<PAGE> 1
CREDIT AGREEMENT
among
PULTE CORPORATION
as Borrower,
THE MATERIAL SUBSIDIARIES OF PULTE CORPORATION
as Guarantors,
THE LENDERS IDENTIFIED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent,
and
COMERICA BANK,
as Co-Agent
DATED AS OF AUGUST 31, 2000
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager,
<PAGE> 2
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.................................1
1.1 DEFINITIONS........................................................1
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.....20
1.3 ACCOUNTING TERMS..................................................20
1.4 TIME..............................................................21
SECTION 2 CREDIT FACILITIES...............................................21
2.1 REVOLVING LOANS...................................................21
2.2 SWINGLINE LOANS SUBFACILITY.......................................24
2.3 CONTINUATIONS AND CONVERSIONS.....................................26
2.4 MINIMUM AMOUNTS...................................................26
2.5 EXTENSION OF MATURITY DATE........................................27
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS..........................28
3.1 INTEREST..........................................................28
3.2 PLACE AND MANNER OF PAYMENTS......................................29
3.3 PREPAYMENTS.......................................................29
3.4 FEES..............................................................30
3.5 PAYMENT IN FULL AT MATURITY.......................................31
3.6 COMPUTATIONS OF INTEREST AND FEES.................................31
3.7 PRO RATA TREATMENT................................................32
3.8 SHARING OF PAYMENTS...............................................33
3.9 CAPITAL ADEQUACY..................................................33
3.10 INABILITY TO DETERMINE INTEREST RATE..............................34
3.11 ILLEGALITY........................................................34
3.12 REQUIREMENTS OF LAW...............................................35
3.13 TAXES.............................................................36
3.14 COMPENSATION......................................................38
3.15 SUBSTITUTION OF LENDER............................................39
3.16 EVIDENCE OF DEBT..................................................39
SECTION 4 GUARANTY........................................................40
4.1 GUARANTY OF PAYMENT...............................................40
4.2 OBLIGATIONS UNCONDITIONAL.........................................40
4.3 MODIFICATIONS.....................................................41
4.4 WAIVER OF RIGHTS..................................................41
4.5 REINSTATEMENT.....................................................42
4.6 REMEDIES..........................................................42
4.7 LIMITATION OF GUARANTY............................................42
4.8 RIGHTS OF CONTRIBUTION............................................42
SECTION 5 CONDITIONS PRECEDENT............................................43
5.1 CLOSING CONDITIONS................................................43
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT............................47
SECTION 6 REPRESENTATIONS AND WARRANTIES..................................47
6.1 FINANCIAL CONDITION...............................................47
6.2 NO MATERIAL CHANGE................................................48
6.3 ORGANIZATION AND GOOD STANDING....................................48
6.4 DUE AUTHORIZATION.................................................48
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6.5 NO CONFLICTS......................................................48
6.6 CONSENTS..........................................................49
6.7 ENFORCEABLE OBLIGATIONS...........................................49
6.8 NO DEFAULT........................................................49
6.9 LIENS.............................................................49
6.10 INDEBTEDNESS......................................................49
6.11 LITIGATION........................................................50
6.12 TAXES.............................................................50
6.13 COMPLIANCE WITH LAW...............................................50
6.14 ERISA.............................................................50
6.15 SUBSIDIARIES......................................................51
6.16 USE OF PROCEEDS...................................................51
6.17 GOVERNMENT REGULATION.............................................52
6.18 ENVIRONMENTAL MATTERS.............................................52
6.19 INTELLECTUAL PROPERTY.............................................53
6.20 SOLVENCY..........................................................54
6.21 INVESTMENTS.......................................................54
6.22 DISCLOSURE........................................................54
6.23 LICENSES, ETC.....................................................54
6.24 BURDENSOME RESTRICTIONS...........................................54
6.25 LABOR CONTRACTS AND DISPUTES......................................54
6.26 BROKER'S FEES.....................................................55
SECTION 7 AFFIRMATIVE COVENANTS...........................................55
7.1 INFORMATION COVENANTS.............................................55
7.2 FINANCIAL COVENANTS...............................................58
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES..........................59
7.4 BOOKS AND RECORDS.................................................59
7.5 COMPLIANCE WITH LAW...............................................59
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS...........................59
7.7 INSURANCE.........................................................59
7.8 MAINTENANCE OF PROPERTY...........................................60
7.9 PERFORMANCE OF OBLIGATIONS........................................60
7.10 USE OF PROCEEDS...................................................60
7.11 AUDITS/INSPECTIONS................................................60
7.12 ADDITIONAL CREDIT PARTIES.........................................60
SECTION 8 NEGATIVE COVENANTS..............................................61
8.1 INDEBTEDNESS......................................................61
8.2 LIENS.............................................................62
8.3 NATURE OF BUSINESS................................................62
8.4 CONSOLIDATION AND MERGER..........................................62
8.5 SALE OR LEASE OF ASSETS...........................................63
8.6 SALE AND LEASEBACK................................................63
8.7 ADVANCES, INVESTMENTS AND LOANS...................................64
8.8 RESTRICTED PAYMENTS...............................................64
8.9 TRANSACTIONS WITH AFFILIATES......................................64
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.............................64
8.11 NO LIMITATIONS....................................................64
8.12 NO OTHER NEGATIVE PLEDGES.........................................65
8.13 OTHER INDEBTEDNESS................................................65
SECTION 9 EVENTS OF DEFAULT...............................................65
9.1 EVENTS OF DEFAULT.................................................65
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9.2 ACCELERATION; REMEDIES............................................68
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.....................69
SECTION 10 AGENCY PROVISIONS..............................................69
10.1 APPOINTMENT.......................................................69
10.2 DELEGATION OF DUTIES..............................................70
10.3 EXCULPATORY PROVISIONS............................................70
10.4 RELIANCE ON COMMUNICATIONS........................................71
10.5 NOTICE OF DEFAULT.................................................71
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS............71
10.7 INDEMNIFICATION...................................................72
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY...................72
10.9 SUCCESSOR ADMINISTRATIVE AGENT....................................73
SECTION 11 MISCELLANEOUS..................................................73
11.1 NOTICES...........................................................73
11.2 RIGHT OF SET-OFF..................................................74
11.3 BENEFIT OF AGREEMENT..............................................74
11.4 NO WAIVER; REMEDIES CUMULATIVE....................................77
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION..............................77
11.6 AMENDMENTS, WAIVERS AND CONSENTS..................................78
11.7 COUNTERPARTS/TELECOPY.............................................79
11.8 HEADINGS..........................................................79
11.9 DEFAULTING LENDER.................................................79
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES....79
11.11 GOVERNING LAW; JURISDICTION.......................................79
11.12 WAIVER OF JURY TRIAL..............................................80
11.13 SEVERABILITY......................................................80
11.14 FURTHER ASSURANCES................................................80
11.15 ENTIRETY..........................................................81
11.16 BINDING EFFECT; CONTINUING AGREEMENT..............................81
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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(a) Investment Policy
Schedule 6.21(b) Investments
Schedule 6.25 Labor Contract and Disputes
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(f) 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
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
August 31, 2000 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),
BANK OF AMERICA, N.A., as Administrative Agent for the Lenders, BANK ONE, NA, as
Syndication Agent for the Lenders and COMERICA BANK, as Co-Agent for the
Lenders.
RECITALS
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide a senior revolving credit facility in an aggregate principal amount of
up to $375 million, which may be increased in accordance with the terms hereof
to up to $600 million; and
WHEREAS, the Lenders party hereto have agreed to make the requested
senior 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.
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"Adjusted LIBOR Market Index Rate" means the LIBOR Market
Index 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, Index
Rate Swingline 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 Applicable
Debt Rating Percentage for Applicable
Debt to of Eurodollar Loans and Percentage
Pricing Capitalization Borrower Index Rate Swingline for
Level Ratio -------- Loans Facility Fees
----- ----- ----- -------------
------- -------------------------------------- --------------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
I lesser than = 20% = greater than .475% .150%
BBB+/Baa1
------- -------------------------------------- --------------------- ---------------------- ---------------------
II greater than 20% but lesser than = 35% BBB/Baa2 .700% .175%
------- -------------------------------------- --------------------- ---------------------- ---------------------
III greater than 35% but lesser than = 45% BBB-/Baa3 .825% .225%
------- -------------------------------------- --------------------- ---------------------- ---------------------
IV greater than 45% lesser than 1.100% .275%
BBB-/Baa3
or not rated by S&P
and Moody's
------- -------------------------------------- --------------------- ---------------------- ---------------------
</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
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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 or
any other person designated in writing by such chief financial officer,
treasurer or corporate controller.
"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.
"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.
"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.
3
<PAGE> 9
"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 Borrower 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 (a) through (d), and (f)
Investments consistent with the Pulte Corporation Investment Policy as
set forth on Schedule 6.21(a).
4
<PAGE> 10
"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.
"Co-Agent" means Comerica Bank (or any successor thereto).
"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.
5
<PAGE> 11
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of (a) Tangible Net Worth and (b) Funded Debt.
"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.
"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 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 Maturity Date 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.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of a Credit Party that are domiciled, incorporated or
organized under the laws of any state of the United States or the
District of Columbia (or has any material assets located in the United
States).
"EBITDA" means, for any period, with respect to the Borrower,
the sum of (a) Net Income for such period (excluding the effect of any
extraordinary or other non-recurring gains or losses outside of the
ordinary course of business) plus (b) an amount which, in the
determination of Net Income for such period has been deducted for (i)
interest expense (including previously capitalized interest included in
the cost of goods sold) of the Credit Parties and their Subsidiaries
for such period, (ii) total Federal, state, foreign or other
6
<PAGE> 12
income taxes of the Borrower for such period and (iii) depreciation and
amortization of the Credit Parties and their Subsidiaries for such
period, all as determined in accordance with GAAP.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of
a Lender; 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 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
7
<PAGE> 13
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.
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<PAGE> 14
"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 Credit Agreements" means (a) 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 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 and (b) that certain
Credit Agreement, dated as of September 15, 1999, by and among the
Borrower, certain guarantors (as defined therein), Bank of America,
N.A., as administrative agent, Bank One, NA, as syndication agent,
Guaranty Federal Bank, F.S.B., as co-agent and the lenders party
thereto, as the same has been and may be amended, restated or otherwise
modified from time to time.
"Extending Lender" has the meaning set forth in Section
2.5(a).
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender).
"Extension Required Lenders" has the meaning set forth in
Section 2.5(a).
"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
July 17, 2000 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
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<PAGE> 15
to Indebtedness of another Person, (d) all Indebtedness of another
entity secured by a Lien on any property of the Credit Parties whether
or not such Indebtedness has been assumed by a Credit Party, and (e)
all Indebtedness 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.
"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 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.
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<PAGE> 16
"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.
"Index Rate Swingline Loan" means a Swingline Loan bearing
interest at the Adjusted LIBOR Market Index Rate.
"Intellectual Property" has the meaning set forth in Section
6.19.
