=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-9804
PULTE CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 38-2766606
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
33 Bloomfield Hills Pkwy., Suite 200,
Bloomfield Hills, Michigan 48304
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (248) 647-2750
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Sections 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding twelve months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to the filing requirements for the past 90 days.
YES _X_ NO___
Number of shares of common stock outstanding as of October 31, 1999:
43,249,780
Total pages: 41
Listing of exhibits: 40
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PULTE CORPORATION
INDEX
Page No.
--------
PART I FINANCIAL INFORMATION
Item 1 Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets, September 30, 1999 and
December 31, 1998................................................. 3
Condensed Consolidated Statements of Income, Three and Nine
Months Ended September 30, 1999 and 1998........................... 4
Condensed Consolidated Statement of Shareholders' Equity, Nine
Months Ended September 30, 1999.................................... 5
Condensed Consolidated Statements of Cash Flows, Nine Months
Ended September 30, 1999 and 1998................................. 6
Notes to Condensed Consolidated Financial Statements................ 8
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations..................... 23
Item 3 Quantitative and Qualitative Disclosures About
Market Risk............................................. 38
PART II OTHER INFORMATION
Item 1 Legal Proceedings....................................... 40
Item 5 Other Information....................................... 40
Item 6 Exhibits................................................ 40
SIGNATURES......................................................... 41
2
PART 1. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PULTE CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
($000's omitted)
ASSETS
September 30, December 31,
1999 1998
------------- ------------
(Unaudited) (Note)
<S> <C> <C>
Cash and equivalents .................................................. $ 30,587 $ 125,198
Unfunded settlements .................................................. 59,088 49,140
House and land inventories ............................................ 1,879,075 1,455,208
Mortgage-backed and related securities ................................ -- 29,290
Residential mortgage loans available-for-sale ......................... 149,854 234,974
Other assets .......................................................... 409,299 367,351
Discontinued operations ............................................... 91,197 88,678
---------- ----------
Total assets ...................................................... $2,619,100 $2,349,839
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued liabilities, including book overdrafts
of $152,138 and $112,688 in 1999 and 1998, respectively ........ $ 701,998 $ 575,373
Unsecured short-term borrowings ................................... 150,000 --
Collateralized short-term debt, recourse solely to applicable
subsidiary assets .............................................. 163,579 217,060
Mortgage-backed bonds, recourse solely to applicable subsidiary
assets ......................................................... -- 28,075
Income taxes ...................................................... 4,348 9,592
Subordinated debentures and senior notes .......................... 518,391 542,039
Discontinued operations ........................................... 56,684 56,258
---------- ----------
Total liabilities .............................................. 1,595,000 1,428,397
Shareholders' equity .............................................. 1,024,100 921,442
---------- ----------
Total liabilities and shareholders' equity ........................ $2,619,100 $2,349,839
========== ==========
<FN>
Note: The balance sheet at December 31, 1998 has been derived from the
audited financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements.
See accompanying notes to condensed consolidated financial statements.
</TABLE>
3
<TABLE>
<CAPTION>
PULTE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(000's omitted, except per share data)
(Unaudited)
Three Months Ended Nine Months Ended
September 30, September 30,
----------------- -------------------
1999 1998 1999 1998
---- ---- ---- ----
Revenues:
<S> <C> <C> <C> <C>
Homebuilding .......................................... $961,740 $746,680 $2,449,880 $1,918,869
Mortgage banking and financing, interest and other .... 10,703 11,286 37,872 31,022
Corporate ............................................. 674 1,368 1,984 9,711
-------- -------- ---------- ----------
Total revenues ............................ 973,117 759,334 2,489,736 1,959,602
-------- -------- ---------- ----------
Expenses:
Homebuilding, principally cost of sales ............... 880,243 696,587 2,268,548 1,808,890
Mortgage banking and financing, interest and other .... 7,164 6,386 22,055 20,174
Corporate, net ........................................ 10,365 6,676 28,322 26,718
-------- -------- ---------- ----------
Total expenses ............................ 897,772 709,649 2,318,925 1,855,782
-------- -------- ---------- ----------
Other income:
Equity in income (loss) of Pulte-affiliates ........... 617 (3,021) 2,777 (608)
-------- -------- ---------- ----------
Income from continuing operations before income
taxes ................................................. 75,962 46,664 173,588 103,212
Income taxes ............................................. 28,485 18,199 65,094 40,251
-------- -------- ---------- ----------
Income from continuing operations ........................ 47,477 28,465 108,494 62,961
Income (loss) from discontinued thrift operations,
net of income taxes ................................... (383) 91 46 700
-------- -------- ---------- ----------
Net income ............................................... $ 47,094 $ 28,556 $ 108,540 $ 63,661
======== ======== ========== ==========
Per share data:
Basic:
Income from continuing operations .................. $ 1.10 $ .66 $ 2.51 $ 1.47
Income (loss) from discontinued operations ......... (.01) -- -- .01
------- -------- ---------- ----------
Net income ......................................... $ 1.09 $ .66 $ 2.51 $ 1.48
======= ======== ========== ==========
Assuming dilution:
Income from continuing operations .................. $ 1.08 $ .64 $ 2.47 $ 1.44
Income (loss) from discontinued operations ......... (.01) -- -- .01
------- -------- ---------- ----------
Net income ......................................... $ 1.07 $ .64 $ 2.47 $ 1.45
======= ======== ========== ==========
Cash dividends declared ............................... $ .08 $ .08 $ .16 $ .15
======= ======== ========== ==========
Number of shares used in calculation:
Basic:
Weighted-average common shares outstanding ...... 43,248 43,136 43,242 42,923
Assuming dilution:
Effect of dilutive securities - stock options ... 585 1,144 671 925
------- -------- ---------- ----------
Adjusted weighted-average common shares
and effect of dilutive securities ......... 43,833 44,280 43,913 43,848
======= ======== ========== ==========
<FN>
See accompanying notes to condensed consolidated financial statements.
</TABLE>
4
<TABLE>
<CAPTION>
PULTE CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
($000's omitted)
(Unaudited)
Accumulated
Additional Other
Common Paid-in Comprehensive Retained
Stock Capital Income Earnings Total
------ ------- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Shareholders' Equity, December 31, 1998 ...... $ 432 $75,051 $ 1,130 $844,829 $ 921,442
Exercise of stock options .................... -- 1,695 -- -- 1,695
Cash dividends declared ...................... -- -- -- (6,919) (6,919)
Comprehensive income:
Net income ............................... -- -- -- 108,540 108,540
Change in unrealized gains on securities
available-for-sale, net of income taxes. -- -- (1,130) -- (1,130)
Foreign currency translation adjustments . -- -- 472 -- 472
----- ------- ------- -------- ----------
Shareholders' Equity, September 30, 1999 ..... $ 432 $76,746 $ 472 $946,450 $1,024,100
===== ======= ======= ======== ==========
<FN>
See accompanying notes to condensed consolidated financial statements.
</TABLE>
5
<TABLE>
<CAPTION>
PULTE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
($000's omitted)
(Unaudited)
Nine Months Ended
September 30,
------------------
1999 1998
---- ----
<S> <C> <C>
Continuing operations:
Cash flows from operating activities:
Income from continuing operations ......................... $ 108,494 $ 62,961
Adjustments to reconcile income from continuing
operations to net cash flows provided by (used in)
operating activities:
Amortization, depreciation and other .............. 8,569 4,213
Deferred income taxes ............................. (1,915) (4,782)
Gain on sale of securities ........................ (1,664) --
Increase (decrease) in cash due to:
Inventories .................................... (344,538) (109,555)
Residential mortgage loans available-for-sale .. 85,120 49,527
Other assets ................................... (90,009) 27,030
Accounts payable and accrued liabilities ....... 125,593 33,254
Income taxes ................................... 20,417 24,371
--------- ---------
Net cash provided by (used in) operating activities ......... (89,933) 87,019
--------- ---------
Cash flows from investing activities:
Proceeds from sale of securities available-for-sale ....... 27,886 --
Principal payments of mortgage-backed securities .......... 1,490 7,196
Cash paid for acquisitions, net of cash acquired .......... (24,714) (158,832)
Other, net ................................................ (1,579) (477)
--------- ---------
Net cash provided by (used in) investing activities ......... 3,083 (152,113)
--------- ---------
Cash flows from financing activities:
Payment of long-term debt and bonds ....................... (50,187) (8,001)
Proceeds from borrowings .................................. 150,960 31,969
Repayment of borrowings ................................... (103,459) (53,347)
Dividends paid ............................................ (6,919) (4,727)
Other, net ................................................ 1,844 8,282
--------- ---------
Net cash used in financing activities ....................... (7,761) (25,824)
--------- ---------
Net decrease in cash and equivalents - continuing
operations ................................................ $ (94,611) $ (90,918)
--------- ---------
</TABLE>
6
<TABLE>
<CAPTION>
PULTE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
($000's omitted)
(Unaudited)
Nine Months Ended
September 30,
-----------------
1999 1998
---- ----
<S> <C> <C>
Discontinued Operations:
Cash flows from operating activities:
Income from discontinued operations .................. $ 46 $ 700
Change in deferred taxes ............................. 25,621 17,738
Change in income taxes ............................... (25,661) (18,846)
Other changes, net ................................... 2,663 7,781
Cash flows from investing activities:
Purchase of securities available-for-sale ............ 216 (21,809)
Principal payments of mortgage-backed securities ..... -- 21,900
Decrease (increase) in Covered Assets and
FSLIC Resolution Fund (FRF) receivables ........... (2,926) 34,642
Cash flows from financing activities:
Increase in deposit liabilities ...................... -- 8,312
Repayment of borrowings .............................. -- (31,560)
Decrease in Federal Home Loan Bank (FHLB) advances ... -- (3,100)
-------- --------
Net increase (decrease) in cash and equivalents-
discontinued operations ............................... (41) 15,758
-------- --------
Net decrease in cash and equivalents ..................... (94,652) (75,160)
Cash and equivalents at beginning of period .............. 125,329 247,308
-------- --------
Cash and equivalents at end of period .................... $ 30,677 $172,148
======== ========
Cash - continuing operations ............................. $ 30,587 $154,238
Cash - discontinued operations ........................... 90 17,910
-------- --------
$ 30,677 $172,148
======== ========
Supplemental disclosure of cash flow information-
cash paid during the period for:
Interest, net of amount capitalized:
Continuing operations ............................ $ 14,173 $ 21,338
Discontinued operations .......................... -- 1,415
-------- --------
$ 14,173 $ 22,753
======== ========
Income taxes ......................................... $ 44,875 $ 21,168
======== ========
<FN>
See accompanying notes to condensed consolidated financial statements.
</TABLE>
7
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
($000's omitted)
(Unaudited)
1. Basis of presentation and significant accounting policies
The condensed consolidated financial statements include the accounts of
Pulte Corporation (the Company), and all of its significant
subsidiaries. The Company's direct subsidiaries include Pulte Financial
Companies, Inc. (PFCI), Pulte Diversified Companies, Inc. (PDCI) and
other subsidiaries which are engaged in the homebuilding business.
PDCI's operating subsidiaries include Pulte Home Corporation (Pulte),
Pulte International Corporation (International) and other subsidiaries
which are engaged in the homebuilding business. PDCI's non-operating
thrift subsidiary, First Heights Bank, fsb (First Heights), has been
classified as a discontinued operation (See Note 2). The Company also
has a mortgage banking company, Pulte Mortgage Company (PMC), which is
a subsidiary of Pulte.
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and nine month periods
ended September 30, 1999 are not necessarily indicative of the results
that may be expected for the year ending December 31, 1999. These
financial statements should be read in conjunction with the Company's
consolidated financial statements and footnotes thereto included in the
Company's annual report on Form 10-K for the year ended December 31,
1998.
Certain 1998 classifications have been changed to conform with the 1999
presentation.
International operations are conducted in Mexico and Puerto Rico.
Mexico homebuilding operations comprise several equity investments
which are accounted for under the equity method. Gains and losses
resulting from the change in Mexican peso exchange rates are recognized
in accordance with Statement of Financial Accounting Standards (SFAS)
No. 52, Foreign Currency Translation. During 1998, the Mexican economy
was considered hyper-inflationary; accordingly, SFAS 52 required that
the U.S. dollar be the assumed functional currency of the Company's
investments in Mexico. During 1998, the three-year cumulative rate of
inflation in Mexico fell below 100%; resulting in the Mexican economy
no longer being considered hyperinflationary. Effective January 1,
1999, the functional currency of the Company's investments in Mexico is
the Mexican peso.
The Company's comprehensive income other than net income consists of
unrealized gains/(losses) on securities available-for-sale, net of tax
and foreign currency translation adjustments. For the quarters ended
September 30, 1999 and 1998, the Company's comprehensive income other
than net income amounted to $239 and $(119), respectively, net of tax
(benefit)/provision of $41 and $(76), respectively. For the nine months
ended September 30, 1999 and 1998, the Company's comprehensive income
other than net income amounted to $(658) and $(443), respectively, net
of tax (benefit)/provision of $(681) and $(261), respectively.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," as amended by SFAS No. 137, which
is required to be adopted for years beginning after June 15, 2000, with
earlier adoption encouraged. This Statement will require the Company to
recognize all derivatives on the balance sheet at fair value.
Derivatives that are not hedges must be adjusted to fair value through
income. If the derivative is a hedge, depending on the nature of the
hedge, changes in the fair value of derivatives will either be offset
against the change in fair value of the hedged assets, liabilities, or
firm commitments through earnings or recognized in other comprehensive
income until the hedged item is recognized in earnings. Pulte Mortgage,
in the normal course of business, uses derivative financial instruments
to meet the financing needs of its customers and reduce its own
exposure to fluctuations in interest rates. The Company plans to adopt
this statement on January 1, 2001, but has not yet determined what
effect Statement No. 133 will have on its earnings and financial
position.
8
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
2. Discontinued operations
During the first quarter of 1994, the Company adopted a plan of
disposal for First Heights and announced its strategy to exit the
thrift industry and increase its focus on housing and related mortgage
banking. First Heights sold all but one of its 32 bank branches and
related deposits to two unrelated purchasers. The sale was
substantially completed during the fourth quarter of 1994, although the
Company held brokered deposits which were not liquidated until the end
of 1998.
At the time, the Company expected to complete the plan of disposal
within a reasonable period of time; however, contractual disputes with
the FDIC prevented the prepayment of the FSLIC Resolution Fund (FRF)
notes, thereby precluding the Company from completing the disposal in
accordance with its original plan. To provide liquidity for the sale,
First Heights liquidated its investment portfolios and its
single-family residential loan portfolio and, as provided in the
Assistance Agreement, entered into a Liquidity Assistance Note (LAN)
with the Federal Deposit Insurance Corporation (FDIC) acting in its
capacity as manager of FRF. The LAN is collateralized by the FRF notes
and bears interest at a rate indexed to the Texas Cost of Funds plus a
spread. The LAN and the FRF notes matured in September 1998; however,
payment of these obligations is being withheld by both parties pending
resolution of all open matters with the FDIC. As discussed in Note 4,
the Company is involved in litigation with the FDIC and as part of this
litigation, the parties have asserted various claims with respect to
obligations under the promissory notes issued by each of the parties in
connection with the thrift acquisition and related activities.
As of December 31, 1998, First Heights no longer held any deposits, nor
did it maintain an investment portfolio. First Heights' day-to-day
activities have been principally devoted to supporting residual
regulatory compliance matters and the litigation with the FDIC; and are
not reflective of the active operations of the former thrift, such as
maintaining traditional transaction accounts, (e.g., checking and
savings accounts) or making loans. Accordingly, such operations are
being presented as discontinued.
Revenues of the Company's discontinued thrift operations primarily
represent interest income on the outstanding FRF notes and receivables,
and for the three and nine months ended September 30, 1999 amounted to
$968 and $3,053 respectively. Revenues for the comparable periods of
1998 were $1,565 and $5,131, respectively. For the three and nine
months ended September 30, 1999, discontinued thrift operations
provided after-tax income (loss) of $(383) and $46, respectively. After
tax income for the comparable periods of 1998 were $91 and $700,
respectively.
3. Segment information
The Company has three reportable segments: Homebuilding, Financial
Services and Corporate. The Company's Homebuilding segment consists of
the following three business lines:
o Domestic Homebuilding, the Company's core business, is engaged in
the acquisition/development of land primarily for residential
purposes within the continental United States and the construction
of housing on such land targeted for the first-time, first and
second move-up, and active adult buyer groups.
o International Homebuilding is primarily engaged in the
acquisition/development of land primarily for residential
purposes, and the construction of housing on such land in Puerto
Rico and Mexico.
o Active Adult Homebuilding is engaged in the development of
amenitized, age-targeted and age-restricted communities throughout
the continental United States appealing to a growing demographic
group in their pre-retirement/retirement years.
The Company's Financial Services segment consists principally of
mortgage banking operations conducted through PMC and other mortgage
banking subsidiaries, and to a minor extent, the operations of PFCI, a
financing subsidiary of the Company.
9
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
3. Segment information (continued)
Corporate is a non-operating business segment whose primary purpose is
to support the operations of the Company's subsidiaries as the internal
source of financing, to develop and implement strategic initiatives
centered on new business development and operating efficiencies, and to
provide the necessary administrative support functions to support the
Company as a publicly traded entity.
<TABLE>
<CAPTION>
Operating Data by Segment
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
Homebuilding .......................... $961,740 $746,680 $2,449,880 $1,918,869
Financial Services .................... 10,703 11,286 37,872 31,022
Corporate ............................. 674 1,368 1,984 9,711
-------- -------- ---------- ----------
Total revenues .................. 973,117 759,334 2,489,736 1,959,602
-------- -------- ---------- ----------
Cost of sales:
Homebuilding .......................... 791,862 627,449 2,027,770 1,617,505
Financial Services .................... -- -- -- --
Corporate ............................. -- -- -- --
-------- -------- ---------- ----------
Total cost of sales ............. 791,862 627,449 2,027,770 1,617,505
-------- -------- ---------- ----------
Selling, general and administrative:
Homebuilding .......................... 81,672 63,763 222,299 175,674
Financial Services .................... 5,430 4,380 16,317 13,445
Corporate ............................. 2,084 1,492 5,512 5,325
-------- -------- ---------- ----------
Total selling, general and
administrative ................ 89,186 69,635 244,128 194,444
-------- -------- ---------- ----------
Interest:
Homebuilding .......................... 7,022 5,398 16,596 14,241
Financial Services .................... 1,734 2,006 5,488 6,529
Corporate ............................. 5,851 4,808 15,567 18,137
-------- -------- ---------- ----------
Total interest .................. 14,607 12,212 37,651 38,907
-------- -------- ---------- ----------
Other expense (income), net:
Homebuilding .......................... (313) (23) 1,883 1,470
Financial Services .................... -- -- 250 200
Corporate ............................. 2,430 376 7,243 3,256
-------- -------- ---------- ----------
Total other expense, net ........ 2,117 353 9,376 4,926
-------- -------- ---------- ----------
Total costs and expenses ................. 897,772 709,649 2,318,925 1,855,782
-------- -------- ---------- ----------
Equity in income (loss) of joint ventures:
Homebuilding .......................... 617 (3,021) 2,777 (608)
Financial Services .................... -- -- -- --
Corporate ............................. -- -- -- --
-------- -------- ---------- ----------
Total equity in income (loss) of
joint ventures ................ 617 (3,021) 2,777 (608)
-------- -------- ---------- ----------
Income from continuing operations
before income taxes .................. $ 75,962 $ 46,664 $ 173,588 $ 103,212
======== ======== ========== ==========
</TABLE>
10
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
3. Segment information (continued)
<TABLE>
<CAPTION>
Asset Data by Segment Financial
Homebuilding Services Corporate Total
------------ --------- --------- -----
<S> <C> <C>
At September 30, 1999:
House inventory......................... $ 622,626 -- -- $ 622,626
Land inventory.......................... 1,256,449 -- -- 1,256,449
---------- -------- -------- ----------
Total Inventory.................... $1,879,075 $ -- $ -- $1,879,075
========== ======== ======== ==========
Identifiable assets..................... $2,272,641 $161,588 $ 93,674 $2,527,903
Assets of discontinued operations....... 91,197
----------
Total assets............................ $2,619,100
==========
At December 31, 1998:
House inventory......................... $ 403,443 $ -- $ -- $ 403,443
Land inventory.......................... 1,051,765 -- -- 1,051,765
---------- -------- -------- ---------
Total Inventory.................... $1,455,208 $ -- $ -- $1,455,208
========== ======== ======== ==========
Identifiable assets..................... $1,782,644 $274,488 $204,029 $2,261,161
Assets of discontinued operations....... 88,678
----------
Total assets............................ $2,349,839
==========
</TABLE>
4. Commitments and contingencies
The Company is involved in various litigation incidental to its
continuing business operations. Management believes that none of this
litigation will have a material adverse impact on the results of
operations or financial position of the Company.
First Heights-Related Litigation
The Company is a party to two lawsuits relating to First Heights' 1988
acquisition from the Federal Savings and Loan Insurance Corporation
(FSLIC), and First Heights' ownership of five failed Texas thrifts. The
first lawsuit (the "District Court Case") was filed on July 7, 1995 in
the United States District Court, Eastern District of Michigan, by the
Federal Deposit Insurance Corporation (FDIC) against the Company, PDCI
and First Heights (collectively, the "Pulte Parties"). The second
lawsuit (the "Court of Federal Claims Case") was filed on December 26,
1996 in the United States Court of Federal Claims (Washington, D.C.) by
the Pulte Parties against the United States. In the District Court
Case, the FDIC seeks a declaration of rights and other relief related
to the assistance agreement entered into between First Heights and the
FSLIC. The FDIC is the successor to FSLIC. The FDIC and the Pulte
Parties disagree about the proper interpretation of provisions in the
assistance agreement which provide for sharing of certain tax benefits
achieved in connection with First Heights' 1988 acquisition and
ownership of the five failed Texas thrifts. The District Court Case
also includes certain other claims relating to the foregoing, including
claims resulting from the Company's and First Heights' amendment of a
tax sharing and allocation agreement between the Company and First
Heights. The Pulte Parties dispute the FDIC's claims and believe that a
proper interpretation of the assistance agreement limits the FDIC's
participation in tax benefits. The Pulte Parties filed an answer and a
counterclaim, seeking, among other things, a declaration that the FDIC
has breached the assistance agreement in numerous respects. On December
24, 1996, the Pulte Parties voluntarily dismissed without prejudice
certain of their claims in the District Court Case and on December 26,
1996, initiated the Court of Federal Claims Case.
11
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
4. Commitments and contingencies (continued)
First Heights-Related Litigation (continued)
The Court of Federal Claims Case contains similar claims as those that
were voluntarily dismissed from the District Court Case. In their
complaint, the Pulte Parties assert breaches of contract on the part of
the United States in connection with the enactment of section 13224 of
the Omnibus Budget Reconciliation Act of 1993. That provision repealed
portions of the tax benefits that the Pulte Parties claim they were
entitled to under the contract to acquire the failed Texas thrifts. The
Pulte Parties also assert certain other claims concerning the contract,
including claims that the United States (through the FDIC as receiver)
has improperly attempted to amend the failed thrifts' pre-acquisition
tax returns and that this attempt was made in an effort to deprive the
Pulte Parties of tax benefits they had contracted for, and that the
enactment of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 breached the Government's obligation not to
require contributions of capital greater than those required by the
contract. The United States has filed a motion for summary judgment
against the Company in the Court of Federal Claims Case, and the
Company has filed its response in opposition to such motion.
On March 5, 1999, the United States District Court (the Court), entered
a "Final Judgment" against First Heights and PDCI (the Court had
previously ruled that Pulte Corporation was not liable for monetary
damages to the FDIC) resolving by summary judgment in favor of the FDIC
most of the FDIC's claims against the Pulte Defendants. The Final
Judgment requires PDCI and First Heights to pay the FDIC monetary
damages totaling approximately $221.3 million, including interest and
future tax sharing but excluding costs (such as attorneys fees) to be
determined in the future by the District Court. However, the FDIC has
acknowledged that it has already paid itself or withheld from
assistance, including the FRF notes, its obligation to pay to First
Heights approximately $105 million, excluding interest thereon. The
Company believes that it is entitled to a credit or actual payment of
such amount. The Final Judgment does not address this issue. Based upon
the Company's review of the Final Judgment, the Company believes that,
if the Final Judgment were to be upheld in its entirety on appeal, the
potential after-tax charges against Discontinued Operations, after
giving effect to interest owed by the FDIC to First Heights, will be
approximately $88 million, plus post-judgment interest (currently 5%
per year). The Company vigorously disagrees with the Court's rulings
and has appealed to the Sixth Circuit Court of Appeals. The Company has
posted a bond in the amount of $110 million pending resolution of the
appeals process. The Company believes the District Court erred in
granting summary judgment to the FDIC. Among other things, the Company
believes the District Court improperly resolved highly disputed factual
issues which should have been presented to a jury and, as a result, it
improperly granted summary judgment accepting the FDIC's view of the
facts on substantially all disputed issues and, therefore, that the
Company has a strong basis for appeal of the District Court's decision
and that an appellate court, properly applying the standards of review
for this case, should reverse the District Court's decision and remand
the case for trial, if not in its entirety, then at least in material
respects.
The Company does not believe that the claims in the Court of Federal
Claims Case are in any way prejudiced by the rulings in the District
Court Case. The Company is considering seeking relief in the Court of
Federal Claims Case that would, if granted, recoup portions of the
damages awarded in the District Court Case.
5. Acquisition
Effective July 1, 1999, the Company and Blackstone Real Estate Advisors
(BRE) closed an agreement for the Company's purchase of BRE's interest
in the net assets of the Active Adult joint venture for an aggregate
cash purchase price of $26 million, net of liabilities assumed. The
purchase price was allocated to assets acquired and liabilities assumed
using the purchase method of accounting. As a result of this purchase,
Pulte owns 100% of the Active Adult operations, and effective July 1,
1999, the Active Adult operations are fully consolidated with the
operating results of Pulte's other homebuilding operations. Prior to
this purchase, and since March 25, 1998, Pulte's 50% interest in this
joint venture was accounted for as an equity investment. The impact of
this acquisition was immaterial to the Company's consolidated revenues,
pre-tax income from operations, net income and earnings per share (both
basic and diluted).
12
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information
The Company has the following outstanding Senior Note obligations: (1)
$100,000, 7%, due 2003, (2) $115,000, 8.375%, due 2004, (3) $125,000,
7.3%, due 2005, and (4) $150,000, 7.625%, due 2017. Such obligations to
pay principal, premium, if any, and interest are guaranteed jointly and
severally on a senior basis by the Company's wholly-owned Domestic and
Active Adult homebuilding subsidiaries (collectively, the Guarantors).
Such guarantees are full and unconditional. The principal
non-Guarantors include PDCI, International, PMC, First Heights, and
PFCI. See Note 1 for additional information on the Company's Guarantor
and non-Guarantor subsidiaries.
Supplemental consolidating financial information of the Company,
specifically including such information for the Guarantors, is
presented below. Investments in subsidiaries are presented using the
equity method of accounting. Separate financial statements of the
Guarantors are not provided as the consolidating financial information
contained herein provides a more meaningful disclosure to allow
investors to determine the nature of the assets held by and the
operations of the combined groups.
