would not have a material effect on the
Company's financial position, results of operations or cash flows.
RESULTS OF OPERATIONS FOR THE YEARS ENDED NOVEMBER 30, 1995 AND 1994
- --------------------------------------------------------------------
Revenues for the year ended November 30, 1995 were $180.8 million compared to
revenues of $168.7 million for the year ended November 30, 1994. Deliveries of
749 homes resulted in housing revenues of $171.3 million for the year ended
November 30, 1995. For the year ended November 30, 1994, the Company delivered
899 homes which generated $165.5 million of housing revenues. Housing revenues
in 1995 increased four percent (4%) reflecting an increase in average selling
prices to $229,000 for the homes delivered during the year compared to $184,000
for the homes delivered in 1994. This increase in average revenue per home is
consistent with the Company's plan to position itself in middle and upscale
market segments in the Northeast and Orlando, Florida markets with enhanced
margin potential and reduce its former concentration in entry level, multi-
family products because of unfavorable demographic trends and increasing
regulatory costs. Deliveries in the Northeast division comprised seventy
percent (70%) of the Company's total deliveries in fiscal 1995 where average
selling prices increased to $265,000 from $226,000 in 1994. Deliveries in the
Orlando division comprised twenty-four percent (24%) of total deliveries in
fiscal 1995, where average selling prices increased to $125,000 in 1995 from
$109,000 in 1994. The seventeen percent (17%) decrease in home deliveries in
fiscal 1995 is primarily attributable to a thirty-nine percent (39%) decrease
of home deliveries in the Orlando, Florida division primarily due to the timing
of new community openings.
The Company's gross profit margin on homes delivered excluding the provision
for net realizable value of $1.6 million was approximately twelve percent (12%)
during the year ended November 30, 1995, compared to seventeen percent (17%) in
the year ended November 30, 1994. The gross profit margin on homes delivered in
1995 was impacted by increased competition in a difficult market while the
homes delivered in 1994 reflected the revaluation of the Company's inventory as
a result of the application of fresh-start accounting and reporting in
connection with the Company's 1993 Plan of Reorganization. In addition, gross
profit margins have been, and will continue to be, unfavorably impacted by
increased carrying costs resulting from lower absorption rates. Gross profit
margins have also been impacted by the fact that the Company's land pipeline,
which was severely depleted when it completed its Reorganization in May 1993,
had been refilled in a transitional market environment that reflected upward
price pressures on land that could not be entirely passed along to buyers.
Pursuant to management's continued focus on its core homebuilding business, the
Company sold two of its commercial properties in 1995 for approximately
$8.1 million in addition to the sale of one of its commercial properties in the
fourth quarter of 1994 for $800,000. The 1995 sales resulted in an aggregate
pre-tax gain of approximately $500,000 and provided approximately $850,000 of
additional cash for operations after retirement of $6.9 million of mortgage
debt.
Selling, general and administrative expenses decreased to $18.9 million (10% of
revenues) for the year ended November 30, 1995, compared to $20.4 million (12%
of revenues) for the year ended November 30, 1994. The decrease is principally
due to lower employee costs resulting from reductions in employee levels and
consolidation of operations in the Northeast completed early in the second
quarter of 1995.
Gross interest cost was approximately $7.1 million for the year ended
November 30, 1995, compared to $5.5 million for the year ended November 30,
1994, respectively. The increase in gross interest cost for the year ended
November 30, 1995 resulted from higher interest rates and, to a lesser extent,
higher average loan balances compared to the year ended November 30, 1994.
Interest capitalized in the year ended November 30, 1995 was $5.0 million
compared to $4.0 million in the year ended November 30, 1994. The increase of
capitalized interest is primarily a result of higher interest rates. The
capitalized amounts will reduce future gross profit levels assuming no relative
increases in selling prices.
Included in Other income (expense) in 1995 is $890,000 which represents
payments received primarily in the fourth quarter in connection with the
dissolution and liquidation of Talcon, in complete satisfaction of Talcon's
debt obligations to the Company. The Company had previously established a
reserve for all amounts owed to it by Talcon due to the uncertainty of
-8-
collection that resulted from the fact that Talcon had commenced dissolution
proceedings in 1994 and was in default with respect to approximately
$8.3 million of borrowings under a loan agreement with its bank lender.
The Company recorded a charge against earnings of $800,000 in fiscal 1994
relating to a proposed offering of securities and related working capital
facility. The proposed offering was terminated due to unfavorable conditions in
the financial markets.
Results for the year ended November 30, 1995 reflect a provision in lieu of
taxes for financial reporting purposes of $831,000 compared to $2.4 million in
1994, which is primarily non-cash, and, therefore, does not impact the
Company's cash position, tangible net worth or EBITDA. Goodwill was fully
extinguished during the year ended November 30, 1994 and an increase of
$719,000 was recorded to Paid in capital. The effective rate of the 1994
provision in lieu of taxes was reduced by approximately $700,000 as a result of
a reduction in tax reserves that was appropriate when the Company obtained
clearance on a state tax position with the New Jersey Division of Taxation. The
net operating loss carryforwards and other deferred tax assets are subject to
utilization limitations as a result of the changes in control of the Company
that occurred in 1993 and 1995.
Net sales contracts of $108.7 million (496 homes) were recorded by the Company
during the year ended November 30, 1995, representing decreases in the dollar
value of contracts of 42% compared to $188.9 million (951 homes) in the same
period in 1994. Due to market conditions, the number of new communities opened
for sales during fiscal 1995 decreased forty-two percent (42%) to seven
communities, six of which were in the Florida market. This resulted in fewer
communities open for sales during 1995 and a reduction in the amount
outstanding under the credit facility by $15.0 million to $45.0 million by
November 30, 1995.
LIQUIDITY AND CAPITAL RESOURCES
===============================
During the past several years, the Company has financed its operations
primarily from internally generated funds from home deliveries, land sales and
sales of commercial land and buildings. In April 1997, the Company and its
lenders amended the Company's revolving credit facility (the "Facility") to
extend the term of the Facility through February 28, 1998 and, if certain
conditions are satisfied, August 31, 1998. The amended Facility (the "Amended
Facility") reduced the loan commitment level to $46.0 million initially and
requires amortization of $3.0 million by July 15, 1997, another $3.0 million by
August 31, 1997 and a further reduction of $10.0 million by November 30, 1997.