"Interest Coverage Ratio" means, as of the end of each fiscal
quarter of the Borrower for the twelve month period ending on such
date, with respect to the Borrower, the ratio of (a) EBITDA for the
applicable period to (b) interest incurred by the Credit Parties,
whether such interest was expensed, capitalized, paid, accrued or
scheduled to be paid or accrued.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar month and the Maturity Date and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and
the Maturity Date and in addition, where the applicable
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<PAGE> 17
Interest Period for a Eurodollar Loan is greater than three months,
then also the date three months from the beginning of the Interest
Period and each three months thereafter.
"Interest Period" means, (a) with respect to Eurodollar Loans,
a period of one, two, three or six months' duration, as the Borrower
may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof) and (b) with respect
to Index Rate Swingline Loans, a period beginning on the date of
advance and ending on the date specified in the applicable Swingline
Loan Request, which shall be between one and seven Business Days in
duration; provided, however, that (i) if any Interest Period would end
on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that where the
next succeeding Business Day falls in the next succeeding calendar
month, such Interest Period shall end on the next preceding Business
Day), (ii) no Interest Period shall extend beyond the Maturity Date,
and (iii) with respect to Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such
Interest Period shall end on the last Business Day of such calendar
month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than assets acquired in the ordinary course
of business), shares of Capital Stock, bonds, notes, debentures, joint
venture, partnership or other ownership interests or other securities
of such other Person or (b) any deposit with, or advance, loan or other
extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to
or investment in such Person, including, without limitation, any
Guaranty Obligation incurred for the benefit of such Person and any
support provided for a Letter of Credit issued on behalf of such
Person.
"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.
"LIBOR Market Index Rate" shall mean, for any day, the one
week London Interbank Offered Rate for U.S. Dollar deposits (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London
time) on such day, or if such day is not a Business Day, then the
immediately preceding Business Day, or if not so reported, then as
determined by the Administrative Agent from another recognized source
of interbank quotation; 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.
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<PAGE> 18
"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 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.
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<PAGE> 19
"Maturity Date" means August 31, 2005, as such date may be
extended in accordance with the terms of Section 2.5 (other than with
respect to the Commitments and Loans of any Refusing Lender, in which
case the applicable Maturity Date for such Commitments and Loans shall
be the RL Maturity Date).
"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 Borrower, 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.
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<PAGE> 20
"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
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
15
<PAGE> 21
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 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.
"Real Properties" means such real properties as the Credit
Parties may own or lease (as lessee or sublessee) from third parties
from time to time.
"Refusing Lender" has the meaning set forth in Section 2.5(a).
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T,
U or X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
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<PAGE> 22
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes at least 51% 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 the aggregate of the
Revolving Loan Commitments of all Lenders, as such amount may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof. The Revolving Committed Amount on the
Closing Date shall be THREE HUNDRED SEVENTY-FIVE MILLION DOLLARS
($375,000,000).
"Revolving Loan Commitment" means, as to any Lender, the
obligation of such Lender to make Revolving Loans hereunder for the
account of the Borrower in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1.1(a) hereto, as such amount may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof.
"Revolving Loan Commitment Percentage" means, as to any Lender
at any time, the ratio of (a) such Lender's Revolving Loan Commitment
to (b) the Revolving Committed Amount, as such percentage may be
increased, reduced or modified at any time or from time to time
pursuant to the terms hereof. The Revolving Loan Commitment Percentage
for each Lender on the Closing Date shall be as set forth on Schedule
1.1(a).
"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
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pursuant to Section 2.1, individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time and as evidenced in the
form of Exhibit 2.1(f).
"RL Maturity Date" has the meaning set forth in Section
2.5(a).
"S&P" means Standard & Poor's Ratings Services, a division of
The 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
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<PAGE> 24
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 FIFTY MILLION DOLLARS
($50,000,000).
"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.
"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).
"Syndication Agent" means Bank One, NA (or any successor
thereto).
"Tangible Net Worth" means, as of any date, shareholders'
equity or net worth of the Borrower, as determined in accordance with
GAAP minus (i) intangibles (as determined in accordance with GAAP) and
(ii) Investments described in clause (f) of the definition of Permitted
Investments.
"Termination Event" means (a) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a
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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.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters 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
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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.
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(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.
(i) Upon at least three Business Days' notice, the
Borrower shall have the right to permanently reduce, without
premium or penalty, all or part of the aggregate unused amount
of the Revolving Committed Amount at any time or from time to
time; provided that (A) each partial reduction shall be in an
aggregate amount at least equal to $5,000,000 and in integral
multiples of $1,000,000 above such amount and (B) no reduction
shall be made which would reduce the Revolving Committed
Amount to an amount less than the 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.
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(ii) On the first anniversary of the Closing Date, if
Bank of America has not assigned at least $30,000,000 of its
Revolving Loan Commitment to an Eligible Assignee, then the
Revolving Loan Commitment of Bank of America and the Revolving
Committed Amount shall be reduced by an amount equal to the
sum of $30,000,000 minus the amount of Bank of America's
Revolving Loan Commitment assigned to an Eligible Assignee
prior to such date. Notwithstanding anything to the contrary
in Section 3.3(c), any such reduction of the Revolving Loan
Commitment of Bank of America and the Revolving Committed
Amount shall be accompanied by a prepayment (if necessary) of
the outstanding Loans of Bank of America in an amount such
that, after giving effect to such prepayment, the outstanding
Loans of Bank of America shall not exceed its Revolving Loan
Commitment, as reduced hereby. Each of the Lenders consents to
the foregoing reduction of the Revolving Loan Commitment of
Bank of America (and the corresponding prepayment of Bank of
America's Loans and reduction of the Revolving Committed
Amount) without a pro rata reduction of such Lender's
Revolving Loan Commitment (or corresponding prepayment of such
Lender's Loans).
(iii) Any reduction in (or termination of) the Revolving
Committed Amount may not be reinstated without the consent of
all the Lenders; provided, however, the Borrower shall still
be entitled to increase the Revolving Committed Amount in
accordance with the terms of Section 2.1(e). The
Administrative Agent shall immediately notify the Lenders of
any reduction in the Revolving Committed Amount.
(e) Increase of Revolving Committed Amount. Prior to the
Maturity Date and upon at least 15 days' prior written notice to the
Administrative Agent (which notice shall be promptly transmitted by the
Administrative Agent to each Lender), the Borrower shall have the
right, subject to the terms and conditions set forth below, to increase
the Revolving Committed Amount; provided that (a) such increase must be
in a minimum amount of $10,000,000 and in integral multiples of
$1,000,000 above such amount, (b) the Revolving Committed Amount cannot
be increased to an aggregate amount greater than the sum of (i) Six
Hundred Million Dollars ($600,000,000) minus (ii) the aggregate amount
of all reductions of the Revolving Committed Amount pursuant to Section
2.1(d), without the prior written consent of the Required Lenders, (c)
the Borrower shall execute and deliver such Note(s) as are necessary to
reflect the increase in the Revolving Committed Amount, (d) Schedule
1.1(a) hereto shall be amended to reflect the revised Revolving
Committed Amount and aggregate Commitments of the Lenders, (e) if any
Loans are outstanding at the time of an increase in the Revolving
Committed Amount, the Borrower will prepay (provided that any such
prepayment shall be subject to Section 3.14 hereof) one or more
existing Loans in an amount necessary such that after giving effect to
the increase in the Revolving Committed Amount each Lender will hold
its pro rata share (based on its share of the revised aggregate
Commitments) of outstanding Loans and (f) during the first year
following the Closing Date, the Revolving
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Committed Amount cannot be increased until Bank of America has assigned
at least $30,000,000 of its Revolving Loan Commitment to one or more
Eligible Assignees.
Any such increase in the Revolving Committed Amount shall
apply, at the option of the Borrower, to (i) the Commitment of one or
more existing Lenders; provided that any Lender whose Commitment is
being increased must consent in writing thereto and/or (ii) the
creation of a new Commitment to one or more institutions that is not an
existing Lender; provided that any such institution must qualify as an
Eligible Assignee and must become a Lender under this Credit Agreement
by execution and delivery of an appropriate joinder agreement or of
counterparts to this Credit Agreement in a manner acceptable to the
Borrower and the Administrative Agent.
(f) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower
to such Lender in an original principal amount equal to such Lender's
Revolving Commitment Percentage of the Revolving Committed Amount and
in substantially the form of Exhibit 2.1(f).
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.
(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 an Index Rate Swingline Loan and, if such Swingline Loan is to
be an Index Rate Swingline Loan, the applicable Interest Period. If the
Borrower has requested an Index Rate Swingline Loan, Bank of America
shall provide to the Borrower no later than 2:30 p.m. on the date of
such request the Adjusted LIBOR Market Index Rate. The Borrower shall
notify Bank of America by 3:00
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p.m. on such date whether it wishes to accept the Adjusted LIBOR Market
Index Rate. Failure of the Borrower to timely accept the Adjusted LIBOR
Market Index Rate shall make the Adjusted LIBOR Market Index Rate and
the corresponding Index Rate Swingline Loan 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 Index Rate Swingline Loans at the end of the
applicable Interest Period; provided that each Swingline Loan shall be
repaid within seven Business Days from the date of advance. Each
repayment of a Swingline Loan may be accomplished by requesting
Revolving Loans, which request is not subject to the conditions set
forth in Section 5.2. In the event that the Borrower shall fail to
timely repay any Swingline Loan, and in any event upon (i) the request
of 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 (to the
extent the Borrower fails to pay accrued interest with respect to such
amount) for each day from the date of demand thereof, at the Federal
Funds 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.
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(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 Adjusted LIBOR Market Index Rate, as
applicable.
(e) Swingline Note. The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower to Bank of
America in the original principal amount of the Swingline Committed
Amount and in substantially the form of Exhibit 2.2(e).
2.3 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert 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 and (c) each
Swingline Loan shall be in a minimum amount of $100,000 (and in integral
multiples of $50,000 in excess thereof) or the remaining amount of the Swingline
Committed Amount. For the purposes of this Section, all Eurodollar Loans with
the same Interest Periods that begin and end on the same date shall be
considered as one Eurodollar Loan, but Eurodollar Loans with different Interest
Periods, even if they begin on the same date, shall be considered as separate
Eurodollar Loans.
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2.5 EXTENSION OF MATURITY DATE.