<TABLE>
<CAPTION>
CONSOLIDATING BALANCE SHEET
SEPTEMBER 30, 1999
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Cash and equivalents ......................... $ 24 $ 27,810 $ 2,753 $ -- $ 30,587
Unfunded settlements ......................... -- 67,667 (8,579) -- 59,088
House and land inventories ................... -- 1,849,460 29,615 -- 1,879,075
Residential mortgage loans
available-for-sale ......................... -- -- 149,854 -- 149,854
Land held for sale and future development .... -- 58,706 -- -- 58,706
Other assets ................................. 16,430 215,902 61,582 -- 293,914
Deferred income taxes ........................ 56,679 -- -- -- 56,679
Discontinued operations ...................... -- -- 91,197 -- 91,197
Investment in subsidiaries ................... 1,215,280 16,149 1,222,892 (2,454,321) --
Advances receivable - subsidiaries ........... 481,412 519 32,064 (513,995) --
----------- ----------- ----------- ----------- -----------
$ 1,769,825 $ 2,236,213 $ 1,581,378 $(2,968,316) $ 2,619,100
=========== =========== =========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued liabilities ..... $ 67,988 $ 588,111 $ 45,899 $ -- $ 701,998
Unsecured short-term borrowings .............. 150,000 -- -- -- 150,000
Collateralized short-term debt, recourse
solely to applicable subsidiary assets ..... -- 27,779 135,800 -- 163,579
Income taxes ................................. 4,348 -- -- -- 4,348
Subordinated debentures and senior notes ..... 487,642 9,749 21,000 -- 518,391
Discontinued operations ...................... -- -- 56,684 -- 56,684
Advances payable - subsidiaries .............. 35,747 391,630 86,618 (513,995) --
----------- ----------- ----------- ----------- -----------
Total liabilities ..................... 745,725 1,017,269 346,001 (513,995) 1,595,000
Shareholders' equity ......................... 1,024,100 1,218,944 1,235,377 (2,454,321) 1,024,100
----------- ----------- ----------- ----------- -----------
$ 1,769,825 $ 2,236,213 $ 1,581,378 $(2,968,316) $ 2,619,100
=========== =========== =========== =========== ===========
</TABLE>
13
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1998
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Cash and equivalents ......................... $ 76,555 $ 46,109 $ 2,534 $ -- $ 125,198
Unfunded settlements ......................... -- 57,135 (7,995) -- 49,140
House and land inventories ................... -- 1,431,245 23,963 -- 1,455,208
Mortgage-backed and related securities ....... -- -- 29,290 -- 29,290
Residential mortgage loans
available-for-sale ........................ -- -- 234,974 -- 234,974
Land held for sale and future development .... -- 35,977 -- -- 35,977
Other assets ................................. 17,949 178,020 55,742 -- 251,711
Deferred income taxes ........................ 80,385 -- (722) -- 79,663
Discontinued operations ...................... -- -- 88,678 -- 88,678
Investment in subsidiaries ................... 1,066,313 16,958 1,062,114 (2,145,385) --
Advances receivable - subsidiaries ........... 271,915 485 46,405 (318,805) --
----------- ----------- ----------- ----------- -----------
$ 1,513,117 $ 1,765,929 $ 1,534,983 $(2,464,190) $ 2,349,839
=========== =========== =========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued
liabilities ............................... $ 62,014 $ 461,766 $ 51,593 $ -- $ 575,373
Collateralized short-term debt, recourse
solely to applicable subsidiary assets .... -- -- 217,060 -- 217,060
Mortgage-backed bonds, recourse
solely to applicable subsidiary assets .... -- -- 28,075 -- 28,075
Income taxes ................................. 9,592 -- -- -- 9,592
Subordinated debentures and senior
notes ..................................... 487,496 33,543 21,000 -- 542,039
Discontinued operations ...................... -- -- 56,258 -- 56,258
Advances payable - subsidiaries .............. 32,573 230,491 55,741 (318,805) --
----------- ----------- ----------- ----------- -----------
Total liabilities ..................... 591,675 725,800 429,727 (318,805) 1,428,397
Shareholders' equity ......................... 921,442 1,040,129 1,105,256 (2,145,385) 921,442
----------- ----------- ----------- ----------- -----------
$ 1,513,117 $ 1,765,929 $ 1,534,983 $(2,464,190) $ 2,349,839
=========== =========== =========== =========== ===========
</TABLE>
14
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF OPERATIONS
For the nine months ended September 30, 1999
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ---------- ------------
<S> <C> <C> <C> <C> <C>
Revenues:
Homebuilding ............................... $ -- $ 2,431,148 $ 18,732 $ -- $ 2,449,880
Mortgage banking and financing,
interest and other .................... -- -- 37,872 37,872
Corporate .................................. 636 -- 1,348 -- 1,984
----------- ----------- ----------- ----------- -----------
Total revenues ............................... 636 2,431,148 57,952 -- 2,489,736
----------- ----------- ----------- ----------- -----------
Expenses:
Homebuilding:
Cost of sales ......................... -- 2,010,370 17,400 2,027,770
Selling, general and administrative and
other expense .................... 833 237,626 2,319 240,778
Mortgage banking and financing, interest
and other ............................. -- -- 22,055 22,055
Corporate, net ............................. 24,895 2,198 1,229 -- 28,322
----------- ----------- ----------- ----------- -----------
Total expenses ............................... 25,728 2,250,194 43,003 -- 2,318,925
----------- ----------- ----------- ----------- -----------
Other Income:
Equity in income of Pulte-affiliates ......... -- 816 1,961 -- 2,777
----------- ----------- ----------- ----------- -----------
Income (loss) from continuing operations
before income taxes and equity in income
of subsidiaries ....................... (25,092) 181,770 16,910 173,588
Income taxes (benefit) ....................... (12,494) 70,308 7,280 -- 65,094
----------- ----------- ----------- ----------- -----------
Income (loss) from continuing operations
before equity in income of subsidiaries .... (12,598) 111,462 9,630 108,494
Income (loss) from discontinued operations .. (1,630) -- 1,676 -- 46
----------- ----------- ----------- ----------- -----------
Income (loss) before equity in income
of subsidiaries ....................... (14,228) 111,462 11,306 -- 108,540
----------- ----------- ----------- ----------- -----------
Equity in income of subsidiaries:
Continuing operations ...................... 121,092 8,651 115,055 (244,798)
Discontinued operations .................... 1,676 -- -- (1,676) --
----------- ----------- ----------- ----------- -----------
122,768 8,651 115,055 (246,474) --
----------- ----------- ----------- ----------- -----------
Net income ................................... $ 108,540 $ 120,113 $ 126,361 $ (246,474) $ 108,540
=========== =========== =========== =========== ===========
</TABLE>
15
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF OPERATIONS
For the three months ended September 30, 1999
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Revenues:
Homebuilding ............................... $ -- $ 957,524 $ 4,216 $ -- $ 961,740
Mortgage banking and financing,
interest and other .................... -- -- 10,703 -- 10,703
Corporate .................................. 561 -- 113 -- 674
--------- --------- --------- --------- ---------
Total revenues ............................... 561 957,524 15,032 -- 973,117
--------- --------- --------- --------- ---------
Expenses:
Homebuilding:
Cost of sales ......................... -- 788,132 3,730 -- 791,862
Selling, general and administrative
and other expense ................... 126 87,188 1,067 -- 88,381
Mortgage banking and financing, interest
and other ............................. -- -- 7,164 -- 7,164
Corporate, net ............................. 8,883 749 733 -- 10,365
--------- --------- --------- --------- ---------
Total expenses ............................... 9,009 876,069 12,694 -- 897,772
--------- --------- --------- --------- ---------
Other Income:
Equity in income of Pulte-affiliates ......... -- -- 617 -- 617
--------- --------- --------- --------- ---------
Income (loss) from continuing operations
before income taxes and equity in income
of subsidiaries ....................... (8,448) 81,455 2,955 -- 75,962
Income taxes (benefit) ....................... (4,522) 31,837 1,170 -- 28,485
--------- --------- --------- --------- ---------
Income (loss) from continuing operations
before equity in income of subsidiaries .... (3,926) 49,618 1,785 -- 47,477
Income (loss) from discontinued operations ... (902) -- 519 -- (383)
--------- --------- --------- --------- ---------
Income (loss) before equity in income
of subsidiaries ...................... (4,828) 49,618 2,304 -- 47,094
--------- --------- --------- --------- ---------
Equity in income of subsidiaries:
Continuing operations ...................... 51,403 2,073 51,485 (104,961) --
Discontinued operations .................... 519 -- -- (519) --
--------- --------- --------- --------- ---------
51,922 2,073 51,485 (105,480) --
--------- --------- --------- --------- ---------
Net income ................................... $ 47,094 $ 51,691 $ 53,789 $(105,480) $ 47,094
========= ========= ========= ========= =========
</TABLE>
16
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF OPERATIONS
For the nine months ended September 30,1998
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Revenues:
Homebuilding ............................... $ -- $ 1,911,031 $ 7,838 $ -- $ 1,918,869
Mortgage banking and financing,
interest and other .................... -- -- 31,022 -- 31,022
Corporate .................................. 6,981 1,031 1,699 -- 9,711
----------- ----------- ----------- ----------- -----------
Total revenues ............................... 6,981 1,912,062 40,559 -- 1,959,602
----------- ----------- ----------- ----------- -----------
Expenses:
Homebuilding:
Cost of sales ......................... -- 1,610,397 7,108 -- 1,617,505
Selling, general and administrative
and other expense ................... 837 187,690 2,858 -- 191,385
Mortgage banking and financing, interest
and other ............................. -- -- 20,174 -- 20,174
Corporate, net ............................. 26,775 (2,371) 2,314 -- 26,718
----------- ----------- ----------- ----------- -----------
Total expenses ............................... 27,612 1,795,716 32,454 -- 1,855,782
----------- ----------- ----------- ----------- -----------
Other Income:
Equity in income (loss) of Pulte-affiliates .. -- 485 (1,093) -- (608)
----------- ----------- ----------- ----------- -----------
Income (loss) from continuing operations
before income taxes and equity in income
of subsidiaries ....................... (20,631) 116,831 7,012 -- 103,212
Income taxes (benefit) ....................... (10,722) 46,675 4,298 -- 40,251
----------- ----------- ----------- ----------- -----------
Income (loss) from continuing operations
before equity in income of subsidiaries .... (9,909) 70,156 2,714 -- 62,961
Income from discontinued operations .......... (209) -- 909 -- 700
----------- ----------- ----------- ----------- -----------
Income (loss) before equity in income
of subsidiaries ....................... (10,118) 70,156 3,623 -- 63,661
----------- ----------- ----------- ----------- -----------
Equity in income of subsidiaries:
Continuing operations ...................... 72,870 6,477 72,197 (151,544) --
Discontinued operations .................... 909 -- -- (909) --
----------- ----------- ----------- ----------- -----------
73,779 6,477 72,197 (152,453) --
----------- ----------- ----------- ----------- -----------
Net income ................................... $ 63,661 $ 76,633 $ 75,820 $ (152,453) $ 63,661
=========== =========== =========== =========== ===========
</TABLE>
17
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF OPERATIONS
For the three months ended September 30,1998
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Revenues:
Homebuilding ............................... $ -- $ 745,336 $ 1,344 $ -- $ 746,680
Mortgage banking and financing,
interest and other .................... -- -- 11,286 -- 11,286
Corporate .................................. 1,368 -- -- -- 1,368
--------- --------- --------- --------- ---------
Total revenues ............................... 1,368 745,336 12,630 -- 759,334
--------- --------- --------- --------- ---------
Expenses:
Homebuilding:
Cost of sales ......................... -- 626,061 1,388 -- 627,449
Selling, general and administrative
and other expense .................. 279 68,035 824 -- 69,138
Mortgage banking and financing, interest
and other ............................. -- -- 6,386 -- 6,386
Corporate, net ............................. 6,762 297 (383) -- 6,676
--------- --------- --------- --------- ---------
Total expenses ............................... 7,041 694,393 8,215 -- 709,649
--------- --------- --------- --------- ---------
Other Income:
Equity in income (loss) of Pulte-affiliates .. -- 359 (3,380) -- (3,021)
--------- --------- --------- --------- ---------
Income (loss) from continuing operations
before income taxes and equity in income
of subsidiaries ....................... (5,673) 51,302 1,035 -- 46,664
Income taxes (benefit) ....................... (3,331) 20,441 1,089 -- 18,199
--------- --------- --------- --------- ---------
Income (loss) from continuing operations
before equity in income of subsidiaries .... (2,342) 30,861 (54) -- 28,465
Income (loss) from discontinued operations ... (391) -- 482 -- 91
--------- --------- --------- --------- ---------
Income (loss) before equity in income
of subsidiaries ....................... (2,733) 30,861 428 -- 28,556
--------- --------- --------- --------- ---------
Equity in income of subsidiaries:
Continuing operations ...................... 30,807 2,866 32,377 (66,050) --
Discontinued operations .................... 482 -- -- (482) --
--------- --------- --------- --------- ---------
31,289 2,866 32,377 (66,532) --
--------- --------- --------- --------- ---------
Net income ................................... $ 28,556 $ 33,727 $ 32,805 $ (66,532) $ 28,556
========= ========= ========= ========= =========
</TABLE>
18
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF CASH FLOWS
For the nine months ended September 30, 1999
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Continuing operations:
Cash flows from operating activities:
Income from continuing operations .......... $ 108,494 $ 120,113 $ 124,685 $(244,798) $ 108,494
Adjustments to reconcile income from
continuing operations to net cash
flows provided by (used in) operating
activities:
Equity in income of subsidiaries ......... (121,092) (8,651) (115,055) 244,798 --
Amortization, depreciation and other ..... 146 9,405 (982) -- 8,569
Deferred income taxes .................... (1,915) -- -- -- (1,915)
Gain on sale of securities ............... -- -- (1,664) -- (1,664)
Increase (decrease) in cash due to:
Inventories .............................. -- (338,886) (5,652) -- (344,538)
Residential mortgage loans
available-for-sale ................... -- -- 85,120 -- 85,120
Other assets ............................. 1,519 (85,802) (5,726) -- (90,009)
Accounts payable and accrued liabilities . 4,257 119,111 2,225 -- 125,593
Income taxes ............................. (55,789) 75,702 504 -- 20,417
--------- --------- --------- --------- ---------
Net cash provided by (used in) operating
activities ................................. (64,380) (109,008) 83,455 -- (89,933)
--------- --------- --------- --------- ---------
Cash flows from investing activities:
Proceeds from sale of securities available-
for-sale ................................. -- -- 27,886 -- 27,886
Principal payments of mortgage-backed
securities ............................... -- -- 1,490 -- 1,490
Cash paid for acquisition, net of cash
acquired ................................ -- (24,714) -- -- (24,714)
Dividends received from subsidiaries ....... 3,550 13,994 -- (17,544) --
Other, net ................................. -- -- (1,579) -- (1,579)
Investment in subsidiary ................... (30,358) (7,097) -- 37,455 --
Advances to affiliates ..................... (97,935) (34) (7,126) 105,095 --
--------- --------- --------- --------- ---------
Net cash provided by (used in) investing
activities ................................. (124,743) (17,851) 20,671 125,006 3,083
--------- --------- --------- --------- ---------
</TABLE>
19
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF CASH FLOWS (continued)
For the nine months ended September 30, 1999
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Continuing operations (continued):
Cash flows from financing activities:
Payment of long-term debt and bonds ........ -- (22,405) (27,782) -- (50,187)
Proceeds from borrowings ................... 150,000 960 -- -- 150,960
Repayment of borrowings .................... -- (15,796) (87,663) -- (103,459)
Capital contributions from parent .......... -- 29,853 7,602 (37,455) --
Advances from affiliates ................... (32,182) 115,900 21,377 (105,095) --
Dividends paid ............................. (6,919) -- (17,544) 17,544 (6,919)
Other, net ................................. 1,693 48 103 -- 1,844
--------- --------- --------- --------- ---------
Net cash provided by (used in)
financing activities ....................... 112,592 108,560 (103,907) (125,006) (7,761)
--------- --------- --------- --------- ---------
Net increase (decrease) in cash and
equivalents - continuing operations ........ $ (76,531) $ (18,299) $ 219 $ -- $ (94,611)
--------- --------- --------- --------- ---------
Discontinued operations:
Cash flows from operating activities:
Income from discontinued
operations ........................... $ 46 $ -- $ 1,676 $ (1,676) $ 46
Change in deferred income taxes ............ 25,621 -- -- -- 25,621
Equity in income of subsidiaries ........... (1,676) -- -- 1,676 --
Change in income taxes ..................... (25,661) -- -- -- (25,661)
Other changes, net ......................... 1,670 -- 993 -- 2,663
Cash flows from investing activities:
Purchase of securities available-
for-sale .............................. -- -- 216 -- 216
Decrease in Covered Assets and FRF
receivables ........................... -- -- (2,926) -- (2,926)
--------- --------- --------- --------- ---------
Net decrease in cash and equivalents-
discontinued operations .................... -- -- (41) -- (41)
--------- --------- --------- --------- ---------
Net increase (decrease) in cash and
equivalents ................................ (76,531) (18,299) 178 -- (94,652)
Cash and equivalents at beginning of
period ..................................... 76,555 46,109 2,665 -- 125,329
--------- --------- --------- --------- ---------
Cash and equivalents at end of period ........ $ 24 $ 27,810 $ 2,843 $ -- $ 30,677
========= ========= ========= ========= =========
</TABLE>
20
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<TABLE>
<CAPTION>
CONSOLIDATING STATEMENT OF CASH FLOWS
For the nine months ended September 30,1998
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Continuing operations:
Cash flows from operating activities:
Income from continuing operations .......... $ 62,961 $ 76,633 $ 74,911 $(151,544) $ 62,961
Adjustments to reconcile income from
continuing operations to net cash
flows provided by (used in) operating
activities:
Equity in income of subsidiaries ......... (72,870) (6,477) (72,197) 151,544 --
Amortization, depreciation and other ..... 145 3,918 150 -- 4,213
Deferred income taxes .................... (4,782) -- -- -- (4,782)
Increase (decrease) in cash due to:
Inventories .............................. -- (107,596) (1,959) -- (109,555)
Residential mortgage loans
held for sale ........................ -- -- 49,527 -- 49,527
Other assets ............................. (3,577) 54,167 (23,560) -- 27,030
Accounts payable and accrued liabilities.. 4,041 11,953 17,260 -- 33,254
Income taxes ............................. (27,105) 50,946 530 -- 24,371
--------- --------- --------- --------- ---------
Net cash provided by (used in) operating
activities ................................. (41,187) 83,544 44,662 -- 87,019
--------- --------- --------- --------- ---------
Cash flows from investing activities:
Principal payments of mortgage backed
securities ............................ -- -- 7,196 -- 7,196
Dividends received from subsidiaries ....... 132,040 8,900 132,040 (272,980) --
Cash paid for acquisitions, net of cash
acquired .............................. -- (158,832) -- -- (158,832)
Investment in subsidiary ................... (32,040) (4,271) -- 36,311 --
Advances to affiliates ..................... (154,455) (644) (5,810) 160,909 --
Other, net ................................. -- -- (477) -- (477)
--------- --------- --------- --------- ---------
Net cash provided by (used in) investing
activities ................................. (54,455) (154,847) 132,949 (75,760) (152,113)
--------- --------- --------- --------- ---------
Cash flows from financing activities:
Payment of long-term debt and bonds ........ -- -- (8,001) -- (8,001)
Proceeds of borrowings ..................... -- 31,969 -- -- 31,969
Repayment of borrowings .................... -- (8,101) (45,246) -- (53,347)
Capital contributions from parent .......... -- 32,040 4,271 (36,311) --
Advances from affiliates ................... 5,824 142,752 12,333 (160,909) --
Dividends paid ............................. (4,727) (132,040) (140,940) 272,980 (4,727)
Other, net ................................. 6,920 28 1,334 -- 8,282
--------- --------- --------- --------- ---------
Net cash provided by (used in)
financing activities ....................... 8,017 66,648 (176,249) 75,760 (25,824)
--------- --------- --------- --------- ---------
Net (decrease) increase in cash and
equivalents - continuing operations ........ $ (87,625) $ (4,655) $ 1,362 $ -- $ (90,918)
--------- --------- --------- --------- ---------
21
PULTE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (continued)
($000's omitted)
(Unaudited)
6. Supplemental guarantor information (continued)
<CAPTION>
CONSOLIDATING STATEMENT OF CASH FLOWS (continued)
For the nine months ended September 30,1998
Unconsolidated
----------------------------------------- Consolidated
Pulte Guarantor Non-Guarantor Eliminating Pulte
Corporation Subsidiaries Subsidiaries Entries Corporation
----------- ------------ ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Discontinued operations:
Cash flows from operating activities:
Income from discontinued operations ........ $ 700 $ -- $ 909 $ (909) $ 700
Change in deferred income taxes ............ 17,738 -- -- -- 17,738
Equity in income of subsidiaries ........... (909) -- -- 909 --
Change in income taxes ..................... (18,846) -- -- -- (18,846)
Other changes, net ......................... 1,317 -- 6,464 -- 7,781
Cash flows from investing activities:
Purchase of securities available-
for-sale .............................. -- -- (21,809) -- (21,809)
Principal payments of mortgage-backed
securities ............................ -- -- 21,900 -- 21,900
Decrease in Covered Assets and FRF
receivables ........................... -- -- 34,642 -- 34,642
Cash flows from financing activities:
Increase in deposit liabilities ............ -- -- 8,312 -- 8,312
Repayment of borrowings .................... -- -- (31,560) -- (31,560)
Decrease in FHLB advances .................. -- -- (3,100) -- (3,100)
--------- --------- --------- --------- ---------
Net increase in cash and equivalents-
discontinued operations .................... -- -- 15,758 -- 15,758
--------- --------- --------- --------- ---------
Net (decrease) increase in cash and
equivalents ................................ (87,625) (4,655) 17,120 -- (75,160)
Cash and equivalents at beginning of
period ..................................... 195,946 46,466 4,896 -- 247,308
--------- --------- --------- --------- ---------
Cash and equivalents at end of period ........ $ 108,321 $ 41,811 $ 22,016 $ -- $ 172,148
========= ========= ========= ========= =========
</TABLE>
22
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
($000's omitted, except per share data)
Overview:
A summary of the Company's operating results by business segment for the
three and nine month periods ended September 30, 1999 and 1998 is as follows:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Pre-tax income (loss):
Homebuilding operations ..................... $ 82,114 $ 47,072 $ 184,109 $ 109,371
Financial Services operations ............... 3,539 4,900 15,817 10,848
Corporate ................................... (9,691) (5,308) (26,338) (17,007)
--------- --------- --------- ---------
Pre-tax income from continuing operations ...... 75,962 46,664 173,588 103,212
Income taxes ................................... (28,485) (18,199) (65,094) (40,251)
--------- --------- --------- ---------
Income from continuing operations .............. 47,477 28,465 108,494 62,961
Income (loss) from discontinued operations ..... (383) 91 46 700
--------- --------- --------- ---------
Net income ..................................... $ 47,094 $ 28,556 $ 108,540 $ 63,661
========= ========= ========= =========
Per share data - assuming dilution:
Income from continuing operations ........... $ 1.08 $ .64 $ 2.47 $ 1.44
Income (loss) from discontinued operations .. (.01) -- -- .01
--------- --------- --------- ---------
Net income .................................. $ 1.07 $ .64 $ 2.47 $ 1.45
========= ========= ========= =========
</TABLE>
A comparison of pre-tax income (loss) for the three and nine month periods
ended September 30, 1999 and 1998 is as follows:
o Pre-tax income of the Company's homebuilding business segment increased
74% and 68%, respectively, due primarily to the improvement in domestic
homebuilding operations where pre-tax income increased 63% and 61%,
respectively. Domestic unit settlements increased 18% and 20%,
respectively; domestic gross margins improved 190 and 170 basis points,
respectively; and domestic unit selling price increased by
approximately 7% and 5%, respectively.
o Pre-tax income of the Company's financial services segment decreased
28% for the quarter primarily due to increasingly competitive market
conditions in the mortgage banking industry as a result of rising
mortgage interest rates. For the nine months ended September 30, 1999,
pre-tax income increased 46% over the prior year period, primarily
reflecting the Company's mortgage banking operations which benefited
from substantial increases in mortgage origination volume, origination
fees, and pricing and marketing gains. Nine month results also reflect
a net gain of approximately $1,700 from the redemption of
mortgage-backed bonds by Pulte Financial Companies, Inc. (PFCI), a
subsidiary of the Company.
o Pre-tax loss of the Company's corporate business segment increased
$4,383 and $9,331, respectively, from the three and nine month periods
ended September 30,1998. The increase in pre-tax loss for the quarter
primarily reflects an increase of approximately $1,850 in the corporate
net interest spread and an increase in other corporate expenses, net,
of approximately $2,500. Year-to-date results reflect an increase of
approximately $3,800 in the corporate net interest spread, and an
increase in other corporate expenses, net, of approximately $5,500.
Increases in the corporate net interest spread are attributed to
increased borrowings for additional capital investment, primarily in
the domestic homebuilding operations. Other corporate expenses, net,
in 1998 were reduced by the net of one-time events, including a gain of
approximately $5,000 on the sale of Expression Homes, partially offset
by provisions of $3,500 for the write down of certain projects and R&D
investments.
23
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations:
The Company's Homebuilding segment consists of the following business lines:
o Domestic Homebuilding operations are conducted in 41 markets, located
throughout 27 states. Domestic Homebuilding offers a broad product line
to meet the needs of the first-time, first and second move-up, and
active adult home buyer. During 1998, the Company acquired two
homebuilders, Tennessee-based Radnor Homes on May 27, 1998 and
Florida-based DiVosta & Company on July 1, 1998 (the "acquired
operations").
o International Homebuilding operations are conducted through
subsidiaries of Pulte International Corporation in Puerto Rico and
Mexico. International Homebuilding product offerings focus on the
demand of first-time buyers, and social interest housing in Mexico and
Puerto Rico. The Company has agreements in place with multi-national
corporations to provide social interest housing in Mexico.
o Active Adult operations acquire and develop major Active Adult
residential communities, amenitized age-targeted and age-restricted
communities appealing to a growing demographic group in their
pre-retirement and retirement years. Prior to July 1, 1999 Active Adult
Homebuilding operations were conducted through a joint venture with
Blackstone Real Estate Advisors (BRE), an affiliate of the Blackstone
Group. Effective July 1, 1999, the Company and BRE closed an agreement
for the Company's purchase of BRE's interest in the net assets of the
Active Adult joint venture for an aggregate cash purchase price of $26
million, net of liabilities assumed. As a result of this purchase,
Pulte owns 100% of the Active Adult operations, and effective July 1,
1999, the Active Adult operations are fully consolidated with the
operating results of Pulte's other homebuilding operations. Prior to
this purchase, and since March 25, 1998, Pulte's 50% interest in this
joint venture was accounted for as an equity investment.
Certain operating data relating to the Company's joint ventures and
homebuilding operations for the three and nine months ended September 30,
1999 and 1998, are as follows:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Pulte/Pulte-affiliate homebuilding revenues:
Domestic .................................. $929,833 $741,114 $2,403,353 $1,894,636
International ............................. 20,571 4,907 75,009 43,938
Active Adult .............................. 27,691 30,139 85,352 61,911
-------- -------- ---------- ----------
Total homebuilding ........................... $978,095 $776,160 $2,563,714 $2,000,485
======== ======== ========== ==========
Pre-tax income (loss):
Domestic ............................ $ 82,686 $ 50,708 $ 183,510 $ 114,144
International ....................... (90) (4,527) 141 (3,902)
Active Adult ........................ (482) 891 458 (871)
-------- -------- ---------- ----------
Total Homebuilding operations .......... $ 82,114 $ 47,072 $ 184,109 $ 109,371
======== ======== ========== ==========
Pulte and Pulte-affiliate settlements - units:
Domestic .................................. 4,874 4,134 13,101 10,899
International:
Pulte ............................... 50 22 224 106
Pulte-affiliated entities ........... 1,018 250 3,734 2,491
-------- -------- ---------- ----------
Total International ................. 1,068 272 3,958 2,597
-------- -------- ---------- ----------
Active Adult:
Pulte ............................... 132 37 133 128
Pulte-affiliated entity ............. -- 143 279 252
-------- -------- ---------- ----------
Total Active Adult .................. 132 180 412 380
-------- -------- ---------- ----------
Total Pulte and Pulte-affiliate settlements -
units ..................................... 6,074 4,586 17,471 13,876
======== ======== ========== ==========
</TABLE>
24
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
Domestic Homebuilding:
The domestic homebuilding business line represents the Company's core
business. Operations are conducted in 41 markets, located throughout 27
states, and are organized into nine regions as follows:
Pulte Home East:
- -----------------------
Mid-Atlantic Region Connecticut, Delaware, Maryland,
Massachusetts, New Jersey, New Hampshire,
Pennsylvania, Rhode Island, Virginia
Southeast Region Georgia, North Carolina, South Carolina, Tennessee
Florida Region Florida
Pulte Home Central:
- -----------------------
Great Lakes Region Indiana, Kansas, Michigan, Missouri, Ohio
Midwest Region Illinois, Minnesota
Texas Region Texas
Pulte Home West:
- -----------------------
Southwest Region Arizona, Nevada
Rocky Mountain Region Colorado, Utah
California Region California
No one individual market within the 41 markets represented more than 10% of
total domestic homebuilding net new orders, unit settlements or revenues
during the three and nine month period ended September 30, 1999.
The following table presents selected unit information for Pulte's domestic
homebuilding operations for the three and nine months ended September 30,
1999 and 1998.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Unit settlements:
Pulte Home East...................... 2,528 2,048 6,839 5,234
Pulte Home Central................... 1,560 1,273 3,944 3,281
Pulte Home West...................... 786 813 2,318 2,384
-------- -------- ---------- ----------
4,874 4,134 13,101 10,899
======== ======== ========== ==========
Net new orders - units:
Pulte Home East...................... 2,405 2,529 8,276 6,890
Pulte Home Central................... 1,274 1,293 4,559 4,526
Pulte Home West...................... 680 706 2,474 2,636
-------- -------- ---------- ----------
4,359 4,528 15,309 14,052
======== ======== ========== ==========
Net new orders - dollars $958,000 $796,000 $3,023,000 $2,457,000
======== ======== ========== ==========
Backlog at September 30 - units:
Pulte Home East...................... 4,080 3,216
Pulte Home Central................... 2,529 2,261
Pulte Home West...................... 1,013 1,069
---------- ----------
7,622 6,546
========== ==========
Backlog at September 30 - dollars....... $1,543,000 $1,179,700
========== ==========
</TABLE>
25
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
Domestic Homebuilding (continued):
During the three months ended September 30, 1999, the Company reported net
new orders of 4,359, a decrease of 4% from the comparable period of the prior
year. Prior year results include 346 backlog units acquired with the
acquisition of DiVosta & Company. Excluding these units, net new orders
increased 4% over 1998. For the nine months ended September 30, 1999, net new
orders of 15,309, which include the 346 acquired backlog units, were a 9%
increase over the prior year. The year-to- date results reflect strong
performance in the Southeast, Florida, Great Lakes, Midwest and Mid-Atlantic
Regions. Net new orders provided by the acquired operations in 1999 amounted
to 352 units for the quarter and 1,250 units year-to-date, compared with 651
and 862 units, respectively, for the same periods in 1998.
Unit settlements increased 18% for the quarter and 20% year-to-date,
reflecting strong activity in the Southeast, Florida, Texas, and Great Lakes
Regions. Strong demand, supported by favorable economic conditions, continued
to drive order activity, resulting in record levels of backlog. These factors
have contributed to the solid settlement activity during 1999. Settlements
provided by the acquired operations in 1999 amounted to 355 units for the
quarter and 1,059 units year-to-date, compared with 379 and 413 units,
respectively, for the same periods in 1998.
The Company's backlog at September 30, 1999 was 7,622 units, or approximately
$1.5 billion. Unit backlog at September 30, 1999, was approximately 16%
higher than September 30, 1998 and 41% higher than December 31, 1998. Backlog
at September 30, 1999 associated with acquired operations amounted to 690
units or $137,000, compared with 449 units or $86,000 at September 30, 1998.
The following table presents a summary of pre-tax income for Pulte's domestic
homebuilding operations for the three and nine months ended September 30,
1999 and 1998:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues ................................. $ 929,833 $ 741,114 $ 2,403,353 $ 1,894,636
Cost of sales ............................ (763,848) (622,549) (1,986,025) (1,597,070)
Selling, general and administrative
expense ................................ (77,947) (62,497) (216,232) (168,181)
Interest (a) ............................. (6,579) (5,398) (16,153) (14,241)
Other income (expense), net .............. 1,227 38 (1,433) (1,000)
--------- --------- ----------- -----------
Pre-tax income ........................... $ 82,686 $ 50,708 $ 183,510 $ 114,144
========= ========= =========== ===========
Average sales price ...................... $ 191 $ 179 $ 183 $ 174
========= ========= =========== ===========
<FN>
(a) The Company capitalizes interest cost into homebuilding inventories and
charges the interest to homebuilding interest expense when the related
inventories are closed.
</TABLE>
26
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
Domestic Homebuilding (continued):
Gross profit margins were 17.9% and 17.4% for the three and nine month
periods ended September 30, 1999, respectively, compared to 16.0% and 15.7 %,
respectively, for the same periods of the prior year. Several factors
contributed to this favorable trend including continued strong customer
demand, positive home pricing, the benefits of leverage-buy purchasing
activities, effective production and inventory management, and the Company's
P3 initiative (Pulte Preferred Partnerships) with contractors and suppliers.
As a percentage of total revenues, selling, general and administrative
expenses (SG&A) were 8.4% for each of the quarters ending September 30, 1999
and 1998. For the nine months ended September 30, 1999, SG&A expenses were 9%
of revenue, a 10 basis point increase from the same period in 1998. The
increase in SG&A spending is attributed to higher sales and marketing
expenses and increased field expenses, partly resulting from continued
implementation of the Company's financial and operating systems, as well as,
increased construction expenses associated with the build out of almost
10,000 homes under construction at September 30, 1999.
Other income (expense) net, includes gains on land sales and other
homebuilding-related expenses, and has also historically included the net
operating results of Pulte's Builder's Supply & Lumber (BSL) subsidiary prior
to its sale on March 20, 1998. The increase in other income, net, for the
third quarter is a result of increased gains on land sales. For the nine
months ended September 30, 1999, increased gains on land sales were offset by
amortization of goodwill associated with the Company's 1998 homebuilding
acquisitions.
The average selling price for the three and nine month periods ended
September 30, 1999 were $191 and $183, respectively, an increase from the
average selling price of $179 and $174 in the comparable periods of the prior
year. Changes in average selling price reflect a number of factors, including
changes in market selling prices and the mix of product closed during a
period.
Information related to interest in inventory is as follows:
Three Months Ended Nine Months Ended
September 30, September 30
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
Interest in inventory at
beginning of period ..... $ 20,471 $ 14,379 $ 16,356 $ 14,719
Interest capitalized ...... 6,587 6,093 20,276 14,596
Interest expensed ......... (6,579) (5,398) (16,153) (14,241)
-------- -------- -------- --------
Interest in inventory at
end of period ........... $ 20,479 $ 15,074 $ 20,479 $ 15,074
======== ======== ======== ========
At September 30, 1999, Pulte's domestic homebuilding operations controlled
approximately 66,200 lots, of which approximately 40,900 lots were owned and
approximately 25,300 lots were controlled through option agreements.
27
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
International Homebuilding:
International Homebuilding operations are primarily conducted through
subsidiaries of Pulte International Corporation in Puerto Rico and Mexico.
The following table presents selected financial data for Pulte's
international homebuilding operations for the three and nine month periods
ended September 30, 1999 and 1998.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30
------------------ ------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues ................................. $ 4,216 $ 1,344 $ 18,732 $ 7,838
Cost of sales ............................ (3,730) (1,388) (17,400) (7,108)
Selling, general and
administrative expense ................. (1,019) (1,085) (3,376) (3,534)
Other income, net ........................ (174) (18) 224 (5)
Equity in income of Mexico operations .... 617 (3,380) 1,961 (1,093)
------- ------- -------- --------
Pre-tax income (loss) .................... $ (90) $(4,527) $ 141 $ (3,902)
======= ======= ======== ========
Unit settlements:
Pulte ................................. 50 22 224 106
Pulte-affiliated entities ............. 1,018 250 3,734 2,491
------- ------- -------- --------
Total Pulte and Pulte-affiliates ... 1,068 272 3,958 2,597
======= ======= ======== ========
</TABLE>
Pre-tax income for the three and nine month periods ended September 30, 1999,
from the Company's international operations reflect improved operating
results in Puerto Rico, offset by increased overhead costs associated with
expansion in Mexico. Foreign currency exchange gains in Mexico amounted to
$1,157 for the quarter and $1,571 year-to-date, reflecting a 5% year-to-date
increase in the value of the Mexican peso against the U.S. dollar.
The Company's aggregate net investment in its five joint ventures located
throughout Mexico approximated $39,700 at September 30, 1999. The largest of
these ventures, Condak-Pulte S. De R.L. De C.V., is located in the city of
Juarez. The Juarez-based venture is currently developing communities in
Juarez, Chihuahua, Nuevo Laredo, Reynosa and Matamoros, under agreements with
Delphi Automotive Systems and Sony Magneticos de Mexico, S.A. de C.V., an
affiliate of Sony Electronics, Inc. As of September 30, 1999, the Company's
net investment in the Juarez-based joint venture approximated $25,800.
Desarrollos Residenciales Turisticos, S.A. de C.V. (DRT), another of the
Company's joint ventures in Mexico, is constructing primarily social interest
housing in the Bajio region surrounding Mexico City, targeting the cities of
Puebla, Queretaro, San Jose de Iturbide, San Juan del Rio and Zamora. The
Company's net investment in this joint venture at September 30, 1999
approximated $5,500.
In September, the Company entered into a joint venture agreement with
Desarrolladores Urbanos (Canovanas), S. E., an established Puerto Rican
special partnership created for the acquisition and development of 121 acres
located in the municipality of Canovanas, Puerto Rico. The Company's initial
investment for a 50% ownership interest in this project amounted to $2,780,
an amount which represents the net investment balance for this venture at
September 30, 1999. This investment is accounted for using the equity method.
28
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
Active Adult Homebuilding:
Prior to July 1, 1999, Active Adult Homebuilding operations were conducted
through a joint venture with Blackstone Real Estate Advisors (BRE), an
affiliate of the Blackstone Group. Effective July 1, 1999, the Company and
BRE closed an agreement for the Company's purchase of BRE's interest in the
net assets of the Active Adult joint venture for an aggregate cash purchase
price of $26 million, net of liabilities assumed. The purchase price was
allocated to assets acquired and liabilities assumed using the purchase
method of accounting. As a result of this purchase, Pulte owns 100% of the
Active Adult operations, and effective July 1, 1999, the Active Adult
operations are fully consolidated with the operating results of Pulte's other
homebuilding operations. Prior to this purchase, and since March 25, 1998,
Pulte's 50% interest in this joint venture was accounted for as an equity
investment. The impact of this acquisition was immaterial to the Company's
consolidated revenues, pre-tax income from operations, net income and
earnings per share (both basic and diluted).
Active Adult operations acquire and develop major active adult residential
communities, highly amenitized age-targeted and age-restricted communities
appealing to a growing demographic group in their pre-retirement and
retirement years. These operations, headquartered in Phoenix, Arizona, at
September 30, 1999 include three communities located in Arizona and
California. Springfield at Whitney Oaks, the Venture's Active Adult Community
in Northern California, recently received the Gold Achievement Award for the
best seniors' housing development in the nation, as presented by the National
Council on Seniors Housing.
The following table presents selected financial data for Pulte's Active Adult
homebuilding operations for the three and nine month period ended September
30, 1999 and 1998. Prior year data includes the operating results of the
Company's Active Adult subsidiaries from January 1, 1998, through March 25,
1998, the date upon which the formation of the joint venture occurred, and
the equity in income of the joint venture from that date forward. 1999 data
reflect the equity in income of the joint venture entity through June 30,
1999 and the operating results of the Company's Active Adult subsidiaries
from July 1, 1999 forward.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues.......................................... $ 27,691 $ 4,222 $ 27,795 $ 16,395
Cost of sales..................................... (24,284) (3,512) (24,345) (13,327)
Selling, general and administrative expense....... (3,348) (181) (3,332) (3,959)
Interest (a)...................................... (443) - (443) -
Other income (expense), net....................... (98) 3 (33) (465)
Equity in income of joint venture................. - 359 816 485
----------- ------------ ------------- -------------
Pre-tax income (loss)............................. $ (482) $ 891 $ 458 $ (871)
=========== ============ ============= =============
Pulte and Pulte-affiliate:
Average sales price............................... $ 210 $ 167 $ 207 $ 163
=========== ============ ============= =============
Unit settlements.................................. 132 180 412 380
=========== ============ ============= =============
Net new orders - units............................ 103 149 431 581
=========== ============ ============= =============
Net new orders - dollars.......................... $ 53,700 $ 28,600 $ 95,900 $ 107,300
=========== ============ ============= =============
Backlog at September 30 - units................... 190 315
============= =============
Backlog at September 30 - dollars................. $ 47,800 $ 64,100
============= =============
<FN>
(a) The Company capitalizes interest cost into homebuilding inventories and
charges the interest to homebuilding interest expense when the related
inventories are closed.
</TABLE>
29
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Homebuilding Operations (continued):
Active Adult Homebuilding (continued):
The following additional pro-forma information presents selected financial
data for Pulte's wholly-owned and joint venture Active Adult operations as if
they had been consolidated for the periods presented.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Pro-forma financial summary:
Revenues.......................................... $ 27,691 $ 30,139 $ 85,352 $ 61,911
Cost of sales..................................... (24,284) (24,659) (71,342) (49,881)
Selling, general and administrative expense....... (3,348) (3,579) (11,068) (10,865)
Interest.......................................... (443) (17) (1,378) (17)
Other income (expense), net....................... (98) (458) (60) (1,114)
----------- ------------ ------------- -------------
Pro-forma pre-tax income (loss)................... $ (482) $ 1,426 $ 1,504 $ 34
=========== ============ ============= =============
</TABLE>
For the quarter ended September 30, 1999, net new orders, unit settlements
and revenue decreased primarily related to the completion and close-out of
two Active Adult communities. For the nine months, net new orders also
decreased due to the completion and close-out of two communities. Unit
settlements and revenues increased for the nine months ended September 30,
1999, compared with the same period in 1998, due to activity in newer
communities which began closing units in the second and third quarters of
1998. In addition, higher average selling prices as a result of strong demand
for housing and product mix contributed to increased revenue.
Gross profit margins were 12.3% and 16.4% for the three and nine months ended
September 30, 1999, respectively, compared with 18.2% and 19.4%,
respectively, for the same periods of the prior year. The decrease was
primarily due to acquisition accounting adjustments related to the Company's
purchase of BRE's 50% interest in the joint venture operations effective July
1, 1999. Excluding the impact of acquisition accounting, gross profit margins
for the third quarter and nine months ended September 30, 1999 would have
been 19.0% and 18.6%, respectively. The Company anticipates that gross profit
margins will continue to be adversely impacted by acquisition accounting
adjustments through the first half of 2000.
Since March 25, 1998, the Active Adult operations have incurred interest
costs on funds borrowed to finance their development and construction
activities. The interest cost is capitalized into inventory and charged to
interest expense when the related inventories are closed.