In addition, the Amended Facility increased the interest rate charged to the
Company to the lender's prime rate (8.25% at November 30, 1996) plus two and
one-half percent (2.5%). The Company is required to pay the lenders, in five (5)
installments, a commitment fee, which the Company will amortize over the
extension period ending February 28, 1998, equal to three percent (3%) of the
lenders' initial commitment level under the Amended Facility. The Amended
Facility provides the Company an option to extend the term to August 31, 1998
if outstanding borrowings and the commitment level are reduced to $20.0 million
or less by February 28, 1998. In such event, the interest rate charged to the
Company will be reduced to prime plus two percent (2%).
The Amended Facility changed various restrictions and financial covenants with
which the Company is required to comply, including covenants relating to cash
basis interest coverage, EBITDA and tangible net worth, and continues to impose
limits on the amount which can be expended on land acquisition and land
development. For the year ended November 30, 1996, the Company's EBITDA was
$7.3 million compared to $8.6 million in 1995. Purchase money financing from
other sources continues to be limited to $5.0 million under the Amended
Facility. Certain subsidiaries of the Company are guarantors of the obligations
under the Amended Facility. The lenders have a security interest in
substantially all of the assets of the Company and its subsidiaries, subject
only to certain permitted liens approved by the lenders. The Amended Facility
prohibits the payment of dividends by the Company.
Although the Amended Facility will restrict the Company's ability to expand its
business, the Company believes, based upon its business plan, that it will be
able to comply with the financial covenants and other terms contained in the
Amended Facility; however, there can be no assurance that if market or other
conditions deteriorate, that the Company will meet the covenant levels.
The Company is pursuing and will continue to pursue long-term financing to
replace the Amended Facility. Pending such replacement, the Company believes
-9-
that funds generated by operating activities, income tax payment reductions
derived from NOL utilization, the sale of certain assets during fiscal 1997 and
borrowing availability under the Amended Facility will provide sufficient
capital to support the Company's operations through the term of the Amended
Facility. If a more favorable long-term credit facility is not obtained, the
rate at which the Company can open new communities may be adversely affected
and the Company would be required to effect sales of substantial assets in
order to obtain an extension of the Amended Facility beyond February 28, 1998.
Interest rate increases will continue to impact the Company's cost of capital
and related interest costs. Increases in capitalized interest could reduce
future gross profit levels assuming no relative increases in home selling
prices. EBITDA, however, would not be adversely impacted.
CASH FLOWS FROM OPERATING ACTIVITIES
- ------------------------------------
Inventories amounted to $65.5 million at November 30, 1996 compared to
$64.2 million at November 30, 1995. The increase of $1.3 million was primarily
the result of $23.3 million of land acquisitions, of which approximately
$4.7 million was financed by purchase money mortgages and $2.2 million of
inventory accruals, partially offset by a $22.0 million reduction due to home
deliveries and land sales. Commercial properties were reduced by $1.9 million
from the sale of commercial land and buildings in 1996. Inventories decreased
$24.6 million in 1995 primarily due to home deliveries offset to a lesser
extent by land acquisitions totaling $10.5 million. Commercial properties were
also reduced by $7.2 million in 1995 as a result of the sale of two commercial
buildings. The increase in inventory from November 30, 1993 to November 30,
1994 of $10.6 million was a result of land acquisitions of $25.8 million during
the year which were offset by reductions in inventory levels through
deliveries. Of the $25.8 million in land acquisitions, approximately
$2.5 million was financed with purchase money mortgage debt.
The Company will continue to seek opportunities to obtain control of land for
future communities at advantageous prices and terms. Funds generated by the
Company's operations will be utilized for the acquisition of such properties.
In addition, borrowings from the Facility will be utilized for acquisitions as
needed, and to the extent available. Also, options will be utilized to the
extent possible to minimize risks, conserve cash and maximize the Company's
land pipeline.
Receivables increased approximately $310,000 from November 30, 1995 to
November 30, 1996 primarily due to an increase in mortgages and notes
receivable in connection with the sale of a land parcel in the third quarter,
partially offset by the timing of home closings. Receivables increased by
approximately $1.1 million during 1995 primarily due to the timing of home
closings, offset to a lesser extent by reductions in cash collateral held for
performance guarantees for communities that were completed during the year. The
$900,000 increase in receivables in 1994 is attributable to the timing of home
closings.
The decrease in accounts payable, accrued expenses and other liabilities from
November 30, 1995 to November 30, 1996 of $1.4 million is primarily
attributable to the decreased level of homebuilding in the Northeast division,
the payment of severance to the Company's former President and the reduction of
the Company's business insurance. The $5.5 million decrease in accounts
payable, accrued expenses and other liabilities from November 30, 1994 to
November 30, 1995 is primarily attributable to the decreased level of
homebuilding operations and communities under development and a $1.1 million
credit taken in the second quarter of 1995 from the reversal of a reserve
provided during the delivery period of a community that closed out in early
1995. A decrease in accounts payable, accrued expenses and other liabilities of
$600,000 from November 30, 1993 to November 30, 1994 was attributable to a
$2.4 million increase in accounts payable from the increased level of
homebuilding operations and communities under development offset by a decrease
in accrued expenses of $3.0 million as a result of payments made in conjunction
with litigation settlements, the Talcon dissolution and the California division
winddown. In addition, a $700,000 reserve related to a certain tax issue was
reversed.
-10-
CASH FLOWS FROM INVESTING ACTIVITIES
- ------------------------------------
During 1996, the Company received $725,000 from the liquidation of a joint
venture in which it previously participated.
In 1995, Talcon, a limited partnership formed by the Company in 1987, paid the
Company $890,000 in full satisfaction of its debt obligations to the Company.
The Company had previously established a reserve for all amounts owed to it by
Talcon and, as a result, the payment received in 1995 was classified in Other
(income) expense.
CASH FLOWS FROM FINANCING ACTIVITIES
- ------------------------------------
The aggregate principal amount of loans outstanding under the Facility was
$39.5 million at November 30, 1996, $45.0 million at November 30, 1995 and
$60.0 million at November 30, 1994. The $5.5 million decrease since
November 30, 1995 occurred during the second half of 1996 in conjunction with
the Company's strategy to reduce its debt obligation and improve the Company's
financial condition.