(a) At least 60 days but not more than 75 days prior to each
annual anniversary of the Closing Date, the Borrower may, by delivering
a written notice to the Administrative Agent, request that the Maturity
Date be extended for one additional year. The Administrative Agent
shall notify each Lender of such request promptly upon its receipt of
such notice and shall request that each Lender respond to such request
by the Borrower within ten Business Days of notice thereof. If any
Lender does not consent or respond to the Borrower's request then such
Lender (a "Refusing Lender") shall be deemed to have rejected such
request. If Lenders whose combined Revolving Loan Commitment
Percentages equal at least 80% (the "Extension Required Lenders"; each
Lender agreeing to extend its Revolving Loan Commitment is referred to
herein as an "Extending Lender") timely agree in writing to extend
their Revolving Loan Commitments, then (i) the Revolving Loan
Commitments of the Extending Lenders shall without further action be
extended for an additional one year period, (ii) the term "Maturity
Date" shall thenceforth mean, (A) as to the Commitments and Loans of
the Extending Lenders, the last day of such additional one year period
and (B) as to the Commitments and Loans of the Refusing Lenders, the
Maturity Date in effect prior to such extension (each a "RL Maturity
Date"), (iii) subject to the terms of subsection (b) below, the
Revolving Loan Commitments of the Refusing Lenders shall terminate on
the applicable RL Maturity Date and the Loans and other amounts owed to
such Lenders shall be due and payable on such date and (iv) subject to
the terms of subsection (b) below, on a RL Maturity Date (A) the
Revolving Committed Amount shall be reduced by an amount equal to the
sum of the Revolving Loan Commitments of the applicable Refusing
Lenders and (B) the Revolving Loan Commitment Percentage of the
Extending Lenders shall be reallocated, on a pro rata basis, so that
the sum of such Revolving Loan Commitment Percentages equals one
hundred percent (100%). If such extension is not approved by the
Extension Required Lenders, the Maturity Date then in effect will be
retained.
(b) So long as the Extension Required Lenders consent to the
extension of the Maturity Date in accordance with the terms of Section
2.5(a):
(i) with respect to any Refusing Lender, the Borrower
may request, in its own discretion and at its own expense,
such Refusing Lender to transfer and assign (and such Refusing
Lender shall be required to transfer and assign upon such
request) in whole (but not in part), without recourse and in
accordance with and subject to the terms of Section 11.3(b),
all of its interests, rights and obligations under this Credit
Agreement to one or more Eligible Assignees (which may be one
or more existing Lenders if any existing Lender accepts such
assignment); provided that (A) such assignment or assignments
shall not conflict with any law, rule, regulation or order of
any court or other Governmental Authority, (B) the Borrower or
such Eligible Assignee or Eligible Assignees shall pay to such
Refusing Lender in immediately available funds the principal
of and interest accrued to the date of such payment on the
portion of the Loans hereunder
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held by such Refusing Lender and all other amounts owed to
such Refusing Lender hereunder, as well as any processing fee
owing to the Administrative Agent under Section 11.3(b), (C)
the maturity date of the Loans transferred to such Eligible
Assignee shall be the Maturity Date as extended in accordance
with Section 2.5(a) above and (D) such transfer and assignment
must occur on or prior to the applicable RL Maturity Date; or
(ii) the Borrower may (A) notify the Administrative
Agent and the Extending Lenders in writing that it wishes to
(and each such Extending Lender shall agree to) reduce the
Revolving Loan Committed Amount by an amount equal to the sum
of the Revolving Loan Commitments of the Refusing Lenders, (B)
pay all outstanding Loans of the Refusing Lenders and any
other amounts owing to the Refusing Lenders, and terminate the
Revolving Loan Commitments of the Refusing Lenders and (C)
reallocate the Revolving Loan Commitment Percentage of the
Extending Lenders, on a pro rata basis, so that the sum of
such Revolving Loan Commitment Percentages equals one hundred
percent (100%).
(c) The Borrower shall indemnify each Lender (whether an
Extending Lender or Refusing Lender) for any eurodollar breakage costs
or expenses incurred by such Lender as a result of any extension of the
Maturity Date pursuant to this Section 2.5 and any assignment of such
Lender's Commitments and Loans or any reallocation of such Lender's
Revolving Loan Commitment Percentage in connection with such extension.
(d) Each of the Lenders hereby authorizes the Administrative
Agent, on their behalf, to enter into an amendment to this Credit
Agreement (and the Credit Parties hereby agree to enter into any such
amendment on terms reasonably acceptable to the Credit Parties and the
Administrative Agent) to effectuate any extension of the Maturity Date,
reduction of the Revolving Committed Amount, repayment of Loans or
reallocation of the Revolving Loan Commitment Percentages, in each case
as expressly contemplated by the terms of this Section 2.5.
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.
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(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.
(iii) Swingline Loans. Swingline Loans shall bear
interest in accordance with the terms of Section 2.2(d).
(b) Default Rate of Interest. Upon the occurrence, and
during the continuance, of an Event of Default, 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.
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(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent and (ii) each such partial prepayment of Loans
shall be in the minimum principal amount of (A) $5,000,000 and integral
multiples of $1,000,000 in excess thereof for Revolving Loans and (B)
$100,000 and integral multiples of $50,000 in excess thereof for
Swingline Loans. All prepayments under this Section shall be subject to
Section 3.14 and be accompanied by interest on the principal amount
prepaid through the date of prepayment.
(b) Mandatory Prepayments. If, at any time, the sum of the
aggregate amount of Revolving Loans outstanding plus Swingline Loans
outstanding plus the aggregate amount of 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 Index Rate Swingline
Loans, as applicable) in direct order of Interest Period maturities.
All prepayments hereunder shall be subject to Section 3.14 and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
3.4 FEES.
(a) 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 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 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.
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(i) If, 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, 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, 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 each Lender an upfront fee in accordance with
the terms of the fee letter among such Lender, the Borrower and the
Administrative Agent (the "Upfront Fees"). The Upfront Fees shall be
due and payable on or prior to the Effective Date.
3.5 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans and Swingline Loans, together with accrued but unpaid interest
and all other sums owing with respect thereto, shall be due and payable in full,
unless accelerated sooner pursuant to Section 9.2.
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
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agreements between the Lenders and the Borrower are hereby limited by
the provisions of this paragraph which shall override and control all
such agreements, whether now existing or hereafter arising and whether
written or oral. In no way, nor in any event or contingency (including
but not limited to prepayment or acceleration of the maturity of any
obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall
be subject to the provisions of this paragraph and such documents shall
be automatically reduced to the maximum nonusurious amount permitted
under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything of
value which is characterized as interest on the Loans under applicable
law and which would, apart from this provision, be in excess of the
maximum lawful amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on the Loans and not to the
payment of interest, or refunded to the Borrower or the other payor
thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right
to demand payment of the Loans or any other Indebtedness evidenced by
any of the Credit Documents does not include the right to accelerate
the payment of any interest which has not otherwise accrued on the date
of such demand, and the Lenders do not intend to charge or receive any
unearned interest in the event of such demand. All interest paid or
agreed to be paid to the Lenders with respect to the Loans shall, to
the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any
renewal or extension) of the Loans so that the amount of interest on
account of such Indebtedness does not exceed the maximum nonusurious
amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, each Revolving Loan
borrowing, each payment or prepayment of principal of any Revolving Loan, each
payment of fees (other than the Administrative Fees retained by the
Administrative Agent for its own account), 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
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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
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by such Lender, or its parent corporation, with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's (or 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
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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):
(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
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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 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
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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
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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 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
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by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurodollar market. The agreements in this Section shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.15 SUBSTITUTION OF LENDER.
If (a) the obligation of any Lender to make Eurodollar Loans has been
suspended pursuant to Section 3.11 or (b) any Lender has demanded compensation
under Section 3.9, 3.11, 3.12, 3.13 or 3.14, the Borrower shall have the right,
with the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders. Any substitution under this Section 3.15 may be
accomplished, at the Borrower's option, either (i) by the replaced Lender
assigning its rights and obligations hereunder to a replacement lender or
lenders pursuant to Section 11.3(b) at a mutually agreeable price or (ii) by the
Borrower's prepaying all outstanding Loans from the replaced Lender and
terminating such Lender's Commitment on a date specified in a notice delivered
to the Administrative Agent and the replaced Lender at least three Business Days
before the date so specified (and compensating such Lender for any resulting
funding losses as provided in Section 3.14 but otherwise without premium or
penalty) and concurrently a replacement Lender or Lenders assuming a Commitment
in an amount equal to the Commitment being terminated and making Loans in the
same aggregate amount and having the same maturity date or dates, respectively,
as the Loans being prepaid, all pursuant to documents reasonably satisfactory to
the Administrative Agent (and in the case of any document to be signed by the
replaced Lender, reasonably satisfactory to such Lender). No such substitution
shall relieve the Borrower of its obligations to compensate and/or indemnify the
replaced Lender as required by Section 3.9, 3.11, 3.12, 3.13 or 3.14 with
respect to the period before it is replaced and to pay all accrued interest,
accrued fees and other amounts owing to the replaced Lender hereunder.
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant
to Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder, and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof, if any. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(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
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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 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
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proceedings shall not constitute a discharge 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 the 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.
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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.
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.
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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.
(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
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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 or their equivalent with
respect to such LLC or Managing Person, as applicable,
certified as of a recent date by the appropriate
Governmental Authorities of the state or other
jurisdiction of formation and each other jurisdiction in
which the failure to so qualify and be in good standing
would have or could be reasonably expected to have a
Material Adverse Effect.
(E) Incumbency. An incumbency certificate of
such LLC or Managing Person certified by an officer of
such LLC or Managing Person to be true and correct as of
the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent
of an opinion or opinions from legal counsel to the Credit Parties
(which shall cover, among other things, authority, legality, validity,
binding effect, and enforceability of the Credit Documents), reasonably
satisfactory to the Administrative Agent, addressed to the
Administrative Agent and the Lenders and dated as of the Closing Date.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Credit Parties required to be
delivered pursuant to Section 7.1 of each Existing Credit Agreement
prior to the Closing Date.
(e) Litigation. There shall not exist (i) any order, decree,
judgment, ruling or injunction which prohibits or restrains the
consummation of the transactions contemplated hereby or (ii) any
pending (except as set forth on Schedule 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.
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(f) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by an Authorized
Officer of the Borrower as of the Closing Date stating that (i) the
Borrower and each of its Subsidiaries are in compliance with all
existing material financial obligations after giving effect to this
Credit Agreement, (ii) no action, suit, investigation or proceeding is
pending or, to the knowledge of any Credit Party, threatened in any
court or before any arbitrator or governmental instrumentality that
purports to affect the Borrower, any of its Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding would have or could be reasonably expected
to have a Material Adverse Effect, (iii) the financial statements and
information delivered to the Administrative Agent on or before the
Closing Date were prepared in good faith and in accordance with GAAP
and (iv) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated herein and
therein, including the initial Extensions of Credit hereunder (if any),
to occur on such date, (A) no Default or Event of Default exists, (B)
all representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects, (C) the
Credit Parties are in compliance with each of the financial covenants
set forth in Section 7.2 (with calculations demonstrating same) and (D)
each Credit Party is Solvent.
(g) Material Adverse Effect. There shall not have occurred a
Material Adverse Effect since March 31, 2000; it being understood and
agreed that, for purposes of this Section 5.1(g), matters disclosed in
the Borrower's Form 10-Q report for the fiscal quarter ending March 31,
2000, as filed with the U.S. Securities and Exchange Commission, shall
not constitute a Material Adverse Effect.
(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 of Section 3.4 and of the Fee Letter.
(i) Existing Credit Agreements. The Administrative Agent
shall have received evidence that all documents executed or delivered
in connection with the Existing Credit Agreements shall have been
terminated and that all amounts owing in connection with the Existing
Credit Agreements shall have been paid in full on or before the
Effective Date.