Other expense, net for the third quarter of 1998 includes write-off of
pre-acquisition land costs. For the nine months ended September 30, 1998,
other expense, net also includes transaction costs related to the sale of
50% of the Company's Active Adult operations to BRE in the first quarter of
1998.
At September 30, 1999, Pulte's Active Adult homebuilding operations
controlled approximately 1,230 lots, of which approximately 900 lots were
owned and approximately 330 lots were controlled through option agreements.
30
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Financial Services Operations:
The Company conducts its financial services operations principally through
Pulte Mortgage Corporation (PMC), the Company's mortgage banking subsidiary,
and to a limited extent through Pulte Financial Companies, Inc. (PFCI), the
Company's financing subsidiary, which completed the early redemption of its
remaining mortgage-backed bond portfolio during the first quarter of 1999.
Pre-tax income (loss) of the Company's financial services operations for the
three and nine month periods ended September 30, 1999 and 1998, is as
follows:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Pre-tax income (loss):
Mortgage banking.............. $ 3,364 $ 4,920 $ 14,009 $ 10,908
Financing activities.......... 175 (20) 1,808 (60)
----------- ------------ ------------- -------------
Pre-tax income............ $ 3,539 $ 4,900 $ 15,817 $ 10,848
=========== ============ ============= =============
</TABLE>
Mortgage Banking:
The following table presents mortgage origination data for Pulte Mortgage:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Total originations:
Loans................................ 3,241 3,194 9,773 8,752
=========== ============ ============= =============
Principal............................ $ 455,800 $ 429,700 $ 1,352,300 $ 1,151,500
=========== ============ ============= =============
Originations for Pulte customers:
Loans................................ 2,616 2,258 7,406 6,350
=========== ============ ============= =============
Principal............................ $ 377,800 $ 312,700 $ 1,057,400 $ 858,800
=========== ============ ============= =============
</TABLE>
Mortgage origination unit volume for the three and nine month periods ended
September 30, 1999, increased 1% and 12%, respectively, over the comparable
1998 periods, driven primarily by a 20% increase in year-to-date unit sales
realized in Pulte's domestic homebuilding operations. The lower rate of
increase for the quarter is the result of competitive market conditions due
to rising mortgage interest rates, which decreased non-Pulte originations
during the quarter. Year-to-date, Pulte originations now comprise 76% of
total production versus 73% in the same period in 1998, while for the third
quarter Pulte originations were 81% in 1999 and 71% in 1998. Refinancings
approximated 5% of total loan originations for the nine month period ended
September 30, 1999, compared to 9% for the same period in 1998. At September
30, 1999, loan application backlog increased 23% to $662,700 as compared with
$537,900 at September 30, 1998. Pulte continues to hedge its mortgage
pipeline in the normal course of its business and there has been no change in
Pulte Mortgage's strategy or use of derivative financial instruments in this
regard.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities", as amended by SFAS No. 137, which is
required to be adopted for years beginning after June 15, 2000, with earlier
adoption encouraged. This Statement will require the Company to recognize all
derivatives on the balance sheet at fair value. Derivatives that are not
hedges must be adjusted to fair value through income. If the derivative is a
hedge, depending on the nature of the hedge, changes in the fair value of
derivatives will either be offset against the change in fair value of the
hedged assets, liabilities, or firm commitments through earnings or
recognized in other comprehensive income until the hedged item is recognized
in earnings. Pulte Mortgage, in the normal course of business, uses
derivative financial instruments to meet the financing needs of its customers
and reduce its own exposure to fluctuations in interest rates. The Company
plans to adopt this statement on January 1, 2001, but has not yet determined
what effect Statement No. 133 will have on its earnings and financial
position.
31
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Financial Services Operations (continued):
During the three and nine month periods ended September 30, 1999, origination
fees increased 29% and 49%, respectively. This increase is attributable to
higher revenues per loan and an increase in non-funded (brokered) loans.
Pricing and marketing gains for the three months ended September 30, 1999
decreased 20% due to increasingly competitive market conditions. For the nine
months ended September 30, 1999, a 12% increase was primarily the result of
increased funded mortgage originations. Net interest income increased 83% and
67%, respectively, due to higher funded production and a widening of the
yield curve. General and administrative expenses for the third quarter and
nine months ended September 30, 1999 were 24% and 21% higher than 1998,
respectively, due to higher loan production and costs related to year 2000
compliance efforts.
Financing Activities:
The Company's secured financing operations, which had been conducted by the
limited-purpose subsidiaries of Pulte Financial Companies, Inc. (PFCI),
included the acquisition of mortgage loans and mortgage-backed securities
financed principally through the issuance of long-term bonds secured by such
mortgage loans and mortgage-backed securities. During the first quarter of
this year, PFCI recognized a net gain of approximately $1,700 in connection
with the early redemption of its remaining mortgage-backed bond portfolio.
Corporate:
Corporate is a non-operating business segment whose primary purpose is to
support the operations of the Company's subsidiaries as the internal source
of financing, to develop and implement strategic initiatives centered on new
business development and operating efficiencies, and to provide the
administrative support associated with being a publicly traded entity. The
Company views the corporate function as a form of research and development,
by exploring and nurturing strategic initiatives centered on new business and
product development. As a result, the corporate segment's operating results
will vary from quarter to quarter as these strategic initiatives evolve.
The following table presents corporate results of operations for the three
and nine months ended September 30, 1999 and 1998:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net interest expense................. $ 5,290 $ 3,440 $ 14,931 $ 11,156
Other corporate expenses, net........ 4,401 1,868 11,407 5,851
----------- ------------ ------------- -------------
Loss before income taxes............. $ 9,691 $ 5,308 $ 26,338 $ 17,007
=========== ============ ============= =============
</TABLE>
32
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Corporate (continued):
Pre-tax loss of the Company's corporate business segment increased $4,383 and
$9,331, respectively, from the three and nine month periods ended September
30,1998. The increase in pre-tax loss for the quarter primarily reflects an
increase of approximately $1,850 in the corporate net interest spread and an
increase in other corporate expenses, net of approximately $2,500.
Year-to-date results reflect an increase of approximately $3,800 in the
corporate net interest spread, and an increase in other corporate expenses,
net, of approximately $5,500. Increases in the corporate net interest spread
are attributed to increased borrowings for additional capital investment,
primarily in the domestic homebuilding operations. Other corporate expenses,
net in 1998 were reduced by the net of one-time events, including a gain of
approximately $5,000 on the sale of Expression Homes, partially offset by
provisions of $3,500 for the write down of certain projects and R&D
investments.
Restructuring:
During the fourth quarter of 1997, a pre-tax charge of $20,000 was recorded
in connection with the reorganization of the Company's operations. This
reorganization entailed:
o the realignment of homebuilding operations into business lines which
focus on specific customer segments;
o the creation of a mortgage applications center, which increased
overhead leverage by moving Pulte Mortgage's loan officers from field
branches to a central location in Denver, Colorado; and
o the right-sizing of its workforce on a company-wide basis.
The 1997 restructuring charge included $11,787 of separation and other costs
for approximately 150 employees, $7,000 of asset impairments and $1,213 of
other costs, principally for office leases. The after-tax effect of this
charge was $12,300 or $.28 per diluted share (adjusted for the effect of the
Company's 2-for-1 stock split effective June 1, 1998). As of September 30,
1999, the Company has severed employment with approximately 150 employees.
The following table displays a rollforward of the liabilities accrued for the
Company's restructuring from December 31, 1998 to September 30, 1999:
<TABLE>
<CAPTION>
Balance at 1999 Balance at
December 31, Reserve September 30,
Type of Cost 1998 Uses 1999
- ------------ ---------------- ---------------- ----------------
<S> <C> <C> <C>
Homebuilding operations:
Employee separation and other $ 1,502 $ (600) $ 902
Other 255 (125) 130
---------------- ---------------- ----------------
1,757 (725) 1,032
---------------- ---------------- ----------------
Mortgage Banking operations:
Employee separation and other 337 (150) 187
Other 79 (77) 2
---------------- ---------------- ----------------
416 (227) 189
---------------- ---------------- ----------------
Corporate:
Employee separation and other 922 (343) 579
---------------- ---------------- ----------------
$ 3,095 $ (1,295) $ 1,800
================ ================ ================
</TABLE>
The remaining accrual for restructuring costs at September 30, 1999 primarily
relates to longer term severance agreements and deferred compensation
liabilities which are expected to be fully utilized by December 31, 1999.
33
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Liquidity and Capital Resources:
Continuing Operations:
The Company's net cash used in operating activities amounted to $89,933,
reflecting an increase in the use of operating funds as compared with the
same period last year. This increase is primarily attributable to increases
in inventory levels resulting from land purchases and increases in other
assets, partially offset by a decrease in PMC's portfolio of residential
mortgage loans available-for-sale, and increases in net income and accounts
payable. Net cash provided by investing activities increased to $3,083
reflecting the sale of the underlying collateral of PFCI's mortgage-backed
bond portfolio which was redeemed during the first quarter of this year,
offset by the purchase of BRE's interest in the net assets of the Company's
Active Adult joint venture. Cash used in 1998 investing activity primarily
reflects the Company's purchase of Radnor Homes and DiVosta & Company. Net
cash used in financing activities decreased to $7,761 in 1999, which uses
reflect PFCI's redemption of its remaining mortgage-backed bond portfolio,
payments on collateralized short-term debt related to PMC's residential
mortgage loan portfolio, repayment of unsecured senior subordinated debentues
and other debt, offset by increased borrowings under the Company's revolving
credit facility.
The Company finances its land acquisitions, development and construction
activities from internally generated funds and existing credit agreements.
The Company had $150,000 of borrowings under its $415,000 unsecured revolving
credit facilities and approximately $28,000 of borrowings under its $60,000
secured credit line at September 30, 1999. PMC provides mortgage
financing for many of its home sales and uses its own funds and borrowings
made available pursuant to various committed and uncommitted credit
arrangements which, at September 30, 1999, amounted to $275,000. PMC
has received a conditional commitment of an additional $70,000,
which will be effective in December, 1999, for anticipated year end mortgage
origination volume. There were approximately $136,000 of borrowings
outstanding under the $275,000 PMC arrangement at September 30, 1999.
Mortgage loans originated by PMC are subsequently sold to outside investors.
The Company anticipates that there will be adequate mortgage financing
available for purchasers of its homes.
The Company's income tax liabilities are affected by a number of factors.
During the second quarter, the Company revised its estimate of the effective
tax rate for 1999 to 37.5% from a previously reported estimate of between 39%
and 40%. The reduced income tax rate primarily relates to a lower effective
state tax rate and the favorable resolution of various state income tax
matters, including the utilization of certain state net operating loss
carry-forwards. The Company expects its effective tax rate to increase to
38.5% in 2000.
At September 30, 1999, the Company had cash and equivalents of $30,587 and
total long-term indebtedness of $518,391. Long-term indebtedness includes
$487,642 of unsecured senior notes, a $21,000 unsecured promissory note and
other Pulte limited recourse debt of $9,749. During the third quarter of
1999, the Company redeemed the remaining $22,405, 10.125% unsecured senior
subordinated debentures due July, 1999. Included in discontinued operations
is First Heights advances of $760. The Company also has other non-recourse
short-term notes payable of $51,725.
Sources of the Company's working capital at September 30, 1999 include its
cash and equivalents, its $210,000 committed unsecured revolving credit
facility, and an additional $205,000 committed unsecured revolving credit
facility which closed in September, 1999. The Company's Active Adult
operation finances its development and construction activities through a
$60,000 line of credit secured by its inventory. The Company anticipates
paying off this line during the fourth quarter, and funding these operations
through its unsecured revolving credit facilities. During the remainder of
1999, management anticipates projected homebuilding and corporate working
capital requirements will be principally funded with internally generated
funds and the previously mentioned credit facilities. The Company routinely
monitors current operational requirements and financial market conditions to
evaluate the utilization of available financing sources, including securities
offerings.
34
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Liquidity and Capital Resources (continued):
Discontinued Operations:
The Company's remaining investment in First Heights at September 30, 1999
approximated $29,000. Since the acquisition of First Heights, the Company's
income taxes have been significantly impacted by its thrift operations,
principally because payments received from the FSLIC Resolution Fund (FRF)
were exempt from federal income taxes. The Company's thrift assets are
subject to regulatory restrictions and a court order and thus are not
available for general corporate purposes. The final liquidation of the
Company's thrift operations is dependent on the final resolution of
outstanding matters with the Federal Deposit Insurance Corporation (FDIC),
manager of FRF. As discussed in Note 4 of Notes to Condensed Consolidated
Financial Statements, the Company vigorously disagrees with the Final
Judgment entered by the United States District Court and has appealed to the
Sixth Circuit Court of Appeals. The Company has posted bonds in the amount
of $117 million. Based upon the Company's assessment of its legal position in
the District Court litigation with the FDIC, as well as the expected duration
of the legal process in this case, the Company does not currently believe
that the judgment ordered by the District Court against Pulte Diversified
Companies, Inc. and First Heights will have a material impact on the
Company's liquidity.
Inflation
The Company and the homebuilding industry in general, may be adversely
affected during periods of high inflation, because of higher land and
construction costs. Inflation also increases the Company's financing, labor
and material costs. In addition, higher mortgage interest rates significantly
affect the affordability of permanent mortgage financing to prospective
homebuyers. The Company attempts to pass through to its customers any
increases in its costs through increased sales prices and, to date, inflation
has not had a material adverse effect on the Company's results of operations.
However, there is no assurance that inflation will not have a material
adverse impact on the Company's future results of operations.
Information Technology and Year 2000 Compliance:
An integral part of the Company's operating strategy is to provide Pulte
management and employees the information systems needed to support the
Company's current operations and future growth, a strategy supported by
Pulte's investment in technology, which in 1998, and forecasted for 1999,
will exceed $15,000 in annual spending. Management believes that substantial
progress has been made toward the goal of developing an integrated set of
systems to support marketing, land and product development, home sales,
construction, service, and comprehensive financial management.
A critical component of this integrated systems effort involves replacement
of the Company's existing accounting systems. This new system is designed to
enhance access to and reporting of operating results and other financial
measurements, as well as substantially resolve the Company's exposure to Year
2000 risk (the inability of certain computer software, hardware and other
equipment with embedded computer chips to properly process two-digit
year-date codes after 1999). To address the millennium date change issue, the
Company's homebuilding and corporate operations performed risk assessments of
information technology (IT), non-IT (embedded technology such as
microprocessors in office equipment and facilities) and essential
homebuilding supplier/contractor relationships. The Company's mortgage
banking operation also completed a Year 2000 risk assessment for both
internal information systems and external relationships.
35
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Information Technology and Year 2000 Compliance (continued):
The Company's State of Readiness
The chart illustrated below summarizes the Company's current major
information systems and management's current assessment of the potential risk
of Year 2000 issues. The status of each major information technology (IT)
activity is reported by "phase" as defined below.
Phase 1 Assessment Exposure (analysis and testing)
Phase 2 Problem correction and validation
Phase 3 Implementation/rollout of upgrades and corrections
Phase 4 Communication with affected parties
<TABLE>
<CAPTION>
1999 Expected Date
of Completion
IT related Systems IT Dependency Phase/Status (all Phases)
- ------------------ ------------- ------------ ------------------
<S> <C> <C> <C>
1. Integrated Business Systems
- Financial accounting High 3 November 30
- Sales & Construction support Medium Complete Complete
- Service management Low Complete Complete
- Payroll and Benefits administration High Complete Complete
2. Datacenter Equipment & Operations High Complete Complete
3. Data and Voice Communications Networks High Complete Complete
4. Desktop PC's, incl. electronic mail, except leased Medium Complete Complete
equipment
5. Key suppliers
- Banking providers Medium Complete Complete
- Field trade contractors and material suppliers Low Complete Complete
</TABLE>
Non-IT Systems
The Company does not own or operate any material "non-IT" systems,
facilities, or industrial equipment that it believes might be adversely
affected by the Year 2000 issue. All administrative office premises are
leased, and are typically low-rise facilities in major metropolitan areas.
All telephone systems and electronic office equipment have been assessed and
corrected as part of Project 3 listed above.
Customer and Supplier/Contractor Relationships
Customer deliverables are not critically reliant on information technology.
In markets where contracts and legal correspondence are computer generated,
final documents are always printed in hard-copy form for signature. Should
existing computerized sales systems be rendered inoperable for any reason,
sales personnel are currently trained to prepare all required customer
documentation manually. In addition, standard Pulte contract language does
not permit customers to cancel purchases for nominal delays.
The Company's trade contractors/suppliers in general are not highly reliant
on information systems for delivery of service or materials to the job-site,
as is the case for the majority of the homebuilding industry. Day-to-day
business communication of printed schedules and home specification
information typically occurs via fax or manual exchange in printed form (as
opposed to electronically, e.g., via EDI data communications). Pulte has
provided Year 2000 risk assessment guidelines to its field operations and
purchasing managers during the year to ensure that any predictable Year
2000-related issues can be identified and resolved, or alternative supplier
relationships
36
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (continued)
($000's omitted)
Information Technology and Year 2000 Compliance (continued):
established with compliant service providers. Current Pulte operating policy
normally requires that supply relationships be established locally with at
least two alternative sources for all building tasks and materials supply.
The Company has exchanged Year 2000 readiness information with all national
contract suppliers. Such Year 2000 readiness information has already been
exchanged with all of the Company's major banks. Verification testing has
been performed with each major bank to demonstrate the ability to exchange
data after December 31, 1999.
The Risks of the Company's Year 2000 Issues and The Company's Contingency
Plans
The major focus of the Company's information systems efforts in 1999 will be
to complete the nationwide roll-out of its new financial accounting and
operating systems. Management believes that this initiative is substantially
complete and is on schedule with the roll-out to be completed by November 30,
1999. While these systems have been tested for functionality after December
31, should an unlikely, unforeseen issue occur, the Company plans to resort
to the use of manual business tracking processes which could delay normal
day-to-day back office activities, but which would not interfere with the
Company's ability to complete the construction of homes or close home sales.
A plan for monitoring year-end events and communications within the
organization to ensure continuity of business operations is being
implemented. While it is believed that disruptions to external environmentals
(electric utility, long distance phone carriers, etc.) are unlikely and will
be of limited occurrence and short duration, an emergency management process
will be in place to communicate, manage, and resolve or implement
contingencies for these potential service disruptions. Staffing plans for
monitoring and managing key business information systems are in place to
provide for rapid response to any unplanned event.
While there can be no assurance that no legal claims will arise due to
perceived or real Year 2000 issues, the Company does not expect a material
impact on its liquidity, financial position or results of operations caused
by internal Year 2000 issues or by possible claims asserted by third parties.
Costs Related to Year 2000
The cumulative portion of total IT spending which has been capitalized for
the Company's internally-developed business software, a project which
comprises the majority of the Year 2000 effort, approximated $6,800 at
September 30, 1999. The Company anticipates spending an additional $1,000
this year to complete the project. In addition to the software development
costs, the Company expects to incur additional expenses to be Year 2000
compliant; however, the Company does not expect the cost for such compliance
to have a material impact on its liquidity, financial position or results of
operations.
37
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to interest rate risk on its long term debt. The
Company seeks to minimize its interest rate exposure by using variable rate
financing; however, the Company runs the risk of interest rate declines with
respect to its fixed rate long term corporate debt instruments. The following
table sets forth, as of September 30, 1999, the Company's long term debt
obligations, principal cash flows by scheduled maturity, weighted average
interest rates and estimated fair market value:
<TABLE>
<CAPTION>
($000's omitted)
Fair
There- Value
1999 2000 2001 2002 2003 after Total 9/30/99
-------- -------- ------- -------- -------- ----- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Rate sensitive liabilities:
Fixed interest rate debt:
Pulte Corporation public
debt instruments ........... $ -- -- -- -- 100,000 390,000 $ 490,000 $ 468,666
Average interest rate ...... -- -- -- -- 7.00% 7.74% 7.61% --
Pulte Diversified Companies,
Inc., unsecured promissory
note ....................... $ -- 14,000 7,000 -- -- -- $ 21,000 $ 21,000
Average interest rate ...... -- 8.00% 8.00% -- -- -- 8.00% --
Pulte Home Corporation
other non-recourse
debt ....................... $ 3,911 5,377 -- 461 -- -- $ 9,749 $ 9,749
Average interest rate ...... 9.17% 10.23% -- 8.25% -- -- 9.77% --
</TABLE>
PMC, operating as a mortgage banker, is also subject to interest rate risk.
Interest rate risk begins when PMC commits to lend money to a customer at
agreed upon terms (i.e. commit to lend at a certain interest rate for a
certain period of time). The interest rate risk continues through the loan
closing and until the loan is sold to an investor. During 1999, this period
of interest rate exposure averaged approximately 60 days. In periods of
rising interest rates, the length of exposure will generally increase due to
customers locking in an interest rate sooner as opposed to letting the
interest rate float.
In order to minimize its interest rate risk, PMC does two things; it finances
the loans via a variable rate borrowing agreement tied to the Federal Funds
rate and it hedges its loan commitments and closed loans through derivative
financial instruments with off-balance sheet risk. These financial
instruments include cash forward placement contracts on mortgage-backed
securities, whole loan investor commitments, options on treasury future
contracts, and options on cash forward placement contracts on mortgage-backed
securities. PMC does not use any derivative financial instruments for trading
purposes.
Hypothetical changes in the fair values of PMC's financial instruments
arising from immediate parallel shifts in long-term mortgage rates of plus
50, 100 and 150 basis points would not be material to the Company's financial
results.
The Company's aggregate net investment in Mexico approximated $39,700 at
September 30, 1999. The Company estimates that this investment, which is
exposed to foreign currency exchange risk, could devalue by as much as $1,200
during the remainder of 1999, assuming a hypothetical monthly devaluation of
the Mexican peso against the U.S. dollar of one percent in each month of
1999.
38
PART 1. FINANCIAL INFORMATION (continued)
PULTE CORPORATION
Forward-Looking Statements:
As a cautionary note, except for the historical information contained herein,
certain matters discussed in Item 2., "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and Item 3., "Quantitative
and Qualitative Disclosures About Market Risk", are "forward-looking"
statements within the meaning of the Private Securities Litigation Reform Act
of 1995. Such matters involve risks and uncertainties, including: the
Company's exposure to certain market risks, changes in economic conditions,
tax and interest rates, increases in raw material and labor costs, weather
conditions, and general competitive factors, that may cause actual results to
differ materially; its ability to resolve all outstanding matters related to
First Heights (including the outcome of the Company's appeal in the District
Court litigation with the FDIC), its ability to correct all material
applications addressing the Year 2000 problem; as well as, the ability of the
Company's vendors to correct all material applications addressing the Year
2000 problem, and the Company's assessment of the Year 2000 problem's impact
on its financial results and operations.
39
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
First Heights Related Litigation: Update on Lawsuit Filed on July 7,
1995 in the United States District Court, Eastern District of Michigan
(the "Court"), by the Federal Deposit Insurance Corporation ("FDIC")
against the Company, Pulte Diversified Companies, Inc. and First
Heights Bank (collectively, "the Pulte Parties") (the "District Court
Case").
See Note 4, Notes to Condensed Consolidated Financial Statements, which
is contained in Part I, Item 1, of this Quarterly Report on Form 10-Q
and which is incorporated by reference into this response.
Item 5. Other Information
The Company must receive notice of any proposals of shareholders that
are intended to be presented at the Company's 2000 Annual Meeting of
Shareholders, but that are not intended to be considered for inclusion
in the Company's Proxy Statement and Proxy related to that meeting, no
later than February 15, 2000 to be considered timely. Such proposals
should be sent to the Company's Secretary at the Company's offices, 33
Bloomfield Hills Parkway, Suite 200, Bloomfield Hills, MI 48304 by
certified mail, return receipt requested. If the Company does not have
notice of the matter by that date, the Company's form of proxy in
connection with that meeting may confer discretionary authority to vote
on that matter, and the persons named in the Company's form of proxy
will vote the shares represented by such proxies in accordance with
their best judgment.
Item 6. Exhibits
Page herein or incorporated
Exhibit number and description by reference from
- ------------------------------ ---------------------------
(10) 364-Day Credit Agreement among
Pulte Corporation as Borrower,
the Material Subsidiaries of Pulte
Corporation as Guarantors, the
Lenders Identified herein, and
Bank of America, N.A., as
Administrative Agent, dated as
of September 15, 1999.
(27) Financial Data Schedule
All other exhibits are omitted from this report because they are not
applicable.
40
SIGNATURES
Pursuant to the requirements 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.
PULTE CORPORATION
/s/ Roger A. Cregg
-----------------------------
Roger A. Cregg
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ Vincent J. Frees
-----------------------------
Vincent J. Frees
Vice President and Controller
(Principal Accounting Officer)
Date: November 12, 1999
41
364-DAY CREDIT AGREEMENT
among
PULTE CORPORATION
as Borrower,
THE MATERIAL SUBSIDIARIES OF PULTE CORPORATION
as Guarantors,
THE LENDERS IDENTIFIED HEREIN,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
DATED AS OF SEPTEMBER 15, 1999
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager,
BANK ONE, NA,
as Syndication Agent
and
GUARANTY FEDERAL BANK, F.S.B.,
as Co-Agent
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS............................................ 1
1.1 Definitions......................................................... 1
1.2 Computation of Time Periods and Other Definitional Provisions....... 14
1.3 Accounting Terms.................................................... 15
1.4 Time................................................................ 15
SECTION 2 CREDIT FACILITIES........................................................... 15
2.1 Revolving Loans..................................................... 15
2.2 Swingline Loans Subfacility......................................... 16
2.3 Continuations and Conversions....................................... 18
2.4 Minimum Amounts..................................................... 18
2.5 Extension of Maturity Date.......................................... 18
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS...................................... 20
3.1 Interest............................................................ 20
3.2 Place and Manner of Payments........................................ 20
3.3 Prepayments......................................................... 20
3.4 Fees................................................................ 21
3.5 Payment in Full at Maturity......................................... 22
3.6 Computations of Interest and Fees................................... 22
3.7 Pro Rata Treatment.................................................. 23
3.8 Sharing of Payments................................................. 23
3.9 Capital Adequacy.................................................... 23
3.10 Inability To Determine Interest Rate................................ 24
3.11 Illegality.......................................................... 24
3.12 Requirements of Law................................................. 24
3.13 Taxes............................................................... 25
3.14 Compensation........................................................ 27
3.15 Substitution of Lender.............................................. 27
3.16 Evidence of Debt.................................................... 28
SECTION 4 GUARANTY.................................................................... 28
4.1 Guaranty of Payment................................................. 28
4.2 Obligations Unconditional........................................... 28
4.3 Modifications....................................................... 29
4.4 Waiver of Rights.................................................... 29
4.5 Reinstatement....................................................... 29
4.6 Remedies............................................................ 30
4.7 Limitation of Guaranty.............................................. 30
4.8 Rights of Contribution.............................................. 30
SECTION 5 CONDITIONS PRECEDENT........................................................ 30
5.1 Closing Conditions.................................................. 30
5.2 Conditions to All Extensions of Credit.............................. 33
SECTION 6 REPRESENTATIONS AND WARRANTIES.............................................. 34
6.1 Financial Condition................................................. 34
6.2 No Material Change.................................................. 34
6.3 Organization and Good Standing...................................... 34
6.4 Due Authorization................................................... 34
6.5 No Conflicts........................................................ 35
6.6 Consents............................................................ 35
6.7 Enforceable Obligations............................................. 35
6.8 No Default.......................................................... 35
6.9 Liens............................................................... 35
6.10 Indebtedness........................................................ 35
6.11 Litigation.......................................................... 35
6.12 Taxes............................................................... 35
6.13 Compliance with Law................................................. 36
6.14 ERISA............................................................... 36
6.15 Subsidiaries........................................................ 37
6.16 Use of Proceeds..................................................... 37
6.17 Government Regulation............................................... 37
6.18 Environmental Matters............................................... 37
6.19 Intellectual Property............................................... 38
6.20 Solvency............................................................ 38
6.21 Investments......................................................... 38
6.22 Disclosure.......................................................... 39
6.23 Licenses, etc....................................................... 39
6.24 Burdensome Restrictions............................................. 39
6.25 Year 2000 Compliance................................................ 39
6.26 Labor Contracts and Disputes........................................ 39
6.27 Broker's Fees....................................................... 39
SECTION 7 AFFIRMATIVE COVENANTS....................................................... 39
7.1 Information Covenants............................................... 40
7.2 Financial Covenants................................................. 42
7.3 Preservation of Existence and Franchises............................ 42
7.4 Books and Records................................................... 42
7.5 Compliance with Law................................................. 42
7.6 Payment of Taxes and Other Indebtedness............................. 42
7.7 Insurance........................................................... 43
7.8 Maintenance of Property............................................. 43
7.9 Performance of Obligations.......................................... 43
7.10 Use of Proceeds..................................................... 43
7.11 Audits/Inspections.................................................. 43
7.12 Additional Credit Parties........................................... 43
SECTION 8 NEGATIVE COVENANTS.......................................................... 44
8.1 Indebtedness........................................................ 44
8.2 Liens............................................................... 44
8.3 Nature of Business.................................................. 45
8.4 Consolidation and Merger............................................ 45
8.5 Sale or Lease of Assets............................................. 45
8.6 Sale and Leaseback.................................................. 45
8.7 Advances, Investments and Loans..................................... 46
8.8 Restricted Payments................................................. 46
8.9 Transactions with Affiliates........................................ 46
8.10 Fiscal Year; Organizational Documents............................... 46
8.11 No Limitations...................................................... 46
8.12 No Other Negative Pledges........................................... 46
8.13 Other Indebtedness.................................................. 46
SECTION 9 EVENTS OF DEFAULT........................................................... 47
9.1 Events of Default................................................... 47
ii
9.2 Acceleration; Remedies.............................................. 49
9.3 Allocation of Payments After Event of Default....................... 49
SECTION 10 AGENCY PROVISIONS........................................................... 50
10.1 Appointment......................................................... 50
10.2 Delegation of Duties................................................ 50
10.3 Exculpatory Provisions.............................................. 50
10.4 Reliance on Communications.......................................... 51
10.5 Notice of Default................................................... 51
10.6 Non-Reliance on Administrative Agent and Other Lenders.............. 51
10.7 Indemnification..................................................... 52
10.8 Administrative Agent in Their Individual Capacity................... 52
10.9 Successor Administrative Agent...................................... 52
SECTION 11 MISCELLANEOUS............................................................... 53
11.1 Notices............................................................. 53
11.2 Right of Set-Off.................................................... 53
11.3 Benefit of Agreement................................................ 53
11.4 No Waiver; Remedies Cumulative...................................... 55
11.5 Payment of Expenses; Indemnification................................ 55
11.6 Amendments, Waivers and Consents.................................... 56
11.7 Counterparts/Telecopy............................................... 57
11.8 Headings............................................................ 57
11.9 Defaulting Lender................................................... 57
11.10 Survival of Indemnification and Representations and Warranties...... 57
11.11 Governing Law; Jurisdiction......................................... 57
11.12 Waiver of Jury Trial; Waiver of Consequential Damages............... 58
11.13 Severability........................................................ 58
11.14 Further Assurances.................................................. 58
11.15 Entirety............................................................ 58
11.16 Binding Effect; Continuing Agreement................................ 58
</TABLE>
iii
SCHEDULES
Schedule 1.1(a) Revolving Loan Commitment Percentages
Schedule 1.1(b) Permitted Liens
Schedule 6.10 Indebtedness
Schedule 6.11 Litigation
Schedule 6.15 Subsidiaries
Schedule 6.21 Investments
Schedule 6.26 Labor Contract and Disputes
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.2(b) Form of Swingline Loan Request
Exhibit 2.2(e) Form of Swingline Note
Exhibit 2.3 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
iv
364-DAY
CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT (this "Credit Agreement") is entered
into as of September 15, 1999 among PULTE CORPORATION, a Michigan corporation
(the "Borrower"), each of the Material Subsidiaries of the Borrower
(individually a "Guarantor" and collectively the "Guarantors"), the Lenders
(as defined herein) and BANK OF AMERICA, N.A., as Administrative Agent for
the Lenders (as defined herein).
RECITALS
WHEREAS, the Borrower and the Guarantors have requested the
Lenders to provide a senior 364-day revolving credit facility in an aggregate
principal amount of up to $205 million; and
WHEREAS, the Lenders party hereto have agreed to make the
requested senior 364-day revolving credit facility available to the Borrower
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition", by any Person, means the acquisition by
such Person of the Capital Stock or all or substantially all of
the assets of another Person, whether or not involving a merger or
consolidation with such Person.
"Additional Credit Party" means each Person that becomes
a Guarantor after the Closing Date, as provided in Section 7.12 or
otherwise.
"Adjusted Eurodollar Rate" means the Eurodollar Rate
plus the Applicable Percentage.
"Administrative Agent" means Bank of America, N.A. (or
any successor thereto) or any successor administrative agent
appointed pursuant to Section 10.9.
"Administrative Fees" has the meaning set forth in
Section 3.4(c).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not
limited to all directors and officers (or the equivalent) of such
Person), controlled by or under direct or indirect common control
with such Person. A Person shall be deemed to control an entity if
such Person possesses, directly or indirectly, the power (a) to
vote 10% or more of the ordinary voting power for the election of
directors (or the equivalent) of such entity or (b) to direct or
cause direction of the management and policies of such entity,
whether through the ownership of voting securities, by contract or
otherwise.
"Agency Services Address" means Bank of America, N.A.,
231 South LaSalle Street, Chicago, IL 60697, or such other address
as may be identified by written notice from the Administrative
Agent to the Borrower.
"Applicable Percentage" means, for Eurodollar Loans and
Facility Fees, the appropriate applicable percentages
corresponding to the Debt to Capitalization Ratio and the long
term unsecured debt rating of the Borrower as described below:
<TABLE>
<CAPTION>
Long Term Unsecured
Debt to Debt Rating Applicable Percentage Applicable Percentage
Pricing Capitalization of for for
Level Ratio Borrower Eurodollar Loans Facility Fees
- ------- -------------- -------------------- --------------------- --------------------
<S> <C> <C> <C> <C>
I Less than or equal to 20% Greater than or equal to
BBB+/Baa1 .475% .125%
II Greater than 20% but
less than or equal to 35% BBB/Baa2 .700% .150%
III Greater than 35% but
less than or equal to 45% BBB-/Baa3 .850% .200%
IV Greater than 45% Less than BBB-/Baa3 1.100% .250%
</TABLE>
In the event the Debt to Capitalization Ratio and the long term
unsecured debt rating of the Borrower are not at the same level,
the applicable Pricing Level shall be the lowest applicable level
(i.e. the lowest pricing for the Borrower); provided, however,
that if the Debt to Capitalization Ratio corresponds to a level
more than one level lower than the long term debt rating of the
Borrower, then the applicable Pricing Level shall be one level
lower than the Pricing Level determined by the long term unsecured
debt rating of the Borrower. In the event of a split in ratings
between Moody's and S&P, the long term unsecured debt rating of
the Borrower shall be the highest rating; provided, however, that
if there is a split in ratings between Moody's and S&P of more
than one level, the long term unsecured debt rating of the
Borrower shall be one level lower than the highest rating. The
Applicable Percentage shall be determined and adjusted, as
necessary, on the date of any change in the long term unsecured
debt rating of the Borrower or upon receipt of the officer's
certificate required by Section 7.1(c) calculating the then Debt
to Capitalization Ratio.
"Assignment Agreement" has the meaning set forth in
Section 11.3(b).
