EXHIBIT 10.4
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
among
THE XXXXXX GROUP, INC.,
CERTAIN LENDERS,
CHEMICAL BANK, NATIONSBANK, N.A. (CAROLINAS),
BANK OF AMERICA ILLINOIS AND
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as Co-Agents,
CHEMICAL BANK
as Syndication Agent and
Documentation Agent
and
NATIONSBANK, N.A. (CAROLINAS)
as Administrative Agent
Dated as of July 21, 1995
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 22
1.3 Accounting Principles 22
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 22
2.1 Revolving Credit Commitments. 22
2.2 Revolving Credit Notes 23
2.3 Procedure for Revolving Credit Borrowing 23
2.4 Short-Term Funding Line Commitments 24
2.5 Fees 26
2.6 Optional Termination and Reduction of Commitments 27
2.7 Optional Prepayments; Mandatory Prepayments 27
2.8 Conversion and Continuation Options 28
2.9 Minimum Amounts of Tranches 29
2.10 Interest Rates and Payment Dates 29
2.11 Repayment of Loans 30
2.12 Computation of Interest and Fees 30
2.13 Inability to Determine Interest Rate 31
2.14 Pro Rata Treatment and Payments 31
2.15 Illegality 32
2.16 Eurocurrency Reserve Costs; Requirements of Law 33
2.17 Taxes 35
2.18 Indemnity 37
SECTION 3. LETTERS OF CREDIT 37
3.1 L/C Commitment 37
3.2 Procedure for Issuance of Letters of Credit 38
3.3 Fees, Commissions and Other Charges 38
3.4 L/C Participations 39
3.5 Reimbursement Obligation of the Company 40
3.6 Obligations Absolute 41
3.7 Letter of Credit Payments 41
3.8 Application 41
SECTION 4. REPRESENTATIONS AND WARRANTIES 41
4.1 Financial Condition 42
4.2 No Change 42
4.3 Corporate Existence; Compliance with Law 42
4.4 Corporate Power; Authorization; Enforceable Obligations 43
4.5 No Legal Bar 43
4.6 No Material Litigation 43
4.7 No Default 44
4.8 Ownership of Property; Liens 44
4.9 Intellectual Property 44
4.10 Taxes 44
4.11 Federal Regulations 44
4.12 ERISA 45
4.13 Investment Company Act; Other Regulations 45
4.14 Subsidiaries 45
4.15 Accuracy and Completeness of Information 45
4.16 Environmental Matters 46
4.17 Status of the Notes 47
4.18 Purpose of Loans 47
SECTION 5. CONDITIONS PRECEDENT 47
5.1 Conditions to Initial Extensions of Credit 47
5.2 Conditions to Each Extension of Credit 49
SECTION 6. AFFIRMATIVE COVENANTS 50
6.1 Financial Statements 50
6.2 Certificates; Other Information 50
6.3 Payment of Obligations 52
6.4 Conduct of Business and Maintenance of Existence 52
6.5 Maintenance of Property; Insurance 52
6.6 Inspection of Property; Books and Records; Discussions 52
6.7 Notices 53
6.8 Environmental Laws 54
6.9 Guarantees from Future Subsidiaries 54
SECTION 7. NEGATIVE COVENANTS 54
7.1 Financial Condition Covenants 55
7.2 Limitation on Indebtedness 56
7.3 Limitation on Liens 58
7.4 Limitation on Guarantee Obligations 59
7.5 Limitations of Fundamental Changes 60
7.6 Limitation on Sale of Assets 61
7.7 Limitation on Dividends 62
7.8 Limitation on Investments 62
7.9 Limitation on Optional Payments and Modification of Debt
Instruments 64
7.10 Transactions with Affiliates 64
7.11 Limitation on Inventory 65
7.12 Fiscal Year 65
7.13 Compliance with ERISA 65
7.14 Preferred Stock 65
7.15 Limitation on Indebtedness of New Subsidiaries. 65
SECTION 8. EVENTS OF DEFAULT 66
SECTION 9. THE AGENTS 69
9.1 Appointment 69
9.2 Delegation of Duties 69
9.3 Exculpatory Provisions 70
9.4 Reliance by Agents 70
9.5 Notice of Default 70
9.6 Non-Reliance on Agents and Other Lenders 71
9.7 Indemnification 71
9.8 Agents in Individual Capacity 72
9.9 Successor Administrative Agent 72
9.10 Successor Documentation Agent 72
9.11 The Co-Agents and the Syndication Agent. 73
SECTION 10. MISCELLANEOUS 73
10.1 Amendments and Waivers 73
10.2 Notices 73
10.3 No Waiver; Cumulative Remedies 74
10.4 Survival of Representations and Warranties 74
10.5 Payment of Expenses and Taxes 75
10.6 Successors and Assigns; Participations and Assignments 76
10.7 Adjustments; Set-off 78
10.8 Counterparts 79
10.9 Severability 79
10.10 Integration 79
10.11 GOVERNING LAW 79
10.12 Submission To Jurisdiction 79
10.13 WAIVER OF JURY TRIAL 80
10.14 Confidentiality 80
ANNEXES AND SCHEDULES
Annex I Significant Homebuilding Subsidiaries
Schedule 1.1 Lenders, Addresses and Commitments
Schedule 3.1 Existing Letters of Credit
Schedule 4.6 Litigation
Schedule 4.14 List of Subsidiaries
Schedule 6.2(g) Financial Information
Schedule 7.2(f) Existing IRB Indebtedness
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Short-Term Funding Line Note
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Guaranty
Exhibit E-1 Form of Legal Opinion of Corporate Counsel to the Company
Exhibit E-2 Form of Legal Opinion of Piper & Marbury L.L.P., counsel for
the Company and the Guarantors
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Compliance Certificate
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 21, 1995, among
THE XXXXXX GROUP, INC., a Maryland corporation (the "Company"), the several
lenders from time to time parties to this Agreement (the "Lenders"), CHEMICAL
BANK, NATIONSBANK, N.A. (CAROLINAS), BANK OF AMERICA ILLINOIS, and THE
INDUSTRIAL BANK OF JAPAN TRUST COMPANY, as Co-Agents (in such capacity, the
("Co-Agents"), CHEMICAL BANK, a New York banking corporation ("Chemical"), as
Documentation Agent and Syndication Agent (in such respective capacities, the
"Documentation Agent" and the "Syndication Agent") and NATIONSBANK, N.A.