(j) Market Disruption. There shall not have occurred any
material disruption of or a material adverse change in conditions in
the financial, banking or capital markets which the Administrative
Agent and BAS, in their reasonable discretion, deem material in
connection with the syndication of this Credit Agreement.
(k) Other. Receipt and satisfactory review by the
Administrative Agent and its counsel of such other documents,
instruments, agreements or information as reasonably and timely
requested by the Administrative Agent, its counsel or any Lender,
including, but not limited to, shareholder agreements, management
agreements and information regarding litigation, tax, accounting,
labor, insurance, pension liabilities (actual or contingent), real
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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.
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) and (d) 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.
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(b) Since December 31, 1999, 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 March 31, 2000, 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 March 31, 2000, 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.
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
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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.
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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
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
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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.
(f) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in material compliance with such
sections.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party and whether each such Person is a Material
Subsidiary. Schedule 6.15 shall be updated by the Borrower within 120 days after
the end of each calendar year and may be, but need not be, updated at any other
time and from time to time by the Borrower by giving written notice thereof to
the Administrative Agent.
6.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.10. No proceeds of the Loans hereunder have been
or will be used for the Acquisition of another Person unless the board of
directors (or other comparable governing body) or stockholders, as appropriate,
of such Person has approved such Acquisition.
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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 or (ii) the Exchange
Act.
(b) No Credit Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, no
Credit Party is (i) an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended, and
is not controlled by an "investment company", or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(c) No director, executive officer or principal shareholder
of any Credit Party is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used
with reference to any Lender) have the respective meanings assigned
thereto in Regulation O.
6.18 ENVIRONMENTAL MATTERS.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect:
(a) Each of the Real Properties and all operations at the
Real Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect
to the Real Properties or the businesses operated by the Credit Parties
(the "Businesses"), and there are no conditions relating to the
Businesses or Real Properties that would reasonably be expected to give
rise to liability under any applicable Environmental Laws.
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(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
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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(b) or (b) Permitted Investments.
6.22 DISCLOSURE.
Neither this Credit Agreement nor any other Credit Document or
financial statement delivered to the Administrative Agent or the Lenders by or
on behalf of any Credit Party in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein or
herein, taken as a whole, not misleading.
6.23 LICENSES, ETC.
Except as would not have or could not be reasonably expected to have a
Material Adverse Effect, the Credit Parties have obtained and hold in full force
and effect, all material franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted.
6.24 BURDENSOME RESTRICTIONS.
No Credit Party is a party to any agreement or instrument or subject to
any other obligation or any charter or corporate restriction or any provision of
any Requirement of Law which, individually or in the aggregate, would have or
could be reasonably expected to have a Material Adverse Effect.
6.25 LABOR CONTRACTS AND DISPUTES.
Except as disclosed on Schedule 6.25, (a) there is no collective
bargaining agreement or other labor contract covering employees of any Credit
Party; (b) no union or other labor organization is seeking to organize, or be
recognized as, a collective bargaining unit of employees of any Credit Party;
and (c) there is no pending or, to any Credit Party's knowledge, threatened
strike, work stoppage, material unfair labor practice claim or other material
labor dispute against or affecting any Credit Party or its employees which,
individually or in the aggregate, would have or could be reasonably expected to
have a Material Adverse Effect.
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6.26 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:
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
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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) calculating the Interest Coverage
Ratio of the Borrower and its Subsidiaries for the twelve month period
ending on the date of such financial statements, (iii) demonstrating
compliance with any other terms of this Credit Agreement as requested
by the Administrative Agent and (iv) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto. If necessary, the Borrower shall
deliver financial statements prepared in accordance with GAAP as of the
Closing Date, to the extent GAAP has changed since the Closing Date, in
order to show compliance with the terms of this Credit Agreement,
including Section 7.2. In addition, at the time of any Investment
pursuant to clause (j) of the definition of Permitted Investments in
excess of $10,000,000, a certificate of an Authorized Officer of the
Borrower stating that after giving effect to such Investment on a pro
forma basis no Default or Event of Default will exist or be continuing
as a result of such Investment.
(d) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any public filings and registrations with, and reports to
or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as the Borrower or any of its Subsidiaries shall
send to its shareholders generally and (b) upon the written request of
the Administrative Agent, all reports and written information to and
from the United States Environmental Protection Agency, or any state or
local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(e) Notices. Upon an executive officer of a Credit Party
obtaining knowledge thereof, the Borrower will give written notice to
the Administrative Agent (a) immediately of the occurrence of an event
or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Credit Parties
propose to take with respect thereto, and (b) promptly, but in any
event within five Business Days,
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after the occurrence of any of the following with respect to any Credit
Party: (i) the pendency or commencement of any litigation, arbitral or
governmental proceeding against a Credit Party which if adversely
determined would have or could be reasonably expected to have a
Material Adverse Effect, (ii) the institution of any proceedings
against a Credit Party with respect to, or the receipt of written
notice by such Person of potential liability or responsibility for
violation, or alleged violation, of any federal, state or local law,
rule or regulation (including but not limited to, Environmental Laws),
the violation of which would have or could be reasonably expected to
have a Material Adverse Effect, (iii) the occurrence of an event or
condition which shall constitute a default or event of default under
any Indebtedness of a Credit Party in excess of $10,000,000, other than
Non-Recourse Land Financing, or (iv) any loss of or damage to any
property of a Credit Party or the commencement of any proceeding for
the condemnation or other taking of any property of a Credit Party
having a value of $10,000,000 or more.
(f) ERISA. Upon any of the Credit Parties or any ERISA
Affiliate obtaining knowledge thereof, the Borrower will give written
notice to the Administrative Agent promptly (and in any event within
two Business Days) of: (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably
lead to, a Termination Event; (ii) with respect to any Multiemployer
Plan, the receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against the Credit Parties or any of
their ERISA Affiliates, or of a determination that any Multiemployer
Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before
the due date (including extensions) thereof of all amounts which a
Credit Party or any ERISA Affiliates is required to contribute to each
Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv)
any change in the funding status of any Plan that would have or could
be reasonably expected to have a Material Adverse Effect; together with
a description of any such event or 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
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Agent, at the Credit Parties' expense, a report of an
environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater
sampling, by a consultant reasonably acceptable to the
Administrative Agent addressing the subject of such notice
or, if during the existence of an Event of Default, regarding
any release or threat of release of Hazardous Materials on
any Real Property and the compliance by the Credit Parties
with Environmental Laws. If the Credit Parties fail to
deliver such an environmental assessment within sixty (60)
days after receipt of such written request, then the
Administrative Agent may arrange for same, and the Credit
Parties hereby grant to the Administrative Agent and its
representatives access to the Real Properties and a license
of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this
provision will be payable by the Credit Parties on demand.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all
remedial, removal and other actions necessary to address all
Hazardous Materials on, from, or affecting any Real Property
to the extent necessary to be in compliance with all
Environmental Laws and all other applicable federal, state,
and local laws, regulations, rules and policies and with the
orders and directives of all Governmental Authorities
exercising jurisdiction over such Real Property to the extent
any failure would have or could be reasonably expected to have
a Material Adverse Effect.
(h) Other Information. As soon as available and in any event
within 60 days of each fiscal quarter (or within 120 days of the fourth
fiscal quarter), a "Land Report" and a "Consolidated Sales and
Construction Activity Report" and with reasonable promptness upon any
request, such other information regarding the business, properties or
financial condition of the Credit Parties as the Administrative Agent
or 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, 2000), 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, 2000), Tangible Net Worth shall be greater than or equal
to the sum of (i) $800 million, plus (ii) 50% of the cumulative Net
Income (without deduction for losses) earned for each completed fiscal
quarter subsequent to March 31, 2000 to the date of determination.
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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 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.
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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/availability of the Loans
solely (a) to repay Indebtedness owing under the Existing Credit Agreements, (b)
to provide working capital for the Credit Parties and (c) for general corporate
purposes of the Credit Parties, including money market borrowings and commercial
paper backup.
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 and (b) deliver to the Administrative Agent such other documentation as the
Administrative Agent may reasonably request, including, without limitation,
certified copies of resolutions and other corporate, limited liability company
or partnership documents and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the Joinder Agreement executed by such Person), all in form,
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content and 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.
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(h) other secured Indebtedness up to $200,000,000, 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.
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.
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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; (g) the sale, transfer or other disposal for fair market value of all
or substantially all of the Capital Stock or assets of a Guarantor to a Person
that is not a Credit Party; provided that (i) after giving effect to any such
sale, transfer or other disposal, the Credit Parties shall be in compliance with
all of the terms and conditions of this Credit Agreement and the other Credit
Documents, including, without limitation, the terms of Section 7.12 and the
definition of Material Subsidiary, (ii) the net cash proceeds from any such
sale, transfer or other disposal shall be (A) first, applied to all outstanding
Revolving Loans (first to Base Rate Loans and then to Eurodollar Loans and Index
Rate Swingline Loans in direct order of Interest Period maturities) and (B)
second, reinvested in the business of the Credit Parties or used by the Credit
Parties in the ordinary course of business within 90 days after the closing of
such transfer, sale or other disposal and (iii) promptly after the net cash
proceeds from any such sale, transfer or other disposal have been so utilized,
the Borrower shall deliver to the Administrative Agent a certificate executed by
an Authorized Officer certifying on behalf of the Borrower (A) as to the amount
of such net cash proceeds and (B) that such net cash proceeds have been
reinvested in accordance with the terms of the foregoing clause (ii), and (h)
other sales of assets in the ordinary course of business so long as, after
giving effect thereto, the Borrower is in compliance with the financial
covenants set forth in Section 7.2.
8.6 SALE AND LEASEBACK.
No Credit Party will enter into any Sale and Leaseback Transaction,
unless each of the following conditions is satisfied: (a) such Credit Party
shall promptly give notice of such sale or transfer to the Administrative Agent;
(b) the net proceeds of such sale or transfer are at least equal to the fair
value (as determined in good faith by a resolution of such Credit Party's board
of directors, a copy of which has been delivered by the Credit Party to the
Administrative Agent) of the property which is the subject of such sale or
transfer; and (c) such Credit Party shall apply, within 365 days after the
effective date of such sale or transfer, or shall have committed within one year
after such effective date to apply, an amount at least equal to the net proceeds
of the sale or transfer of the property which is the subject of such sale or
transfer to (A) the repayment of the Loans or (B) the repayment of other
Indebtedness owing by any Credit Party or (C) the purchase of property by such
Credit Party substantially similar to the property that was the subject of such
sale or transfer or (D) in part to such repayment and in part to such purchase
or property; provided, however, that if such Credit Party commits to apply an
amount at least equal to the net proceeds of a sale or transfer to the repayment
of the Loans, the repayment of other Indebtedness or the purchase of property,
such commitment shall be made in a written instrument delivered by such
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Credit Party to the Administrative Agent and shall require such Credit Party to
so apply said amount within 18 months after the effective date of such sale or
transfer, and it shall constitute a breach of the provisions of this Section 8.6
if such Credit Party shall fail so to apply said amount in satisfaction of such
commitment.