"Authorized Officer" means, with respect to any
certificate required to be delivered pursuant to this Credit
Agreement, the chief financial officer, treasurer or corporate
controller of the Borrower.
"BAS" means Banc of America Securities LLC, in its
capacity as Sole Lead Arranger and Sole Book Manager, and its
successors and assigns.
"Bank of America" means Bank of America, N.A. and its
successors and assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded or
replaced from time to time.
"Base Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the greater of (a) the Federal Funds Rate in
effect on such day plus 1/2 of 1% or (b) the Prime Rate in effect
on such day. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent
manifest error) that it is unable after due inquiry to ascertain
the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate
shall be determined without regard to clause (a) of the first
sentence of this definition until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate
or the Federal Funds Rate, respectively.
2
"Base Rate Loan" means any Loan bearing interest at a
rate determined by reference to the Base Rate.
"Borrower" means Pulte Corporation, a Michigan
corporation, together with any successors and permitted assigns.
"Bridge Facility" means that certain credit facility in
an aggregate principal amount of up to $50,000,000 provided to the
Borrower by Bank of America as evidenced by that certain Credit
Agreement among the Borrower, the Guarantors and Bank of America,
dated as of July 23, 1999, and all other credit documents related
thereto.
"Business Day" means any day other than a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are
authorized or required by law or other governmental action to
close in Chicago, Illinois; provided that in the case of
Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in Dollar deposits in the London interbank
market.
"Capital Expenditures" means all expenditures of the
Credit Parties and their Subsidiaries which, in accordance with
GAAP, would be classified as capital expenditures, including,
without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that
Person and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation,
all classes of capital stock of such corporation, (b) in the case
of a partnership, partnership interests (whether general or
limited), (c) in the case of a limited liability company,
membership interests and (d) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
"Capitalization" means (a) Funded Debt plus (b) the
consolidated net shareholders equity of the Credit Parties and
their Subsidiaries as determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is
pledged in support thereof) having maturities of not more than 180
days from the date of acquisition, (b) Dollar denominated time and
demand deposits and certificates of deposit of (i) any Lender,
(ii) any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-2 or the equivalent
thereof or from Moody's is at least P-2 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with
maturities of not more than 180 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by
any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-2 (or the equivalent thereof) or better by S&P
or P-2 (or the equivalent thereof) or better by Moody's and
maturing within 180 days of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including any
of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America in which the
Borrower shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) Investments, classified in accordance
with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended,
which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions
3
(a) through (d), and (f) Investments consistent with the Pulte
Corporation Investment Policy as set forth on Schedule 8.07(a) to
the Existing Senior Credit Agreement.
"Change of Control" means the occurrence of any of the
following events: (a) there shall be consummated any
consolidation, share exchange or merger of the Borrower in which
the Borrower is not the continuing or surviving corporation or
pursuant to which the Borrower's Voting Stock would be converted
into cash, securities or other property, other than, in any case,
a merger of the Borrower in which the holders of Voting Stock
immediately prior to the merger have the same or greater
proportionate ownership, directly or indirectly, of the Voting
Stock of the surviving corporation immediately after the merger as
they had of the Voting Stock of the Borrower immediately before
the merger; (b) there is a report filed by any Person, including
Affiliates of the Borrower (other than the Borrower, its Material
Subsidiaries, employee stock ownership plans or employee benefit
plans of the Borrower or its subsidiaries, or a Permitted Holder)
on Schedule 13D or 14D-1 (or any successor schedule, form or
report under the Exchange Act) disclosing that such Person (for
the purpose of this definition of "Change in Control" only, the
term "Person" shall include a "person" within the meaning of
Section 13(d)(3) and Section 14(d)(2) of the Exchange Act or any
successor provision to either of the foregoing) has become the
beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3, Rule 13d-5 or any successor rule or regulation
promulgated under the Exchange Act) of 30% or more of the
Borrower's Voting Stock; provided, however, that a Person shall
not be deemed the beneficial owner of, or to own beneficially (i)
any securities tendered pursuant to a tender or exchange offer
made on behalf of such Person or any of such Person's Affiliates
until such tendered securities are accepted for purchase or
exchange thereunder or (ii) any securities if such beneficial
ownership (A) arises solely as a result of a revocable proxy
delivered in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act, and (B) is not also then
reportable on Schedule 13D (or any successor schedule, form or
report) under the Exchange Act; or (c) during any period of two
consecutive calendar years, individuals who, at the beginning of
such period constituted the board of directors of the Borrower
cease for any reason to constitute a majority of the directors of
the Borrower then in office unless such new directors were elected
by the directors of the Borrower who constituted the board of
directors of the Borrower at the beginning of such period.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the
rules and regulations promulgated thereunder, as amended,
modified, succeeded or replaced from time to time. References to
sections of the Code should be construed also to refer to any
successor sections.
"Commitments" means (a) with respect to each Lender, the
Revolving Loan Commitment of such Lender and (b) with respect to
Bank of America, the Swingline Loan Commitment.
"Consolidated Net Tangible Assets" means the total
amount of assets which would be included on a combined balance
sheet of the Material Subsidiaries together with the total amount
of assets that would be included on the Borrower's balance sheet,
not including its Subsidiaries, under GAAP (less applicable
reserves and other properly deductible items) after deducting
therefrom: (a) all short-term liabilities, except for liabilities
payable by their terms more than one year from the date of
determination (or renewable or extendible at the option of the
obligor for a period ending more than one year after such date)
and liabilities in respect of retiree benefits other than pensions
for which the Borrower and its Material Subsidiaries are required
to accrue pursuant to Statement of Financial Accounting Standards
No. 106, (b) investments in Subsidiaries that are not Material
Subsidiaries, including, without limitation, Pulte Mortgage
Corporation, First Heights Bank and North American Builders
Indemnity Company and (c) all goodwill, trade names, trademarks,
patents, unamortized debt discount, unamortized expense incurred
in the issuance of debt and other intangible assets.
"Credit Documents" means this Credit Agreement, the
Notes, any Joinder Agreement and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto.
4
"Credit Parties" means the Borrower and the Guarantors
and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication,
all of the obligations of the Credit Parties to the Lenders and
the Administrative Agent, whenever arising, under this Credit
Agreement, the Notes or any other Credit Document to which any
Credit Party is a party.
"Debt Issuance" means the issuance of any Indebtedness
for borrowed money by a Credit Party or any of its Subsidiaries,
other than Indebtedness permitted by Section 8.1.
"Debt to Capitalization Ratio" means, as of any date,
the ratio of (a) Funded Debt less (i) Subordinated Debt issued by
the Credit Parties which matures on or after the Revolving-A Loans
Maturity Date (as defined in the Existing Senior Credit Agreement)
in an aggregate amount not to exceed $100 million and (ii) all
cash and Cash Equivalents held by the Credit Parties in excess of
$25,000,000 to (b) Capitalization.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulting Lender" means, at any time, any Lender that
(a) has failed to make a Loan or purchase a Participation Interest
required pursuant to the terms of this Credit Agreement (but only
for so long as such Loan is not made or such Participation
Interest is not purchased), (b) has failed to pay to the
Administrative Agent or any other Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement (but only
for so long as such amount has not been paid) or (c) has been
deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or with respect to which (or with respect to
any assets of which) a receiver, trustee or similar official has
been appointed.
"Dollars" and "$" mean dollars in lawful currency of the
United States of America.
"Effective Date" means the date on which the conditions
set forth in Section 5.1 shall have been fulfilled (or waived in
the sole discretion of the Lenders).
"Eligible Assignee" means (a) any Lender; (b) an
Affiliate of a Lender; and (c) any other Person approved by the
Administrative Agent and the Borrower (such approval not to be
unreasonably withheld or delayed); provided that (i) the
Borrower's consent is not required during the existence and
continuation of an Event of Default, (ii) approval by the Borrower
shall be deemed given if no objection is received by the assigning
Lender and the Administrative Agent from the Borrower within two
Business Days after notice of such proposed assignment has been
received by the Borrower; and (iii) neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Claim" means any investigation, written
notice, violation, written demand, written allegation, action,
suit, injunction, judgment, order, consent decree, penalty, fine,
lien, proceeding, or written claim whether administrative,
judicial, or private in nature arising (a) pursuant to, or in
connection with, an actual or alleged violation of, any
Environmental Law, (b) in connection with any Hazardous Material,
(c) from any assessment, abatement, removal, remedial, corrective,
or other response action in connection with an Environmental Law
or other order of a Governmental Authority or (d) from any actual
or alleged damage, injury, threat, or harm to health, safety,
natural resources, or the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor
environment, (b) the conservation, management, or use of natural
resources and wildlife, (c) the protection or use of surface water
and groundwater or (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage,
disposal, release, threatened release, abatement, removal,
remediation or handling of, or exposure to, any hazardous or toxic
substance or material or (e) pollution (including any release to
land, surface water and groundwater) and includes, without
limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and
5
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
USC 6901 et seq., Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act
of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control
Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil
Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and
Community Right-to-Know Act of 1986, 42 USC 11001 et seq.,
National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et
seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued
thereunder.
"Equity Issuance" means any issuance by a Credit Party
to any Person of (a) shares of its Capital Stock, (b) any shares
of its Capital Stock pursuant to the exercise of options or
warrants or (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute thereto, as
interpreted by the rules and regulations thereunder, all as the
same may be in effect from time to time. References to sections of
ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party
or any of its Subsidiaries within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes any
Credit Party or any of its Subsidiaries and which is treated as a
single employer under Sections 414(b), (c), (m), or (o) of the
Code.
"Eurodollar Loan" means a Loan bearing interest based on
a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per annum
interest rate determined pursuant to the following formula:
Eurodollar Rate = London Interbank Offered Rate
-----------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time
to time under Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as such regulation may
be amended from time to time or any successor regulation, as the
maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency, special, or marginal reserves)
applicable with respect to Eurocurrency liabilities as that term
is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or not a
Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time
to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" means any of the events or
circumstances specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder, as amended, modified, succeeded or replaced from time
to time.
"Existing Senior Credit Agreement" means that certain
Credit Agreement, dated as of January 5, 1995, by and among the
Borrower, certain guarantors (as defined therein), Bank of
America, N.A., formerly
6
NationsBank, N.A., as Agent, Comerica Bank and Bank One, NA,
formerly The First National Bank of Chicago, as Co-Agents and the
Lenders party thereto, as the same has been and may be amended,
restated or otherwise modified from time to time.
"Extension of Credit" means, as to any Lender, the
making of a Loan by such Lender (or a participation therein by a
Lender).
"Facility Fees" means the fees payable to the Lenders
pursuant to Section 3.4(a).
"Federal Funds Rate" means for any day the rate of
interest per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day and
(b) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement dated
as of the Closing Date among the Borrower, BAS and the
Administrative Agent.
"Funded Debt" means, without duplication, the sum of all
Indebtedness of the Credit Parties for borrowed money, including,
without limitation, (a) all purchase money Indebtedness of the
Credit Parties, (b) the principal portion of all obligations of
the Credit Parties under Capital Leases, (c) all Guaranty
Obligations of the Credit Parties with respect to Funded Debt of
another Person, (d) all Funded Debt of another entity secured by a
Lien on any property of the Credit Parties whether or not such
Funded Debt has been assumed by a Credit Party, (e) all Funded
Debt of any partnership or unincorporated joint venture to the
extent a Credit Party is legally obligated or has a reasonable
expectation of being liable with respect thereto, net of any
assets of such partnership or joint venture and (f) the principal
balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance
sheet financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as
an operating lease in accordance with GAAP.
"GAAP" means generally accepted accounting principles in
the United States applied on a consistent basis and subject to
Section 1.3.
"Governmental Authority" means any Federal, state,
local, provincial or foreign court or governmental agency,
authority, instrumentality or regulatory body.
"Guarantor" means each of the Material Subsidiaries of
the Borrower and each Additional Credit Party which has executed a
Joinder Agreement or otherwise become a Guarantor hereunder,
together with their successors and assigns.
"Guaranty Obligations" means, with respect to any
Person, without duplication, any obligations (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intending
to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting
security therefor, (b) to advance or provide funds or other
support for the payment or purchase of such Indebtedness or
obligation or to maintain working capital, solvency or other
balance sheet condition of such other Person (including, without
limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of
such other Person, (c) to lease or purchase property, securities
or services primarily for the purpose of assuring the owner of
such Indebtedness against loss in respect thereof or (d) to
otherwise assure or hold harmless the owner of such Indebtedness
or obligation
7
against loss in respect thereof; provided, that a guaranty of
Non-Recourse Land Financing shall not be deemed to be a Guaranty
Obligation until, and only to the extent that, such Non-Recourse
Land Financing ceases to be Non-Recourse Land Financing. The
amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to
the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Hazardous Materials" means any substance, material or
waste defined in or regulated under any Environmental Laws.
"Hedging Agreements" means any interest rate protection
agreements, foreign currency exchange agreements, commodity
futures agreements or other interest or exchange rate hedging
agreements.
"Indebtedness" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to
property purchased by such Person to the extent of the value of
such property (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations, other than intercompany
items, of such Person issued or assumed as the deferred purchase
price of property or services purchased by such Person which would
appear as liabilities on a balance sheet of such Person, (e) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(f) all Guaranty Obligations of such Person, (g) the principal
portion of all obligations of such Person under (i) Capital Leases
and (ii) any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing
product of such Person where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as
an operating lease in accordance with GAAP, (h) all net
obligations of such Person in respect of Hedging Agreements, (i)
all preferred stock issued by such Person and required by the
terms thereof to be redeemed, or for which mandatory sinking fund
payments are due by a fixed date, (j) the aggregate amount of
uncollected accounts receivable of such Person subject at such
time to a sale of receivables (or similar transaction) regardless
of whether such transaction is effected without recourse to such
Person or in a manner that would not be reflected on the balance
sheet of such Person in accordance with GAAP, and (k) all
obligations of such Person to repurchase any securities which
repurchase obligation is related to the issuance thereof,
including, without limitation, obligations commonly known as
residual equity appreciation potential shares. The Indebtedness of
any Person shall include the Indebtedness of any partnership or
unincorporated joint venture in which such Person is legally
obligated.
"Interest Payment Date" means (a) as to Revolving Loans
that are Base Rate Loans, the last day of each calendar month and
the Maturity Date, (b) as to Swingline Loans that are Base Rate
Loans, the date on which repayment of such Loan is due pursuant to
Section 2.2(c) and the Maturity Date and (c) as to Eurodollar
Loans and as to Swingline Loans that are Quoted Rate Swingline
Loans, the last day of each applicable Interest Period and the
Maturity Date and in addition, where the applicable Interest
Period for a Eurodollar Loan is greater than three months, then
also the date three months from the beginning of the Interest
Period and each three months thereafter.
"Interest Period" means, (a) with respect to Eurodollar
Loans, a period of one, two, three or six months' duration, as the
Borrower may elect, commencing, in each case, on the date of the
borrowing (including continuations and conversions thereof) and
(b) with respect to Quoted Rate Swingline Loans, a period
beginning on the date of advance and ending on the date specified
in the applicable Swingline Loan Request, which shall not be
longer than seven Business Days in duration; provided, however,
that (i) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, such
Interest Period shall end on the next preceding Business Day),
(ii) no Interest
8
Period shall extend beyond the Maturity Date, and (iii) with
respect to Eurodollar Loans, where an Interest Period begins on a
day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such
Interest Period shall end on the last Business Day of such
calendar month.
"Investment" in any Person means (a) the acquisition
(whether for cash, property, services, assumption of Indebtedness,
securities or otherwise) of assets (other than assets acquired in
the ordinary course of business), shares of Capital Stock, bonds,
notes, debentures, joint venture, partnership or other ownership
interests or other securities of such other Person or (b) any
deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with the
purchase of equipment or other assets in the ordinary course of
business) or (c) any other capital contribution to or investment
in such Person, including, without limitation, any Guaranty
Obligation incurred for the benefit of such Person and any support
provided for a Letter of Credit issued on behalf of such Person.
"Joinder Agreement" means a joinder agreement
substantially in the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a
"Lender" on the signature pages hereto, and any Eligible Assignee
which may become a Lender by way of assignment in accordance with
the terms hereof, together with their successors and permitted
assigns.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance,
lien (statutory or otherwise), preference, priority or charge of
any kind, including, without limitation, any agreement to give any
of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans and the
Swingline Loans (or a portion of any Revolving Loan or Swingline
Loan), individually or collectively, as appropriate.
"London Interbank Offered Rate" means, with respect to
any Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period and having an
advance date and a maturity date comparable to such Interest
Period; provided, however, if more than one rate is specified on
Telerate Page 3750, the applicable rate shall be the arithmetic
mean of all such rates.
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of the Credit Parties taken as a whole, (b) the ability
of the Credit Parties taken as a whole to perform their
obligations under this Credit Agreement or any of the other Credit
Documents, or (c) the validity or enforceability of this Credit
Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole.
"Material Subsidiary" means any domestic Subsidiary of
the Borrower, now owned or hereafter acquired, that has assets
with a fair market value of $10,000,000 or greater other than as
set forth in clauses (a), (b), (c) and (d) below; provided that in
no event may there exist domestic Subsidiaries of the Borrower
(other than the Excluded Subsidiaries) that have assets, in the
aggregate, with a fair market value in excess of $50,000,000 that
are not Guarantors hereunder. For purposes of this definition, the
following Subsidiaries (collectively, the "Excluded Subsidiaries")
shall not be considered Material Subsidiaries: (a) Pulte Mortgage
Corporation; (b) First Heights Bank; (c) North American Builders
Indemnity Company; (d) Subsidiaries the investment in which was
made as permitted by clause (f) of the definition of Permitted
Investments; (e) any Subsidiary formed for the specific purpose of
(i) acquiring mortgages or other assets from a Credit Party, for
cash or Cash Equivalents and at a value which is comparable to
that which would be obtained for such assets on an arm's length
transaction and (ii) entering into a securitization program (or
similar transaction or series of transactions) with respect to the
acquired assets; provided that the sole recourse of such
Subsidiary's creditors
9
is the assets of such Subsidiary or another Person that is not a
Credit Party; and (f) a domestic Subsidiary whose sole asset is
the ownership of a foreign entity or assets of a foreign entity;
provided that the investment in any such Subsidiary subsequent to
the Closing Date must be a Permitted Investment.
"Maturity Date" means September 13, 2000, as such date
may be extended in accordance with the terms of Section 2.5.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of
ERISA which is a multiemployer plan as defined in Section 3(37) or
4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title
IV of ERISA, other than a Multiemployer Plan, with respect to
which any Credit Party or any of its Subsidiaries or any ERISA
Affiliate and at least one employer other than a Credit Party or
any of its Subsidiaries or any ERISA Affiliate are contributing
sponsors.
"Net Income" means, for any period, the net income after
taxes for such period of the Credit Parties and their Subsidiaries
on a consolidated basis, as determined in accordance with GAAP.
"Non-Excluded Taxes" has the meaning set forth in
Section 3.13.
"Non-Recourse Land Financing" means any Indebtedness of
any Credit Party for which the owner of such Indebtedness has no
recourse, directly or indirectly, to a Credit Party for the
principal of, premium, if any, and interest on such Indebtedness,
and for which a Credit Party is not, directly or indirectly,
obligated or otherwise liable for the principal of, premium, if
any, and interest on such Indebtedness, except pursuant to
mortgages, deeds of trust or other security interests or other
recourse obligations or liabilities in respect of specific land or
other real property interests of a Credit Party; provided that
recourse obligations or liabilities of a Credit Party solely for
indemnities, covenants or breach of warranty, representation or
covenant in respect of any Indebtedness will not prevent
Indebtedness from being classified as Non-Recourse Land Financing.
"Note" or "Notes" means the Revolving Notes and the
Swingline Note, individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower
for a Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by
the Borrower to continue an existing Eurodollar Loan for a new
Interest Period or to convert a Eurodollar Loan to a Base Rate
Loan (other than a Swingline Loan) or a Base Rate Loan (other than
a Swingline Loan) to a Eurodollar Loan, in the form of Exhibit
2.3.
"Participation Interest" means the Extension of Credit
by a Lender by way of a purchase of a participation in any Loans
as provided in Section 2.2 or Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Holder" means (i) William J. Pulte, (ii) any
of his Affiliates, parents, spouse, descendants and spouses of
descendants or (iii) any trusts or other entities controlled by
Mr. Pulte and his respective estates, heirs, administrators or
personal representatives.
"Permitted Investments" means Investments which are (a)
cash or Cash Equivalents, (b) accounts receivable created,
acquired or made in the ordinary course of business and payable or
dischargeable in
10
<PAGE>
accordance with customary trade terms, (c) inventory, raw
materials and general intangibles acquired in the ordinary course
of business, (d) Investments by a Credit Party in another Credit
Party, (e) loans to directors, officers, employees, agents,
customers or suppliers in the ordinary course of business,
including the financing to purchasers of homes and other
residential properties from a Credit Party, not to exceed, in the
aggregate, $10,000,000 at any one time, (f) Investments in
international home building and related ventures not to exceed
$150 million during the term of this Credit Agreement, (g)
Investments in Pulte Mortgage Corporation in an amount not to
exceed at any one time the sum of (i) $100 million plus (ii)
amounts (net of applicable taxes) received by the Credit Parties
from Pulte Mortgage Corporation, as a dividend, subsequent to the
Closing Date, (h) acquisitions of mortgages from Pulte Mortgage
Corporation or another Affiliate of the Borrower at market or
better than market terms for similar types of loans, (i)
Investments in Capital Expenditures, or (j) other Investments (in
addition to those set forth above) not to exceed, in the
aggregate, $200 million at any one time.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations; (b) Liens for taxes not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account
thereof); (c) Liens in respect of property imposed by law arising
in the ordinary course of business such as materialmen's,
mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable or
which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP
have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale or loss on
account thereof); (d) pledges or deposits made in the ordinary
course of business to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social security
programs; (e) Liens arising from good faith deposits in connection
with or to secure performance of tenders, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money); (f)
Liens arising from good faith deposits in connection with or to
secure performance of statutory obligations and surety and appeal
bonds; (g) easements, rights-of-way, restrictions (including
zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances
not, in any material respect, impairing the use of the encumbered
property for its intended purposes; (h) judgment Liens that would
not constitute an Event of Default; (i) Liens in connection with
Capital Leases and Liens securing Indebtedness permitted by
Section 8.1(g) and (h); (j) Liens arising by virtue of any
statutory or common law provision relating to banker's liens,
rights of setoff or similar rights as to deposit accounts or other
funds maintained with a creditor depository institution; (k) Liens
existing on the Closing Date and identified on Schedule 1.1(b);
and (l) Liens granted to secure any Indebtedness permitted by
Section 8.1(b); provided that (i) no such Lien shall extend to any
property other than the property subject thereto on the Closing
Date and (ii) the principal amount of the Indebtedness secured by
such Liens shall not be increased from that existing as of the
Closing Date (as such Indebtedness has been amortized subsequent
to the Closing Date).
"Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust or other enterprise (whether or not
incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with respect
to which any Credit Party or any of its Subsidiaries or any ERISA
Affiliate is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" within
the meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest
established from time to time by the Administrative Agent as its
prime rate in effect at its principal office in Charlotte, North
Carolina (or such other principal office of the Administrative
Agent as communicated in writing to the Borrower and the Lenders).
Any change in the interest rate resulting from a change in the
Prime Rate shall become effective as of 12:01 a.m. of the Business
Day on which each change in the Prime Rate is announced by the
Administrative Agent. The Prime Rate is a reference rate used by
the Administrative Agent in determining
11
interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit to any
debtor.
"Quoted Rate" has the meaning set forth in Section
2.2(b).
"Quoted Rate Swingline Loan" means a Swingline Loan
bearing interest at a rate determined by reference to a Quoted
Rate.
"Real Properties" means such real properties as the
Credit Parties may own or lease (as lessee or sublessee) from
third parties from time to time.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation D, O, T, U, or X" means Regulation D, O, T,
U or X, respectively, of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Reportable Event" means a "reportable event" as defined
in Section 4043 of ERISA with respect to which the notice
requirements to the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time then
there shall be excluded from the determination of Required Lenders
the aggregate principal amount of Credit Exposure of such Lender
at such time. For purposes of the preceding sentence, the term
"Credit Exposure" as applied to each Lender shall mean (a) at any
time prior to the termination of the Commitments, the Revolving
Loan Commitment Percentage of such Lender multiplied by the
Revolving Committed Amount and (b) at any time after the
termination of the Commitments, the sum of (i) the principal
balance of the outstanding Loans of such Lender plus (ii) such
Lender's Participation Interests in the face amount of the
outstanding Swingline Loans.
"Requirement of Law" means, as to any Person, the
articles or certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation or final, non-appealable determination
of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or to which
any of its material property is subject.
"Revolving Committed Amount" means TWO HUNDRED FIVE
MILLION DOLLARS ($205,000,000) or such lesser amount to which the
Revolving Committed Amount may be reduced pursuant to Section
2.1(d) or 3.3(c).
"Revolving Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make its portion of the
Revolving Loans in a principal amount equal to such Lender's
Revolving Loan Commitment Percentage of the Revolving Committed
Amount.
"Revolving Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Revolving Loan Commitment
Percentage on Schedule 1.1(a), as such percentage may be modified
in connection with any assignment made in accordance with the
provisions of Section 11.3.
"Revolving Loans" means the Revolving Loans made to the
Borrower by the Lenders pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the
promissory notes of the Borrower in favor of each of the Lenders
evidencing the Revolving Loans provided pursuant to Section 2.1,
individually or collectively, as appropriate, as such promissory
notes may be amended, modified, supplemented, extended, renewed or
replaced from time to time and as evidenced in the form of Exhibit
2.1(e).
12
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, or any successor or
assignee of the business of such division in the business of
rating securities.
"Sale and Leaseback Transaction" means a sale or
transfer made by a Credit Party (except a sale or transfer made
from one Credit Party to another Credit Party) of any property
which is either (a) a manufacturing plant, warehouse, office
building or model home whose book value constitutes 1% or more of
Consolidated Net Tangible Assets as of the date of determination
or (b) any property which is not a manufacturing plant, warehouse,
office building or model home whose book value constitutes 5% or
more of Consolidated Net Tangible Assets as of the date of
determination, if such sale or transfer is made with the intention
of leasing, or as part of an arrangement involving the lease of,
such property to the Borrower or a Material Subsidiary.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to each Credit Party as of
a particular date, that on such date (a) such Credit Party is able
to pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business,
(b) such Credit Party does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Credit
Party's ability to pay as such debts and liabilities mature in
their ordinary course, (c) such Credit Party is not engaged in a
business or a transaction, and is not about to engage in a
business or a transaction, for which such Credit Party's assets
would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which
such Credit Party is engaged or is to engage, (d) the fair value
of the assets of such Credit Party is greater than the total
amount of liabilities (excluding (i) letters of credit and surety
bonds issued in the normal course of business in connection with
such Credit Party's development activities and (ii) intercompany
indebtedness owed to other Credit Parties), including, without
limitation, contingent liabilities of such Credit Party and (e)
the present fair saleable value of the assets of such Credit Party
is not less than the amount that will be required to pay the
probable liability of such Credit Party on its debts as they
become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will
be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured
liability.
"Subordinated Debt" means any Indebtedness incurred by a
Credit Party that is subordinated in full to the Loans on
subordination terms acceptable to the Administrative Agent.
"Subsidiary" means, as to any Person, (a) any
corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of
whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture, limited liability company
or other entity in which such person directly or indirectly
through Subsidiaries has more than a 50% equity interest at any
time.
"Swingline Committed Amount" means TWENTY-FIVE MILLION
DOLLARS ($25,000,000).
"Swingline Loan Commitment" means, with respect to Bank
of America, the commitment of Bank of America to make Swingline
Loans available to the Borrower in the principal amount of up to
the Swingline Committed Amount.
13
"Swingline Loan Request" means a request by the Borrower
for a Swingline Loan in substantially the form of Exhibit 2.2(b).
"Swingline Loans" means the loans made by Bank of
America pursuant to Section 2.2.
"Swingline Note" means the promissory note of the
Borrower in favor of Bank of America evidencing the Swingline
Loans provided pursuant to Section 2.2, as such promissory note
may be amended, modified, supplemented, extended, renewed or
replaced from time to time in and as evidenced by the form of
Exhibit 2.2(e).
"Tangible Net Worth" means, as of any date,
shareholders' equity or net worth of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in accordance
with GAAP minus (i) intangibles (as determined in accordance with
GAAP) and (ii) Investments described in clause (f) of the
definition of Permitted Investments.
"Termination Event" means (a) with respect to any Plan,
the occurrence of a Reportable Event or the substantial cessation
of operations (within the meaning of Section 4062(e) of ERISA);
(b) the withdrawal of any Credit Party or any of its Subsidiaries
or any ERISA Affiliate from a Multiple Employer Plan during a plan
year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (c) the distribution of a notice of intent
to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (d) the institution of
proceedings to terminate or the actual termination of a Plan by
the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (f) the complete or partial withdrawal of
any Credit Party or any of its Subsidiaries or any ERISA Affiliate
from a Multiemployer Plan; or (g) the adoption of an amendment to
any Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA.
"Upfront Fees" means the fees payable to the Lenders
pursuant to Section 3.4(e).
"Utilization Fees" means the fees payable to the Lenders
pursuant to Section 3.4(b).
"Utilized Revolving Committed Amount" means, for any
period from the Closing Date to the Maturity Date, the amount
equal to the daily average sum for such period of the aggregate
principal amount of all Revolving Loans outstanding plus the
aggregate amount of all Swingline Loans outstanding.
"Voting Stock" of a corporation means all classes of the
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
"Year 2000 Problem" means any risk (a) that any computer
hardware, software or other equipment used by a Credit Party or
any of its Subsidiaries (or by any suppliers, vendors or customers
that are material to the business of such Credit Party or
Subsidiary) will not function as effectively and reliably on and
after January 1, 2000 as it does prior to January 1, 2000 or (b)
that any computer applications used by a Credit Party or any of
its Subsidiaries may not be able to recognize and properly perform
date-sensitive functions after December 31, 1999, to the extent
any such risk specified in items (a) or (b) above would cause or
could be reasonably expected to cause a Material Adverse Effect.
1.2 Computation of Time Periods and Other Definitional Provisions.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean
"to but excluding." References in this Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or
Exhibits of or to this Agreement unless otherwise specifically provided.
14
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered
pursuant to Section 7.1 (or, prior to the delivery of the first financial
statements pursuant to Section 7.1, consistent with the financial statements
described in Section 5.1(d)); provided, however, if (a) the Borrower shall
object to determining such compliance on such basis at the time of delivery
of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the
Required Lenders shall so object in writing within 30 days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with GAAP as in effect as of the date of the most recent financial
statements delivered by the Borrower to the Lenders to which no such
objection shall have been made.
1.4 Time.
All references to time herein shall be references to Eastern
Standard Time or Eastern Daylight Time, as the case may be, unless specified
otherwise.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
revolving loans (each a "Revolving Loan" and collectively the
"Revolving Loans") to the Borrower, in Dollars, at any time and
from time to time, during the period from and including the
Effective Date to but not including the Maturity Date (or such
earlier date if the Revolving Committed Amount has been terminated
as provided herein); provided, however, that (i) the sum of the
aggregate amount of Revolving Loans outstanding plus the aggregate
amount of Swingline Loans outstanding plus the aggregate amount of
secured Indebtedness incurred by the Credit Parties, pursuant to
Section 8.1(h), in excess of $100,000,000 shall not exceed the
Revolving Committed Amount and (ii) with respect to each
individual Lender, the Lender's pro rata share of outstanding
Revolving Loans plus such Lender's (other than Bank of America)
pro rata share of outstanding Swingline Loans shall not exceed
such Lender's Revolving Loan Commitment Percentage of the
Revolving Committed Amount. Subject to the terms of this Credit
Agreement (including Section 3.3), the Borrower may borrow, repay
and reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later
than 12:00 noon (i) on the date of the requested borrowing of
Revolving Loans that will be Base Rate Loans or (ii) three
Business Days prior to the date of the requested borrowing of
Revolving Loans that will be Eurodollar Loans, the Borrower shall
telephone the Administrative Agent with the information described
below as well as submit a written Notice of Borrowing in the form
of Exhibit 2.1(b) (which may be submitted via telecopy) to the
Administrative Agent setting forth (A) the amount requested, (B)
whether such Revolving Loans shall accrue interest at the Base
Rate or the Adjusted Eurodollar Rate, (C) with respect to
Revolving Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (D) certification that the Borrower has
complied in all respects with Section 5.2. Revolving Loans made on
the Effective Date may be Base Rate Loans or, subject to
compliance by the Borrower with the terms of this Section 2.1(b)
and delivery by the Borrower to the Administrative Agent of a
funding indemnity letter in form and substance satisfactory to the
Administrative Agent, Eurodollar Loans or a combination thereof.
15
(c) Funding of Revolving Loans. Upon receipt of a Notice
of Borrowing, the Administrative Agent shall promptly inform the
Lenders as to the terms thereof. Each Lender shall make its
Revolving Loan Commitment Percentage of the requested Revolving
Loans available to the Administrative Agent by 3:00 p.m. on the
date specified in the Notice of Borrowing by deposit, in Dollars,
of immediately available funds at the Agency Services Address.
No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make Revolving Loans
hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other
Lender of its obligations hereunder. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of
any such Revolving Loan that such Lender does not intend to make
available to the Administrative Agent its portion of the Revolving
Loans to be made on such date, the Administrative Agent may assume
that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its
sole discretion but without any obligation to do so) make
available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
will promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to
(i) from the Borrower at the applicable rate for such Revolving
Loan pursuant to the Notice of Borrowing and (ii) from a Lender at
the Federal Funds Rate.
(d) Reductions of Revolving Committed Amount. Upon at
least three Business Days' notice, the Borrower shall have the
right to permanently reduce, without premium or penalty, all or
part of the aggregate unused amount of the Revolving Committed
Amount at any time or from time to time; provided that (i) each
partial reduction shall be in an aggregate amount at least equal
to $5,000,000 and in integral multiples of $1,000,000 above such
amount and (ii) no reduction shall be made which would reduce the
Revolving Committed Amount to an amount less than the aggregate
amount of Revolving Loans outstanding plus the aggregate amount of
Swingline Loans outstanding. Any reduction in (or termination of)
the Revolving Committed Amount may not be reinstated without the
consent of all the Lenders. The Administrative Agent shall
immediately notify the Lenders of any reduction in the Revolving
Committed Amount.
(e) Revolving Notes. The Revolving Loans made by each
Lender shall be evidenced by a duly executed promissory note of
the Borrower to such Lender in an original principal amount equal
to such Lender's Revolving Commitment Percentage of the Revolving
Committed Amount and in substantially the form of Exhibit 2.1(e).
2.2 Swingline Loans Subfacility.
(a) Swingline Loans. Bank of America hereby agrees, on
the terms and subject to the conditions set forth herein and in
the other Credit Documents, to make revolving loans to the
Borrower, in Dollars, at any time and from time to time during the
period from and including the Effective Date to but not including
the Maturity Date (each such loan, a "Swingline Loan" and
collectively, the "Swingline Loans"); provided that (i) the
aggregate principal amount of the Swingline Loans outstanding at
any one time shall not exceed the Swingline Committed Amount, and
(ii) the aggregate amount of Swingline Loans outstanding plus the
aggregate amount of Revolving Loans outstanding plus the aggregate
amount of secured Indebtedness incurred by the Credit Parties,
pursuant to Section 8.1(h), in excess of $100,000,000 shall not
exceed the Revolving Committed Amount. Prior to the Maturity Date,
Swingline Loans may be repaid and reborrowed by the Borrower in
accordance with the provisions hereof.