The Company utilizes mortgages payable, when available and within the covenant
restrictions of the Facility, to finance a portion of its acquisitions.
Mortgages payable increased to $4.4 million at November 30, 1996, from
$1.2 million at November 30, 1995, representing two purchase money mortgages
used to acquire new land.
The 1995 sales of commercial land and buildings resulted in approximately
$850,000 of cash for operations after the reduction of outstanding mortgages
payable of $6.9 million.
INFLATION
=========
The Company, as well as the homebuilding industry in general, may be adversely
affected by inflation, which can cause increases in the price of land, raw
materials and labor. Unless cost increases are recovered through higher sales
prices, gross margins can decrease. Increases in interest rates result in
higher construction and financing costs which can also adversely affect gross
margins. In addition, increases in home mortgage interest rates make it more
difficult for the Company's customers to qualify for mortgage loans,
potentially reducing the demand for homes. Historically, the Company, in
periods of high inflation, has generally been able to recover increases in
land, construction, labor and interest expenses through increases in selling
prices; however, the Company believes that its gross margins in 1995 and 1996
were adversely impacted by increased costs which could not be entirely passed
through to buyers. See "Results of Operations."
FORWARD LOOKING STATEMENTS
==========================
All statements, other than statements of historical fact, included in this
Annual Report, including without limitation the statements under "To Our
Shareholders" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations," are, or may be deemed to be, "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
Such forward-looking statements (including statements relating to the Company's
ability to comply with covenants contained in the Amended Facility) involve
assumptions, known and unknown risks, uncertainties and other factors which may
cause the actual results, performance or achievements of the Company to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such potential risks
and uncertainties, include without limitation, matters related to national and
local economic conditions, the effect of governmental regulation on the
Company, the competitive environment in which the Company operates, changes in
interest rates, home prices, availability and cost of land for future growth,
the timing of land acquisition and product development, availability of working
capital and the availability and cost of labor and materials, and other risk
factors detailed herein and in the Company's Securities and Exchange Commission
filings.
-11-
Consolidated Balance Sheet
November 30, 1996 And 1995
==========================
1996 1995
Assets ------------ ------------
Cash and cash equivalents $ 4,292,000 $ 5,161,000
Receivables 9,274,000 8,964,000
Inventories 65,525,000 64,246,000
Commercial land and buildings 7,512,000 9,439,000
Investments in joint ventures -- 850,000
Prepaid expenses and other assets 2,154,000 2,756,000
------------ ------------
Total assets $ 88,757,000 $ 91,416,000
============ ============
Liabilities and Shareholders' Equity
Revolving credit agreement $39,500,000 $45,000,000
Mortgages payable 4,445,000 1,227,000
Accounts payable 4,811,000 3,270,000
Accrued expenses and other liabilities 11,915,000 14,906,000
------------ ------------
Total liabilities 60,671,000 64,403,000
------------ ------------
Commitments and contingent liabilities
Shareholders' Equity
Common stock, $.01 par value, 53,700,000 shares
authorized; issued and outstanding 26,527,000
in 1996 and 26,371,000 in 1995 265,000 264,000
Paid in capital 23,441,000 22,822,000
Retained earnings 4,380,000 3,927,000
------------ ------------
Total shareholders' equity 28,086,000 27,013,000
------------ ------------
Total liabilities and shareholders' equity $ 88,757,000 $ 91,416,000
============ ============
See accompanying notes to consolidated financial statements.
-12-
Consolidated Statement Of Operations
====================================
Years Ended November 30,
1996 1995 1994
------------ ------------ ------------
Revenues $122,435,000 $180,843,000 $168,723,000
------------ ------------ ------------
Costs and expenses
Cost of revenues 105,645,000 159,690,000 139,339,000
Provision for estimated
net realizable value -- 1,593,000 400,000
Selling, general and administrative 14,953,000 18,845,000 20,389,000
Restructuring charges -- 1,940,000 --
------------ ------------ ------------
120,598,000 182,068,000 160,128,000
------------ ------------ ------------
Income (loss) from operations 1,837,000 (1,225,000) 8,595,000
Other charges (credits)
Interest expense, net 1,266,000 1,847,000 1,235,000
Other (income) expense (460,000) (765,000) 800,000
------------ ------------ ------------
Income (loss) before income taxes 1,031,000 (2,307,000) 6,560,000
Provision in lieu of income taxes 578,000 831,000 2,367,000
------------ ------------ ------------
Net income (loss) $ 453,000 $ (3,138,000) $ 4,193,000
============ ============ ============
Net income (loss) per share $ .02 $ (.12) $ .16
============ ============ ============
See accompanying notes to consolidated financial statements.
-13-
Consolidated Statement Of Cash Flows
====================================
Years Ended November 30,
1996 1995 1994
------------ ------------ ------------
Cash Flows from Operating Activities
- ------------------------------------
Net income (loss) $ 453,000 $ (3,138,000) $ 4,193,000
Adjustments to reconcile net income
(loss) to net cash provided (used)
by operating activities
Depreciation and amortization 1,418,000 1,741,000 1,877,000
Provision in lieu of income taxes 578,000 831,000 2,928,000
Issuance of stock under 401(k) Plan 42,000 213,000 198,000
Restructuring charges -- 1,940,000 --
Provision for estimated net
realizable value -- 1,593,000 400,000
Option abandonments -- 1,050,000 --
Reserve reversal (440,000) (1,113,000) --
Increase in receivables (37,000) (1,141,000) (1,460,000)
Decrease (increase) in inventories 4,561,000 19,739,000 (13,499,000)
Decrease in commercial land
and buildings 1,868,000 7,158,000 2,154,000
Decrease in accounts payable,
accrued expenses and
other liabilities (2,997,000) (5,508,000) (1,138,000)
Decrease (increase) in prepaid
expenses and other assets 237,000 (555,000) 721,000
------------ ------------ ------------
5,683,000 22,810,000 (3,626,000)
------------ ------------ ------------
Cash Flows from Investing Activities
- ------------------------------------
Distribution from joint venture 725,000 -- --
Increase in property and equipment (58,000) (237,000) (88,000)
------------ ------------ ------------
667,000 (237,000) (88,000)
------------ ------------ ------------
Cash Flows from Financing Activities
- ------------------------------------
Repayment under revolving
credit agreement (9,500,000) (19,500,000) (9,500,000)
Proceeds under revolving
credit agreement 4,000,000 4,500,000 14,500,000
Decrease in mortgages payable (1,719,000) (8,171,000) (882,000)
------------ ------------ ------------
(7,219,000) (23,171,000) 4,118,000
------------ ------------ ------------
Net (decrease) increase in cash and
cash equivalents (869,000) (598,000) 404,000
Cash and cash equivalents at beginning
of year 5,161,000 5,759,000 5,355,000
------------ ------------ ------------
Cash and cash equivalents at
end of year $ 4,292,000 $ 5,161,000 $ 5,759,000
============ ============ ============
See accompanying notes to consolidated financial statements.