8.7 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will make any Investments except for Permitted
Investments.
8.8 RESTRICTED PAYMENTS.
No Credit Party will, directly or indirectly, use proceeds of Loans to
pay dividends or make any other distribution (excluding repurchases of shares of
Capital Stock) upon any shares of its Capital Stock of any class.
8.9 TRANSACTIONS WITH AFFILIATES.
No Credit Party will enter into any material transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, Subsidiary or Affiliate other than on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will (a) change its fiscal year or (b) in any manner
that would reasonably be likely to adversely affect the rights of the Lenders,
change its articles or certificate of incorporation or its bylaws, except as
permitted by Section 8.4.
8.11 NO LIMITATIONS.
No Credit Party will directly or indirectly, create or otherwise cause,
incur, assume, suffer or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Person to (a)
pay dividends or make any other distribution on any of such Person's Capital
Stock, (b) pay any Indebtedness owed to any other Credit Party, (c) make loans
or advances to any other Credit Party or (d) transfer any of its property to any
other Credit Party, except for encumbrances or restrictions existing under or by
reason of (i) customary non-assignment or net worth provisions in any lease
governing a leasehold interest, (ii) any agreement or other instrument of a
Person existing at the time it becomes a Subsidiary of a Credit Party; provided
that such encumbrance or restriction is not applicable to any other Person, or
any property of any other Person, other than such Person becoming a Subsidiary
of a Credit Party and was not entered into in contemplation of such Person
becoming a Subsidiary of a Credit Party, and (iii) this Credit Agreement and the
other Credit Documents.
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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, 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;
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(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 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
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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)
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the termination of such Plan for purposes of Title IV of ERISA, or (ii)
any Credit Party, any of its Subsidiaries or any ERISA Affiliate
incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan;
or (D) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit Party, any of
its Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Credit
Party, any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
and at any time thereafter unless and until such Event of Default has been
waived in writing by the Required Lenders (or the Lenders as may be required
hereunder), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Borrower, take the following
actions without prejudice to the rights of the Administrative Agent or any
Lender 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
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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;
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 whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
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 in 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
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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
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
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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,
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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, 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 ITS 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
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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. If no successor Administrative Agent has accepted appointment as
Administrative Agent within 75 days after the retiring Administrative Agent's
giving notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless become effective and the Lenders shall perform all duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor Administrative Agent as provided for above. Subject
to the foregoing terms of this Section 10.9, there shall at all times be a
Person or Persons serving as Administrative Agent hereunder.
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.
73
<PAGE> 79
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> 80
(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;
75
<PAGE> 81
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.
(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
76
<PAGE> 82
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 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
77
<PAGE> 83
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 or any
increase in the Revolving Committed Amount pursuant to Section 2.1(e)
shall not constitute a change in the terms of any Commitment of any
Lender);
(e) except as the result of or in connection with a merger
or other disposition of a Credit Party permitted under Section 8.4, (i)
release the Borrower from its obligations under the Credit Documents or
(ii) release any Credit Party that individually or, together with any
other Credit Party previously released or to be released simultaneously
therewith, cumulatively accounts for more than 5% of Tangible Net Worth
from its obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section
11.6 or Section 3.4(a), 3.4(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
78
<PAGE> 84
(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
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
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<PAGE> 85
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.
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
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<PAGE> 86
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents, the Fee
Letter and the Mandate Letter dated June 19, 2000 from Bank of America and BAS
to the Borrower 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. Upon this Credit Agreement becoming effective the Existing
Credit Agreements shall be deemed terminated and the Credit Parties and
the lenders party to the Existing Credit Agreements shall no longer
have any obligations thereunder (other than those obligations of the
Credit Parties in the Existing Credit Agreements that expressly survive
the termination of the Existing Credit Agreements).
(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.
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.
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<PAGE> 87
BORROWER:
PULTE CORPORATION,
a Michigan corporation
By:/s/ Bruce E. Robinson
---------------------------------
Name:Bruce E. Robinson
-------------------------------
Title:Vice President
------------------------------
<PAGE> 88
GUARANTORS:
ABACOA HOMES, INC.,
a Florida corporation
DIVOSTA AND COMPANY, INC.,
a Florida corporation
DIVOSTA BUILDING CORPORATION,
a Florida corporation
DIVOSTA HOMES, INC.,
a Florida corporation
FLORIDA BUILDING PRODUCTS, INC.,
a Florida corporation
FLORIDA CLUB HOMES, INC.,
a Florida corporation
HAMMOCK RESERVE DEVELOPMENT
COMPANY, a Florida corporation
HOMESITE SOLUTIONS CORPORATION,
a Michigan corporation
ISLAND WALK DEVELOPMENT COMPANY,
a Florida corporation
PB VENTURE L.L.C.,
a Michigan limited liability company
PN II, INC.,
a Nevada corporation
PULTE DEVELOPMENT CORPORATION,
a Michigan corporation
PULTE DIVERSIFIED COMPANIES, INC.,
a Michigan corporation
PULTE FINANCIAL COMPANIES, INC.,
a Michigan corporation
PULTE HOME CORPORATION,
a Michigan corporation
PULTE HOME CORPORATION OF NEW ENGLAND,
a Michigan corporation
PULTE HOME CORPORATION OF THE
DELAWARE VALLEY, a Michigan corporation
PULTE HOMES OF GREATER KANSAS CITY, INC., a
Michigan corporation
PULTE HOMES OF MICHIGAN
CORPORATION, a Michigan corporation
PULTE HOMES OF MINNESOTA
CORPORATION, a Minnesota corporation
PULTE HOMES OF OHIO CORPORATION,
an Ohio corporation
PULTE HOMES OF SOUTH CAROLINA, INC.,
a Michigan corporation
PULTE HOMES OF TEXAS, L.P.,
a Texas limited partnership
By: PN I, INC., a Nevada corporation,
its general partner
PULTE LAND DEVELOPMENT
CORPORATION, a Michigan corporation
PULTE LIFESTYLE COMMUNITIES, INC.,
a Michigan corporation
PULTE - IN CORPORATION,
a Michigan corporation
RADNOR HOMES, INC.,
a Michigan corporation
RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY,
INC.,
a Florida corporation
RN ACQUISITION 2 CORP.,
a Nevada corporation
SEAN/CHRISTOPHER HOMES, INC.,
a Michigan corporation
VILLAGE WALK DEVELOPMENT COMPANY, INC.,
a Florida corporation
WIL CORPORATION, a Michigan corporation
By:/s/ Bruce E. Robinson
-------------------------------------------------
Name: Bruce E. Robinson
Title: Vice President (for all entites except
Those listed below)
PN II, Inc. (Secretary)
Pulte Financial Companies, Inc. (President)
<PAGE> 89
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
-----------------------------------------------
BANK ONE, NA,
individually in its capacity as a Lender and
in its capacity as the Syndication Agent
By:/s/ Mark Kramer
--------------------------------------------------
Name: Mark Kramer
------------------------------------------------
Title: Managing Director
-----------------------------------------------
COMERICA BANK,
individually in its capacity as a Lender and
in its capacity as the Co-Agent
By:/s/ Charles L. Weddell
--------------------------------------------------
Name: Charles L. Weddell
-------------------------------------------------
Title:Vice President
-----------------------------------------------
SUNTRUST BANK
By:/s/ Donald L. Gaudette, Jr.
--------------------------------------------------
Name: Donald L. Gaudette, Jr.
------------------------------------------------
Title: Director
-----------------------------------------------
MICHIGAN NATIONAL BANK
By:/s/ Neran Shaya
--------------------------------------------------
Name:Neran Shaya
------------------------------------------------
Title:Vice President
-----------------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:/s/ Douglas G. Paul
--------------------------------------------------
Name:Douglas G. Paul
------------------------------------------------
Title:Senior Vice President
-----------------------------------------------
THE FUJI BANK, LIMITED
By:/s/ Peter L. Chinnici
-----------------------------------------
Name: Peter L. Chinnici
---------------------------------------
Title: Senior Vice President & Group Head
--------------------------------------
<PAGE> 90
Schedule 1.1(a)
Revolving Loan Commitment Percentages
<TABLE>
<CAPTION>
------------------------------------------------- -------------------------------------- --------------------------------------
LENDER REVOLVING LOAN REVOLVING LOAN
COMMITMENT COMMITMENT PERCENTAGE
------------------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
Bank of America, N.A. $130,000,000 34.666666668
------------------------------------------------- -------------------------------------- --------------------------------------
Bank One, NA $85,000,000 22.666666667
------------------------------------------------- -------------------------------------- --------------------------------------
Comerica Bank $50,000,000 13.333333333
------------------------------------------------- -------------------------------------- --------------------------------------
SunTrust Bank $35,000,000 9.333333333
------------------------------------------------- -------------------------------------- --------------------------------------
Michigan National Bank $35,000,000 9.333333333
------------------------------------------------- -------------------------------------- --------------------------------------
PNC Bank, National Association $20,000,000 5.333333333
------------------------------------------------- -------------------------------------- --------------------------------------
The Fuji Bank, Limited $20,000,000 5.333333333
------------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------------- -------------------------------------- --------------------------------------
TOTAL: $375,000,000 100.000000000
------------------------------------------------- -------------------------------------- --------------------------------------
</TABLE>
<PAGE> 91
Schedule 1.1(b)
Permitted Liens
None.
<PAGE> 92
Schedule 6.10
Indebtedness
None.
<PAGE> 93
Schedule 6.11
Litigation
None.
<PAGE> 94
Schedule 6.15
Subsidiaries
<TABLE>
<CAPTION>
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
STATE OF SHARES OBLIGATION
NAME INCORPORATION O/S OWNED BY SHARES
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
<S> <C> <C> <C> <C> <C>
1. Abacoa Homes, Inc. Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
2. American Title of the Palm Beaches Michigan 1,000 Pulte Diversified Companies, Inc. 1,000
Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
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. Carr's Grant, L.L.C. Maryland Wil Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
7. Celba Homes Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
8. City Homes Development L.L.C. Michigan Pulte Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
9. CIV-Pulte S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
10. Condak-Pulte S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
11. Controladora PHC, S.A. DE C.V. Mexico 49,995 Pulte International-Mexico, Inc. 49,995
5 Pulte Home Corporation 5
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
12. Crosland/Piper Glen Ltd. Partnership N. Carolina Pulte Home Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
13. Crosland/Wynfield Forest Limited N. Carolina Pulte Home Corporation
Partnership
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
14. Dean Realty Company Michigan 100 Pulte Home Corporation 100
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
15. Detroit City Homes L.L.C. Michigan Pulte Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
16. Devtex Land, L.P. Texas PN II, Inc.
PN I, Inc.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
17. DiVosta and Company, Inc. Florida 75,000 Pulte Diversified Companies, Inc. 75,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
18. DiVosta Building Corporation Florida 5,000 DiVosta and Company, Inc. 5,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
19. DiVosta Homes Sales, Inc. Florida 1,000 DiVosta and Company, Inc. 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
20. DiVosta Homes, Inc. Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
21. DRT-Pulte Mexico Controladora PHC, S.A. DE C.V.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
22. First Heights Bank, fsb Texas 7,500,200 Pulte Diversified Companies, Inc. 7,500,200
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
23. Florida Building Products, Inc. Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
24. Florida Club Homes, Inc. Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
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 100
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
27. Frederick Holding Corp. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
</TABLE>
<TABLE>
<CAPTION>
----- ------------------------------------------- ---------- ----------- -----------
OPTIONS MATERIAL
NAME OWNED O/S SUB?