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(b) Method of Borrowing and Funding Swingline Loans. By
no later than 2:00 p.m. on the date of the requested borrowing of
Swingline Loans, the Borrower shall provide telephonic notice to
Bank of America, followed promptly by a written Swingline Loan
Request in the form of Exhibit 2.2(b) (which may be submitted via
telecopy), each of such telephonic notice and such written
Swingline Loan Request setting forth (i) the amount of the
requested Swingline Loan (which shall not be less than $100,000
and in integral multiples of $50,000 in excess thereof), (ii) the
date of the requested Swingline Loan, (iii) certification that the
Borrower has complied in all respects with Section 5.2 and (iv)
whether such Swingline Loan is to be a Base Rate Loan or a Quoted
Rate Swingline Loan and, if such Loan is to be a Quoted Rate
Swingline Loan, the applicable Interest Period. If the Borrower
has requested a Quoted Rate Swingline Loan, Bank of America shall
provide to the Borrower no later than 2:30 p.m. on the date of
such request, the rate at which Bank of America would be willing
to provide such Swingline Loan (the "Quoted Rate"). The Borrower
shall notify Bank of America by 3:00 p.m. on such date whether it
wishes to accept the Quoted Rate. Failure of the Borrower to
timely accept the Quoted Rate shall make the Quoted Rate and the
corresponding Swingline Loan Request void. Bank of America shall
initiate the transfer of funds representing the Swingline Loan
advance to the Borrower by 4:00 p.m. on the Business Day of the
requested borrowing.
(c) Repayment and Participations of Swingline Loans. The
Borrower agrees to repay all Swingline Loans that are Base Rate
Loans within one Business Day of demand therefor by Bank of
America and all Swingline Loans that are Quoted Rate Swingline
Loans at the end of the applicable Interest Period; provided that
each Swingline Loan shall be repaid within seven Business Days
from the date of advance. Each repayment of a Swingline Loan may
be accomplished by requesting Revolving Loans, which request is
not subject to the conditions set forth in Section 5.2. In the
event that the Borrower shall fail to timely repay any Swingline
Loan, and in any event upon (i) the request of Bank of America,
(ii) the occurrence of an Event of Default described in Section
9.1(f) or (iii) the acceleration of any Loan or termination of any
Commitment pursuant to Section 9.2, each other Lender shall
irrevocably and unconditionally purchase from Bank of America,
without recourse or warranty, an undivided interest and
participation in such Swingline Loan in an amount equal to such
other Lender's Revolving Loan Commitment Percentage thereof, by
directly purchasing a participation in such Swingline Loan in such
amount (regardless of whether the conditions precedent thereto set
forth in Section 5.2 hereof are then satisfied, whether or not the
Borrower has submitted a Notice of Borrowing and whether or not
the Commitments are then in effect, any Event of Default exists or
all the Loans have been accelerated) and paying the proceeds
thereof to Bank of America at the Agency Services Address, in
Dollars and in immediately available funds. If such amount is not
in fact made available to Bank of America by any Lender, Bank of
America shall be entitled to recover such amount on demand from
such Lender, together with accrued interest thereon for each day
from the date of demand thereof, at the Federal Funds Rate. If
such Lender does not pay such amount forthwith upon Bank of
America's demand therefor, and until such time as such Lender
makes the required payment, Bank of America shall be deemed to
continue to have outstanding Swingline Loans in the amount of such
unpaid participation obligation for all purposes of the Credit
Documents other than those provisions requiring the other Lenders
to purchase a participation therein. Further, such Lender shall be
deemed to have assigned any and all payments made of principal and
interest on its Loans, and any other amounts due to it hereunder
to Bank of America to fund Swingline Loans in the amount of the
participation in Swingline Loans that such Lender failed to
purchase pursuant to this Section 2.2(c) until such amount has
been purchased (as a result of such assignment or otherwise). On
the date the Lenders are required to purchase participations in
outstanding Swingline Loans pursuant to this Section 2.2(c), the
outstanding principal amount, including Bank of America's pro rata
share, of such Swingline Loans shall be deemed to be a Revolving
Loan accruing interest at the Base Rate.
(d) Interest on Swingline Loans. Subject to the
provisions of Section 3.1, each Swingline Loan shall bear interest
at a per annum rate equal to the Base Rate or the Quoted Rate, as
applicable.
(e) Swingline Note. The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower to
Bank of America in the original principal amount of the Swingline
Committed Amount and in substantially the form of Exhibit 2.2(e).
17
2.3 Continuations and Conversions.
The Borrower shall have the option, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest Period, to
convert Base Rate Loans (other than Swingline Loans) into Eurodollar Loans or
to convert Eurodollar Loans into Base Rate Loans (other than Swingline
Loans); provided, however, that (a) each such continuation or conversion must
be requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.3, in compliance with the
terms set forth below, (b) except as provided in Section 3.11, Eurodollar
Loans may only be continued or converted into Base Rate Loans on the last day
of the Interest Period applicable thereto, (c) Eurodollar Loans may not be
continued nor may Base Rate Loans be converted into Eurodollar Loans during
the existence and continuation of a Default or an Event of Default and (d)
any request to continue a Eurodollar Loan that fails to comply with the terms
hereof or any failure to request a continuation of a Eurodollar Loan at the
end of an Interest Period shall constitute a conversion to a Base Rate Loan
on the last day of the applicable Interest Period. Each continuation or
conversion must be requested by the Borrower no later than 12:00 noon (i) on
the date for a requested conversion of a Eurodollar Loan to a Base Rate Loan
or (ii) three Business Days prior to the date for a requested continuation of
a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in
each case pursuant to a written Notice of Continuation/Conversion submitted
to the Administrative Agent which shall set forth (A) whether the Borrower
wishes to continue or convert such Loans and (B) if the request is to
continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan,
the Interest Period applicable thereto.
2.4 Minimum Amounts.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan shall be in a
minimum amount of $5,000,000 (and in integral multiples of $1,000,000 in
excess thereof), (b) each Base Rate Loan shall be in a minimum amount of the
lesser of $1,000,000 (and integral multiples of $100,000 in excess thereof)
or the remaining amount available under the Revolving Committed Amount, (c)
each Swingline Loan shall be in a minimum amount of $100,000 (and in integral
multiples of $50,000 in excess thereof) or the remaining amount of the
Swingline Committed Amount and (d) no more than ten (10) Eurodollar Loans
shall be outstanding hereunder at any one time unless the Borrower pays a fee
of $250 per each Eurodollar Loan in excess thereof, to be paid to the
Administrative Agent at the time the Notice of Borrowing for such additional
Eurodollar Loan is given to the Administrative Agent. For the purposes of
this Section, all Eurodollar Loans with the same Interest Periods that begin
and end on the same date shall be considered as one Eurodollar Loan, but
Eurodollar Loans with different Interest Periods, even if they begin on the
same date, shall be considered as separate Eurodollar Loans.
2.5 Extension of Maturity Date.
(a) Not more than 90 days and not less than 60 days prior to
the Maturity Date, the Borrower may request in writing that the Lenders
extend the Maturity Date for an additional 364 days. Each Lender shall
provide the Administrative Agent, not less than 15 days prior to the Maturity
Date, with written notice of whether it agrees to extend the Maturity Date.
Each decision by a Lender shall be in its sole discretion and failure by a
Lender to give timely written notice hereunder shall be deemed a decision by
such Lender not to extend the Maturity Date. If Lenders whose combined
Revolving Loan Commitment Percentages equal at least 80% (the "Extension
Required Lenders"; each Lender agreeing to extend the Maturity Date is
referred to herein as an "Extending Lender") timely agree in writing to
extend the Maturity Date, then the Maturity Date with respect to each
Extending Lender's respective Commitment shall be extended for an additional
364 days pursuant to a duly executed written amendment to this Credit
Agreement.
(b) If any Lender fails to agree to extend the Maturity Date
(a "Refusing Lender"), then the Borrower may, prior to the Maturity Date,
request, in its own discretion and at its own expense, any of the Refusing
Lenders (and each Refusing Lender shall be required to transfer and assign
upon such request) to transfer and assign in whole (but not in part), without
recourse (in accordance with and subject to the terms of Section 11.3(b)),
all of its interests, rights and obligations under this Credit Agreement to
an Eligible Assignee or Eligible Assignees (which may be one or more existing
Lenders if any existing Lender accepts such assignment); provided that (i)
such assignment or assignments shall not conflict with any law, rule,
regulation or order of any court or other Governmental Authority, (ii) the
Borrower or such Eligible Assignee or Eligible Assignees shall pay to the
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Refusing Lenders in immediately available funds the principal of and interest
accrued to the date of such payment on the portion of the Loans hereunder
held by such Refusing Lenders and all other amounts owed to such Refusing
Lenders hereunder, as well as any processing fee owing to the Administrative
Agent under Section 11.3(b), (iii) the maturity date of the Loans transferred
to such Eligible Assignee shall be the Maturity Date as extended in
accordance with Section 2.5(a) above and (iv) such transfer and assignment
must occur on or prior to the Maturity Date.
(c) If there exists any Refusing Lender, and such Refusing
Lender is not required by the Borrower to transfer and assign its interests
as set forth in clause (b) above, then the Borrower shall, on the Maturity
Date, do one of the following:
(i) as long as the Extension Required Lenders consent to
the extension of the Maturity Date, (A) notify the Administrative
Agent in writing that it wishes to (and each such Extending Lender
shall agree to) extend the Maturity Date with a Revolving Loan
Committed Amount equal to the combined Commitments of the
Extending Lenders and (B) either (x) pay all outstanding Loans of
the Refusing Lenders and any other amounts owing to the Refusing
Lenders, and terminate the Commitments of the Refusing Lenders or
(y) convert the outstanding Loans of the Refusing Lenders to a
term loan in accordance with the terms of Section 2.5(c)(iii)(B);
(ii) pay all outstanding Loans in full, together with
accrued and unpaid interest thereon and all other sums with
respect thereto; or
(iii) as long as no Default or Event of Default exists
and is continuing,
(A) if the Extension Required Lenders do not
consent to extend the Maturity Date in accordance with
Section 2.5(a) above, notify the Administrative Agent in
writing that, as of the Maturity Date, it is converting
the outstanding Loans to a term loan which, together
with accrued but unpaid interest and all other sums
owing with respect thereto, shall be repaid in eight
equal quarterly payments (with payments due on each
three-month anniversary of the Maturity Date) until all
amounts have been paid in full; provided that after the
Maturity Date, the Borrower may no longer request, and
the Lenders are no longer obligated to make, new Loans;
and
(B) if the Extension Required Lenders do
consent to extend the Maturity Date in accordance with
Section 2.5(a) above, then the Borrower may, with
respect to the outstanding Loans owed to any Refusing
Lender, elect to notify the Administrative Agent in
writing that, as of the Maturity Date, it is converting
the Loans of each Refusing Lender to a term loan which,
together with accrued but unpaid interest and all other
sums owing with respect thereto, shall be repaid in
eight equal quarterly payments (with payments due on
each three-month anniversary of the Maturity Date) until
all amounts have been paid in full.
(d) If the Borrower exercises its option to term out all or
a portion of the outstanding Loans as set forth in Section 2.5(c)(iii) above,
(i) all principal amounts converted into the term loan shall be considered to
be Revolving Loans and (ii) interest shall accrue on such Revolving Loans, at
the option of the Borrower, in accordance with the terms of Section 3.1.
(e) If the Maturity Date with respect to all or part of the
Loans is extended in accordance with this Section 2.5, then the Borrower
shall have the same right to request further extensions not more than 90 days
and not less than 60 days prior to the new Maturity Date in accordance with
Section 2.5(a) above and as long as the Maturity Date is extended in
accordance with this Section 2.5, then the Borrower shall have the same right
to request further extensions on the same terms with respect to new Maturity
Dates thereafter.
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SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
3.1 Interest.
(a) Interest. Subject to the provisions of
Section 3.1(b):
(i) Base Rate Loans. During such periods as
Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at
a per annum rate equal to the Base Rate.
(ii) Eurodollar Loans. During such periods as
Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear
interest at a per annum rate equal to the Adjusted
Eurodollar Rate.
(b) Default Rate of Interest. Upon the occurrence, and
during the continuance, of an Event of Default, the principal of
and, to the extent permitted by law, interest on the Loans and any
other amounts owing hereunder or under the other Credit Documents
(including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to 2% plus
the rate which would otherwise be applicable (or if no rate is
applicable, then the rate for Revolving Loans that are Base Rate
Loans plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due
and payable in arrears on each Interest Payment Date. If an
Interest Payment Date falls on a date which is not a Business Day,
such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar
Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then such Interest Payment Date shall
be deemed to be the next preceding Business Day.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other
amounts to be made by a Credit Party under this Credit Agreement shall be
made without setoff, deduction or counterclaim and received not later than
2:00 p.m. on the date when due, in Dollars and in immediately available
funds, by the Administrative Agent at the Agency Services Address. Payments
received after such time shall be deemed to have been received on the next
Business Day. The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Administrative Agent the Loans, fees or
other amounts payable by the Borrower hereunder to which such payment is to
be applied (and in the event that it fails to specify, or if such application
would be inconsistent with the terms hereof, the Administrative Agent shall,
subject to Section 3.7, distribute such payment to the Lenders in such manner
as the Administrative Agent may deem appropriate). The Administrative Agent
will distribute such payments to the applicable Lenders on the same Business
Day if any such payment is received prior to 2:00 p.m.; otherwise the
Administrative Agent will distribute such payment to the applicable Lenders
on the next succeeding Business Day. Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to accrual of
interest and fees for the period of such extension), except that in the case
of Eurodollar Loans, if the extension would cause the payment to be made in
the next following calendar month, then such payment shall instead be made on
the next preceding Business Day.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the
right to prepay Loans in whole or in part from time to time
without premium or penalty; provided, however, that (i) Eurodollar
Loans may only be prepaid on three Business Days' prior written
notice to the Administrative Agent and (ii) each such partial
prepayment of Loans shall be in the minimum principal amount of
(A) $5,000,000 and integral multiples of $1,000,000 in excess
thereof for Revolving Loans and (B) $100,000 and integral
multiples of $50,000 in
20
excess thereof for Swingline Loans. All prepayments under this
Section shall be subject to Section 3.14 and be accompanied by
interest on the principal amount prepaid through the date of
prepayment.
(b) Mandatory Prepayments. If, at any time, the sum of
the aggregate amount of Revolving Loans outstanding plus Swingline
Loans outstanding plus the aggregate amount of secured
Indebtedness incurred by the Credit Parties, pursuant to Section
8.1(h), in excess of $100,000,000 exceeds the Revolving Committed
Amount, the Borrower shall immediately make a principal payment to
the Administrative Agent in the manner and in an amount such that
the sum of the aggregate amount of Revolving Loans outstanding
plus Swingline Loans outstanding plus the aggregate amount of
secured Indebtedness incurred by the Credit Parties, pursuant to
Section 8.1(h), in excess of $100,000,000 is less than or equal to
the Revolving Committed Amount (to be applied as set forth in
Section 3.3(c) below).
(c) Application of Prepayments. All amounts required to
be paid pursuant to Section 3.3(b) shall be applied first to
Swingline Loans and second to Revolving Loans. Within the
parameters of the applications set forth above, prepayments shall
be applied first to Base Rate Loans and then to Eurodollar Loans
(or Quoted Rate Swingline Loans, as applicable) in direct order of
Interest Period maturities. All prepayments hereunder shall be
subject to Section 3.14 and shall be accompanied by interest on
the principal amount prepaid through the date of prepayment.
3.4 Fees.
(a) Facility Fees. In consideration of the Revolving
Committed Amount being made available by the Lenders hereunder,
the Borrower agrees to pay to the Administrative Agent, for the
pro rata benefit of each Lender (based on each Lender's Revolving
Loan Commitment Percentage of the Revolving Committed Amount), a
per annum fee equal to the Applicable Percentage for Facility Fees
multiplied by the Revolving Committed Amount (the "Facility
Fees"). The Facility Fees shall commence to accrue on the
Effective Date and shall be due and payable in arrears on the last
day of each fiscal quarter of the Borrower (as well as on the
Maturity Date and on any date that the Revolving Committed Amount
is reduced) for the immediately preceding fiscal quarter (or
portion thereof), beginning with the first of such dates to occur
after the Closing Date.
(b) Utilization Fees.
(i) If (A) as calculated on the last day of
each fiscal quarter of the Borrower (as well as on the
Maturity Date and on any date that the Revolving Loan
Commitment is reduced), the Utilized Revolving Committed
Amount for such fiscal quarter exceeds fifty percent
(50%) of the Revolving Committed Amount, then for the
pro rata benefit of each Lender, or (B) all or a portion
of the outstanding Loans have been converted to a term
loan in accordance with terms of Section 2.5(c)(iii),
then for the pro rata benefit of each Lender whose Loans
to the Borrower have been so converted, the Borrower
agrees to pay to the Administrative Agent a per annum
fee equal to one-tenth of one percent (.10%) of the
Utilized Revolving Committed Amount (the "Utilization
Fees").
(ii) The Utilization Fees, if any, shall be
due and payable in arrears on the first Business Day
after the end of each fiscal quarter of the Borrower (as
well as on the Maturity Date and on any date that the
Revolving Loan Commitment is reduced) for the
immediately preceding fiscal quarter (or portion
thereof), beginning with the first of such dates to
occur after the Closing Date.
(c) Administrative Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, an annual fee (the
"Administrative Fees") in accordance with the terms of the Fee
Letter.
(d) Extension Fee. The Borrower agrees to pay to the
Administrative Agent for the pro rata benefit of each Extending
Lender, at the time of any extension of the Maturity Date pursuant
to Section 2.5,
21
such extension fees as are agreed upon among the Borrower, the
Administrative Agent and such Extending Lenders.
(e) Upfront Fees. In consideration of the Revolving
Committed Amount being made available by the Lenders hereunder,
the Borrower agrees to pay to the Administrative Agent, (i) for
the pro rata benefit of each Lender whose Revolving Loan
Commitment Percentage of the Revolving Committed Amount is equal
to or greater than $35 million, an upfront fee equal to .22% of
the Revolving Committed Amount and (ii) for the pro rata benefit
of each Lender whose Revolving Loan Commitment Percentage of the
Revolving Committed Amount is less than $35 million, an upfront
fee equal to .17% of the Revolving Committed Amount (collectively,
the "Upfront Fees"). The Upfront Fees shall be due and payable on
or prior to the Effective Date.
3.5 Payment in Full at Maturity.
On the Maturity Date, the entire outstanding principal balance of
all Revolving Loans and Swingline Loans, together with accrued but unpaid
interest and all other sums owing with respect thereto, shall be due and
payable in full, unless (a) accelerated sooner pursuant to Section 9.2 or (b)
paid out in quarterly installments in accordance with the terms of Section
2.5.
3.6 Computations of Interest and Fees.
(a) Except for Base Rate Loans and Swingline Loans, in
which case interest shall be computed on the basis of a 365 or 366
day year as the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days. Interest shall accrue from and
include the date of borrowing (or continuation or conversion) but
exclude the date of payment.
(b) It is the intent of the Lenders and the Credit
Parties to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All agreements
between the Lenders and the Borrower are hereby limited by the
provisions of this paragraph which shall override and control all
such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or
contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, or received
under this Credit Agreement, under the Notes or otherwise, exceed
the maximum nonusurious amount permissible under applicable law.
If, from any possible construction of any of the Credit Documents
or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction
shall be subject to the provisions of this paragraph and such
documents shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the
necessity of execution of any amendment or new document. If any
Lender shall ever receive anything of value which is characterized
as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on the Loans and not to
the payment of interest, or refunded to the Borrower or the other
payor thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal amount of the Loans.
The right to demand payment of the Loans or any other Indebtedness
evidenced by any of the Credit Documents does not include the
right to accelerate the payment of any interest which has not
otherwise accrued on the date of such demand, and the Lenders do
not intend to charge or receive any unearned interest in the event
of such demand. All interest paid or agreed to be paid to the
Lenders with respect to the Loans shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term (including any renewal or
extension) of the Loans so that the amount of interest on account
of such Indebtedness does not exceed the maximum nonusurious
amount permitted by applicable law.
22
3.7 Pro Rata Treatment.
Except to the extent otherwise provided herein, each Revolving
Loan borrowing, each payment or prepayment of principal of any Revolving
Loan, each payment of fees (other than the Administrative Fees retained by
the Administrative Agent for its own account), each reduction of the
Revolving Committed Amount, and each conversion or continuation of any
Revolving Loan, shall (except as otherwise provided in Section 3.11) be
allocated pro rata among the relevant Lenders in accordance with the
respective Revolving Loan Commitment Percentages of such Lenders (or, if the
Commitments of such Lenders have expired or been terminated, in accordance
with the respective principal amounts of the outstanding Loans and
Participation Interests of such Lenders); provided that, if any Lender shall
have failed to pay its applicable pro rata share of any Revolving Loan, then
any amount to which such Lender would otherwise be entitled pursuant to this
Section 3.7 shall instead be payable to the Administrative Agent until the
share of such Revolving Loan not funded by such Lender has been repaid;
provided further, that in the event any amount paid to any Lender pursuant to
this Section 3.7 is rescinded or must otherwise be returned by the
Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so paid to
such Lender, with interest for the period commencing on the date such payment
is returned by the Administrative Agent until the date the Administrative
Agent receives such repayment at a rate per annum equal to, during the period
to but excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per annum.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent
otherwise provided herein, in the event that any Lender shall obtain payment
in respect of any Loan or any other obligation owing to such Lender under
this Credit Agreement through the exercise of a right of setoff, banker's
lien or counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in
excess of its pro rata share of such payment as provided for in this Credit
Agreement, such Lender shall promptly pay in cash or purchase from the other
Lenders a participation in such Loans and other obligations in such amounts,
and make such other adjustments from time to time, as shall be equitable to
the end that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained
by such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise
be restored, each Lender which shall have shared the benefit of such payment
shall, by payment in cash or a repurchase of a participation theretofore
sold, return its share of that benefit (together with its share of any
accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrower agrees that any
Lender so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker's
lien or counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit
Agreement, if any Lender or the Administrative Agent shall fail to remit to
the Administrative Agent or any other Lender an amount payable by such Lender
or such Administrative Agent to such Administrative Agent or such other
Lender pursuant to this Credit Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to such
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent
with the rights of the Lenders under this Section 3.8 to share in the
benefits of any recovery on such secured claim.
3.9 Capital Adequacy.
If, after the date hereof, any Lender has determined that the
adoption or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Lender, or its parent corporation, with any
request or directive
23
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's (or parent
corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender, or its parent
corporation, could have achieved but for such adoption, effectiveness, change
or compliance (taking into consideration such Lender's (or parent
corporation's) policies with respect to capital adequacy), then, upon written
notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender on an after-tax basis (after taking into account applicable deductions
and credits in respect of the amount indemnified) for such reduction. Each
such written notice of a determination by any such Lender of amounts owing
under this Section 3.9 shall set forth and certify in reasonable detail the
basis for such determination and the calculation of amounts so owing, which
certification shall, absent manifest error, be conclusive and binding on the
parties hereto. Notwithstanding anything to the contrary contained herein,
the Borrower shall not be required to make any payments to any Lender or the
Administrative Agent pursuant to this Section 3.9 relating to any period of
time which is greater than 90 days prior to such Person's request for
additional payment except for retroactive application of such law, rule or
regulation, in which case the Borrower is required to make such payments so
long as such Person makes a request therefor within 90 days after the public
announcement of such retroactive application. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.10 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the
Administrative Agent shall have determined in good faith (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter, and will also
give prompt written notice to the Borrower when such conditions no longer
exist. If such notice is given (a) any Eurodollar Loans requested to be made
on the first day of such Interest Period shall be made as Base Rate Loans and
(b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans. Until such notice is withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued
as such, nor shall the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
3.11 Illegality.
Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Administrative Agent (which notice
shall be withdrawn whenever such circumstances no longer exist), (b) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert a Base Rate Loan to Eurodollar Loans
shall forthwith be canceled and, until such time as it shall no longer be
unlawful for such Lender to make or maintain Eurodollar Loans, such Lender
shall then have a commitment only to make a Base Rate Loan when a Eurodollar
Loan is requested and (c) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
3.14.
3.12 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof applicable to any Lender, or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in
each case made subsequent to the Closing Date (or, if later, the date on
which such Lender becomes a Lender):
24
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.13(b)) and changes in
taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such
Lender or its applicable lending office, branch, or any affiliate
thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar
Rate hereunder; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, upon
notice to the Borrower from such Lender, through the Administrative Agent, in
accordance herewith, the Borrower shall be obligated to promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender on an after-tax basis (after taking into account applicable deductions
and credits in respect of the amount indemnified) for such increased cost or
reduced amount receivable, provided that, in any such case, the Borrower may
elect to convert the Eurodollar Loans made by such Lender hereunder to Base
Rate Loans by giving the Administrative Agent at least one Business Day's
notice of such election, in which case the Borrower shall promptly pay to
such Lender, upon demand, without duplication, such amounts, if any, as may
be required pursuant to Section 3.14. If any Lender becomes entitled to claim
any additional amounts pursuant to this Section 3.12, it shall provide prompt
written notice thereof to the Borrower, through the Administrative Agent,
certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as
to the increased cost or reduced amount resulting from such event and (z) as
to the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any
additional amounts payable pursuant to this Section 3.12 submitted by such
Lender, through the Administrative Agent, to the Borrower shall be conclusive
and binding on the parties hereto in the absence of manifest error. This
covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder. Notwithstanding
anything to the contrary contained herein, the Borrower shall not be required
to make any payments to any Lender or the Administrative Agent pursuant to
this Section relating to any period of time which is greater than 90 days
prior to such Person's request for additional payment except for retroactive
application of such law, rule or regulation, in which case the Borrower is
required to make such payments so long as such Person makes a request
therefor within 90 days after the public announcement of such retroactive
application.
3.13 Taxes.
(a) Except as provided below in this Section 3.13, all
payments made by the Borrower under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any court, or governmental
body, agency or other official, excluding taxes measured by or
imposed upon the net income of any Lender or its applicable
lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on
the capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed
in lieu of net income taxes: (i) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or
(ii) by reason of any connection between the jurisdiction imposing
such tax and such Lender, applicable lending office, branch or
affiliate other than a connection
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arising solely from such Lender having executed, delivered or
performed its obligations, or received payment under or enforced,
this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender
hereunder or under any Notes, (A) the amounts so payable to the
Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the
amounts specified in this Credit Agreement and any Notes,
provided, however, that the Borrower shall be entitled to deduct
and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements
of paragraph (b) of this Section 3.13 whenever any Non-Excluded
Taxes are payable by the Borrower, and (B) as promptly as possible
after requested the Borrower shall send to such Administrative
Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and any Lender
for any incremental Non-Excluded Taxes, interest or penalties that
may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection
shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) (A) on or before the date of any payment
by the Borrower under this Credit Agreement or Notes to
such Lender, deliver to the Borrower and the
Administrative Agent (x) two duly completed copies of
United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under
this Credit Agreement and any Notes without deduction or
withholding of any United States federal income taxes
and (y) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be,
certifying that it is entitled to an exemption from
United States backup withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any such form
or certification on or before the date that any such
form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the
Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the Borrower or the
Administrative Agent; or
(ii) in the case of any such Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (A) represent to the
Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (B) agree to furnish to the Borrower, on or before
the date of any payment by the Borrower, with a copy to
the Administrative Agent, two accurate and complete
original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such
Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under
this Credit Agreement and any Notes (and to deliver to
the Borrower and the Administrative Agent two further
copies of such form on or before the date it expires or
becomes obsolete and after the occurrence of any event
requiring a change in the most recently provided form
and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the
Administrative Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to
do so, upon reasonable request by the Borrower, to
provide to the Borrower (for the
26
benefit of the Borrower and the Administrative Agent)
such other forms as may be reasonably required in order
to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments
under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or
regulation has occurred after the date such Person becomes a
Lender hereunder which renders all such forms inapplicable or
which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent, then such
Lender shall be exempt from such requirements. Each Person that
shall become a Lender or a participant of a Lender pursuant to
Section 11.3 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications
and statements required pursuant to this subsection (b); provided
that in the case of a participant of a Lender, the obligations of
such participant of a Lender pursuant to this subsection (b) shall
be determined as if the participant of a Lender were a Lender
except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from
which the related participation shall have been purchased.
3.14 Compensation.
The Borrower promises to indemnify each Lender and to hold each
Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower
has given a notice requesting the same in accordance with the provisions of
this Credit Agreement, (b) default by the Borrower in making any prepayment
of a Eurodollar Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Credit Agreement and (c) the making of
a prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification may include an
amount equal to (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case
of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) minus (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
agreements in this Section shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.15 Substitution of Lender.
If (a) the obligation of any Lender to make Eurodollar Loans has
been suspended pursuant to Section 3.11 or (b) any Lender has demanded
compensation under Section 3.9, 3.11, 3.12, 3.13 or 3.14, the Borrower shall
have the right, with the assistance of the Administrative Agent, to seek a
mutually satisfactory substitute lender or lenders. Any substitution under
this Section 3.15 may be accomplished, at the Borrower's option, either (i)
by the replaced Lender assigning its rights and obligations hereunder to a
replacement lender or lenders pursuant to Section 11.3(b) at a mutually
agreeable price or (ii) by the Borrower's prepaying all outstanding Loans
from the replaced Lender and terminating such Lender's Commitment on a date
specified in a notice delivered to the Administrative Agent and the replaced
Lender at least three Business Days before the date so specified (and
compensating such Lender for any resulting funding losses as provided in
Section 3.14 but otherwise without premium or penalty) and concurrently a
replacement Lender or Lenders assuming a Commitment in an amount equal to the
Commitment being terminated and making Loans in the same aggregate amount and
having the same maturity date or dates, respectively, as the Loans being
prepaid, all pursuant to documents reasonably satisfactory to the
Administrative Agent (and in the case of any document to be signed by the
replaced Lender, reasonably satisfactory to such Lender). No such
substitution shall relieve the Borrower of its obligations to compensate
and/or indemnify the replaced Lender as required by Section 3.9, 3.11, 3.12,
3.13 or 3.14 with respect to the period before it is replaced and to pay all
accrued interest, accrued fees and other amounts owing to the replaced Lender
hereunder.
27
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including
the amounts of principal and interest payable and paid to such Lender from
time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant
to Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any principal
or interest due and payable or to become due and payable to each Lender
hereunder, and (iii) the amount of any sum received by the Administrative
Agent hereunder from or for the account of the Borrower and each Lender's
share thereof, if any. The Administrative Agent will make reasonable efforts
to maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if
consistent with the entries of the Administrative Agent, subsection (a))
shall be prima facie evidence of the existence and amounts of the obligations
of the Borrower therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such account, such Register,
or such subaccount, as applicable, or any error therein, shall not in any
manner affect the obligation of the Borrower to repay the Loans made by such
Lender in accordance with the terms hereof.
SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Lender and the
Administrative Agent the prompt payment of the Credit Party Obligations in
full when due (whether at stated or extended maturity, as a mandatory
prepayment, by acceleration or otherwise). This Guaranty is a guaranty of
payment and not of collection and is a continuing guaranty and shall apply to
all Credit Party Obligations whenever arising.
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Credit Documents or the Hedging Agreements,
or any other agreement or instrument referred to therein, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor. Each Guarantor agrees that this Guaranty
may be enforced by the Lenders without the necessity at any time of resorting
to or exhausting any other security or collateral and without the necessity
at any time of having recourse to the Notes or any other of the Credit
Documents or any collateral, if any, hereafter securing the Credit Party
Obligations or otherwise and each Guarantor hereby waives the right to
require the Lenders to proceed against the Borrower or any other Person
(including a co-guarantor) or to require the Lenders to pursue any other
remedy or enforce any other right. Each Guarantor further agrees that it
shall have no right of subrogation, indemnity, reimbursement or contribution
against the Borrower or any other Guarantor of the Credit Party Obligations
for amounts paid under this Guaranty until such time as the Lenders (and any
Affiliates of Lenders entering into Hedging Agreements) have been paid in
full, all Commitments under the Credit Agreement have been terminated and no
Person or Governmental Authority shall have any right to request any return
or reimbursement of funds from the Lenders in connection with monies received
under the Credit Documents. Each Guarantor further agrees that nothing
contained herein shall prevent the Lenders from suing on the Notes or any of
the other Credit Documents or any of the Hedging Agreements or foreclosing
its security interest in or Lien on any collateral, if any, securing the
Credit Party Obligations or from exercising any other rights
28
available to it under this Credit Agreement, the Notes, any other of the
Credit Documents, or any other instrument of security, if any, and the
exercise of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any of any Guarantor's
obligations hereunder; it being the purpose and intent of each Guarantor that
its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances. Neither any Guarantor's obligations under
this Guaranty nor any remedy for the enforcement thereof shall be impaired,
modified, changed or released in any manner whatsoever by an impairment,
modification, change, release or limitation of the liability of the Borrower
or by reason of the bankruptcy or insolvency of the Borrower. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any of the Credit Party Obligations and notice of or proof of reliance of by
any Administrative Agent or any Lender upon this Guaranty or acceptance of
this Guaranty. The Credit Party Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty. All
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon
this Guaranty. The Guarantors further agree to all rights of set-off as set
forth in Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) the time or place of payment of the
Credit Party Obligations may be changed or extended, in whole or in part, to
a time certain or otherwise, and may be renewed or accelerated, in whole or
in part; (b) the Borrower and any other party liable for payment under the
Credit Documents may be granted indulgences generally; (c) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (d) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; (e) the Maturity
Date may be extended; and (f) any deposit balance for the credit of the
Borrower or any other party liable for the payment of the Credit Party
Obligations or liable upon any security therefor may be released, in whole or
in part, at, before or after the stated, extended or accelerated maturity of
the Credit Party Obligations, all without notice to or further assent by such
Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and
of all extensions of credit to the Borrower by the Lenders; (b) presentment
and demand for payment or performance of any of the Credit Party Obligations;
(c) protest and notice of dishonor or of default (except as specifically
required in the Credit Agreement) with respect to the Credit Party
Obligations or with respect to any security therefor; (d) notice of the
Lenders obtaining, amending, substituting for, releasing, waiving or
modifying any security interest, lien or encumbrance, if any, hereafter
securing the Credit Party Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) demand for payment under this Guaranty.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit
Party Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs
and expenses (including, without limitation, reasonable fees of counsel)
incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
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4.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, the
Credit Party Obligations may be declared to be forthwith due and payable as
provided in Section 9 (and shall be deemed to have become automatically due
and payable in the circumstances provided in Section 9) notwithstanding any
stay, injunction or other prohibition preventing such declaration (or
preventing such Credit Party Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such
declaration (or such Credit Party Obligations being deemed to have become
automatically due and payable), such Credit Party Obligations (whether or not
due and payable by any other Person) shall forthwith become due and payable
by the Guarantors.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or
in any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal
law relating to fraudulent conveyances or transfers) then the obligations of
such Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code).