-14-
Consolidated Statement Of Shareholders' Equity
==============================================
Retained Total
Common Preferred Paid In Earnings Shareholders'
Stock Stock Capital (Deficit) Equity
---------- --------- ----------- ----------- ------------
Balance,
Nov. 30, 1993 $ 234,000 $ 260,000 $20,527,000 $2,872,000 $ 23,893,000
Net income -- -- -- 4,193,000 4,193,000
Conversion of
preferred stock 26,000 (260,000) 234,000 -- --
Issuance of stock
under 401(k) Plan -- -- 198,000 -- 198,000
Tax adjustment -- -- 719,000 -- 719,000
Amortization of
deferred compensation
related to stock
option plan -- -- 42,000 -- 42,000
---------- --------- ----------- ----------- ------------
Balance,
Nov. 30, 1994 260,000 -- 21,720,000 7,065,000 29,045,000
Net loss -- -- -- (3,138,000) (3,138,000)
Issuance of stock
under 401(k) Plan 4,000 -- 209,000 -- 213,000
Provision in lieu
of income taxes -- -- 831,000 -- 831,000
Amortization of
deferred compensation
related to stock
option plan -- -- 62,000 -- 62,000
---------- --------- ----------- ----------- ------------
Balance,
Nov. 30, 1995 264,000 -- 22,822,000 3,927,000 27,013,000
Net income -- -- -- 453,000 453,000
Issuance of stock
under 401(k) Plan 1,000 -- 41,000 -- 42,000
Provision in lieu
of income taxes -- -- 578,000 -- 578,000
---------- --------- ----------- ----------- ------------
Balance,
Nov. 30, 1996 $ 265,000 $ -- $23,441,000 $ 4,380,000 $ 28,086,000
========== ========= =========== =========== ============
See accompanying notes to consolidated financial statements.
-15-
Notes To Consolidated Financial Statements
==========================================
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
==============================================
Principles of consolidation
- ---------------------------
The consolidated financial statements include the accounts of Calton, Inc. and
all of its wholly-owned and majority-owned subsidiaries (the "Company"). All
significant intercompany accounts and transactions have been eliminated.
The Company designs, constructs and sells single family detached homes
primarily in central New Jersey and central Florida.
Certain reclassifications have been made to prior years' financial statements
in order to conform with the 1996 presentation.
Liquidity and capital resources
- -------------------------------
During the past several years, the Company has financed its operations
primarily from internally generated funds from home deliveries, land sales and
sales of commercial land and buildings. In April 1997, the Company and its
lenders amended the Company's revolving credit facility (the "Facility") to
extend the term of the Facility through February 28, 1998 and, if certain
conditions are satisfied, August 31, 1998. The amended Facility (the "Amended
Facility") reduced the loan commitment level to $30,000,000 at November 30,
1997. The Amended Facility provides the Company an option to extend the term to
August 31, 1998 if outstanding borrowings and the commitment level are reduced
to $20,000,000 or less by February 28, 1998. The Amended Facility changed
various restrictions and financial covenants with which the Company is required
to comply (see Note 5).
The Company is pursuing and will continue to pursue long-term financing to
replace the Amended Facility. Pending such replacement, the Company believes
that funds generated by operating activities, income tax payment reductions
derived from NOL utilization, the sale of certain assets during fiscal 1997 and
borrowing availability under the Amended Facility will provide sufficient
capital to support the Company's operations through the term of the Amended
Facility. If a more favorable long-term credit facility is not obtained, the
rate at which the Company can open new communities may be adversely affected
and the Company would be required to effect sales of substantial assets in
order to obtain an extension of the Amended Facility beyond February 28, 1998.
Income recognition
- ------------------
Revenue and cost of revenue on sales of homes are recognized when individual
homes are completed, and title and other attributes of ownership have been
transferred by means of a closing to the buyer. Revenue and cost of revenue on
land sales are recognized when all conditions precedent to closing have been
fulfilled, a specified minimum down payment has been received and it is
expected that the resulting receivables will be collected.
Cash and cash equivalents
- -------------------------
Cash equivalents consist of short-term, highly liquid investments, with
original maturities of three months or less, that are readily convertible into
cash.
Inventories
- -----------
Inventories are stated at the lower of cost or estimated net realizable value
for each property. Estimated net realizable value has been determined based
upon the amount the Company expects to realize through sale or development
based on management's present plans for each property. In a buildout of a
community, certain assumptions are made concerning future sales prices and
absorption of sales and closings in the community's life span. There is an
inherent risk that those assumptions made may not occur. The estimated net
realizable value of a property may exceed the value which could be obtained
through the immediate sale of the property if development plans for such
property support a higher cost recovery. Cost includes direct and allocated
-16-
indirect costs. Land and land development costs generally include interest and
property taxes incurred. Interest is capitalized using interest rates on
specifically related debt and the Company's average borrowing rate.
Construction costs are accumulated during the period of construction and
charged to Cost of revenues under specific identification methods. Land, land
development and common facility costs are amortized based upon the number of
homes to be constructed in each community utilizing a relative sales value
allocation method. The marketing costs for model homes are capitalized and
depreciated over the life of the community's deliveries on a per unit basis.