----- ------------------------------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
1. Abacoa Homes, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
2. American Title of the Palm Beaches 100% No
Corporation
----- ------------------------------------------- ---------- ----------- -----------
3. American Title of the Palm Beaches, Ltd. 4% No
96%
----- ------------------------------------------- ---------- ----------- -----------
4. Ashgrove Plantation L.L.C. 34.44% No
----- ------------------------------------------- ---------- ----------- -----------
5. Buildinvest Limited Partnership 33.33% No
----- ------------------------------------------- ---------- ----------- -----------
6. Carr's Grant, L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
7. Celba Homes Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
8. City Homes Development L.L.C. 50% No
----- ------------------------------------------- ---------- ----------- -----------
9. CIV-Pulte S. DE R.L. DE C.V. 50% No
----- ------------------------------------------- ---------- ----------- -----------
10. Condak-Pulte S. DE R.L. DE C.V. 66.67% No
----- ------------------------------------------- ---------- ----------- -----------
11. Controladora PHC, S.A. DE C.V. 99.99% No
0.01%
----- ------------------------------------------- ---------- ----------- -----------
12. Crosland/Piper Glen Ltd. Partnership 31.37% No
----- ------------------------------------------- ---------- ----------- -----------
13. Crosland/Wynfield Forest Limited 28.57% No
Partnership
----- ------------------------------------------- ---------- ----------- -----------
14. Dean Realty Company 100% No
----- ------------------------------------------- ---------- ----------- -----------
15. Detroit City Homes L.L.C. 45% No
----- ------------------------------------------- ---------- ----------- -----------
16. Devtex Land, L.P. 99.90% No
0.10%
----- ------------------------------------------- ---------- ----------- -----------
17. DiVosta and Company, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
18. DiVosta Building Corporation 100% No Yes
----- ------------------------------------------- ---------- ----------- ------------
19. DiVosta Homes Sales, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
20. DiVosta Homes, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
21. DRT-Pulte 50% No
----- ------------------------------------------- ---------- ----------- -----------
22. First Heights Bank, fsb 100% No
----- ------------------------------------------- ---------- ----------- -----------
23. Florida Building Products, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
24. Florida Club Homes, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
25. Florida Investment Venture 50% No
----- ------------------------------------------- ---------- ----------- -----------
26. Forest Hills Development of Mass. LLC 100% No
----- ------------------------------------------- ---------- ----------- -----------
27. Frederick Holding Corp. 100% No
----- ------------------------------------------- ---------- ----------- -----------
</TABLE>
<PAGE> 95
<TABLE>
<CAPTION>
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
STATE OF SHARES OBLIGATION
NAME INCORPORATION O/S OWNED BY SHARES
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
<S> <C> <C> <C> <C> <C>
28. Grayhaven Estates Limited, L.L.C. Michigan Pulte Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
29. Guaranteed Mortgage Corporation III Michigan 1,000 Pulte Financial Companies, Inc. 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
30. Gulf Partners, Inc. Michigan 1,000 Pulte Homes of Michigan Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
31. Gurabo Homes Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
32. Haggerty Hills Limited Partnership Michigan Gulf Partners, Inc.
Pulte Homes of Michigan Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
33. Hammock Reserve Development Company Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
34. Harrison Hills, LLC Maryland Wil Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
35. Hipotecaria Su Casita, S.A. de C.V. Mexico 335,680 Pulte Mortgage Corporation 335,680
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
36. Homesite Solutions Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
37. Island Walk Development Company Florida 5,000 DiVosta and Company, Inc. 5,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
38. Joliet Mortgage Reinsurance Company Vermont 100 Pulte Mortgage Corporation 100
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
39. Lexington Oaks Golf Club, Inc. Florida 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
40. Lone Tree Golf Club, LLC Michigan Pulte Home Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
41. James T. Lynch, Inc. Texas 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
42. Marquette Title Insurance Company Vermont 100,000 Pulte Corporation 100,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
43. Nantar, S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
Pulte International-Mexico, Inc.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
44. North American Builders Indemnity Company Colorado 300,000 Pulte Corporation 300,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
45. One Willowbrook, L.L.C. Maryland Wil Corporation
PBW Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
46. P & H Clinton Partnership ptrshp-not Pulte Home Corporation of The Delaware
registered Valley
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
47. Palmville Development Corp. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
48. PB Venture L.L.C. Michigan Pulte Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
49. PBW Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
50. PC/BRE Development L.L.C. Delaware PC/BRE Venture L.L.C.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
51. PC/BRE Springfield, L.L.C. Delaware PC/BRE Venture L.L.C.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
52. PC/BRE Venture L.L.C. Delaware PB Venture L.L.C.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
53. PC/BRE Whitney Oaks L.L.C. Delaware PC/BRE Venture L.L.C.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
54. PC/BRE Winfield L.L.C. Delaware PC/BRE Venture L.L.C.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
55. PC/Palm Beach, Inc. Michigan 1,000 Pulte Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
56. PCIC Corporation Michigan 1,000 Pulte Mortgage Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
57. PHC Title Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
58. PHM Title Agency L.L.C. Delaware TVM Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
59. PHT Title Agency, L.P. Texas PHC Title Corporation
PHT Title Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
60. PHT Title Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
</TABLE>
<TABLE>
<CAPTION>
----- ------------------------------------------- ---------- ----------- -----------
OPTIONS MATERIAL
NAME OWNED O/S SUB?
----- ------------------------------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
28. Grayhaven Estates Limited, L.L.C. 49% No
----- ------------------------------------------- ---------- ----------- -----------
29. Guaranteed Mortgage Corporation III 100% No
----- ------------------------------------------- ---------- ----------- -----------
30. Gulf Partners, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
31. Gurabo Homes Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
32. Haggerty Hills Limited Partnership 99% No
1%
----- ------------------------------------------- ---------- ----------- -----------
33. Hammock Reserve Development Company 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
34. Harrison Hills, LLC 100% No
----- ------------------------------------------- ---------- ----------- -----------
35. Hipotecaria Su Casita, S.A. de C.V. 22.90% No
----- ------------------------------------------- ---------- ----------- -----------
36. Homesite Solutions Corporation 100% No Yes
----- ------------------------------------------- ---------- ----------- ------------
37. Island Walk Development Company 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
38. Joliet Mortgage Reinsurance Company 100% No
----- ------------------------------------------- ---------- ----------- -----------
39. Lexington Oaks Golf Club, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
40. Lone Tree Golf Club, LLC 100% No
----- ------------------------------------------- ---------- ----------- -----------
41. James T. Lynch, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
42. Marquette Title Insurance Company 100% No
----- ------------------------------------------- ---------- ----------- -----------
43. Nantar, S. DE R.L. DE C.V. 99.30% No
0.70%
----- ------------------------------------------- ---------- ----------- -----------
44. North American Builders Indemnity Company 100% No
----- ------------------------------------------- ---------- ----------- -----------
45. One Willowbrook, L.L.C. 50% No
50%
----- ------------------------------------------- ---------- ----------- -----------
46. P & H Clinton Partnership 50% No
----- ------------------------------------------- ---------- ----------- -----------
47. Palmville Development Corp. 100% No
----- ------------------------------------------- ---------- ----------- -----------
48. PB Venture L.L.C. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
49. PBW Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
50. PC/BRE Development L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
51. PC/BRE Springfield, L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
52. PC/BRE Venture L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
53. PC/BRE Whitney Oaks L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
54. PC/BRE Winfield L.L.C. 100% No
----- ------------------------------------------- ---------- ----------- -----------
55. PC/Palm Beach, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
56. PCIC Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
57. PHC Title Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
58. PHM Title Agency L.L.C. 63% No
----- ------------------------------------------- ---------- ----------- -----------
59. PHT Title Agency, L.P. 99% No
1%
----- ------------------------------------------- ---------- ----------- -----------
60. PHT Title Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
</TABLE>
<PAGE> 96
<TABLE>
<CAPTION>
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
STATE OF SHARES OBLIGATION
NAME INCORPORATION O/S OWNED BY SHARES
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
<S> <C> <C> <C> <C> <C>
61. PN I, Inc. Nevada 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
62. PN II, Inc. Nevada 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
63. PQL Realty Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
64. Preserve I, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
65. Preserve II, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
66. Pulte Argentina Corporation Michigan 10,000 Pulte International Corporation 10,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
67. Pulte Chile Corporation Michigan 1,000 Pulte International Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
68. Pulte Communities NJ, Limited Partnership Michigan Preserve II, Inc.
Preserve I, Inc.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
69. Pulte Corporation Michigan Publicly Traded
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
70. Pulte de Chile Limitada Chile Pulte Chile Corporation
Pulte SA Corporation
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
71. Pulte Development Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
72. Pulte Diversified Companies, Inc. Michigan 1,000 Pulte Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
73. Pulte Financial Companies, Inc. Michigan 1,000 Pulte Corporation 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
74. Pulte Home Corporation Michigan 1,000 Pulte Diversified Companies, Inc. 1,000
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
75. Pulte Home Corporation of New England Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
76. Pulte Home Corporation of The Delaware Michigan 1,000 Pulte Home Corporation 1,000
Valley
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
77. Pulte Homes of Greater Kansas City, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
78. Pulte Homes of Michigan Corporation Michigan 15,000 Pulte Home Corporation 15,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
79. Pulte Homes of Minnesota Corporation Minnesota 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
80. Pulte Homes of Ohio Corporation Ohio 750 Pulte Homes of Michigan Corporation 750
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
81. Pulte Homes of South Carolina, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
82. Pulte Homes of Texas, L.P. Texas PN II, Inc.
PN I, Inc.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
83. Pulte Homes Tennessee Limited Partnership Nevada RN Acquisition 2 Corp.
Radnor Homes, Inc.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
84. Pulte International Building Corporation Michigan Pulte International Caribbean Corp.
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
85. Pulte Internacional Mexico S. DE R.L. DE Mexico 50,000 Controladora 49,500
C.V. Pulte International-Mexico, Inc. 500
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
86. Pulte International Building Corporation Michigan 1,000 Pulte International Caribbean Corp. 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
87. Pulte International Caribbean Corp. Michigan 1,000 Pulte International Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
88. Pulte International Corporation Michigan 1,000 Pulte Diversified Companies, Inc. 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
89. Pulte International-Mexico, Inc. Michigan 1,000 Pulte International Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
90. Pulte Land Company, LLC Michigan Pulte Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
91. Pulte Land Development Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
92. Pulte Lifestyle Communities, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
93. Pulte Michigan Services, LLC Michigan Pulte Diversified Companies, Inc.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
</TABLE>
<TABLE>
<CAPTION>
----- ------------------------------------------- ---------- ----------- -----------
OPTIONS MATERIAL
NAME OWNED O/S SUB?