4.8 Rights of Contribution.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to
the obligations of the Credit Parties under the Credit Documents and no
Credit Party shall exercise such rights of contribution until all Credit
Party Obligations have been paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement
and make the initial Extension of Credit is subject to satisfaction (or
waiver by each of the Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the
Administrative Agent of duly executed copies of: (i) this Credit
Agreement; (ii) the Notes and (iii) all other Credit Documents,
each in form and substance reasonably acceptable to the
Administrative Agent and the Lenders; provided that receipt by the
Administrative Agent of an executed signature page to this Credit
Agreement from a Lender shall be deemed approval by such Lender of
the form and substance of the Credit Documents.
(b) Authority Documents.
(i) Partnership Documents. With respect to
each Credit Party that is a partnership or limited
liability partnership (for the purposes hereof, each a
"Partnership"), receipt by the Administrative Agent of
the following:
(A) Authorization. Authorization of the
general partner(s) of such Partnership, as of the
Closing Date, approving and adopting the Credit
Documents to be executed by such Partnership and
authorizing the execution and delivery thereof.
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(B) Partnership Agreements. Certified
copies of the partnership agreement of such Partnership,
together with all amendments thereto.
(C) Certificates of Good Standing or
Existence. Certificate of good standing or existence for
such Partnership, issued as of a recent date by its
state of organization and each other state where the
failure to qualify or be in good standing would have or
could be reasonably expected to have a Material Adverse
Effect.
(D) Incumbency. An incumbency certificate
of the general partner(s) of such Partnership certified
by a secretary or assistant secretary of such general
partner to be true and correct as of the Closing Date.
(ii) Corporate Documents. With respect to each
Credit Party that is a corporation, (for the purposes
hereof, each a "Corporation"), and with respect to each
corporate entity acting, directly or indirectly, on
behalf of a Credit Party that is a partnership, limited
liability partnership or limited liability company (for
the purposes of this clause (ii), each a "Managing
Person"), receipt by the Administrative Agent of the
following:
(A) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of each such Corporation or Managing
Person, as applicable, certified to be true and complete
as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant
secretary of such Corporation or Managing Person, as
applicable, to be true and correct as of the Closing
Date.
(B) Bylaws. A copy of the bylaws of each
such Corporation or Managing Person, as applicable,
certified by a secretary or assistant secretary of such
Corporation or Managing Person, as applicable, to be
true and correct as of the Closing Date.
(C) Resolutions. Copies of resolutions of
such Corporation's board of directors approving and
adopting the Credit Documents to which it or the Person
for whom it is acting is a party and the transactions
contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant
secretary of such Corporation or Managing Person, as
applicable, to be true and correct and in full force and
effect as of the Closing Date.
(D) Good Standing. Copies of (A)
certificates of good standing, existence or their
equivalent with respect to such Corporation or Managing
Person, as applicable, certified as of a recent date by
the appropriate Governmental Authorities of the state or
other jurisdiction of incorporation and each other
jurisdiction in which the failure to so qualify and be
in good standing would have or could be reasonably
expected to have a Material Adverse Effect and (B) to
the extent available, a certificate indicating payment
of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing
authorities.
(E) Incumbency. An incumbency certificate
of such Corporation or Managing Person, as applicable,
certified by an officer of such Corporation or Managing
Person, as applicable, to be true and correct as of the
Closing Date.
(iii) Limited Liability Company Documents.
With respect to each Credit Party that is a limited
liability company (for the purposes hereof, each an
"LLC") and with respect to any limited liability company
acting, directly or indirectly, on behalf of a Credit
Party (for the purposes of this clause (iii), each a
"Managing Person"), receipt by the Administrative Agent
of the following:
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(A) Certificate of Formation. A copy of
the certificate of formation of such LLC or Managing
Person, as applicable, certified to be true and complete
by the appropriate Governmental Authority of the state
or jurisdiction of its formation and certified by the
sole or managing member of such LLC or Managing Person,
as applicable, to be true and correct as of the Closing
Date.
(B) LLC Agreement. A copy of the LLC
Agreement of such LLC or Managing Person, as applicable,
certified by the sole or managing member of such LLC or
Managing Person, as applicable, to be true and correct
as of the Closing Date.
(C) Resolutions. Copies of resolutions of
the sole or managing member of such LLC or Managing
Person approving and adopting the Credit Documents to
which it or the Person for whom it is acting is a party
and the transactions contemplated therein and
authorizing execution and delivery thereof.
(D) Good Standing. Copies of certificates
of good standing, existence of their equivalent with
respect to such LLC or Managing Person, as applicable,
certified as of a recent date by the appropriate
Governmental Authorities of the state or other
jurisdiction of formation and each other jurisdiction in
which the failure to so qualify and be in good standing
would have or could be reasonably expected to have a
Material Adverse Effect.
(E) Incumbency. An incumbency certificate
of such LLC or Managing Person certified by an officer
of such LLC or Managing Person to be true and correct as
of the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative
Agent of an opinion or opinions from legal counsel to the Credit
Parties (which shall cover, among other things, authority,
legality, validity, binding effect, and enforceability of the
Credit Documents), reasonably satisfactory to the Administrative
Agent, addressed to the Administrative Agent and the Lenders and
dated as of the Closing Date.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Credit Parties as they may
request, including, but not limited to, (i) the consolidated
financial statements of the Borrower and its Subsidiaries for
their 1996, 1997 and 1998 fiscal years, including balance sheets,
income statements and cash flow statements audited by independent
public accountants of recognized national standing and prepared in
accordance with GAAP and (ii) interim unaudited quarterly
financial statements for the Borrower and its Subsidiaries,
prepared in accordance with GAAP, including without limitation
unaudited financial statements for the Borrower and its
Subsidiaries prepared as of June 30, 1999 and in accordance with
GAAP.
(e) Litigation. There shall not exist (i) any order,
decree, judgment, ruling or injunction which prohibits or
restrains the consummation of the transactions contemplated hereby
or (ii) any pending (except as set forth on Schedule 6.11) or, to
the knowledge of any Credit Party, threatened action, suit,
investigation or proceeding against a Credit Party that would have
or could be reasonably expected to have a Material Adverse Effect.
(f) Officer's Certificates. The Administrative Agent
shall have received a certificate or certificates executed by the
chief financial officer of the Borrower as of the Closing Date
stating that (i) the Borrower and each of its Subsidiaries are in
compliance with all existing material financial obligations after
giving effect to this Credit Agreement, (ii) no action, suit,
investigation or proceeding is pending or, to the knowledge of any
Credit Party, threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect the Borrower,
any of its Subsidiaries or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or
proceeding would have or could be reasonably expected to have a
Material Adverse Effect, (iii) the financial statements and
information delivered to the Administrative Agent on or before the
Closing Date were prepared in good faith and in accordance with
32
GAAP and (iv) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions
contemplated herein and therein, including the initial Extensions
of Credit hereunder (if any), to occur on such date, (A) no
Default or Event of Default exists, (B) all representations and
warranties contained herein and in the other Credit Documents are
true and correct in all material respects, (C) the Credit Parties
are in compliance with each of the financial covenants set forth
in Section 7.2 (with calculations demonstrating same) and (D) each
Credit Party is Solvent.
(g) Material Adverse Effect. There shall not have
occurred a Material Adverse Effect since December 31, 1998.
(h) Fees and Expenses. Payment by the Credit Parties of
the fees and expenses owed by them to the Administrative Agent,
the Lenders and BAS pursuant to the terms hereof and of the Fee
Letter.
(i) Existing Senior Credit Agreement; Bridge Facility.
(i) No Default or Event of Default shall exist and be continuing
under the terms of the Existing Senior Credit Agreement and (ii)
the Administrative Agent shall have received evidence that all
documents executed or delivered in connection with the Bridge
Facility shall have been terminated and that all amounts owing in
connection with the Bridge Facility shall have been paid in full
on or before the Effective Date.
(j) Year 2000 Problem. Receipt and review of
information, in form and substance satisfactory to the
Administrative Agent and the Lenders, confirming that (i) the
Borrower has conducted a comprehensive review and assessment of
the Borrower's computer applications and made inquiry of the
Borrower's key suppliers, vendors and customers or prospects with
respect to the Year 2000 Problem, and (ii) based on that review
and inquiry the Borrower does not believe that the Year 2000
Problem will result in a Material Adverse Effect.
(k) Other. Receipt and satisfactory review by the
Administrative Agent and its counsel of such other documents,
instruments, agreements or information as reasonably and timely
requested by the Administrative Agent, its counsel or any Lender,
including, but not limited to, shareholder agreements, management
agreements and information regarding litigation, tax, accounting,
labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property
ownership, contingent liabilities and management of the Borrower
and its Subsidiaries.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein,
the Lenders shall not be obligated to make new Loans unless:
(a) Notice. The Borrower shall have delivered (i) in the
case of any new Revolving Loan, a Notice of Borrowing, duly
executed and completed, by the time specified in Section 2.1 and
(ii) in the case of any new Swingline Loan, a Swingline Loan
Request, duly executed and completed, by the time specified in
Section 2.2.
(b) Representations and Warranties. The representations
and warranties made by the Credit Parties in any Credit Document
are true and correct in all material respects at and as if made as
of such date except to the extent they expressly relate to an
earlier date.
(c) No Default. No Default or Event of Default shall
exist or be continuing either prior to or after giving effect
thereto.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof),
the sum of the Revolving Loans outstanding plus Swingline Loans
outstanding plus the aggregate amount of secured Indebtedness
incurred by the Credit Parties pursuant to Section 8.1(h) in
excess of $100,000,000 shall not exceed the Revolving Committed
Amount.
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(e) Existing Senior Credit Agreement Fully Funded. All
principal amounts available to be drawn under the terms of the
Existing Senior Credit Agreement shall have been borrowed in full.
The delivery of each Notice of Borrowing and each Swingline Loan Request
shall constitute a representation and warranty by the Borrower of the
correctness of the matters specified in subsections (b), (c), (d) and (e)
above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent and warrant to the
Administrative Agent and each Lender that:
6.1 Financial Condition.
(a) The financial statements delivered to the Lenders
prior to the Effective Date and pursuant to Section 7.1(a) and
(b): (i) have been prepared in accordance with GAAP and (ii)
present fairly the consolidated and consolidating (as applicable)
financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of such date and for such
periods.
(b) Since December 31, 1998, there has been no sale,
transfer or other disposition by any Credit Party of any material
part of the business or property of the Credit Parties taken as a
whole, and no purchase or other acquisition by any of them of any
business or property (including any Capital Stock of any other
Person) material in relation to the consolidated financial
condition of the Credit Parties taken as a whole, in each case
which is not (i) reflected in the most recent financial statements
delivered to the Lenders pursuant to Section 7.1 or in the notes
thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent.
6.2 No Material Change.
Since December 31, 1998, there has been no development or event
relating to or affecting a Credit Party which has had or could be reasonably
expected to have a Material Adverse Effect, other than the developments in
the First Heights-related litigation described in Note 4 to the Borrower's
condensed consolidated financial statements contained in its Form 10-Q report
for the fiscal quarter ended June 30, 1999, as filed with the U.S. Securities
and Exchange Commission.
6.3 Organization and Good Standing.
Each Credit Party (a) is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the state (or other jurisdiction) of its organization, (b) is
duly qualified and in good standing as a foreign entity and authorized to do
business in every jurisdiction unless the failure to be so qualified, in good
standing or authorized would have or could be reasonably expected to have a
Material Adverse Effect and (c) has the requisite power and authority to own
its properties and to carry on its business as now conducted and as proposed
to be conducted.
6.4 Due Authorization.
Each Credit Party (a) has the requisite power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur the obligations herein and
therein provided for and (b) is duly authorized to, and has been authorized
by all necessary action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
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6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor
the consummation of the transactions contemplated therein, nor performance of
and compliance with the terms and provisions thereof by such Credit Party
will (a) violate or conflict with any provision of its articles or
certificate of incorporation or bylaws, (b) violate, contravene or materially
conflict with any Requirement of Law or any other law, regulation (including,
without limitation, Regulation D, O, T, U or X), order, writ, judgment,
injunction, decree or permit applicable to it, (c) violate, contravene or
conflict with contractual provisions of, or cause an event of default under,
any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it may be bound,
the violation of which would have or could be reasonably expected to have a
Material Adverse Effect, or (d) result in or require the creation of any Lien
(other than those contemplated in or created in connection with the Credit
Documents) upon or with respect to its properties.
6.6 Consents.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or
third party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the
other Credit Documents by such Credit Party.
6.7 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been
duly executed and delivered and constitute legal, valid and binding
obligations of each Credit Party enforceable against such Credit Party in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization or moratorium laws or similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
6.8 No Default.
No Credit Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its
properties is bound which default would have or could be reasonably expected
to have a Material Adverse Effect. No Default or Event of Default has
occurred or exists except as previously disclosed in writing to the Lenders.
6.9 Liens.
The assets of the Credit Parties are not subject to any Liens,
other than Permitted Liens, which, individually or in the aggregate, would
have or could be reasonably expected to have a Material Adverse Effect.
6.10 Indebtedness.
The Credit Parties have no Indebtedness except (a) as disclosed in
the financial statements referenced in Section 6.1, (b) as set forth on
Schedule 6.10, and (c) as otherwise permitted by this Credit Agreement.
6.11 Litigation.
Except as set forth on Schedule 6.11, there are no actions, suits
or legal, equitable, arbitration or administrative proceedings, pending or,
to the knowledge of any Credit Party, threatened against any Credit Party
which, if adversely determined, would have or could be reasonably expected to
have a Material Adverse Effect.
6.12 Taxes.
Each Credit Party has filed, or caused to be filed, all material
tax returns (federal, state, local and foreign) required to be filed and paid
(a) all amounts of taxes shown thereon to be due and payable (including
interest and
35
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) that are due and payable by it, except for such taxes (i)
which are not yet delinquent or (ii) that are being contested in good faith
and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. To the knowledge of the Credit Parties,
there are no material tax assessments (including interest and penalties)
claimed to be due against any of them by any Governmental Authority.
6.13 Compliance with Law.
Each Credit Party is in material compliance with all material
Requirements of Law and all other material laws, rules, regulations, orders
and decrees (including without limitation Environmental Laws) applicable to
it, or to its properties. No Requirement of Law would cause or could be
reasonably expected to cause a Material Adverse Effect.
6.14 ERISA.
Except as would not have or be reasonably expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on
which this representation is made or deemed made: (i) no
Termination Event has occurred, and, to the knowledge of the
Credit Parties, no event or condition has occurred or exists as a
result of which any Termination Event could reasonably be expected
to occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and
any other applicable federal or state laws; and (iv) no lien in
favor of the PBGC or a Plan has arisen or is reasonably likely to
arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" (within the meaning of Section 4001 of ERISA) under
each Single Employer Plan (determined utilizing the actuarial
assumptions used to fund such Plans), whether or not vested, did
not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the fair
market current value as of such date of the assets of such Plan
allocable to such accrued liabilities.
(c) Neither the Borrower, nor any of its Subsidiaries,
nor any ERISA Affiliate has incurred, or, to the knowledge of such
parties, are reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. Neither the Borrower, nor any of its Subsidiaries,
nor any ERISA Affiliate has received any notification pursuant to
ERISA that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the
meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and, to the best knowledge of
such parties, no Multiemployer Plan is reasonably expected to be
in reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or
breach of fiduciary responsibility has occurred with respect to a
Plan which has subjected or is reasonably expected to subject the
Borrower or any of its Subsidiaries or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower or any of its
Subsidiaries or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(e) The present value of the liability of the Borrower
and its Subsidiaries and each ERISA Affiliate for post-retirement
welfare benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined
in Section 3(1) of ERISA), net of all assets under all such Plans
allocable to such benefits, are reflected on the Financial
Statements in accordance with FASB 106.
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(f) Each Plan which is a welfare plan (as defined in
Section 3(1) of ERISA) to which Sections 601-609 of ERISA and
Section 4980B of the Code apply has been administered in material
compliance with such sections.
6.15 Subsidiaries.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party and whether each such Person is a Material
Subsidiary. Schedule 6.15 may, but need not, be updated from time to time by
the Borrower by giving written notice thereof to the Administrative Agent.
6.16 Use of Proceeds.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.10. No proceeds of the Loans hereunder have
been or will be used for the Acquisition of another Person unless the board
of directors (or other comparable governing body) or stockholders, as
appropriate, of such Person has approved such Acquisition.
6.17 Government Regulation.
(a) No proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested
by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in Regulation U. No Indebtedness being
reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin
stock within the meaning of Regulation U or any "margin security"
within the meaning of Regulation T. "Margin stock" within the
meaning of Regulation U does not constitute more than 25% of the
value of the consolidated assets of the Credit Parties and their
Subsidiaries. None of the transactions contemplated by the Credit
Documents (including, without limitation, the direct or indirect
use of the proceeds of the Loans) will violate or result in a
violation of (i) the Securities Act of 1933, as amended, (ii) the
Securities Exchange Act of 1934, as amended, or (iii) regulations
issued pursuant to the Securities Act of 1933 or the Securities
Exchange Act of 1934.
(b) No Credit Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act
or the Investment Company Act of 1940, each as amended. In
addition, no Credit Party is (i) an "investment company"
registered or required to be registered under the Investment
Company Act of 1940, as amended, and is not controlled by an
"investment company", or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary" of a "holding company",
within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(c) No director, executive officer or principal
shareholder of any Credit Party is a director, executive officer
or principal shareholder of any Lender. For the purposes hereof
the terms "director", "executive officer" and "principal
shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O.
6.18 Environmental Matters.
Except as would not have or could not be reasonably expected to
have a Material Adverse Effect:
(a) Each of the Real Properties and all operations at
the Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental
Law with respect to the Real Properties or the businesses operated
by the Credit Parties (the "Businesses"), and there are no
conditions
37
relating to the Businesses or Real Properties that would
reasonably be expected to give rise to liability under any
applicable Environmental Laws.
(b) No Credit Party has received any written notice of,
or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or
potential liability regarding Hazardous Materials or compliance
with Environmental Laws with regard to any of the Real Properties
or the Businesses, nor, to the knowledge of a Credit Party, is any
such notice being threatened.
(c) Hazardous Materials have not been transported or
disposed of from the Real Properties, or generated, treated,
stored or disposed of at, on or under any of the Real Properties
or any other location, in each case by, or on behalf or with the
permission of, a Credit Party in a manner that would give rise to
liability under any applicable Environmental Laws.
(d) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of a Credit
Party, threatened under any Environmental Law to which a Credit
Party is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to a Credit
Party, the Real Properties or the Businesses.
(e) There has been no release (including, without
limitation, disposal) or threat of release of Hazardous Materials
at or from the Real Properties, or arising from or related to the
operations of a Credit Party in connection with the Real
Properties or otherwise in connection with the Businesses where
such release constituted a violation of, or would give rise to
liability under, any applicable Environmental Laws.
(f) None of the Real Properties contains, or has
previously contained, any Hazardous Materials at, on or under the
Real Properties in amounts or concentrations that, if released,
constitute or constituted a violation of, or could give rise to
liability under, Environmental Laws.
(g) No Credit Party has assumed any liability of any
Person (other than another Credit Party or Subsidiary thereof)
under any Environmental Law.
6.19 Intellectual Property.
Each Credit Party owns, or has the legal right to use, all
patents, trademarks, service marks, tradenames, copyrights, licenses,
technology, know-how, processes and other rights (the "Intellectual
Property"), free from burdensome restrictions, that are necessary for the
operation of their respective businesses as presently conducted and as
proposed to be conducted other than those the absence of which would not
cause or could not reasonably be expected to cause a Material Adverse Effect.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect, (a) no holding, decision or judgment has been
rendered by any Governmental Authority which would limit, cancel or question
the validity of any Intellectual Property and (b) no action or proceeding is
pending that seeks to limit, cancel or question the validity of any
Intellectual Property or which, if adversely determined, would have a
material adverse effect on the value of any Intellectual Property.
6.20 Solvency.
Each Credit Party is, and after consummation of the transactions
contemplated by this Credit Agreement will be, Solvent.
6.21 Investments.
All Investments of each Credit Party are (a) as set forth on
Schedule 6.21 or (b) Permitted Investments.
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6.22 Disclosure.
Neither this Credit Agreement nor any other Credit Document or
financial statement delivered to the Administrative Agent or the Lenders by
or on behalf of any Credit Party in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
therein or herein, taken as a whole, not misleading.
6.23 Licenses, etc.
Except as would not have or could not be reasonably expected to
have a Material Adverse Effect, the Credit Parties have obtained and hold in
full force and effect, all material franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements,
rights of way and other rights, consents and approvals which are necessary
for the operation of their respective businesses as presently conducted.
6.24 Burdensome Restrictions.
No Credit Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or
any provision of any Requirement of Law which, individually or in the
aggregate, would have or could be reasonably expected to have a Material
Adverse Effect.
6.25 Year 2000 Compliance.
The Borrower has conducted a comprehensive review and assessment
of its and its Subsidiaries' computer applications and made inquiry of the
Borrower's and its Subsidiaries' key suppliers, vendors, and customers or
prospects with respect to the Year 2000 Problem and, based on that review and
inquiry, the Borrower does not believe the Year 2000 Problem will cause, or
could be reasonably expected to cause, a Material Adverse Effect.
6.26 Labor Contracts and Disputes.
Except as disclosed on Schedule 6.26, (a) there is no collective
bargaining agreement or other labor contract covering employees of any Credit
Party; (b) no union or other labor organization is seeking to organize, or be
recognized as, a collective bargaining unit of employees of any Credit Party;
and (c) there is no pending or, to any Credit Party's knowledge, threatened
strike, work stoppage, material unfair labor practice claim or other material
labor dispute against or affecting any Credit Party or its employees which,
individually or in the aggregate, would have or could be reasonably expected
to have a Material Adverse Effect.
6.27 Broker's Fees.
No Credit Party will pay or agree to pay, or reimburse any other
Person with respect to, any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest and
fees and other obligations then due and payable hereunder, have been paid in
full (other than any such obligations which by the terms thereof are stated
to survive termination of the Credit Documents) and the Commitments hereunder
shall have terminated:
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7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available,
and in any event within 120 days after the close of each fiscal
year of the Borrower, a consolidated and consolidating balance
sheet and income statement of the Borrower and its Subsidiaries,
as of the end of such fiscal year, together with related
consolidated and consolidating statements of operations, retained
earnings, shareholders equity and cash flows for such fiscal year,
setting forth in comparative form consolidated and consolidating
figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail
and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the effect that
such financial statements have been prepared in accordance with
GAAP (except for changes with which such accountants concur) and
shall not be limited as to the scope of the audit or qualified in
any manner, except for qualifications resulting from changes in
GAAP and required or approved by the Borrower's independent
certified public accountants. It is specifically understood and
agreed that failure of the annual financial statements to be
accompanied by an opinion of such accountants in form and
substance as provided herein shall constitute an Event of Default
hereunder.
(b) Quarterly Statements.
As soon as available, and in any event within 60 days
after the close of each fiscal quarter (other than the fourth
fiscal quarter, in which case 120 days after the end thereof) of
each fiscal year of the Borrower, a consolidated and consolidating
balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such quarter, together with related
consolidated and consolidating statements of operations, retained
earnings, shareholders' equity and cash flow for such quarter, in
each case setting forth in comparative form consolidated and
consolidating figures for the corresponding period of the
preceding fiscal year, all such financial information described
above to be in reasonable form and detail and reasonably
acceptable to the Administrative Agent and accompanied by a
certificate of the chief financial officer of the Borrower to the
effect that such consolidated and consolidating statements are
true and correct and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 7.1(a) and
7.1(b) above, a certificate of an Authorized Officer of the
Borrower substantially in the form of Exhibit 7.1(c), (i)
demonstrating compliance with the financial covenants contained in
Section 7.2 by calculation thereof as of the end of each such
period, (ii) demonstrating compliance with any other terms of this
Credit Agreement as requested by the Administrative Agent and
(iii) stating that no Default or Event of Default exists, or if
any Default or Event of Default does exist, specifying the nature
and extent thereof and what action the Borrower proposes to take
with respect thereto. If necessary, the Borrower shall deliver
financial statements prepared in accordance with GAAP as of the
Closing Date, to the extent GAAP has changed since the Closing
Date, in order to show compliance with the terms of this Credit
Agreement, including Section 7.2. In addition, at the time of any
Investment pursuant to clause (j) of the definition of Permitted
Investments in excess of $10,000,000, a certificate of an
Authorized Officer of the Borrower stating that after giving
effect to such Investment on a pro forma basis no Default or Event
of Default will exist or be continuing as a result of such
Investment.
(d) Reports. Promptly upon transmission or receipt
thereof, (a) copies of any public filings and registrations with,
and reports to or from, the Securities and Exchange Commission, or
any successor agency, and copies of all financial statements,
proxy statements, notices and reports as the Borrower or any of
its Subsidiaries shall send to its shareholders generally and (b)
upon the written request of the Administrative Agent, all reports
and written information to and from the United States
Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health
or safety matters.
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(e) Notices. Upon an executive officer of a Credit Party
obtaining knowledge thereof, the Borrower will give written notice
to the Administrative Agent (a) immediately of the occurrence of
an event or condition consisting of a Default or Event of Default,
specifying the nature and existence thereof and what action the
Credit Parties propose to take with respect thereto, and (b)
promptly, but in any event within five Business Days, after the
occurrence of any of the following with respect to any Credit
Party: (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against a Credit Party which
if adversely determined would have or could be reasonably expected
to have a Material Adverse Effect, (ii) the institution of any
proceedings against a Credit Party with respect to, or the receipt
of written notice by such Person of potential liability or
responsibility for violation, or alleged violation, of any
federal, state or local law, rule or regulation (including but not
limited to, Environmental Laws), the violation of which would have
or could be reasonably expected to have a Material Adverse Effect,
(iii) any information that a Credit Party may have a Year 2000
Problem, (iv) the occurrence of an event or condition which shall
constitute a default or event of default under any Indebtedness of
a Credit Party in excess of $10,000,000, other than Non-Recourse
Land Financing, or (v) any loss of or damage to any property of a
Credit Party or the commencement of any proceeding for the
condemnation or other taking of any property of a Credit Party
having a value of $10,000,000 or more.
(f) ERISA. Upon any of the Credit Parties or any ERISA
Affiliate obtaining knowledge thereof, the Borrower will give
written notice to the Administrative Agent promptly (and in any
event within two Business Days) of: (i) any event or condition,
including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, a Termination Event;
(ii) with respect to any Multiemployer Plan, the receipt of notice
as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Credit Parties or any of their ERISA
Affiliates, or of a determination that any Multiemployer Plan is
in reorganization or insolvent (both within the meaning of Title
IV of ERISA); (iii) the failure to make full payment on or before
the due date (including extensions) thereof of all amounts which a
Credit Party or any ERISA Affiliates is required to contribute to
each Plan pursuant to its terms and as required to meet the
minimum funding standard set forth in ERISA and the Code with
respect thereto; or (iv) any change in the funding status of any
Plan that would have or could be reasonably expected to have a
Material Adverse Effect; together with a description of any such
event or condition or a copy of any such notice and a statement by
the principal financial officer of the Borrower briefly setting
forth the details regarding such event, condition, or notice, and
the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto.
Promptly upon request, a Credit Party shall furnish the
Administrative Agent and each of the Lenders with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or
the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section
3(39) of ERISA).
(g) Environmental.
(i) Subsequent to a notice from any
Governmental Authority where the subject matter of such
notice would reasonably cause concern or during the
existence of an Event of Default, and upon the written
request of the Administrative Agent, the Credit Parties
will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, a
report of an environmental assessment of reasonable
scope, form and depth, including, where appropriate,
invasive soil or groundwater sampling, by a consultant
reasonably acceptable to the Administrative Agent
addressing the subject of such notice or, if during the
existence of an Event of Default, regarding any release
or threat of release of Hazardous Materials on any Real
Property and the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to
deliver such an environmental assessment within sixty
(60) days after receipt of such written request, then
the Administrative Agent may arrange for same, and the
Credit Parties hereby grant to the Administrative Agent
and its representatives access to the Real Properties
and a license of a scope reasonably necessary to
undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling).
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The reasonable cost of any assessment arranged for by
the Administrative Agent pursuant to this provision will
be payable by the Credit Parties on demand.
(ii) Each Credit Party will conduct and
complete all investigations, studies, sampling and
testing and all remedial, removal and other actions
necessary to address all Hazardous Materials on, from,
or affecting any Real Property to the extent necessary
to be in compliance with all Environmental Laws and all
other applicable federal, state, and local laws,
regulations, rules and policies and with the orders and
directives of all Governmental Authorities exercising
jurisdiction over such Real Property to the extent any
failure would have or could be reasonably expected to
have a Material Adverse Effect.
(h) Other Information. As soon as available and in any
event within 60 days of each fiscal quarter (or within 120 days of
the fourth fiscal quarter), a "Land Report" and a "Consolidated
Sales and Construction Activity Report" and with reasonable
promptness upon any request, such other information regarding the
business, properties or financial condition of the Credit Parties
as the Administrative Agent or the Lenders may reasonably request;
provided that the Borrower may require that prior to distribution
of such information to a Lender, such Lender shall have executed
and delivered to the Borrower a confidentiality agreement in form
and substance reasonably satisfactory to the Borrower and such
Lender.
7.2 Financial Covenants.
(a) Debt to Capitalization Ratio. As of the last day of
each fiscal quarter of the Borrower (beginning with the fiscal
quarter ending September 30, 1999), the Debt to Capitalization
Ratio shall be less than or equal to 0.50 to 1.0.
(b) Tangible Net Worth. As of the last day of each
fiscal quarter of the Borrower (beginning with the fiscal quarter
ending September 30, 1999), Tangible Net Worth shall be greater
than or equal to the sum of (i) $550 million, plus (ii) 50% of the
cumulative Net Income (without deduction for losses) earned for
each completed fiscal quarter subsequent to January 1, 1995 to the
date of determination.
7.3 Preservation of Existence and Franchises.
Except as permitted by Section 8.4, each of the Credit Parties
will do all things necessary to preserve and keep in full force and effect
its (a) existence, rights and franchises and (b) authority, unless failure to
preserve and keep in full force and effect its authority would not have or
could not be reasonably expected to have a Material Adverse Effect.
7.4 Books and Records.
Each of the Credit Parties will keep complete and accurate books
and records of its transactions in accordance with GAAP (including the
establishment and maintenance of appropriate reserves).
7.5 Compliance with Law.
Each of the Credit Parties will materially comply with all
material laws, rules, regulations and orders, and all applicable material
restrictions imposed by all Governmental Authorities, applicable to it and
its property (including, without limitation, Environmental Laws).
7.6 Payment of Taxes and Other Indebtedness.
Each of the Credit Parties will pay, settle or discharge (a) all
taxes, assessments and governmental charges or levies imposed upon it, or
upon its income or profits, or upon any of its properties, before they shall
become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any
of its properties, and (c) all of its other Indebtedness as it shall become
due (to the extent such repayment is not otherwise prohibited by this Credit
Agreement); provided, however, that a Credit Party shall not be required to
pay any
42
such tax, assessment, charge, levy, claim or Indebtedness which is
being contested in good faith by appropriate proceedings and as to which
adequate reserves therefor have been established in accordance with GAAP,
unless the failure to make any such payment (i) would give rise to an
immediate right to foreclose or collect on a Lien securing such amounts or
(ii) would have or could be reasonably expected to have a Material Adverse
Effect.
7.7 Insurance.
Each of the Credit Parties will at all times maintain in full
force and effect insurance (including worker's compensation insurance,
liability insurance, casualty insurance and business interruption insurance)
from insurance companies of recognized national standing, in such amounts,
covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry practice.
7.8 Maintenance of Property.
Each of the Credit Parties will maintain and preserve its
properties, equipment and other assets in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be made,
in such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as
may be needed or proper, to the extent and in the manner customary for
companies in similar businesses, unless the failure to do so would not have
or could not be reasonably expected to have a Material Adverse Effect.
7.9 Performance of Obligations.
Each of the Credit Parties will perform in all material respects
all of its obligations under the terms of all material agreements,
indentures, mortgages, security agreements or other debt instruments to which
it is a party or by which it or its property is bound, unless the failure to
do so would not have or could not be reasonably expected to have a Material
Adverse Effect.
7.10 Use of Proceeds.
The Credit Parties will use the proceeds of the Loans solely (a)
to repay Indebtedness owing under the Bridge Facility, (b) to finance the
acquisition and development of land and the construction of single-family
housing thereon, (c) to provide working capital for the Credit Parties and
(d) for general corporate purposes of the Credit Parties.
7.11 Audits/Inspections.
Upon reasonable notice and during normal business hours, each
Credit Party will permit representatives appointed by the Administrative
Agent, including, without limitation, independent accountants, agents,
attorneys and appraisers, to visit and inspect such Credit Party's property,
including its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or
photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information
provided to the Lenders.
7.12 Additional Credit Parties.
At the time any Person becomes a Material Subsidiary of a Credit
Party, the Borrower shall so notify the Administrative Agent and promptly
thereafter (but in any event within 30 days after the date thereof or within
such longer period of time as agreed to by the Administrative Agent) shall
cause such Person to (a) execute a Joinder Agreement in substantially the
same form as Exhibit 7.12, (b) provide to the Administrative Agent a new
Schedule 6.15 which shall reflect the information regarding such Subsidiary
required by Section 6.15 and (c) deliver to the Administrative Agent such
other documentation as the Administrative Agent may reasonably request,
including, without limitation, certified copies of resolutions and other
corporate, limited liability company or partnership documents and favorable
opinions of counsel to such Person (which shall cover, among other things,
the legality, validity, binding effect and enforceability of the Joinder
Agreement executed by such Person), all in form, content and
43
scope reasonably satisfactory to the Administrative Agent. The Administrative
Agent and the Lenders agree that upon any Subsidiary ceasing to be a Material
Subsidiary, upon receipt by the Administrative Agent of evidence thereof, the
Administrative Agent shall execute, at the Borrower's expense, such release
documentation as is necessary to release such Subsidiary from its Guaranty
Obligations hereunder and such Subsidiary shall no longer be a Guarantor.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest,
fees and other obligations then due and payable hereunder, have been paid in
full (other than any such obligations which by the terms thereof are stated
to survive termination of the Credit Documents) and the Commitments hereunder
shall have terminated:
8.1 Indebtedness.
No Credit Party will contract, create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness existing as of the Closing Date as
referenced in Section 6.10 (and renewals, refinancings,
replacements or extensions thereof on terms and conditions no more
favorable, in the aggregate, to the applicable creditor than such
existing Indebtedness and in a principal amount not in excess of
that outstanding as of the date of such renewal, refinancing,
replacement or extension);
(c) Indebtedness in respect of current accounts payable
and accrued expenses incurred in the ordinary course of business
and to the extent not current, accounts payable and accrued
expenses that are subject to bona fide dispute;
(d) Indebtedness owing by a Credit Party to another
Credit Party;
(e) Indebtedness arising from Hedging Agreements entered
into in the ordinary course of business and not for speculative
purposes;
(f) Indebtedness arising from judgments that do not
cause an Event of Default;
(g) secured Indebtedness in connection with Non-Recourse
Land Financing existing on the Closing Date and Non-Recourse Land
Financing with respect to real property acquired after the Closing
Date.
(h) other secured Indebtedness up to $200 million, in
the aggregate, at any one time outstanding; provided that for each
dollar of secured Indebtedness incurred in excess of $100,000,000,
as permitted under this Section 8.1(h), availability under the
Revolving Committed Amount shall be reduced by one dollar; and
(i) other unsecured Indebtedness so long as, after
giving effect thereto, the Borrower is in compliance with the
financial covenants set forth in Section 7.2.