In March 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to Be Disposed Of," which requires
impairment losses to be recorded on long-lived assets used in operations when
indicators of impairment are present and the undiscounted cash flows estimated
to be generated by those assets are less than the assets' carrying amount. The
provisions of this statement are effective for fiscal years beginning after
December 15, 1995. If the Company adopted this statement currently, it would
not have a material effect on the Company's financial position, results of
operations or cash flows.
Commercial land and buildings
- -----------------------------
Commercial land and buildings, stated at estimated fair market value, include
certain assumptions in their ultimate disposition such as future cash flow, the
ability of the Company to obtain certain zoning changes and regulatory or
governmental approvals. There is an inherent risk that those assumptions may
not be realized.
Income taxes
- ------------
Deferred income taxes are determined on the liability method in accordance with
Statement of Financial Accounting Standards No. 109 (see Note 8).
Prepaid expenses and other assets
- ---------------------------------
Prepaid expenses and other assets consist primarily of property and equipment,
prepaid architect fees and prepaid insurance. Prepaid architect fees are
amortized on a per unit basis as homes are delivered.
Risks and uncertainties
- -----------------------
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the dates of the financial statements and
the reported amounts of revenues and expenses for the periods reported. Actual
results could differ from those estimates.
The Company, as well as the homebuilding industry in general, is very sensitive
to economic conditions. Inflation, interest rate fluctuations, available
capital and consumer confidence impact the ability of the Company to market,
sell and build homes.
Per share computations
- ----------------------
Per share computations are based upon the weighted average number of shares of
common stock outstanding during each period presented (26,491,000, 26,281,000
and 26,095,000 for the years ended November 30, 1996, 1995 and 1994,
respectively).
-17-
2. RECEIVABLES
===============
Receivables consist of the following (amounts in thousands):
November 30,
1996 1995
------------ ------------
Closing proceeds due $3,850 $4,946
Due from municipalities 2,446 2,573
Mortgages and notes receivable, net 1,491 557
Other 1,487 888
------------ ------------
$9,274 $8,964
============ ============
3. INVENTORIES
===============
The components of inventories are as follows (amounts in thousands):
November 30,
1996 1995
------------ ------------
Land and land development costs $22,969 $20,496
Homes, lots and improvements in production 33,819 39,251
Land purchase options and cost of projects
in planning 8,737 4,499
------------ ------------
$65,525 $64,246
============ ============
Homes, lots and improvements in production represent all costs of homes under
construction including model homes, land and land development costs and the
related carrying costs of these lots.
Interest capitalized in inventories is charged to interest expense as part of
Cost of revenues when the homes are delivered or land sales close. Interest
incurred, capitalized and expensed for the years ended November 30, 1996, 1995
and 1994 is as follows (amounts in thousands):
Years Ended November 30,
1996 1995 1994
-------- -------- --------
Interest expense incurred $ 5,472 $ 7,114 $ 5,543
Interest capitalized 4,067 5,016 4,005
-------- -------- --------
Interest expense - net 1,405 2,098 1,538
Capitalized interest amortized
in cost of revenues 3,616 4,123 2,203
-------- -------- --------
Interest cost reflected in pre-tax income $ 5,021 $ 6,221 $ 3,741
======== ======== ========
In the years ended November 30, 1995 and 1994, the Company recorded provisions
of $1,593,000 and $400,000, respectively, to state inventory to estimated net
realizable value. These charges are reflected in the provision for estimated
net realizable value. No such charges were recorded in 1996. During 1996, the
Company acquired $23,300,000 of land and land options, $4,730,000 of which was
financed by purchase money mortgages. During 1995, the Company acquired
$10,511,000 of land and land options.
4. COMMERCIAL LAND AND BUILDINGS
=================================
During 1996, the Company disposed of commercial land and buildings representing
three parcels of land and a commercial building for total revenues of
$3,169,000 that provided $1,780,000 in cash for operations and a pre-tax gain
of $1,100,000.
For the year ended November 30, 1995, the Company completed the sale of two
commercial buildings for combined proceeds and pre-tax gains of $8,080,000 and
$500,000, respectively. The sales provided approximately $850,000 in cash for
operations after the repayment of mortgage debt of $6,900,000 and contributed
to the reduction of Commercial land and buildings for the year.
-18-
In the last month of 1994, the Company sold a commercial building for $800,000
in cash which reduced Commercial land and buildings by $770,000. The net
proceeds of approximately $750,000 were used to reduce mortgages payable. The
sale of this building did not result in a significant gain or loss.
The Company's remaining commercial properties consist primarily of land located
in Pennsylvania, New Jersey, Florida and California. These properties are
available for sale as a result of management's focus on residential
homebuilding. One of such properties has certain acreage currently under
contract for sale, subject to certain contingencies.
5. REVOLVING CREDIT AGREEMENT
==============================
In April 1997, the Company and its lenders amended the Company's revolving
credit facility (the "Facility") to extend the term of the Facility through
February 28, 1998 and, if certain conditions are satisfied, August 31, 1998.
The amended Facility (the "Amended Facility") reduced the loan commitment level
to $46,000,000 initially and requires amortization of $3,000,000 by July 15,
1997, another $3,000,000 by August 31, 1997 and a further reduction of
$10,000,000 by November 30, 1997. In addition, the Amended Facility increased
the interest rate charged to the Company to the lender's prime rate (8.25% at
November 30, 1996) plus two and one-half percent (2.5%). The Company is required
to pay the lenders, in five (5) installments, a commitment fee, which the
Company will amortize over the extension period ending February 28, 1998, equal
to three percent (3%) of the lenders' initial commitment level under the
Amended Facility. The Amended Facility provides the Company an option to extend
the term to August 31, 1998 if its outstanding borrowings and the commitment
level are reduced to $20,000,000 or less by February 28, 1998. In such event,
the interest rate charged to the Company will be reduced to prime plus two
percent (2%).
The Amended Facility changed various restrictions and financial covenants with
which the Company is required to comply, including covenants relating to cash
basis interest coverage, EBITDA and tangible net worth, and continues to impose
limits on the amount which can be expended on land acquisition and land
development. For the year ended November 30, 1996, the Company's EBITDA was
$7,300,000 compared to $8,600,000 in 1995. Purchase money financing from other
sources would continue to be limited to $5,000,000 under the Amended Facility.