----- ------------------------------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
61. PN I, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
62. PN II, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
63. PQL Realty Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
64. Preserve I, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
65. Preserve II, Inc. 100% No
----- ------------------------------------------- ---------- ----------- -----------
66. Pulte Argentina Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
67. Pulte Chile Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
68. Pulte Communities NJ, Limited Partnership 99% No
1%
----- ------------------------------------------- ---------- ----------- -----------
69. Pulte Corporation No
----- ------------------------------------------- ---------- ----------- -----------
70. Pulte de Chile Limitada 99% No
1%
----- ------------------------------------------- ---------- ----------- -----------
71. Pulte Development Corporation 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
72. Pulte Diversified Companies, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
73. Pulte Financial Companies, Inc. 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
74. Pulte Home Corporation 100% No Yes
----- ------------------------------------------- ---------- ----------- -----------
75. Pulte Home Corporation of New England 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
76. Pulte Home Corporation of The Delaware 100% No Yes
Valley
----- -------------------------------------------- ---------- ----------- ------------
77. Pulte Homes of Greater Kansas City, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
78. Pulte Homes of Michigan Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
79. Pulte Homes of Minnesota Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
80. Pulte Homes of Ohio Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
81. Pulte Homes of South Carolina, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
82. Pulte Homes of Texas, L.P. 99.90% No Yes
0.10% No
----- -------------------------------------------- ---------- ----------- ------------
83. Pulte Homes Tennessee Limited Partnership 74.40% No
25.60% No
----- -------------------------------------------- ---------- ----------- ------------
84. Pulte International Building Corporation 100% No
----- ------------------------------------------- ---------- ----------- -----------
85. Pulte Internacional Mexico S. DE R.L. DE 99% No
C.V. 1%
----- -------------------------------------------- ---------- ----------- ------------
86. Pulte International Building Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
87. Pulte International Caribbean Corp. 100% No
----- -------------------------------------------- ---------- ----------- ------------
88. Pulte International Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
89. Pulte International-Mexico, Inc. 100% No
----- -------------------------------------------- ---------- ----------- ------------
90. Pulte Land Company, LLC 100% No
----- -------------------------------------------- ---------- ----------- ------------
91. Pulte Land Development Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
92. Pulte Lifestyle Communities, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
93. Pulte Michigan Services, LLC 100% No
----- -------------------------------------------- ---------- ----------- ------------
</TABLE>
<PAGE> 97
<TABLE>
<CAPTION>
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
STATE OF SHARES OBLIGATION
NAME INCORPORATION O/S OWNED BY SHARES
----- ------------------------------------------- -------------- ----------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C>
94. Pulte Mortgage Corporation Delaware 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
95. Pulte Payroll Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
96. Pulte Real Estate Company Florida 200 Dean Realty Company 200
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
97. Pulte SA Corporation Michigan 1,000 Pulte International Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
98. Pulte SBL Corporation Michigan 10,000 Pulte International Corporation 10,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
99. Pulte Title Agency of Michigan, L.L.C. Michigan PHC Title Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
100. Pulte Title Agency of Minnesota, L.L.C. Minnesota PHC Title Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
101. Pulte Title Agency of Ohio, Limited Ohio PHC Title Corporation
Liability Company
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
102. Pulte-IN Corporation Michigan 1,000 Pulte Homes of Michigan Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
103. Quantrell Mews, L.L.C. Virginia Pulte Home Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
104. Radnor Homes, Inc. Michigan 1,000 Pulte Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
105. Residencias del Norte Limitada Chile Pulte Chile Corporation
Pulte SA Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
106. Residential Building Systems LLC Michigan Pulte Home Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
107. Riverwalk Commerce Acquisition Corp. Michigan 1,000 Pulte Diversified Companies, Inc. 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
108. Riverwalk of the Palm Beaches Development Florida 5,000 DiVosta and Company, Inc. 5,000
Company, Inc.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
109. RN Acquisition 2 Corp. Nevada 1,000 Pulte Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
110. Salinas Builders, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
111. Salinas Homes, Inc. Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
112. Sand-Pulte S. DE R.L. DE C.V. Mexico Controladora PHC, S.A. DE C.V.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
113. Sean/Christopher Homes, Inc. Michigan 750 Pulte Homes of Michigan Corporation 750
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
114. Sean/Christopher Homes, LLC Indiana Sean/Christopher Homes, Inc.
Pulte-IN Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
115. Shorepointe Village Homes, L.L.C. Michigan Pulte Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
116. Spa L Builders LLC California Pulte Home Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
117. Springfield Golf Resort, L.L.C. Arizona PC/BRE Springfield L.L.C.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
118. Springfield Realty Corporation Michigan 2,500 Pulte Home Corporation 1,500
PC/BRE Venture L.L.C. 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
119. The Preserve Limited Partnership Maryland Preserve I, Inc.
Preserve II, Inc.
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
120. TVM Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
121. Village Walk Development Company, Inc. Florida 5,000 DiVosta and Company, Inc. 5,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
122. Wil Corporation Michigan 1,000 Pulte Home Corporation 1,000
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
123. Wilben II Limited Partnership Maryland PBW Corporation
Wil Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
124. Wilben, LLLP Maryland Wil Corporation
PBW Corporation
----- -------------------------------------------- ------------- ----------- --------------------------------------- -------------
</TABLE>
<TABLE>
<CAPTION>
----- -------------------------------------------- ---------- ----------- -----------
OPTIONS MATERIAL
NAME OWNED O/S SUB?
----- -------------------------------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
94. Pulte Mortgage Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
95. Pulte Payroll Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
96. Pulte Real Estate Company 100% No
----- -------------------------------------------- ---------- ----------- ------------
97. Pulte SA Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
98. Pulte SBL Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
99. Pulte Title Agency of Michigan, L.L.C. 49% No
----- -------------------------------------------- ---------- ----------- ------------
100. Pulte Title Agency of Minnesota, L.L.C. 80% No
----- -------------------------------------------- ---------- ----------- ------------
101. Pulte Title Agency of Ohio, Limited 49% No
Liability Company
----- -------------------------------------------- ---------- ----------- ------------
102. Pulte-IN Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
103. Quantrell Mews, L.L.C. 20% No
----- -------------------------------------------- ---------- ----------- ------------
104. Radnor Homes, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
105. Residencias del Norte Limitada 99.90% No
0.10% No
----- -------------------------------------------- ---------- ----------- ------------
106. Residential Building Systems LLC 100% No
----- -------------------------------------------- ---------- ----------- ------------
107. Riverwalk Commerce Acquisition Corp. 100% No
----- -------------------------------------------- ---------- ----------- ------------
108. Riverwalk of the Palm Beaches Development 100% No Yes
Company, Inc.
----- -------------------------------------------- ---------- ----------- ------------
109. RN Acquisition 2 Corp. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
110. Salinas Builders, Inc. 100% No
----- -------------------------------------------- ---------- ----------- ------------
111. Salinas Homes, Inc. 100% No
----- -------------------------------------------- ---------- ----------- ------------
112. Sand-Pulte S. DE R.L. DE C.V. 50% No
----- -------------------------------------------- ---------- ----------- ------------
113. Sean/Christopher Homes, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
114. Sean/Christopher Homes, LLC 50% No
50%
----- -------------------------------------------- ---------- ----------- ------------
115. Shorepointe Village Homes, L.L.C. 31.50% No
----- -------------------------------------------- ---------- ----------- ------------
116. Spa L Builders LLC 38.6% No
----- -------------------------------------------- ---------- ----------- ------------
117. Springfield Golf Resort, L.L.C. 88% No
----- -------------------------------------------- ---------- ----------- ------------
118. Springfield Realty Corporation 60% No
40%
----- -------------------------------------------- ---------- ----------- ------------
119. The Preserve Limited Partnership 99% No
1%
----- -------------------------------------------- ---------- ----------- ------------
120. TVM Corporation 100% No
----- -------------------------------------------- ---------- ----------- ------------
121. Village Walk Development Company, Inc. 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
122. Wil Corporation 100% No Yes
----- -------------------------------------------- ---------- ----------- ------------
123. Wilben II Limited Partnership 99% No
1%
----- -------------------------------------------- ---------- ----------- ------------
124. Wilben, LLLP 95% No
5%
----- -------------------------------------------- ---------- ----------- ------------
</TABLE>
<PAGE> 98
<TABLE>
<CAPTION>
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
STATE OF SHARES OBLIGATION
NAME INCORPORATION O/S OWNED BY SHARES
----- ------------------------------------------- ------------------------- ---------------------------------------- -------------
<S> <C> <C> <C> <C> <C>
125. Willow Brook Associates Limited Partnership Massachusetts Pulte Home Corporation of New England
----- ------------------------------------------- ------------- ----------- --------------------------------------- -------------
<CAPTION>
----- ------------------------------------------- ---------- ----------- -----------
OPTIONS MATERIAL
NAME OWNED O/S SUB?
----- ------------------------------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
125. Willow Brook Associates Limited Partnership 99% No
----- ------------------------------------------- ---------- ----------- -----------
</TABLE>
<PAGE> 99
Schedule 6.21(a)
Investment Policy
PULTE CORPORATION
INVESTMENT POLICY
PURPOSE
This Policy has been adopted by the Board of Directors of Pulte Corporation (the
"Company") to establish internal rules for the investment of corporate funds.
Investments in accordance with this Policy may be made from time to time by, or
at the direction of, the Chief Executive Officer, the Chief Financial Officer
("CFO") or the Treasurer of the Company. Other investments or modifications of
this Policy may be made only with the prior approval of the Board of Directors.
This Policy does not affect the validity of existing investments of the Company.
ADMINISTRATION OF POLICY
The CFO of the Company shall have principal responsibility and authority for
compliance with this Policy and shall establish suitable internal controls to
assure compliance. The Treasurer is responsible for implementing this Policy.
INVESTMENT POLICY
Responsibilities associated with investment of corporate cash are to be
discharged in such a manner as to protect/maintain the principal involved,
maintain adequate liquidity to fund the Company's anticipated cash requirements
and provide for prudent diversification of risk. The Company's objective is to
maximize the after-tax rate of return on investments consistent with the above
referenced safety, liquidity and diversification guidelines.
A. Surplus Funds
The Treasurer and Director of Treasury Operations (Assistant Treasurer) are
authorized to approve the investment of surplus funds of the Company in approved
money market investments for short-term periods under the guidelines below.
Surplus funds are defined as cash in the Company's accounts which are not
required at that point in time to maintain adequate bank balances or to meet
outstanding financial objectives. Acceptable investments are shown in Exhibit 1.
<PAGE> 100
B. Diversification
To minimize the risk of loss and to promote liquidity, the Company generally
should maintain a reasonable diversity of investments. When investing surplus
funds in non-affiliated entities:
- No more than $15 million may be invested in any one issuer (other than
obligations of, or those guaranteed by, the United States of America, U.S.
government agencies, or U.S. government sponsored enterprises).