8.2 Liens.
No Credit Party will contract, create, incur, assume or permit to
exist any Lien with respect to any of its property or assets of any kind
(whether real or personal, tangible or intangible), whether now owned or
after acquired, except for Permitted Liens.
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8.3 Nature of Business.
No Credit Party will materially alter the character of its
business from that conducted as of the Closing Date or engage in any business
other than the business conducted as of the Closing Date and activities which
are substantially similar or related thereto or logical extensions thereof.
8.4 Consolidation and Merger.
No Credit Party will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself; provided that a
Credit Party may merge or consolidate with or into another Person if the
following conditions are satisfied:
(a) the Administrative Agent is given prior written
notice of such action;
(b) the Person formed by such consolidation or into
which such Credit Party is merged shall either (i) be a Credit
Party or (ii) expressly assume in writing all of the obligations
of a Credit Party under the Credit Documents; provided that if the
transaction is between the Borrower and another Person, the
Borrower must be the surviving entity;
(c) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing; and
(d) the Borrower delivers to the Administrative Agent an
opinion of counsel stating that such consolidation or merger and
any written agreement entered into in connection therewith, comply
with this Section 8.4.
8.5 Sale or Lease of Assets.
No Credit Party will convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part
of its business or assets whether now owned or hereafter acquired, including,
without limitation, inventory, receivables, equipment, real property
interests (whether owned or leasehold), and securities, other than (a) any
inventory sold or otherwise disposed of in the ordinary course of business;
(b) the sale, lease, transfer or other disposal by a Credit Party of any or
all of its assets to another Credit Party; (c) obsolete, slow-moving, idle or
worn-out assets no longer used or useful in its business; (d) the transfer of
assets which constitute a Permitted Investment; (e) any Equity Issuance by
the Borrower; (f) the sale, lease or sublease of real property interests in
the ordinary course of business; and (g) other sales of assets in the
ordinary course of business so long as, after giving effect thereto, the
Borrower is in compliance with the financial covenants set forth in Section
7.2.
8.6 Sale and Leaseback.
No Credit Party will enter into any Sale and Leaseback
Transaction, unless each of the following conditions is satisfied: (a) such
Credit Party shall promptly give notice of such sale or transfer to the
Administrative Agent; (b) the net proceeds of such sale or transfer are at
least equal to the fair value (as determined in good faith by a resolution of
such Credit Party's board of directors, a copy of which has been delivered by
the Credit Party to the Administrative Agent) of the property which is the
subject of such sale or transfer; and (c) such Credit Party shall apply,
within 365 days after the effective date of such sale or transfer, or shall
have committed within one year after such effective date to apply, an amount
at least equal to the net proceeds of the sale or transfer of the property
which is the subject of such sale or transfer to (A) the repayment of the
Loans or (B) the repayment of other Indebtedness owing by any Credit Party or
(C) the purchase of property by such Credit Party substantially similar to
the property that was the subject of such sale or transfer or (D) in part to
such repayment and in part to such purchase or property; provided, however,
that if such Credit Party commits to apply an amount at least equal to the
net proceeds of a sale or transfer to the repayment of the Loans, the
repayment of other Indebtedness or the purchase of property, such commitment
shall be made in a written instrument delivered by such Credit Party to the
Administrative Agent and shall require such Credit Party to so apply said
amount within 18 months after the effective date of such sale or transfer,
and it shall constitute a breach of
45
the provisions of this Section 8.6 if such Credit Party shall fail so to
apply said amount in satisfaction of such commitment.
8.7 Advances, Investments and Loans.
No Credit Party will make any Investments except for Permitted
Investments.
8.8 Restricted Payments.
No Credit Party will, directly or indirectly, use proceeds of
Loans to pay dividends or make any other distribution upon any shares of its
Capital Stock of any class.
8.9 Transactions with Affiliates.
No Credit Party will enter into any material transaction or series
of transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than on terms
and conditions substantially as favorable as would be obtainable in a
comparable arm's-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 Fiscal Year; Organizational Documents.
No Credit Party will (a) change its fiscal year or (b) in any
manner that would reasonably be likely to adversely affect the rights of the
Lenders, change its articles or certificate of incorporation or its bylaws,
except as permitted by Section 8.4.
8.11 No Limitations.
No Credit Party will directly or indirectly, create or otherwise
cause, incur, assume, suffer or permit to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any such
Person to (a) pay dividends or make any other distribution on any of such
Person's Capital Stock, (b) pay any Indebtedness owed to any other Credit
Party, (c) make loans or advances to any other Credit Party or (d) transfer
any of its property to any other Credit Party, except for encumbrances or
restrictions existing under or by reason of (i) customary non-assignment or
net worth provisions in any lease governing a leasehold interest, (ii) any
agreement or other instrument of a Person existing at the time it becomes a
Subsidiary of a Credit Party; provided that such encumbrance or restriction
is not applicable to any other Person, or any property of any other Person,
other than such Person becoming a Subsidiary of a Credit Party and was not
entered into in contemplation of such Person becoming a Subsidiary of a
Credit Party, and (iii) this Credit Agreement and the other Credit Documents.
8.12 No Other Negative Pledges.
No Credit Party will enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of
any Lien upon its properties or assets, whether now owned or hereafter
acquired, or requiring the grant of any security for such obligation if
security is given for some other obligation except as set forth in the Credit
Documents.
8.13 Other Indebtedness.
No Credit Party will, if any Event of Default has occurred and is
continuing or would be directly or indirectly caused as a result thereof, (a)
with respect to any Indebtedness (other than the Indebtedness under the
Credit Documents) of such Credit Party, shorten the final maturity or average
life to maturity or require any payment to be made sooner than originally
scheduled or increase the interest rate applicable thereto or change any
subordination provision thereof or (b) make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment, redemption,
acquisition for value or defeasance of (including without limitation, by way
of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund,
46
refinance or exchange of any Indebtedness (other than the Indebtedness under
the Credit Documents) of such Credit Party.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence, and during
the continuation, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the
payment (i) when due of any principal of any of the Loans or (ii)
within five Business Days of when due of any interest on the Loans
or any fees or other amounts owing hereunder, under any of the
other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in
any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date
as of which it was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections
7.2, 7.10 or 8.1 through 8.13 inclusive;
(ii) default in the due performance or observance
of any term, covenant or agreement contained in Sections
7.1, 7.3, 7.5 or 7.11 and such default shall continue
unremedied for a period of five Business Days after the
earlier of a Credit Party becoming aware of such default
or notice thereof given by the Administrative Agent; or
(iii) default in the due performance or observance
by it of any term, covenant or agreement (other than
those referred to in subsections (a), (b) or (c)(i) of
this Section 9.1) contained in this Credit Agreement and
such default shall continue unremedied for a period of
at least 30 days after the earlier of a Credit Party
becoming aware of such default or written notice thereof
given by the Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall
default in the due performance or observance of any term, covenant
or agreement in any of the other Credit Documents and such default
shall continue unremedied for a period of at least 30 days after
the earlier of a Credit Party becoming aware of such default or
written notice thereof given by the Administrative Agent, or (ii)
any Credit Document shall fail to be in full force and effect or
any Credit Party shall so assert or any Credit Document shall fail
to give the Administrative Agent and the Lenders the security
interests, liens, rights, powers and privileges purported to be
created thereby.
(e) Guaranties. The guaranty given by any Credit Party
hereunder or by any Additional Credit Party hereafter or any
provision thereof shall cease to be in full force and effect, or
any Guarantor thereunder or any Person acting by or on behalf of
such Guarantor shall deny or disaffirm such Guarantor's
obligations under such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the
following: (i) a court or governmental agency having jurisdiction
in the premises shall enter a decree or order for relief in
respect of any Credit Party or any of its Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency or
other similar
47
law now or hereafter in effect, or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
any Credit Party or any of its Subsidiaries or for any substantial
part of its property or ordering the winding up or liquidation of
its affairs; or (ii) an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect is commenced against any Credit Party or any of its
Subsidiaries and such petition remains unstayed and in effect for
a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
such Person or any substantial part of its property or make any
general assignment for the benefit of creditors; or (iv) any
Credit Party or any of its Subsidiaries shall admit in writing its
inability to pay its debts generally as they become due or any
action shall be taken by such Person in furtherance of any of the
aforesaid purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party shall default in the due
performance or observance (beyond the applicable grace
period with respect thereto) of any material obligation
or condition of any contract or lease material to the
Credit Parties taken as a whole to which it is a party
or by which it or its property is bound; or
(ii) With respect to any Indebtedness of a
Credit Party the principal amount of which is in excess
of $10 million (other than Indebtedness outstanding
under this Credit Agreement and Non-Recourse Land
Financing), (A) any such Credit Party shall (x) default
in any payment (beyond the applicable grace period with
respect thereto, if any) with respect to any such
Indebtedness, or (y) default (after giving effect to any
applicable grace period) in the observance or
performance relating to such Indebtedness or contained
in any instrument or agreement evidencing, securing or
relating thereto, or any other event or condition shall
occur or condition exist, the effect of which default or
other event or condition is to cause the holder or
holders of such Indebtedness (or trustee or agent on
behalf of such holders) to cause (determined without
regard to whether any notice or lapse of time is
required) any such Indebtedness to become due prior to
its stated maturity; (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment
prior to the stated maturity thereof; or (C) any such
Indebtedness shall mature and remain unpaid.
(h) Judgments. Any judgment, order, or decree
(including, without limitation, any judgment, order, or decree
with respect to any litigation disclosed pursuant to the Credit
Documents) shall be entered against any one or more of the Credit
Parties involving a liability of $25 million or more (to the
extent not paid or covered by insurance provided by a carrier who
has acknowledged coverage and in any event not including any
Non-Recourse Land Financing), and such judgment, order or decree
(i) is the subject of any enforcement proceeding commenced by any
creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last
day on which such judgment, order or decree becomes final and
unappealable or (B) 30 days.
(i) ERISA. The occurrence of any of the following events
or conditions: (A) any "accumulated funding deficiency," as such
term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, shall exist with respect to any Plan,
or any Lien shall arise on the assets of any Credit Party, any of
its Subsidiaries or any ERISA Affiliate in favor of the PBGC or a
Plan; (B) a Termination Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (C) a Termination Event
shall occur with respect to a Multiemployer Plan or Multiple
Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of
such Plan for purposes of Title IV of ERISA, or (ii) any Credit
Party, any of its Subsidiaries or any ERISA Affiliate incurring
any liability in connection with a withdrawal from, reorganization
of (within the meaning of Section 4241 of ERISA), or insolvency
(within the meaning of Section 4245 of ERISA) of such Plan; or (D)
any
48
prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit Party, any
of its Subsidiaries or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to
which any Credit Party, any of its Subsidiaries or any ERISA
Affiliate has agreed or is required to indemnify any person
against any such liability.
(j) Ownership. There shall occur a Change of Control.
9.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of
Default, and at any time thereafter unless and until such Event of Default
has been waived in writing by the Required Lenders (or the Lenders as may be
required hereunder), the Administrative Agent shall, upon the request and
direction of the Required Lenders, by written notice to the Borrower, take
the following actions without prejudice to the rights of the Administrative
Agent or any Lender to enforce its claims against the Credit Parties, except
as otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately
terminated.
(b) Acceleration of Loans. Declare the unpaid principal
of and any accrued interest in respect of all Loans and any and
all other indebtedness or obligations of any and every kind owing
by a Credit Party to any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Credit Parties.
(c) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit Documents,
including, without limitation, all rights and remedies against a
Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and
all Loans, all accrued interest in respect thereof, all accrued and unpaid
fees and other indebtedness or obligations owing to the Lenders hereunder
shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent or the Lenders, which notice or
other action is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor"
holding a separate "claim" within the meaning of Section 101(5) of the
Bankruptcy Code or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement,
after the occurrence and during the continuance of an Event of Default, all
amounts collected or received by the Administrative Agent or any Lender on
account of amounts outstanding under any of the Credit Documents shall be
paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Administrative Agent or any of the Lenders
in connection with enforcing the rights of the Lenders under the
Credit Documents;
SECOND, to payment of any fees owed to the
Administrative Agent or any Lender;
THIRD, to the payment of all accrued interest payable to
the Lenders hereunder and all other obligations (other than those
obligations to be paid pursuant to clause "FOURTH" below) which
shall have become due and payable under the Credit Documents and
not repaid pursuant to clauses "FIRST" and "SECOND" above;
49
FOURTH, to the payment of the outstanding principal
amount of the Loans, pro rata as set forth below; and
FIFTH, to the payment of the surplus, if any, to whoever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Loans held by such Lender bears to the aggregate then outstanding Loans of
amounts available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints Bank of America as
Administrative Agent of such Lender to act as specified herein and the other
Credit Documents, and each such Lender hereby authorizes the Administrative
Agent, as the agent for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by
the terms hereof and of the other Credit Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere herein and in the other Credit Documents, the
Administrative Agent shall not have any duties or responsibilities except
those expressly set forth herein and therein or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit Agreement
or any of the other Credit Documents, or shall otherwise exist against the
Administrative Agent. The provisions of this Section are solely for the
benefit of the Administrative Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement
and the other Credit Documents, the Administrative Agent shall act solely as
an agent of the Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for any
Credit Party or any of its Subsidiaries.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder
or under the other Credit Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
10.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be liable
for any action lawfully taken or omitted to be taken by it or such Person
under or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct) or responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any of the Credit
Parties contained herein or in any of the other Credit Documents or in any
certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by the Administrative
Agent under or in connection herewith or in connection with the other Credit
Documents, or enforceability or sufficiency therefor of any of the other
Credit Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or
any of the other Credit Documents or for any representations, warranties,
recitals or statements made herein or
50
therein or made by the Borrower or any of its Subsidiaries in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Lenders or by or on
behalf of the Credit Parties to the Administrative Agent or any Lender or 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 Default or Event of Default or to
inspect the properties, books or records of the Credit Parties. The
Administrative Agent is not a trustee for the Lenders and owes no fiduciary
duty to the Lenders.
10.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements
of legal counsel (including, without limitation, counsel to any of the Credit
Parties, independent accountants and other experts selected by the
Administrative Agent with reasonable care). The Administrative Agent may deem
and treat each Lender as the owner of its interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent in accordance
with Section 11.3(b). The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement or under
any of the other Credit Documents unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder
or under any of the other Credit Documents in accordance with a request of
the Required Lenders (or, to the extent specifically provided in Section
11.6, all the Lenders) and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received notice from a Lender or a Credit Party
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders and as is permitted by the Credit
Documents.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative
Agent, BAS nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by the Administrative Agent or any affiliate thereof
hereinafter taken, including any review of the affairs of any Credit Party or
any of its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent and BAS that it has, independently and without
reliance upon the Administrative Agent or BAS or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of
the Credit Parties and made its own decision to make its Loans hereunder and
enter into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or BAS 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 analysis,
appraisals and decisions in taking or not taking action under this Credit
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
and BAS shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business,
51
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Credit Parties which may come into the possession of
the Administrative Agent, BAS or any of their officers, directors, employees,
agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitments (or if the Commitments have expired or been
terminated, in accordance with the respective principal amounts of
outstanding Loans and Participation Interests of the Lenders), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following payment in full of the Credit Party Obligations) be imposed on,
incurred by or asserted against the Administrative Agent in its capacity as
such in any way relating to or arising out of this Credit Agreement or the
other Credit Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the gross negligence or willful misconduct of the Administrative Agent. If
any indemnity furnished to the Administrative Agent for any purpose shall, in
the opinion of the Administrative Agent, be insufficient or become impaired,
the Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section shall survive the payment of the
Credit Party Obligations and all other amounts payable hereunder and under
the other Credit Documents.
10.8 Administrative Agent in Their Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower or any of its Subsidiaries as though the Administrative Agent were
not the Administrative Agent hereunder. With respect to the Loans made and
all obligations owing to it, the Administrative Agent shall have the same
rights and powers under this Credit Agreement as any Lender and may exercise
the same as though they were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
10.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 20 days
written notice to the Lenders. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 60 days
after the notice of resignation, then the retiring Administrative Agent shall
select a successor Administrative Agent, provided such successor is an
Eligible Assignee. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations as the Administrative Agent, as appropriate, under this Credit
Agreement and the other Credit Documents and the provisions of this Section
10.9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Credit
Agreement.
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SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices and
other communications shall have been duly given and shall be effective (a)
when delivered in writing, (b) when transmitted via telecopy (or other
facsimile device) to the number set out below, (c) the Business Day following
the day on which the same has been delivered prepaid (or on an invoice basis)
to a reputable national overnight air courier service, or (d) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at
the address or telecopy numbers set forth on Schedule 11.1, or at such other
address as such party may specify by written notice to the other parties
hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and the commencement of remedies
described in Section 9.2, each Lender is authorized at any time and from time
to time, without presentment, demand, protest or other notice of any kind
(all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation, branches, agencies or Affiliates of such Lender wherever located)
to or for the credit or the account of any Credit Party or any of its
Subsidiaries against the Credit Party Obligations of such Credit Party,
irrespective of whether the Administrative Agent or the Lenders shall have
made any demand hereunder and although such Credit Party Obligations may be
contingent or unmatured, and any such set-off shall be deemed to have been
made immediately upon the occurrence of an Event of Default even though such
charge is made or entered on the books of such Lender subsequent thereto. The
Credit Parties hereby agree that any Person purchasing a participation in the
Loans and Commitments hereunder pursuant to Section 11.3(e) or 3.8 may
exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender hereunder.
11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided
that none of the Credit Parties may assign and transfer any of its
interests (except as permitted by Section 8.4 or 8.5) without the
prior written consent of the Lenders; and provided further that
the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be
limited as set forth below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations
under this Credit Agreement (including, without limitation, all or
a portion of its Loans, its Notes, and its Commitments); provided,
however, that:
(i) except in the case of an assignment to
another Lender, any such partial assignment shall be in
an amount at least equal to $10,000,000 or an integral
multiple of $1,000,000 in excess thereof;
(ii) unless the assigning Lender is assigning
all of its rights and obligations under this Credit
Agreement, the assigning Lender shall retain a
Commitment of not less than $10,000,000;
(iii) each such assignment by a Lender shall
be of a constant, and not varying, percentage of all of
its rights and obligations under this Credit Agreement
and the Notes; and
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<PAGE>
(iv) the parties to such assignment shall
execute and deliver to the Administrative Agent for its
acceptance an assignment agreement in substantially the
form of Exhibit 11.3(b) (each an "Assignment
Agreement"), together with a processing fee from the
assignor or assignee of $3,500.
Upon execution, delivery, and acceptance of such Assignment
Agreement, the assignee thereunder shall be a party hereto and, to
the extent of such assignment, have the obligations, rights, and
benefits of a Lender hereunder and the assigning Lender shall, to
the extent of such assignment, relinquish its rights and be
released from its obligations under this Credit Agreement. Upon
the consummation of any assignment pursuant to this Section
11.3(b), the assignor, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee
is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction
or withholding of taxes in accordance with Section 3.13.
By executing and delivering an Assignment Agreement in accordance
with this Section 11.3(b), the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with
each other and the other parties hereto as follows: (A) such
assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any
adverse claim and the assignee warrants that it is an Eligible
Assignee; (B) except as set forth in clause (A) above, such
assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto, or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, any of the other
Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of any
Credit Party or any of its Subsidiaries or the performance or
observance by any Credit Party of any of its obligations under
this Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto;
(C) such assignee represents and warrants that it is legally
authorized to enter into such Assignment Agreement; (D) such
assignee confirms that it has received a copy of this Credit
Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (E)
such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Credit Agreement and the
other Credit Documents; (F) such assignee appoints and authorizes
the Administrative Agent to take such action on its behalf and to
exercise such powers under this Credit Agreement or any other
Credit Document as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (G) such assignee agrees that
it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a
copy of each Assignment Agreement delivered to and accepted by it
and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment
Agreement executed by the parties thereto, together with any Note
subject to such assignment and payment of the processing fee, the
Administrative Agent shall, if such Assignment Agreement has been
completed and is in substantially the form of Exhibit 11.3(b)
hereto, (i) accept such Assignment Agreement, (ii) record the
information contained therein in the Register and (iii) give
prompt notice thereof to the parties thereto.
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(e) Participations. Each Lender may sell participations
to one or more Persons in all or a portion of its rights,
obligations or rights and obligations under this Credit Agreement
(including all or a portion of its Commitments and its Loans);
provided, however, that (i) such Lender's obligations under this
Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions
contained in Sections 3.9 through 3.14, inclusive, and the right
of set-off contained in Section 11.2, (iv) the Borrower shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Credit Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and
its Notes and to approve any amendment, modification, or waiver of
any provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Notes,
extending any scheduled principal payment date or date fixed for
the payment of interest on such Loans or Notes (other than as a
result of the extension of the Maturity Date in accordance with
the terms of Section 2.5), extending its Commitments or releasing
all or substantially all of the Guarantors) and (v) such Lender
shall provide written notice of any participation to the Borrower
and the Administrative Agent.
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at
any time assign and pledge all or any portion of its Loans and its
Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Information. Any Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the
possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.16.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any of
its Subsidiaries and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies provided herein
are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket
costs and expenses of (i) the Administrative Agent and BAS in connection with
(A) the negotiation, preparation, execution and delivery and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the
reasonable fees and expenses of Moore & Van Allen, PLLC, special counsel to
the Administrative Agent), and (B) any amendment, waiver or consent relating
hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation
or restructure relating to the performance by the Credit Parties under this
Credit Agreement and (ii) the Administrative Agent and the Lenders in
connection with (A) enforcement of the Credit Documents and the documents and
instruments referred to therein, including, without limitation, in connection
with any such enforcement, the reasonable fees and disbursements of counsel
for the Administrative Agent and each of the Lenders, and (B) any bankruptcy
or insolvency proceeding of a Credit Party or any of its Subsidiaries and (b)
indemnify the Administrative Agent, BAS, each Lender and each of their
officers, directors, employees, representatives, Affiliates and agents from
and hold each of them harmless against any
55
and all losses, liabilities, claims, damages or expenses (including, without
limitation, the reasonable fees and expenses of legal counsel (including the
allocated cost of internal counsel) and settlement costs incurred by any of
them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not
the Administrative Agent, BAS or any Lender is a party thereto) related to
(i) the entering into and/or performance of any Credit Document or the use of
proceeds of any Loans (including other Extensions of Credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation, litigation or
other proceeding, (ii) any Environmental Claim, (iii) any claims for
Non-Excluded Taxes (but excluding in the case of (i), (ii) and (iii) above,
any such losses, liabilities, claims, damages or expenses to the extent
incurred by reason of gross negligence or willful misconduct on the part of
the Person to be indemnified).
11.6 Amendments, Waivers and Consents.
Subject to Section 11.16(b), neither this Credit Agreement nor any
other Credit Document nor any of the terms hereof or thereof may be amended,
changed, waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing and signed by the Required
Lenders and the then Credit Parties; provided that no such amendment, change,
waiver, discharge or termination shall without the consent of each Lender
affected thereby:
(a) extend the Maturity Date (other than with the
consent of the Extension Required Lenders pursuant to Section 2.5);
(b) reduce the rate or extend the time of payment of
interest thereon or fees hereunder (it being understood and agreed
that a waiver of the applicability of any post-default increase in
interest rates shall not constitute a reduction in the rate of
interest for purposes of this clause (b));
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend any Commitment of a Lender (it
being understood and agreed that a waiver of any Default or Event
of Default or a waiver of any mandatory reduction in the
Commitments shall not constitute a change in the terms of any
Commitment of any Lender);
(e) except as the result of or in connection with a
merger or other disposition of a Credit Party permitted under
Section 8.4, (i) release the Borrower from its obligations under
the Credit Documents or (ii) release any Credit Party that
individually or, together with any other Credit Party previously
released or to be released simultaneously therewith, cumulatively
accounts for more than 5% of Tangible Net Worth from its
obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section
11.6 or Section 3.4(a), 3.4(b), 3.7, 3.8, 5.2, 9.1(a), 11.2, 11.3
or 11.5;
(g) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders set forth in Section
1.1; or
(h) consent to the assignment or transfer by a Borrower
or all or substantially all of the other Credit Parties of any of
its or their rights and obligations under (or in respect of) the
Credit Documents except as permitted thereby.
Notwithstanding the above, no provisions of Section 10 may be amended or
modified without the consent of the Administrative Agent. No provision of
Section 2.2 affecting the Swingline Loans may be amended without the consent
of Bank of America.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any reorganization plan that affects the Loans,
and each
56
Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be as effective as an
original and shall constitute a representation that an original will be
delivered.
11.8 Headings.
The headings of the sections and subsections hereof are provided
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a
Defaulting Lender then notwithstanding the provisions of Section 11.6 it
shall not be entitled to vote on any matter requiring the consent of the
Required Lenders or to object to any matter requiring the consent of all the
Lenders; provided, however, that all other benefits and obligations under the
Credit Documents shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations and
Warranties.
All indemnities set forth herein and all representations and
warranties made herein shall survive the execution and delivery of this
Credit Agreement, the making of the Loans, and the repayment of the Loans and
other obligations and the termination of the Commitments hereunder.
11.11 Governing Law; Jurisdiction.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal
action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of the State of
North Carolina or of the United States for the Western District of
North Carolina, and, by execution and delivery of this Credit
Agreement, each Credit Party hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the
jurisdiction of such courts. Each Credit Party further irrevocably
consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section
11.1, such service to become effective 20 days after such mailing.
Nothing herein shall affect the right of a Lender to serve process
in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against a Credit Party in any
other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any
objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Credit Agreement or any other Credit
Document brought in the courts referred to in subsection (a)
hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
57
11.12 Waiver of Jury Trial; Waiver of Consequential Damages.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Severability.
If any provision of any of the Credit Documents is determined to
be illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and shall
be construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 Further Assurances.
The Credit Parties agree, upon the request of the Administrative
Agent, to promptly take such actions, as reasonably requested, as is
necessary to carry out the intent of this Credit Agreement and the other
Credit Documents.
11.15 Entirety.
This Credit Agreement together with the other Credit Documents and
the Fee Letter represent the entire agreement of the parties hereto and
thereto, and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating
to the Credit Documents or the transactions contemplated herein and therein.
11.16 Binding Effect; Continuing Agreement.
(a) This Credit Agreement shall become effective at such
time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lenders and it shall have been executed
by the Borrower, the Guarantors and the Administrative Agent, and
the Administrative Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Borrower,
the Guarantors, the Administrative Agent and each Lender and their
respective successors and assigns.
(b) This Credit Agreement shall be a continuing
agreement and shall remain in full force and effect until all
Loans, interest, fees and other Credit Party Obligations have been
paid in full and all Commitments have been terminated. Upon
termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents; provided that should any payment, in whole or in
part, of the Credit Party Obligations be rescinded or otherwise
required to be restored or returned by the Administrative Agent or
any Lender, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all amounts required to be
restored or returned and all costs and expenses incurred by the
Administrative Agent or Lender in connection therewith shall be
deemed included as part of the Credit Party Obligations.
58
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above
written.
BORROWER:
PULTE CORPORATION,
a Michigan corporation
By: /s/ Roger A. Cregg
------------------
Name: Roger A. Cregg
----------------
Title: Senior Vice
President/CFO
---------------
59
GUARANTORS:
PULTE HOME CORPORATION OF THE
DELAWARE VALLEY f/k/a Fairmont
Building Corporation
PULTE DIVERSIFIED COMPANIES, INC.
PULTE FINANCIAL COMPANIES, INC.
PULTE HOME CORPORATION
PULTE DEVELOPMENT CORPORATION
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOME CORPORATION OF NEW ENGLAND f/k/a
Pulte Home Corporation of Massachusetts
PULTE HOMES OF MICHIGAN
CORPORATION
PULTE HOMES OF MINNESOTA
CORPORATION
PULTE HOMES OF OHIO CORPORATION
SEAN/CHRISTOPHER HOMES, INC.
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE HOMES OF TEXAS, L.P.
By: PN I, INC.,
its general partner
ABACOA HOMES, INC.
PULTE HOMESITE SOLUTIONS CORPORATION f/k/a
Homesite Solutions Corporation and f/k/a Canterbury
Liquidation Corporation
60
DIVOSTA AND COMPANY, INC.
DIVOSTA HOMES, INC.
FLORIDA BUILDING PRODUCTS, INC.
FLORIDA CLUB HOMES, INC.
HAMMOCK RESERVE DEVELOPMENT COMPANY
ISLAND WALK DEVELOPMENT COMPANY
PB VENTURE L.L.C.
PN II, INC.
PULTE - IN CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE LAND DEVELOPMENT
CORPORATION
RADNOR HOMES, INC.
RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY,
INC.
RN ACQUISITION 2 CORP.
SUNCO BUILDING CORPORATION
VILLAGE WALK DEVELOPMENT COMPANY, INC.
WIL CORPORATION
By: /s/ Calvin R. Boyd
-------------------------------------
Name: Calvin R. Boyd
Title: Assistant Secretary of each of the
above-referenced Guarantors
61
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and
in its capacity as the Administrative Agent
By: /s/ Kelley Prentiss
-------------------
Name: Kelley Prentiss
----------------
Title: Vice President
----------------
62
COMERICA BANK
By: /s/ Lisa M. Kotula
------------------
Name: Lisa M. Kotula
----------------
Title: Account Officer
---------------
63
BANK ONE, NA
(Main Office Chicago)
By: /s/ Patt Schiewitz
------------------------
Name: F. Patt Schiewitz
----------------------
Title: Senior Vice President
---------------------
64
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ Richard Thompson
------------------------
Name: Richard V. Thompson
----------------------
Title: Senior Vice President
---------------------
65
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
By: /s/ Carolann M. Morykwas
------------------------
Name: Carolann M. Morykwas
----------------------
Title: Vice President
---------------------
66
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Douglas G. Paul
-------------------
Name: Douglas G. Paul
-----------------
Title: Vice President
----------------
67
THE FIFTH THIRD BANK
By: /s/ Megan S. Heisel
--------------------
Name: Megan S. Heisel
------------------
Title: Assistant Cashier
-----------------
68
<TABLE>
<CAPTION>
Schedule 1.1(a)
Revolving Loan Commitment Percentages
Lender Revolving Loan Commitment Revolving Loan Commitment Percentage
------ ------------------------- ------------------------------------
<S> <C> <C>
Bank of America, N.A. $50,000,000 24.390243%
Bank One, N.A. $50,000,000 24.390244%
PNC Bank, National Association $20,000,000 9.756098%
The Fifth Third Bank $10,000,000 4.878049%
National City Bank $10,000,000 4.878049%
Guaranty Federal Bank, F.S.B. $50,000,000 24.390244%
Comerica Bank $15,000,000 7.317073%
------------ ---------
TOTAL: $205,000,000 100%
============ =========
</TABLE>
Schedule 1.1(b)
Permitted Liens
None.
Schedule 6.10
Indebtedness
None.
Schedule 6.11
Litigation
The First Heights-related litigation described in Note 4 to the
Borrower's condensed consolidated financial statements contained in its Form
10-Q report for the fiscal quarter ended June 30, 1999, as filed with the
U.S. Securities and Exchange Commission.
<TABLE>
<CAPTION>
Schedule 6.15
Subsidiaries
State of Shares
Name Incorporation O/s Owned by
- ------------- --------------------------------------------- --------------- ---------- --------------------------------
<S> <C> <C> <C> <C>
1.1 Abacoa Homes, Inc. Florida 500 DiVosta and Company, Inc.
2. American Title of the Palm Beaches Michigan 1,000 Pulte Diversified Companies,
Corporation Inc.
3. American Title of the Palm Beaches, Ltd. Florida American Title of the Palm
Beaches Corp.
Pulte Diversified Companies,
Inc.
4. Ashgrove Plantation L.L.C. Virginia Pulte Home Corporation
5. Buildinvest Limited Partnership Maryland Pulte Home Corporation
6. Canterbury Diversified Building Corporation Michigan Homesite Solutions Corporation
7. Carr's Grant, L.L.C. Maryland Pulte Home Corporation
8. Celba Homes Inc. Michigan 1,000 Pulte Home Corporation
9. City Homes Development L.L.C. Michigan Pulte Corporation
10. CIV-Pulte S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
11. Condak-Pulte S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
12. Controladora PHC, S.A. DE C.V. Mexico 49,995 Pulte International-Mexico,
Inc.
5 Pulte Home Corporation
13. Crosland/Piper Glen Ltd. Partnership N. Carolina Pulte Home Corporation
14. Crosland/Wynfield Forest Limited Partnership N. Carolina Pulte Home Corporation
15. Dean Realty Company Michigan 100 Pulte Home Corporation
16. Detroit City Homes L.L.C. Michigan Pulte Corporation
17. Devtex Land, L.P. Texas PN II, Inc.
. PN I, Inc.
18. DiVosta and Company, Inc. Florida 75,000 Pulte Diversified Companies,
Inc.
19. DiVosta Homes Sales, Inc. Florida 1,000 DiVosta and Company, Inc.
20. DiVosta Homes, Inc. Florida 4,500 DiVosta and Company, Inc.
21. DRT-Pulte Mexico Controladora PHC, S.A. DE C.V.
22. First Heights Bank, fsb Texas 7500100 Pulte Diversified Companies,
Inc.
23. Florida Building Products, Inc. Florida 5,000 DiVosta and Company, Inc.
24. Florida Club Homes, Inc. Florida 5,000 DiVosta and Company, Inc.
25. Florida Investment Venture ptrshp-not PC/Palm Beach, Inc.
registered
26. Forest Hills Development of Mass. LLC Michigan 100 Pulte Home Corporation of New
England
27. Frederick Holding Corp. Michigan 1,000 Pulte Home Corporation
28. Grayhaven Estates Limited, L.L.C. Michigan Pulte Corporation
29. Great American Homes, Inc. Michigan 1,000 Pulte Homes of South Carolina,
Inc.
30. Guaranteed Mortgage Corporation III Michigan 1,000 Pulte Financial Companies,
Inc.
31. Gulf Partners, Inc. Michigan 1,000 Pulte Homes of Michigan
Corporation
32. Gurabo Homes Inc. Michigan 1,000 Pulte Home Corporation
33. Haggerty Hills Limited Partnership Michigan Gulf Partners, Inc.
Pulte Homes of Michigan
Corporation
34. Hammock Reserve Development Company Florida 5,000 DiVosta and Company, Inc.
35. Harrison Hills, LLC Maryland Wil Corporation
36. Hipotecaria Su Casita, S.A. de C.V. Mexico 528,608 Pulte Mortgage Corporation
37. Home Mortgage Company of the Palm Beaches Michigan 1,000 Pulte Diversified Companies,
Corp. Inc.
38. Island Walk Development Company Florida 5,000 DiVosta and Company, Inc.
39. James T. Lynch, Inc. Texas 1,000 Pulte Home Corporation
40. Marquette Title Insurance Company Vermont 100,000 Pulte Corporation
41. Nantar, S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
Pulte International-Mexico,
Inc.