Certain subsidiaries of the Company are guarantors of the obligations under the
Amended Facility. The lenders have a security interest in substantially all of
the assets of the Company and its subsidiaries, subject only to certain
permitted liens approved by the lenders. The Amended Facility prohibits the
payment of dividends by the Company.
Management believes that it will be able to comply with the covenant levels and
other terms set forth in the Company's agreement with the lenders based upon
meeting the levels anticipated in its business plan. However, there can be no
assurance that if market or other conditions deteriorate, that the Company will
meet the covenant levels. If a more favorable long-term credit facility is not
obtained, the rate at which the Company can open new communities may be
adversely affected and the Company would be required to effect sales of
substantial assets in order to obtain an extension of the Amended Facility
beyond February 28, 1998.
At November 30, 1996, approximately $40,900,000, including $1,400,000 of
letters of credit, was outstanding under the Facility. The Facility includes a
borrowing base, based upon a percentage of the Company's eligible inventory,
which restricted borrowings to $42,300,000 at November 30, 1996. The unused
Facility commitment of $8,300,000 was available as of November 30, 1996 to the
Company for investment in inventory that results in the corresponding growth of
its borrowing base. As of November 30, 1996, approximately $1,400,000 was
available to be borrowed under the borrowing base restriction. Substantially
all of the Company's assets are pledged as collateral under the Facility.
Amounts borrowed under the Facility during the year ended November 30, 1996
bore interest at the lenders prime rate (8.25% at November 30, 1996) plus two
percent (2%). The weighted average interest rates for the years ended
November 30, 1996 and 1995 were 11.3% and 11.1%, respectively. The weighted
average amounts borrowed for the corresponding years were $45,445,000 and
$58,105,000, respectively.
The total amount of interest paid, net of amounts capitalized, in the years
ended November 30, 1996, 1995 and 1994 was $1,445,000, $2,124,000 and
$1,440,000, respectively.
-19-
6. MORTGAGES PAYABLE
=====================
Mortgages payable at November 30, 1996 and 1995 were $4,445,000 and $1,227,000,
respectively. Approximately $6,700,000 of inventories are pledged as collateral
for purchase money mortgages to land sellers at November 30, 1996 compared to
$1,885,000 at November 30, 1995. During 1996, the balance of the purchase money
mortgage from year end 1995 was satisfied by payments in exchange for mortgage
releases. During 1996, the Company used purchase money mortgages, in the amount
of $4,730,000, to finance the acquisition of two parcels of land. The interest
rate on each of the purchase money mortgages is at prime (8.25% at November 30,
1996) and is payable on a monthly or semi-annual basis beginning in 1997.
Mortgages payable mature as follows: 1997 - $1,013,000, 1998 - $2,370,000 and
in 1999 - $1,062,000. The weighted average interest rate for mortgages payable
for the years ended November 30, 1996 and 1995 were 8.7% and 10.4%,
respectively.
7. SHAREHOLDERS' EQUITY
========================
The Company's Certificate of Incorporation provides for 53,700,000 authorized
shares of Common Stock (par value $.01 per share), 2,600,000 shares of
Redeemable Convertible Preferred Stock (par value $.10 per share) and
10,000,000 shares of Class A Preferred Stock (par value $.10 per share). None
of the Preferred Stock is issued or outstanding.
In May 1993, the Company adopted the Calton, Inc. 1993 Non-Qualified Stock
Option Plan (the "Plan") under which a total of 1,493,000 shares of Common
Stock were reserved for issuance. As of November 30, 1996, options with respect
to 1,383,000 shares have been granted, net of cancellations, 941,000 of which
were exercisable and none of which have been exercised. Under the terms of the
Plan, options may be granted at an exercise price designated by the Board of
Directors. The exercise price of options granted range from $.31 to $.50 per
share. Options granted under the Plan have a maximum term of ten years.
In April 1996, the Company's shareholders approved the Company's 1996 Equity
Incentive Plan under which a total of 2,000,000 shares of Common Stock were
reserved for issuance. As of November 30, 1996, options with respect to
1,224,000 have been granted, net of cancellations. Under the terms of the plan,
options may be granted at an exercise price equal to the fair market value of
the Common Stock on the date of grant (110% of such fair market value in the
case of an incentive stock option granted to a 10% shareholder). The exercise
prices of outstanding options range from $.34 to $.41 per share with vesting
ranging from one to five years. The exercise period is up to ten years. Of the
vested shares, none have been exercised.
In October 1995, the Financial Accounting Standards Board issued Statement No.
123, "Accounting for Stock Based Compensation." The provisions of this
statement are effective for fiscal years beginning after December 15, 1995. The
Company intends to implement the disclosure-only provision of this statement.
Accordingly, if the Company adopted this statement currently, it would not have
a material affect on the Company's financial position, results of operations or
cash flows.
8. INCOME TAXES
================
The components of the provision in lieu of income taxes are as follows (amounts
in thousands):
Years Ended November 30,
1996 1995 1994
-------- -------- --------
Federal
Current $ -- $ -- $ --
Deferred -- -- --
Provision in lieu of income taxes 351 479 2,537
State
Current -- 79 24
Deferred -- -- --
Provision/(benefit) in lieu of income taxes 227 273 (194)
-------- -------- --------
$ 578 $ 831 $ 2,367
======== ======== ========
-20-
The following schedule reconciles the federal provision in lieu of income taxes
computed at the statutory rate to the actual provision in lieu of income taxes
(amounts in thousands):
Years Ended November 30,
1996 1995 1994
-------- -------- --------
Computed provision/(benefit) in lieu
of income taxes at 34% $ 361 $ (784) $ 2,231
Expenses for which deferred tax benefit
cannot be currently recognized -- 1,258 409
State and local tax provision 227 352 346
State tax reserves -- -- (695)
Other, net (10) 5 76
-------- -------- --------
Total provision in lieu of income taxes $ 578 $ 831 $ 2,367
======== ======== ========
Fresh-start accounting and reporting requires the Company to report a provision
in lieu of income taxes when the Company recognizes a pre-reorganization
deferred tax asset. This requirement applies despite the fact that the
Company's pre-reorganization net operating loss carryforward and other deferred
tax assets would eliminate the related federal income tax payable. The current
and future year tax benefit related to the pre-reorganization net deferred tax
asset is recorded as a direct increase to paid in capital. The net deferred tax
asset of $19,628,000 is primarily attributable to pre-reorganization deductible
temporary differences.