- No more than $50 million may be invested in issuers which are in the same
or a similar industry (other than banks or other financial institutions).
- No more than twenty percent (20%) may be invested in whole loan repurchase
agreements with approved broker/dealers listed in Exhibit 2.
Notwithstanding the above, the Company's only restriction for funds invested
overnight is that they meet the rating criteria shown in Exhibit 1.
<PAGE> 101
C. Maturities
The Company's Treasurer may make investments with a duration of up to one year
if otherwise in compliance to Exhibit 1. Investments with a duration longer than
1 year may be made with the prior approval of the Company's CFO.
D. Change in Circumstances
The determination as to whether an investment is permitted under the Policy
shall not be affected due to a change in circumstances occurring after the
investment has been made (e.g., reduction in amount of surplus funds;
downgrading of rating of a particular issuer). Upon a change in circumstances,
the Treasurer will investigate the events which precipitated the change and will
determine whether or not to terminate the investment. The Company shall not
roll-over or otherwise renew or extend an investment if such investment would
not then be permitted under this Policy.
E. Hedging
Any investment in fixed income securities with a duration greater than one year
must be hedged with an appropriate instrument executed with a financial
institution maintaining a minimum Moody's A3 credit rating (or equivalent) in
order to protect the principal amount of the investment unless the CEO and CFO
jointly allow for a specific exception. The Company's CFO and Treasurer are
responsible for developing an appropriate hedge strategy.
F. Selection of Approved Broker/Dealers, Mutual Fund Companies and Banks
Any additions, deletions or other changes to the list of approved
broker/dealers, mutual fund companies and banks (Exhibits 2 and 3) must be
approved in writing by at least two of the officers below:
- Chief Executive Officer
- Chief Financial Officer
- Treasurer
APPROVED: DATE:
--------------------------------------------- -----------
Roger Cregg, Senior Vice President - CFO
APPROVED: DATE:
--------------------------------------------- -----------
Bruce Robinson, Vice President - Treasurer
<PAGE> 102
--------------------------------------------------------------------------------
EXHIBIT 1
--------------------------------------------------------------------------------
ACCEPTABLE INVESTMENTS
<TABLE>
<CAPTION>
====================================== ==================================== ====================================
FINANCIAL INSTRUMENTS ISSUER CLASS MINIMUM MOODY'S
CREDIT RATING (1)
-------------------------------------- ------------------------------------ ------------------------------------
<S> <C> <C>
Bills, Notes, Bonds, Strips U.S. Government Not Applicable
(Including Taxable Auctions) U.S. Agencies Not Applicable
US Government Sponsored Enterprises
Municipalities, State and Local Not Applicable
Governments A3
Corporations and Trusts Baa3
Baa3
-------------------------------------- ------------------------------------ ------------------------------------
Commercial Paper Corporations, Commercial Banks, Split-Rated
and Financial Service Corporations (e.g. A-1/P-2 of A-2/P-1)
-------------------------------------- ------------------------------------ ------------------------------------
Advances Pulte Corporation Subsidiaries Not Applicable
-------------------------------------- ------------------------------------ ------------------------------------
Senior Bank Notes, Certificates of Financial Institutions A3
Deposit, Euro-Dollar CDs, and Money
Market Funds
-------------------------------------- ------------------------------------ ------------------------------------
Repurchase Agreements Financial Service Corporations Not Applicable (2)
(incl. Whole Loan Repos)
====================================== ==================================== ====================================
</TABLE>
(1) Or comparable rating by Standard and Poor's, Fitch, Duff and Phelps or
Thomson Bank Watch.
(2) With the exception of whole loan repurchase agreements, collateral for
repurchase agreements are delivered to Pulte Corporation's third party
custodian. Investments used as collateral must otherwise comply with
this policy. For whole loan repurchase agreements, the broker/dealer
must be approved for that activity on Exhibit 2.
<PAGE> 103
Schedule 6.21(b)
Investments
None.
<PAGE> 104
Schedule 6.25
Labor Contracts and Disputes
None.
<PAGE> 105
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: Bruce Robinson
Phone: 248/433-4596
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: 248/433-4543
ADMINISTRATIVE AGENT
Bank of America, N.A.
231 S. LaSalle Street
Chicago, IL 60697
Attn: Pam Quebbeman
Phone: 312/923-0207
Fax: 312/828-3950
LENDERS
BANK OF AMERICA, N.A.
Bank of America, N.A.
231 S. LaSalle Street
Chicago, IL 60697
Attn: Kelley Prentiss
Phone: 312/828-7363
Fax: 312/974-4970
THE FUJI BANK, LIMITED
The Fuji Bank, Limited
225 West Wacker, Suite 2000
Chicago, IL 60606
Attn: Richard Dunning
Phone: 312-621-9485
Fax: 312-621-3386
COMERICA BANK
Comerica Bank
One Detroit Center
500 Woodward Avenue, 7th Floor
Detroit, MI 48226
Attn: Charles Weddell
Phone: 313/222-3323
Fax: 313/222-9295
BANK ONE, NA (MAIN OFFICE CHICAGO)
Bank One, NA
One First National Plaza, Suite 0315
Chicago, IL 60670-0315
Attn: F. Patt Schiewitz
Phone: 312/732-1148
Fax: 312/732-1117
MICHIGAN NATIONAL BANK
Michigan National Bank
27777 Inkster Road
Mail Stop 10-48
Farmington Hills, MI 48334
Attn: Neran Shaya
Phone: 248/473-4212
Fax: 248/473-4345
<PAGE> 106
PNC BANK, NATIONAL ASSOCIATION
PNC Bank, National Association
Homebuilder Finance
Two Tower Center, 18th Floor
East Brunswick, NJ 08816
Attn: Douglas Paul
Phone: 732/220-3566
Fax: 732/220-3755
SUNTRUST BANK
SunTrust Bank
303 Peachtree Street NE, 3rd Floor
Mail Code 1931
Atlanta, GA 30303
Attn: Don Gaudette
Phone: 404/658-4925
Fax: 404/588-8505
<PAGE> 107
EXHIBIT 2.1(b)
to Credit Agreement
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: Pam Quebbeman
RE: Credit Agreement dated as of August 31, 2000 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the
Guarantors identified therein, the Lenders identified therein,
Bank of America, N.A., as Administrative Agent (the
"Administrative Agent"), Bank One, NA, as Syndication Agent
and Comerica Bank, as Co-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.
<PAGE> 108
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 of the requested Revolving Loan, except to the
extent they expressly relate to an earlier date.
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.
PULTE CORPORATION,
a Michigan corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
<PAGE> 109
EXHIBIT 2.1(f)
to 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 Credit
Agreement, dated as of August 31, 2000, among the Borrower, the Guarantors
identified therein, the Lenders identified therein, Bank of America, N.A., as
Administrative Agent (the "Administrative Agent"), Bank One, NA, as Syndication
Agent and Comerica Bank, as Co-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
<PAGE> 110
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.
<PAGE> 111
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:
------------------------------
<PAGE> 112
EXHIBIT 2.2(b)
to Credit Agreement
FORM OF SWINGLINE LOAN REQUEST
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: Pam Quebbeman
RE: Credit Agreement dated as of August 31, 2000 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the Guarantors
identified therein, the Lenders identified therein, Bank of America,
N.A. as Administrative Agent (the "Administrative Agent"), Bank One,
NA, as Syndication Agent and Comerica Bank, as Co-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 , 200 .
The requested Swingline Loan shall accrue interest at the [Base Rate] [Adjusted
LIBOR Market Index Rate]. [Such Index Rate Swingline Loan shall be for an
Interest Period of day(s) (such period to be between one and 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 of the requested Swingline Loan, except to the extent they
expressly relate to an earlier date.
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.
PULTE CORPORATION,
a Michigan corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
<PAGE> 113
EXHIBIT 2.2(e)
to Credit Agreement
FORM OF SWINGLINE NOTE
August , 2000
---
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 Credit Agreement, dated as of the date hereof, among the Borrower, the
Guarantors identified therein, the Lenders identified therein, Bank of America,
N.A., as Administrative Agent (the "Administrative Agent"), Bank One, NA, as
Syndication Agent and Comerica Bank, as Co-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:
------------------------------
<PAGE> 114
EXHIBIT 2.3
to Credit Agreement
FORM OF NOTICE OF CONTINUATION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
231 South LaSalle
Chicago, Illinois 60697
Attn: Pam Quebbeman
RE: Credit Agreement dated as of August 31, 2000 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the Guarantors
identified therein, the Lenders identified therein, Bank of America,
N.A. as Administrative Agent (the "Administrative Agent"), Bank One,
NA, as Syndication Agent and Comerica Bank, as Co-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:
------------------------------
<PAGE> 115
EXHIBIT 7.1(c)
to 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: Kelley Prentiss
RE: Credit Agreement dated as of August 31, 2000 among PULTE
CORPORATION, a Michigan corporation (the "Borrower"), the
Guarantors identified therein, the Lenders identified therein,
Bank of America, N.A. as Administrative Agent (the "Administrative
Agent"), Bank One, NA, as Syndication Agent and Comerica Bank, as
Co-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 fiscal
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:
------------------------------
<PAGE> 116
SCHEDULE 1 TO 7.1(c) OFFICER'S CERTIFICATE
<TABLE>
<CAPTION>
<S><C>
A. Compliance with Section 7.2(a): Debt to Capitalization Ratio
1. Funded Debt $
----------------
2. Subordinated Debt issued by the Credit Parties
maturing on or after the Maturity Date in aggregate
amount < $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 to 1.0.
B. Compliance with Section 7.2(b): Tangible Net Worth
1. Shareholders' Equity/Net Worth $
----------------
2. Intangibles $
----------------
3. Investments in international home building and
related ventures not to exceed $150 million during
the term of the Credit Agreement $
----------------
4. Tangible Net Worth (Line 1 - Line 2 - Line 3) $
----------------
</TABLE>
Minimum Allowed: Line B.4 shall be greater than or equal to the sum of:
(a) $800 million +
(b) 50% of the cumulative Net Income (without deduction for
losses) earned for each completed fiscal quarter
subsequent to March 31, 2000.
<PAGE> 117
EXHIBIT 7.12
to 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 Credit Agreement dated as of
August 31, 2000 among PULTE CORPORATION, a Michigan corporation (the
"Borrower"), the Guarantors identified therein, the Administrative Agent, Bank
One, NA, as Syndication Agent, Comerica Bank, as Co-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:
--------------------------------------
<PAGE> 118
EXHIBIT 11.3(b)
to Credit Agreement
FORM OF ASSIGNMENT AGREEMENT
Reference is made to that certain Credit Agreement dated as of August
31, 2000 among PULTE CORPORATION, a Michigan corporation (the "Borrower"), the
Guarantors identified therein, the Lenders identified therein, Bank of America,
N.A., as Administrative Agent (the "Administrative Agent"), Bank One, NA, as
Syndication Agent and Comerica Bank, as Co-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.
<PAGE> 119
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:
-----------------------------------
<PAGE> 120
SCHEDULE 1
to
ASSIGNMENT AGREEMENT
(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)) $
------------