42. North American Builders Indemnity Company Colorado 300,000 Pulte Corporation
43. One Willowbrook, L.L.C. Maryland Wil Corporation
PBW Corporation
44. P & H Clinton Partnership ptrshp-not Pulte Home Corporation of The
registered Delaware Valley
45. Palmville Development Corp. Michigan 1,000 Pulte Home Corporation
46. PB Venture L.L.C. Michigan Pulte Corporation
47. PBW Corporation Michigan 1,000 Pulte Home Corporation
48. PC/BRE Development L.L.C. Delaware PC/BRE Venture L.L.C.
49. PC/BRE Springfield, L.L.C. Delaware PC/BRE Venture L.L.C.
50. PC/BRE Venture L.L.C. Delaware PB Venture L.L.C.
51. PC/BRE Whitney Oaks L.L.C. Delaware PC/BRE Venture L.L.C.
52. PC/BRE Winfield L.L.C. Delaware PC/BRE Venture L.L.C.
53. PC/Palm Beach, Inc. Michigan 1,000 Pulte Corporation
54. PCIC Corporation Michigan 1,000 Pulte Mortgage Corporation
55. PHC Title Corporation Michigan 1,000 Pulte Home Corporation
56. PHM Realty, Inc. Florida 1,000 Pulte Home Corporation
57. PHM Title Agency L.L.C. Delaware TVM Corporation
58. PHT Title Agency, L.P. Texas PHC Title Corporation
PHT Title Corporation
59. PHT Title Corporation Michigan 1,000 Pulte Home Corporation
60. PN I, Inc. Nevada 1,000 Pulte Home Corporation
61. PN II, Inc. Nevada 1,000 Pulte Home Corporation
62. PQL Realty Corporation Michigan 1,000 Pulte Home Corporation
63. Preserve I, Inc. Michigan 1,000 Pulte Home Corporation
64. Preserve II, Inc. Michigan 1,000 Pulte Home Corporation
65. Pulte Chile Corporation Michigan 1,000 Pulte International Corporation
66. Pulte Corporation Michigan Publicly Traded
67. Pulte de Chile Limitada Chile Pulte Chile Corporation
Pulte SA Corporation
68. Pulte Development Corporation Michigan 1,000 Pulte Home Corporation
69. Pulte Diversified Companies, Inc. Michigan 1,000 Pulte Corporation
70. Pulte Financial Companies, Inc. Michigan 1,000 Pulte Corporation
71. Pulte Home Corporation Michigan 1,000 Pulte Diversified Companies,
Inc.
72.1 Pulte Home Corporation of New England Michigan 1,000 Pulte Home Corporation
73. Pulte Home Corporation of The Delaware Michigan 1,000 Pulte Home Corporation
Valley
74. Pulte Homes of Greater Kansas City, Inc. Michigan 1,000 Pulte Home Corporation
75. Pulte Homes of Michigan Corporation Michigan 15,000 Pulte Home Corporation
76. Pulte Homes of Minnesota Corporation Minnesota 1,000 Pulte Home Corporation
77. Pulte Homes of Ohio Corporation Ohio 750 Pulte Homes of Michigan
Corporation
78. Pulte Homes of South Carolina, Inc. Michigan 1,000 Pulte Home Corporation
79. Pulte Homes of Texas, LP Texas PN II, Inc.
PN I, Inc.
80. Pulte Homes Tennessee Limited Partnership Nevada RN Acquisition 2 Corp.
Radnor Homes, Inc.
81. Pulte Homesite Solutions Corporation Michigan 1,000 Pulte Home Corporation
82. Pulte International Caribbean Corp. Michigan 1,000 Pulte International Corporation
83. Pulte International Corporation Michigan 1,000 Pulte Diversified Companies,
Inc.
84. Pulte International-Mexico, Inc. Michigan 1,000 Pulte International Corporation
85. Pulte Land Company, LLC Michigan Pulte Corporation
86. Pulte Land Development Corporation Michigan 1,000 Pulte Home Corporation
87. Pulte Lifestyle Communities, Inc. Michigan 1,000 Pulte Home Corporation
88. Pulte Mortgage Corporation Delaware 1,000 Pulte Home Corporation
89. Pulte Payroll Corporation Michigan 1,000 Pulte Home Corporation
90. Pulte Real Estate Company Florida 200 Dean Realty Company
91. Pulte SA Corporation Michigan 1,000 Pulte International Corporation
92. Pulte Title Agency of Michigan, L.L.C. Michigan PHC Title Corporation
93. Pulte Title Agency of Minnesota, L.L.C. Minnesota PHC Title Corporation
94. Pulte Title Agency of Ohio, Limited Ohio PHC Title Corporation
Liability Company
95. Pulte-IN Corporation Michigan 1,000 Pulte Homes of Michigan
Corporation
96. Quantrell Mews, L.L.C. Virginia Pulte Home Corporation
97. Radnor Homes, Inc. Michigan 1,000 Pulte Corporation
98. Residencias del Norte Limitada Chile Pulte Chile Corporation
Pulte SA Corporation
99. Residential Building Systems LLC Michigan Pulte Home Corporation
100. Riverwalk Commerce Acquisition Corp. Michigan 1,000 Pulte Diversified Companies,
Inc.
101. Riverwalk of the Palm Beaches Development Florida 5,000 DiVosta and Company, Inc.
Company, Inc.
102. RN Acquisition 2 Corp. Nevada 1,000 Pulte Corporation
103. Salinas Builders, Inc. Michigan 1,000 Pulte Home Corporation
104. Salinas Homes, Inc. Michigan 1,000 Pulte Home Corporation
105. Sand-Pulte S. DE R.L. DE C.V. Michigan Controladora PHC, S.A. DE C.V.
106. SC Warranty Corporation Michigan 1,000 Pulte Homes of South Carolina,
Inc.
107. Sean/Christopher Homes, Inc. Michigan 750 Pulte Homes of Michigan
Corporation
108. Sean/Christopher Homes, LLC Indiana Sean/Christopher Homes, Inc.
Pulte-IN Corporation
109. Shorepointe Village Homes, L.L.C. Michigan Pulte Corporation
110. Springfield Golf Resort, L.L.C. Arizona PC/BRE Springfield L.L.C.
111. Springfield Realty Corporation Michigan 1,500 Pulte Home Corporation
1,000 PC/BRE Venture L.L.C.
112. Sunco Building Corporation Florida 5,000 DiVosta and Company, Inc.
113. The Preserve Limited Partnership Maryland Preserve I, Inc.
Preserve II, Inc.
114. TVM Corporation Michigan 1,000 Pulte Home Corporation
115. Village Walk Development Company, Inc. Florida 5,000 DiVosta and Company, Inc.
116. Wil Corporation Michigan 1,000 Pulte Home Corporation
117. Wilben II Limited Partnership Maryland Wil Corporation
PBW Corporation
118. Wilben, LLP Maryland Wil Corporation
PBW Corporation
119. Willow Brook Associates Limited Partnership Massachusetts Pulte Home Corporation of New
England
<CAPTION>
Options Material
Name Obligation Shares Owned O/s sub?
- ------------- --------------------------------------------- -------------------- ---------- -------------- -----------
<S> <C> <C> <C> <C> <C>
1.1 Abacoa Homes, Inc. 500 100% No Yes
2. American Title of the Palm Beaches 1,000 100% No
Corporation
3. American Title of the Palm Beaches, Ltd. 4% No
96% No
4. Ashgrove Plantation L.L.C. 34.44% No
5. Buildinvest Limited Partnership 33.33% No
6. Canterbury Diversified Building Corporation 100% No
7. Carr's Grant, L.L.C. 100% No
8. Celba Homes Inc. 1,000 100% No
9. City Homes Development L.L.C. 50% No
10. CIV-Pulte S. DE R.L. DE C.V. 50% No
11. Condak-Pulte S. DE R.L. DE C.V. 66.66% No
12. Controladora PHC, S.A. DE C.V.
49,995 99.99% No
5 0.01% No
13. Crosland/Piper Glen Ltd. Partnership 31.37% No
14. Crosland/Wynfield Forest Limited Partnership 28.57% No
15. Dean Realty Company 100 100% No
16. Detroit City Homes L.L.C. 45% No
17. Devtex Land, L.P. 99.90% No
. 0.10% No
18. DiVosta and Company, Inc.
75,000 100% No Yes
19. DiVosta Homes Sales, Inc. 1,000 100% No
20. DiVosta Homes, Inc. 4,500 100% No Yes
21. DRT-Pulte 50% No
22. First Heights Bank, fsb
7,500,100 100% No
23. Florida Building Products, Inc. 5,000 100% No Yes
24. Florida Club Homes, Inc. 5,000 100% No Yes
25. Florida Investment Venture 50% No
26. Forest Hills Development of Mass. LLC
100 100% No
27. Frederick Holding Corp. 1,000 100% No
28. Grayhaven Estates Limited, L.L.C. 49% No
29. Great American Homes, Inc.
1,000 100% No
30. Guaranteed Mortgage Corporation III
1,000 100% No
31. Gulf Partners, Inc. 1,000 100% No
32. Gurabo Homes Inc. 1,000 100% No
33. Haggerty Hills Limited Partnership 99% No
1% No
34. Hammock Reserve Development Company 5,000 100% No Yes
35. Harrison Hills, LLC 100% No
36. Hipotecaria Su Casita, S.A. de C.V. 528,608 22.90% No
37. Home Mortgage Company of the Palm Beaches 1,000 100% No
Corp.
38. Island Walk Development Company 5,000 100% No Yes
39. James T. Lynch, Inc. 1,000 100% No
40. Marquette Title Insurance Company 100,000 100% No
41. Nantar, S. DE R.L. DE C.V. 99.30% No
.70% No
42. North American Builders Indemnity Company 300,000 100% No
43. One Willowbrook, L.L.C. 50% No
50% No
44. P & H Clinton Partnership 50% No
45. Palmville Development Corp. 1,000 100% No
46. PB Venture L.L.C. 100% No Yes
47. PBW Corporation 1,000 100% No
48. PC/BRE Development L.L.C. 100% No
49. PC/BRE Springfield, L.L.C. 100% No
50. PC/BRE Venture L.L.C. 50% No
51. PC/BRE Whitney Oaks L.L.C. 100% No
52. PC/BRE Winfield L.L.C. 100% No
53. PC/Palm Beach, Inc. 1,000 100% No
54. PCIC Corporation 1,000 100% No
55. PHC Title Corporation 1,000 100% No
56. PHM Realty, Inc. 1,000 100% No
57. PHM Title Agency L.L.C. 63% No
58. PHT Title Agency, L.P. 99% No
1% No
59. PHT Title Corporation 1,000 100% No
60. PN I, Inc. 1,000 100% No
61. PN II, Inc. 1,000 100% No Yes
62. PQL Realty Corporation 1,000 100% No
63. Preserve I, Inc. 1,000 100% No
64. Preserve II, Inc. 1,000 100% No
65. Pulte Chile Corporation 1,000 100% No
66. Pulte Corporation
67. Pulte de Chile Limitada 99% No
1% No
68. Pulte Development Corporation 1,000 100% No Yes
69. Pulte Diversified Companies, Inc. 1,000 100% No Yes
70. Pulte Financial Companies, Inc. 1,000 100% No Yes
71. Pulte Home Corporation
1,000 100% No Yes
72.1 Pulte Home Corporation of New England 1,000 100% No Yes
73. Pulte Home Corporation of The Delaware 1,000 100% No Yes
Valley
74. Pulte Homes of Greater Kansas City, Inc. 1,000 100% No Yes
75. Pulte Homes of Michigan Corporation 15,000 100% No Yes
76. Pulte Homes of Minnesota Corporation 1,000 100% No Yes
77. Pulte Homes of Ohio Corporation
750 100% No Yes
78. Pulte Homes of South Carolina, Inc. 1,000 100% No Yes
79. Pulte Homes of Texas, LP 99.90% No Yes
0.10% No
80. Pulte Homes Tennessee Limited Partnership 74.40% No
25.60% No
81. Pulte Homesite Solutions Corporation 1,000 100% No Yes
82. Pulte International Caribbean Corp. 1,000 100% No
83. Pulte International Corporation
1,000 100% No
84. Pulte International-Mexico, Inc. 1,000 100% No
85. Pulte Land Company, LLC 100% No
86. Pulte Land Development Corporation 1,000 100% No Yes
87. Pulte Lifestyle Communities, Inc. 1,000 100% No Yes
88. Pulte Mortgage Corporation 1,000 100% No
89. Pulte Payroll Corporation 1,000 100% No
90. Pulte Real Estate Company 200 100% No
91. Pulte SA Corporation 1,000 100% No
92. Pulte Title Agency of Michigan, L.L.C. 49% No
93. Pulte Title Agency of Minnesota, L.L.C. 80% No
94. Pulte Title Agency of Ohio, Limited 49% No
Liability Company
95. Pulte-IN Corporation
1,000 100% No Yes
96. Quantrell Mews, L.L.C. 20% No
97. Radnor Homes, Inc. 1,000 100% No Yes
98. Residencias del Norte Limitada 99.90% No
0.10% No
99. Residential Building Systems LLC 100% No
100. Riverwalk Commerce Acquisition Corp.
1,000 100% No
101. Riverwalk of the Palm Beaches Development 5,000 100% No Yes
Company, Inc.
102. RN Acquisition 2 Corp. 1,000 100% No Yes
103. Salinas Builders, Inc. 1,000 100% No
104. Salinas Homes, Inc. 1,000 100% No
105. Sand-Pulte S. DE R.L. DE C.V. 50% No
106. SC Warranty Corporation
1,000 100% No
107. Sean/Christopher Homes, Inc.
750 100% No Yes
108. Sean/Christopher Homes, LLC 50% No
50% No
109. Shorepointe Village Homes, L.L.C. 31.50% No
110. Springfield Golf Resort, L.L.C. 88% No
111. Springfield Realty Corporation 1,500 60% No
1,000 40% No
112. Sunco Building Corporation 5,000 100% No Yes
113. The Preserve Limited Partnership 99% No
1% No
114. TVM Corporation 1,000 100% No
115. Village Walk Development Company, Inc. 5,000 100% No Yes
116. Wil Corporation 1,000 100% No Yes
117. Wilben II Limited Partnership 99% No
1% No
118. Wilben, LLP 95% No
5% No
119. Willow Brook Associates Limited Partnership
99% No
Schedule 6.21
Investments
None.
Schedule 6.26
Labor Contracts and Disputes
None.
Schedule 11.1
Notices
Borrower and Guarantors
[Name of Credit Party]
c/o Pulte Corporation
33 Bloomfield Hills Parkway
Suite 200
Bloomfield Hills, MI 48304
Attn: Roger Cregg
Phone: 248/433-4517
Fax: 248/433-4543
with a copy to:
Pulte Corporation
33 Bloomfield Hills Parkway
Suite 200
Bloomfield Hills, MI 48304
Attn: Calvin Boyd
Phone: 248/433-4527
Fax: 248/433-4598
Administrative Agent
Bank of America, N.A.
231 S. LaSalle Street
Chicago, IL 60697
Attn: George Hernandez
[email protected]
Phone: 312/828-4160
Fax: 312/828-3950
Lenders
Bank of America, N.A.
231 S. LaSalle Street
Chicago, IL 60697
Attn: Kelley Prentiss
Phone: 312/828-7363
Fax: 312/974-4970
Guaranty Federal Bank, F.S.B.
8333 Douglas Avenue
Dallas, TX 75225
Attn: Amy R. Webb
Phone: 214/360-2877
Fax: 214/
Comerica Bank
One Detroit Center
500 Woodward Avenue, 7th Floor
Detroit, MI 48226
Attn: Lisa M. Kotula
Phone: 313/222-9644
Fax: 313/
Bank One, N.A. (Main Office Chicago)
1 Bank One Plaza
Mail Suite 0315
Chicago, IL 60670-0315
Attn: Christopher Flynn
Phone: 312/732-3636
Fax: 312/
The Fifth Third Bank
38 Fountain Square Plaza
MD 109054-2060
Cincinnati, OH 45263
Attn: Megan Heisel
Phone: 513/744-8662
Fax: 513/
National City Bank of Michigan/Illinois
1001 South Worth Street
Loc. Rj404A
Birmingham, MI 48009-6943
Attn: Carolann Morykwas
Phone: 248/901-2110
Fax: 248/901-2033
PNC Bank, National Association
Homebuilder Finance
Two Tower Center, 18th Floor
East Brunswick, NJ 08816
Attn: Douglas Paul
Phone: 732/220-3566
Fax: 732/220-3744
Exhibit 2.1(b)
to 364-Day Credit Agreement
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: George Hernandez
RE: 364-Day Credit Agreement dated as of September ___, 1999 among
PULTE CORPORATION, a Michigan corporation (the "Borrower"), the
Guarantors identified therein, the Lenders identified therein and
Bank of America, N.A. as Administrative Agent (the "Administrative
Agent") (as the same may be amended, modified, extended or restated
from time to time, the "Credit Agreement")
DATE: _________________________ , _____
- -----------------------------------------------------------------------------
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise
defined shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Revolving Loan
in the amount of $_________________ to be funded on ________ ,
_______ at the interest rate option set forth in paragraph 3 below.
Immediately subsequent to the funding of the requested Revolving
Loan (and the application of the proceeds thereof), the aggregate
amount of all Loans outstanding plus the aggregate amount of
secured Indebtedness incurred by the Credit Parties pursuant to
Section 8.1(h) of the Credit Agreement in excess of $100,000,000
will be $___________ , which is less than or equal to the Revolving
Committed Amount.
3. The interest rate option applicable to the requested Revolving Loan
shall be:
a. ________ the Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
4. The representations and warranties made by the Credit Parties in any
Credit Document are true and correct in all material respects at and
as if made as of the date hereof except to the extent they expressly
relate to an earlier date; provided that it is understood and agreed
that (i) the Borrower is obligated to immediately notify the
Administrative Agent if any such representation or warranty shall
hereafter become untrue or incorrect and (ii) the Lenders shall have
no obligation to fund the requested Revolving Loans should any such
representation or warranty be untrue or incorrect on the date of
funding.
5. No Default or Event of Default exists or will be continuing either
prior to or immediately after giving effect to the Revolving Loan
made pursuant to this Notice of Borrowing.
6. All principal amounts available to be drawn under the terms of the
Existing Senior Credit Agreement have been borrowed in full.
PULTE CORPORATION,
a Michigan corporation
By: ___________________________
Name: _________________________
Title: ________________________
Exhibit 2.1(e)
to 364-Day Credit Agreement
FORM OF REVOLVING NOTE
_________________ , ____
FOR VALUE RECEIVED, PULTE CORPORATION, a Michigan corporation (the
"Borrower"), hereby promises to pay to the order of ______________ (the
"Lender"), at the office of the Administrative Agent as set forth in that
certain 364-Day Credit Agreement, dated as of September ___, 1999, among the
Borrower, the Guarantors identified therein, the Lenders identified therein
and Bank of America, N.A., as Administrative Agent (the "Administrative
Agent") (as the same may be amended, modified, extended or restated from time
to time, the "Credit Agreement"), the aggregate unpaid principal amount of
the Revolving Loans made by the Lender to the Borrower under the Credit
Agreement, in lawful money and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each Revolving Loan made by the
Lender, at such office, in like money and funds, for the period commencing on
the date of each Revolving Loan until each Revolving Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit
Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement and evidences Revolving Loans made by the Lender thereunder.
Capitalized terms used in this Revolving Note have the respective meanings
assigned to them in the Credit Agreement and the terms and conditions of the
Credit Agreement are expressly incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity
of the Revolving Loans evidenced by this Revolving Note upon the occurrence
of certain events (and for payment of collection costs in connection
therewith) and for prepayments of Revolving Loans upon the terms and
conditions specified therein. In the event this Revolving Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay,
in addition to principal and interest, all costs of collection, including
reasonable documented attorney fees.
The date, amount, type, interest rate and duration of Interest
Period (if applicable) of each Revolving Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books; provided that the failure of the Lender
to make any such recordation or endorsement shall not affect the obligations
of the Borrower to make a payment when due of any amount owing under this
Revolving Note in respect of the Revolving Loans to be evidenced by this
Revolving Note, and each such
recordation or endorsement shall be prima facie evidence of such information,
absent manifest error.
Except as permitted by Section 11.3(b) of the Credit Agreement, this
Revolving Note may not be assigned by the Lender to any other Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to
be executed as of the date first above written.
PULTE CORPORATION,
a Michigan corporation
By: ___________________________
Name: _________________________
Title: ________________________
Exhibit 2.2(b)
to 364-Day Credit Agreement
FORM OF SWINGLINE LOAN REQUEST
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: George Hernandez
RE: 364-Day Credit Agreement dated as of September ___, 1999 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the Guarantors
identified therein, the Lenders identified therein and Bank of
America, N.A. as Administrative Agent (the "Administrative Agent")
(as the same may be amended, modified, extended or restated from
time to time, the "Credit Agreement")
DATE: _________________ , _____
1. This Swingline Loan Request is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Swingline
Loan in the amount of $ __________ to be funded on ___________, _____. The
requested Swingline Loan shall accrue interest at the [Base Rate] [Quoted
Rate]. [Such Quoted Rate Swingline Loan shall be for an Interest Period of
__________ day(s) (such period not to exceed seven Business Days)].
Immediately subsequent to the funding of the requested Swingline Loan (and
the application of the proceeds thereof), the aggregate amount of all Loans
outstanding plus the aggregate amount of secured Indebtedness incurred by the
Credit Parties pursuant to Section 8.1(h) of the Credit Agreement in excess
of $100,000,000 will be $_____________ , which is less than or equal to the
Revolving Committed Amount.
3. The representations and warranties made by the Credit Parties in
any Credit Document are true and correct in all material respects at and as
if made as of the date hereof except to the extent they expressly relate to
an earlier date; provided that it is understood and agreed that (i) the
Borrower is obligated to immediately notify the Administrative Agent if any
such representation or warranty shall hereafter become untrue or incorrect
and (ii) the Lenders
shall have no obligation to fund the requested Revolving Loans should any
such representation or warranty be untrue or incorrect on the date of
funding.
4. No Default or Event of Default exists or shall be continuing
either prior to or after giving effect to the Swingline Loan made pursuant to
this Swingline Loan Request.
5. All principal amounts available to be drawn under the terms of
the Existing Senior Credit Agreement have been borrowed in full.
PULTE CORPORATION,
a Michigan corporation
By: ___________________________
Name: _________________________
Title: ________________________
Exhibit 2.2(e)
to 364-Day Credit Agreement
FORM OF SWINGLINE NOTE
September ___, 1999
FOR VALUE RECEIVED, PULTE CORPORATION, a Michigan corporation (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A.
(the "Lender") at the office of the Administrative Agent (or at such other
place or places as the holder of this Swingline Note may designate) as set
forth in that certain 364-Day Credit Agreement, dated as of the date hereof,
among the Borrower, the Guarantors identified therein, the Lenders identified
therein and Bank of America, N.A., as Administrative Agent (the
"Administrative Agent") (as the same may be amended, modified, extended or
restated from time to time, the "Credit Agreement"), the aggregate unpaid
principal amount of the Swingline Loans made by the Lender to the Borrower
under the Credit Agreement in lawful money and in immediately available
funds, on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of each
Swingline Loan made by the Lender, at such office, in like money and funds,
for the period commencing on the date of each Swingline Loan until each
Swingline Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
This Note is the Swingline Note referred to in the Credit Agreement
and evidences Swingline Loans made by the Lender thereunder. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Credit Agreement and the terms and conditions of the Credit
Agreement are expressly incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity
of the Swingline Loans evidenced by this Swingline Note upon the occurrence
of certain events (and for payment of collection costs in connection
therewith) and for prepayments of Swingline Loans upon the terms and
conditions specified therein. In the event this Swingline Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay,
in addition to principal and interest, all costs of collection, including
reasonable attorney fees.
The date, amount and interest rate of each Swingline Loan made by
the Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books; provided that the
failure of the Lender to make any such recordation shall not affect the
obligations of the Borrower to make a payment when due of any amount owing
hereunder in respect of the Swingline Loans to be evidenced by this Swingline
Note, and each such recordation shall be prima facie evidence of the
obligations owing under this Swingline Note absent manifest error.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to
be executed by its duly authorized officer as of the date first above
written.
PULTE CORPORATION,
a Michigan corporation
By: ____________________________
Name: __________________________
Title: _________________________
2
Exhibit 2.3
to 364-Day Credit Agreement
FORM OF NOTICE OF CONTINUATION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: George Hernandez
RE: 364-Day Credit Agreement dated as of September ___, 1999 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the Guarantors
identified therein, the Lenders identified therein and Bank of
America, N.A. as Administrative Agent (the "Administrative Agent")
(as the same may be amended, modified, extended or restated from
time to time, the "Credit Agreement")
DATE: __________________________ , _____
- -----------------------------------------------------------------------------
1. This Notice of Continuation/Conversion is made pursuant to the terms
of the Credit Agreement. All capitalized terms used herein unless
otherwise defined shall have the meanings set forth in the Credit
Agreement.
2. Please be advised that the Borrower is requesting that a portion of
the current outstanding Revolving Loans in the amount of $________
currently accruing interest at ________ be continued or converted as
of ____________, ______ at the interest rate option set forth in
paragraph 3 below.
3. The interest rate option applicable to the continuation or
conversion of all or part of the existing Revolving Loans (as set
forth above) shall be:
a. ________ the Base Rate.
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
4. If the above request is to continue a Eurodollar Loan or to convert
a Base Rate Loan to a Eurodollar Loan, no Default or Event of
Default exists or will be continuing either prior to or after giving
effect to this continuation or conversion.
PULTE CORPORATION,
a Michigan corporation
By: ____________________________
Name: __________________________
Title: _________________________
2
Exhibit 7.1(c)
to 364-Day Credit Agreement
FORM OF OFFICER'S CERTIFICATE
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle, 12th Floor
Chicago, Illinois 60697
Attn: George Hernandez
RE: 364-Day Credit Agreement dated as of September ___, 1999 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the Guarantors
identified therein, the Lenders identified therein and Bank of
America, N.A. as Administrative Agent (the "Administrative Agent")
(as the same may be amended, modified, extended or restated from
time to time, the "Credit Agreement")
DATE: _____________________ , _____
- -----------------------------------------------------------------------------
Pursuant to the terms of the Credit Agreement, I, _________________,
_________________ of the Borrower, hereby certify on behalf of the Credit
Parties that, as of the quarter/year ending ___________________ , ________ ,
the statements below are accurate and complete in all material respects (all
capitalized terms used herein unless otherwise defined shall have the
meanings set forth in the Credit Agreement):
a. Attached hereto as Schedule 1 are calculations
(calculated as of the date of the financial statements referred to
in paragraph c. below) demonstrating compliance by the Credit
Parties with the financial covenants contained in Section 7.2 of the
Credit Agreement.
b. No Default or Event of Default exists under the Credit
Agreement, except as indicated on a separate page attached hereto,
together with an explanation of the action taken or proposed to be
taken by the Borrower with respect thereto.
c. The quarterly/annual financial statements for the fiscal
quarter/year ended __________ , _____ which accompany this
certificate are true and correct and have been prepared in
accordance with GAAP (in the case of any quarterly financial
statements, subject to changes resulting from audit and normal
year-end audit adjustments).
PULTE CORPORATION
a Michigan corporation
By: _________________________
Name: _______________________
Title: ______________________
2
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 1 TO 7.1(c) OFFICER'S CERTIFICATE
A. Compliance with Section 7.2(a): Debt to Capitalization Ratio
<S> <C>
1. Funded Debt $________________
2. Subordinated Debt issued by the Credit Parties maturing on
or after Revolving-A Loans Maturity Date in aggregate amount
less than or equal to $100,000,000 $________________
3. cash and Cash Equivalents held by the Credit Parties
in excess of $25,000,000 $________________
4. Capitalization $________________
5. Debt to Capitalization Ratio
((Line 1 - Line 2 - Line 3) / Line 4) :
-----------------
Maximum Allowed: Line A.5 shall be less than or equal to 0.50.
B. Compliance with Section 7.2(b): Tangible Net Worth
1. Shareholders' Equity/Net Worth $________________
2. Intangibles $________________
3. Investments described in clause (f) of the definition
of Permitted Investments $________________
4. Tangible Net Worth (Line 1 - Line 2 - Line 3) $________________
Minimum Allowed: Line B.4 shall be greater than or equal to the sum of:
(a) $550 million +
(b) 50% of the cumulative Net Income (without deduction for
losses) earned subsequent to January 1, 1995
</TABLE>
Exhibit 7.12
to 364-Day Credit Agreement
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement"), dated as of ________ ,
___ , is entered into between _____________ , a _______________ (the "New
Subsidiary") and BANK OF AMERICA, N.A., in its capacity as Administrative
Agent (the "Administrative Agent") under that certain 364-Day Credit
Agreement dated as of September ___, 1999 among PULTE CORPORATION, a Michigan
corporation (the "Borrower"), the Guarantors identified therein, the
Administrative Agent and the Lenders identified therein (as the same may be
amended, modified, extended or restated from time to time, the "Credit
Agreement"). All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement.
The New Subsidiary and the Lender hereby agree as follows:
1. The New Subsidiary hereby acknowledges, agrees and confirms that,
by its execution of this Agreement, the New Subsidiary will be deemed to be a
Credit Party under the Credit Agreement and a "Guarantor" for all purposes of
the Credit Agreement and shall have all of the rights and obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The New
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by,
all of the terms, provisions and conditions contained in the Credit
Agreement, including without limitation (a) all of the representations and
warranties of the Credit Parties set forth in Section 6 of the Credit
Agreement (except to the extent they expressly relate to an earlier date),
(b) all of the affirmative and negative covenants set forth in Sections 7 and
8 of the Credit Agreement and (c) all of the guaranty obligations set forth
in Section 4 of the Credit Agreement. Without limiting the generality of the
foregoing terms of this paragraph 1, the New Subsidiary, subject to the
limitations set forth in Section 4 of the Credit Agreement, hereby
guarantees, jointly and severally with the other Guarantors, to the Lender,
as provided in Section 4 of the Credit Agreement, the prompt payment of the
Credit Party Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise and after giving effect to
any grace periods) strictly in accordance with the terms thereof and agrees
that if any of the Credit Party Obligations are not paid or performed in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise and after giving effect to any grace periods), the
New Subsidiary will, jointly and severally together with the other
Guarantors, promptly pay the same in accordance with the provisions of
Section 4 of the Credit Agreement.
2. The address of the New Subsidiary for purposes of Section 11.1 of
the Credit Agreement is the same as the other Guarantors.
3. The New Subsidiary hereby waives notice of acceptance by the
Lender of the guaranty by the New Subsidiary under the Credit Agreement upon
the execution of this Agreement by the New Subsidiary.
4. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument.
5. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to
be duly executed by its authorized officer, as of the day and year first
above written.
[NEW SUBSIDIARY]
By: ____________________
Name: __________________
Title: _________________
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ______________________
Name: ____________________
Title: ___________________
Exhibit 11.3(b)
to 364-Day Credit Agreement
FORM OF ASSIGNMENT AGREEMENT
Reference is made to that certain 364-Day Credit Agreement dated as
of September ___, 1999 among PULTE CORPORATION, a Michigan corporation (the
"Borrower"), the Guarantors identified therein, the Lenders identified
therein and Bank of America, N.A., as Administrative Agent (the
"Administrative Agent") (as the same may be amended, modified, extended or
restated from time to time, the "Credit Agreement"). All capitalized terms
used herein and not otherwise defined shall have the meanings set forth in
the Credit Agreement.
The "Assignor" and the "Assignee" referred to on Schedule 1 attached
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, the
interests specified on Schedule 1 attached hereto (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement
and the other Credit Documents, including, without limitation, (a) the
interests of the Assignor, as described on Schedule 1 attached hereto, in its
Revolving Loan Commitment Percentage as of the Effective Date (as defined
below), and (b) the Revolving Loans owing to the Assignor in connection with
the Assigned Interest which are outstanding on the Effective Date.
2. The purchase of the Assigned Interest shall be at par (unless
otherwise agreed to by the Assignor or Assignee) and periodic payments made
with respect to the Assigned Interest which (a) accrued prior to the
Effective Date shall be remitted to the Assignor, and (b) accrue from and
after the Effective Date shall be remitted to the Assignee.
3. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
Agreement, have the rights and obligations of a Lender thereunder, and (b)
the Assignor shall, to the extent provided in this Assignment Agreement,
relinquish its rights and be released of its obligations under the Credit
Agreement.
4. The Assignor (a) represents and warrants that it is the legal and
beneficial owner of the Assigned Interest and that the Assigned Interest is
free and clear of any adverse claim, and (b) makes no representation or
warranty and assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit
Documents; (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any other
instrument or document furnished pursuant thereto; or (iii) the financial
condition of any Credit Party or the performance or observance by any Credit
Party of any of its obligations under the Credit Documents or any other
instrument or document furnished pursuant thereto.
5. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment Agreement, (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 7.1 thereof, the other Credit
Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (c) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based upon such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, (d) confirms that it is an Eligible
Assignee, (e) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement and the other Credit Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto, and (f) agrees that it will
perform, in accordance with the terms of the Credit Agreement, all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender.
6. Following the execution of this Assignment Agreement, it will be
delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent, together with the transfer fees, if applicable, set
forth in Section 11.3(b) of the Credit Agreement. The effective date for this
Assignment Agreement (the "Effective Date") shall be the date of acceptance
hereof by the Administrative Agent unless otherwise specified on Schedule 1
attached hereto. This Assignment Agreement shall not be effective until the
Administrative Agent has received the transfer fees, if applicable, set forth
in Section 11.3(b).
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
8. This Assignment Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart to this Assignment Agreement
by telecopy shall be effective as an original and shall constitute a
representation that an original shall be delivered.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Agreement to be executed by their officers thereunto duly
authorized as of the date hereof.
___________________ , as Assignor
By: _____________________________
Name: ___________________________
Title: __________________________
__________________ , as Assignee
By: _____________________________
Name: ___________________________
Title: __________________________
Notice address of Assignee:
________________________________
________________________________
Attn:
Telephone: (___) ________
Telecopy: (___) ________
<TABLE>
<CAPTION>
SCHEDULE 1
to
ASSIGNMENT AGREEMENT
<S> <C>
(a) Effective Date of Assignment: ________________
(b) Legal Name of Assignor: ________________
(c) Legal Name of Assignee: ________________
(d) Revolving Loan Commitment Percentage Assigned ________________ %
(e) Revolving Loan Commitment Percentage
of Assignor after Assignment ________________ %
(f) Revolving Loans outstanding as of Effective Date $ ______________
(g) Principal Amount of Revolving Loans assigned on Effective Date
(amount set forth in (f) multiplied
by the percentage set forth in (d)) $ ______________
(h) Principal Amount of Revolving Loans of Assignor after Assignment
(amount set forth in (f) multiplied
by the percentage set forth in (e)) $ ______________
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AS OF SEPTEMBER 30,
1999 AND FOR THE NINE MONTHS THEN ENDED AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 30,587
<SECURITIES> 0
<RECEIVABLES> 59,088
<ALLOWANCES> 0
<INVENTORY> 1,879,075
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 2,619,100
<CURRENT-LIABILITIES> 0
<BONDS> 518,391<F1>
<COMMON> 432
0
0
<OTHER-SE> 1,023,668
<TOTAL-LIABILITY-AND-EQUITY> 2,619,100
<SALES> 2,449,880<F2>
<TOTAL-REVENUES> 2,489,736
<CGS> 2,027,770<F2>
<TOTAL-COSTS> 2,318,925
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 37,651
<INCOME-PRETAX> 173,588
<INCOME-TAX> 65,094
<INCOME-CONTINUING> 108,494
<DISCONTINUED> 46
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-BASIC> 2.51
<EPS-DILUTED> 2.47
<FN>
<F1> Bonds are comprised of subordinated debentures and senior notes.
<F2> Relates to homebuilding operations.
</TABLE>