Temporary differences and carryforwards which give rise to a significant
portion of deferred tax assets and liabilities at November 30, 1996 and 1995
are as follows (amounts in thousands):
November 30, 1996 November 30, 1995
Deferred Deferred Deferred Deferred
Tax Tax Lia- Tax Tax Lia-
Assets bilities Assets bilities
-------- -------- -------- --------
Fresh-start inventory reserves $ 402 $ -- $ 1,114 $ --
Income from joint ventures 416 452 328 417
Inventory and other reserves 1,344 -- 2,064 --
Preproduction interest -- 536 -- 536
Capitalized inventory costs 150 972 438 782
Federal net operating losses 9,083 -- 7,568 --
State net operating losses 8,991 -- 6,647 --
Depreciation 382 373 285 89
Deferred state taxes 735 -- 1,691 --
Other 495 37 374 38
-------- -------- -------- --------
21,998 2,370 20,509 1,862
Valuation allowance (19,628) -- (18,647) --
-------- -------- -------- --------
Total deferred taxes $ 2,370 $ 2,370 $ 1,862 $ 1,862
======== ======== ======== ========
Deferred income taxes arise from temporary differences between the tax basis of
assets and liabilities and their reported amounts in the financial statements.
For federal and state tax purposes, a valuation allowance was provided on the
deferred tax assets due to uncertainty of realization. Federal tax effects of
deferred tax assets were recognized to the extent of existing available
deferred tax credits.
The federal net operating loss carryforward for tax purposes is approximately
$26,500,000 at November 30, 1996 and $22,000,000 at November 30, 1995. The
Company's ability to use its deferred tax assets, created prior to the change
in the Company's ownership, to offset future income is $1,627,000 per year
under Section 382 of the Internal Revenue Code as a result of the change in
control of the Company in November of 1995. These federal carryforwards will
expire between 2007 and 2011. The Company received an income tax refund of
-21-
$50,000 in 1995. No such amounts were received in 1996 and 1994.
9. COMMITMENTS AND CONTINGENT LIABILITIES
==========================================
(a) In July 1994, an action was filed against Calton Homes, Inc., the Township
of Plainsboro, New Jersey and its planning board, certain real estate brokers
and certain unnamed officers of Calton Homes, Inc., by approximately 60
purchasers in the Company's Princeton Manor development seeking compensatory
and punitive damages arising out of an alleged failure to disclose that a
portion of the property adjacent to the community could be developed by
Plainsboro Township as a public works site. The Company is vigorously
contesting this matter and, although there can be no assurances, does not
believe that the case will have any material effect on the financial position,
results of operations or cash flows of the Company. In addition, the Company
believes that it is contractually entitled to indemnification from Plainsboro
Township in the event that any liability should arise.
(b) In June 1996, the Federal Deposit Insurance Corporation (the "FDIC"), in
its capacity as Liquidating Agent/Receiver of Eliot Savings Bank, instituted an
action in the United States District Court, District of Massachusetts, seeking
recovery of amounts owed under a $5,700,000 promissory note (the "Note") issued
to Eliot Savings Bank by the Residences at the Surf joint venture (the "Joint
Venture"), an entity in which a Talcon, L.P. ("Talcon") subsidiary had an
interest. This action relates to a loan on property owned by the Joint Venture.
The loan was placed on the property before Talcon was formed. Accordingly, in
connection with the creation of Talcon, the interest in the Joint Venture was
transferred upstream to Calton, Inc. and then transferred downstream into
Talcon, and eventually into the Talcon subsidiary. In its suit, the FDIC
alleges, among other things, that Calton, by virtue of the assignment of the
interest in the Joint Venture to Calton in 1987, has liability as a general
partner in the Joint Venture and is seeking to collect approximately
$8,700,000 in principal and interest from Calton and other parties. While no
discovery has occurred to date, based upon a preliminary analysis of this
matter, Calton believes that the FDIC's position is contrary to applicable law
and that Calton does not have any obligations under the Note by virtue of the
assignment of the interest in the Joint Venture to Calton or otherwise. The
Company will vigorously contest this matter but there can be no assurances that
the case will not have a material adverse effect on the Company's financial
position, results of operations or cash flows.
(c) The Company is involved from, time to time, in other litigation in the
ordinary course of business. Management presently believes that the resolution
of any such matter should not have a material, adverse effect on the financial
condition, results of operations or cash flows of the Company.
(d) The Company is obligated under two operating leases, in New Jersey and
Florida, for office space expiring in November 1997 for the corporate office
facility and in December 2000 for the Florida space, with total annual rentals
of approximately $298,000 in 1997 and $56,000 through the year 2000,
respectively. Rental expense for the years ended November 30, 1996, 1995 and
1994 amounted to $726,000, $781,000 and $715,000, respectively.
(e) The Company has a qualified contributory retirement plan (401(k) Plan)
which covers all eligible full-time employees with a minimum of one year of
service. Employees may contribute up to eighteen percent (18%) of their annual
compensation with employer matching at the Company's discretion. The Company's
contribution to the plan was $42,000 in 1996, $213,000 in 1995 and $198,000 in
1994. The Company's matching contribution, in the form of registered Common
Stock of the Company, for 1996 was 5% of participant contributions. The
Company's matching contribution, in the form of registered Common Stock of the
Company, for 1997 will be 15% of participant contributions.
(f) Commitments include the usual obligations of housing producers for the
completion of contracts in the ordinary course of business.
10. INVESTMENTS IN JOINT VENTURES
==================================
During 1996, the Company received $725,000 from the liquidation of a joint
venture in which it previously participated. In addition, the Company received
$460,000 on a fully reserved note receivable from a previous joint venture. The
payment on the fully reserved note is classified as non-operating Other
(income) expense.
-22-
The Company previously wrote off its entire equity investment in Talcon. In
connection with Talcon's dissolution and liquidation, it paid the Company
$890,000 in 1995 in full satisfaction of its debt obligations. This payment was
classified as non-operating Other (income) expense.
11. QUARTERLY FINANCIAL RESULTS (UNAUDITED)
============================================
Quarterly financial results for the years ended November 30, 1996 and 1995 are
as follows (amounts in thousands, except per share amounts):
Three Months Ended
------------------------------------------------------------
February 29, May 31, August 31, November 30,
1996 1996 1996 1996
------------ ------------ ------------ ------------
Revenues $ 19,456 $ 28,675 $ 33,355 $ 40,949
Gross profit 2,074 3,455(b) 4,746(c) 6,515(c)
Net income (loss) (649) (294)(a) 385(a) 1,011(a)
Net income (loss)
per share (.02) (.01) .01 .04
Three Months Ended
------------------------------------------------------------
February 28, May 31, August 31, November 30,
1995 1995 1995 1995
------------ ------------ ------------ ------------
Revenues $ 38,215 $ 38,836 $ 60,362 $ 43,430
Gross profit 4,411 4,403(e) 7,418 3,328
Net income (loss) (375)(d) (316) 1,008 (3,455)(f)
Net income (loss)
per share (.01) (.01) .04 (.13)
(a) Includes income in the second, third and fourth quarter of $110,000,
$150,000 and $200,000, respectively, from the partial collection of a note
previously reserved.
(b) Includes a $150,000 reversal of a sales tax estimate accrued in the fourth
quarter of 1995 and resolved in the second quarter of 1996.
(c) Includes a reversal of accruals in the amount of $105,000 and $185,000 in
the third and fourth quarters of 1996 due to the resolution of certain
construction obligations and litigation exposures.
(d) Includes a $200,000 charge for costs primarily associated with the
consolidation of the New Jersey-North and New Jersey-South divisions.
(e) Includes a $1.1 million charge resulting from abandoning nine properties
under option and a credit of $1.1 million realized from the reversal of a
reserve previously provided on a community substantially completed in the
second quarter of 1995.
(f) Includes $1.6 million writedown of inventories to estimated net realizable
value, $1.1 million of restructuring charges related to the wind down of the
Chicago division and $640,000 in executive severance, partially offset by the
$820,000 collection of a note previously reserved. Of the $1.1 million charge,
$727,000 was applied as a reduction to inventory as a result of the anticipated
market reaction to the wind down and not proceeding with the scheduled lot
takedowns at the division's two communities. The wind down was substantially
completed by the end of fiscal 1996.
-23-
Report Of Independent Accountants
Board of Directors and Shareholders of Calton, Inc.
===================================================
We have audited the accompanying consolidated balance sheet of Calton, Inc. and
Subsidiaries as of November 30, 1996 and 1995 and the related consolidated
statements of operations, shareholders' equity and cash flows for the years
ended November 30, 1996, 1995 and 1994. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Calton, Inc. and
Subsidiaries as of November 30, 1996 and 1995 and the consolidated results of
their operations and their cash flows for the years ended November 30, 1996,
1995 and 1994 in conformity with generally accepted accounting principles.
/s/ Coopers & Lybrand, L.L.P.
Princeton, New Jersey
January 10, 1997, except for
Notes 1 and 5 as to which the
date is April 11, 1997
Calton, Inc. Common Stock
=========================
Calton, Inc. common stock is traded on the American Stock Exchange ("AMEX")
under the symbol CN. The following reflects the high and low sales prices of
the common stock during fiscal 1996 and 1995.
Fiscal 1996 High Low
==== ====
1st Quarter 7/16 5/16
2nd Quarter 3/4 3/8
3rd Quarter 1/2 5/16
4th Quarter 3/8 1/4
Fiscal 1995 High Low
==== ====
1st Quarter 1-1/8 5/8
2nd Quarter 11/16 3/8
3rd Quarter 1/2 3/8
4th Quarter 9/16 5/16
At March 14, 1997, there were approximately 650 record holders of the Company's
common stock. On that date, the last sale price for the common stock as
reported by AMEX was $.375.
-24-
EXHIBIT 21
SUBSIDIARIES OF CALTON, INC.
Calton Homes, Inc. Calcap XV, Inc.
Calcap Commercial Management, Inc. Calcap XXXI, Inc.
Calton Homes of Florida, Inc. (1) Calcap XXXII, Inc.
Calton Homes of Pennsylvania, Inc. (2) Calcap XXXIII, Inc.
Calton Homes of Pennsylvania at Calcap XXXIV, Inc.
Pennway, Inc. (2) Calcap 36, Inc.
Calton Homes of California, Inc. (3) Calcap 42, Inc.
Calton California Equity Corp. (3) Calcap 46, Inc.
Calton Manzanita Corp. (3) Calcap 48, Inc.
Calton Tamarack Corp. (3) Calton General, Inc.
Calton Lindenwood Corp. (3) Calton Funding, Inc.
Calton Homes Finance, Inc. Talcon Assignment, Inc.
Calton Homes Finance II, Inc. Calton Homes of Chicago, Inc. (4)
Calton Capital, Inc. Haddon Group of Virginia, Inc.
Calton Capital II, Inc. Wagner Joint Venture
Calcap X, Inc. Pennway Joint Venture
All subsidiaries are incorporated or organized under the laws of the State of
New Jersey, except those marked with a (1), (2), (3) and (4), which are
incorporated under the laws of Florida, Pennsylvania, California and Illinois,
respectively.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> NOV-30-1997
<PERIOD-END> NOV-30-1997
<CASH> 4,292,000
<SECURITIES> 0
<RECEIVABLES> 9,274,000
<ALLOWANCES> 0
<INVENTORY> 73,037,000
<CURRENT-ASSETS> 88,456,000
<PP&E> 301,000
<DEPRECIATION> 0
<TOTAL-ASSETS> 88,757,000
<CURRENT-LIABILITIES> 4,811,000
<BONDS> 43,945,000
0
0
<COMMON> 265,000
<OTHER-SE> 27,821,000
<TOTAL-LIABILITY-AND-EQUITY> 88,757,000
<SALES> 122,465,000
<TOTAL-REVENUES> 122,465,000
<CGS> 105,645,000
<TOTAL-COSTS> 120,598,000
<OTHER-EXPENSES> (460,000)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,266,000
<INCOME-PRETAX> 1,031,000
<INCOME-TAX> 578,000
<INCOME-CONTINUING> 453,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 453,000
<EPS-PRIMARY> .02
<EPS-DILUTED> .02
</TABLE>