(CAROLINAS), a national banking association ("NationsBank"), as Administrative
Agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company and certain of the Lenders and Co-Agents are
parties to the Existing Credit Agreement, and desire to amend and restate the
Existing Credit Agreement;
WHEREAS, the Company has requested the Lenders to make certain
extensions of credit to it; and
WHEREAS, the Lenders are willing to make such extensions of credit on
the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree that the Existing Credit
Agreement is amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
NationsBank as its prime rate in effect at its principal office in
Charlotte, North Carolina (the Prime Rate not being intended to be the
lowest rate of interest charged by NationsBank in connection with
extensions of credit to debtors); and "Federal Funds Effective Rate"
shall mean, for any day, the rate set forth for such date opposite the
caption "Federal Funds (Effective)" in the weekly statistical release
designated "H.15 (510)", or any successor publication, published by the
Board of Governors of the Federal Reserve System, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds
Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the ABR shall be determined without regard to clause
(b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the ABR
due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Revolving Credit Loans the rate of interest applicable to
which is based upon the ABR.
"Adjusted Consolidated Net Income": with respect to a Person for any
period, the Consolidated Net Income of such Person and its Subsidiaries
for such period plus, to the extent reflected as a charge in the
statement of such Consolidated Net Income, total income tax expense
minus any extraordinary income or gains, determined in accordance with
GAAP.
"Adjusted Consolidated Tangible Net Worth": with respect to the Company
at any date, Consolidated Net Worth of the Company as at such date,
less, without duplication, (a) Consolidated Intangibles, (b) the amount
of such Consolidated Net Worth attributable to the Xxxxxx Financial
Division and (c) the amount of such Consolidated Net Worth attributable
to equity investments in and Advances to any unconsolidated joint
venture the Indebtedness of which (excluding Advances from the Company
or any Subsidiary to such joint venture) exceeds 25% of its total
assets, determined in accordance with GAAP.
"Advance": means any advance, loan or extension of credit to any Person
or the purchase of any bonds, notes, debentures or other debt securities
of any Person.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (i) vote
10% or more of the securities having ordinary voting power for the
election of directors of such Person or (ii) direct or cause the
direction of the management and policies of such Person whether by
contract or otherwise.
"Agents": the collective reference to the Documentation Agent, the
Syndication Agent, the Co-Agents and the Administrative Agent;
individually, an "Agent".
"Aggregate Outstanding Revolving Extensions of Credit": on any date, an
amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans and Short-Term Funding Loans then outstanding and
(b) the L/C Obligations then outstanding.
"Agreement": this Amended and Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": for each Type of Revolving Credit Loan, the rate
per annum set forth under the relevant column heading below:
Eurodollar C/D
ABR Loans Loans Rate Loans
--------- ----- ----------
0% 1.375% 1.525%
provided, that (i) on the effective date of any Rating Improvement
occurring after the date of this Agreement, each of the Applicable
Margins then in effect for Eurodollar Loans and C/D Rate Loans shall
decrease by .125% (but not below 1.00% for Eurodollar Loans or 1.150%
for C/D Rate Loans) and (ii) on the effective date of any Rating
Reduction occurring after the date of this Agreement, each of the
Applicable Margins then in effect for Eurodollar Loans and C/D Rate
Loans shall increase by .125%.
"Application": an application, in such form as the Issuing Bank may
specify from time to time, requesting the Issuing Bank to open a Letter
of Credit.
"Assignee": as defined in subsection 10.6(c).
"Associates Mortgage Funding Corporation": Associates Mortgage Funding
Corporation, a Delaware corporation.
"Available Commitments": on any date, the excess, if any, of (a) the
amount of the aggregate Revolving Credit Commitments on such date over
(b) (i) the Aggregate Outstanding Revolving Extensions of Credit on such
date less (ii) for the purposes of calculating the commitment fee
pursuant to subsection 2.5(a) for the Lenders other than the Short-Term
Funding Lenders only, the aggregate principal amount of Short-Term
Funding Loans outstanding on such day.
"Borrowing Base": as of any date of determination, an amount equal to
the sum of (i) 25% of Unsold Land Under Development, (ii) 70% of Unsold
Housing Inventory, (iii) 90% of Sold Housing Inventory and (iv) Working
Capital (if greater than zero). The Borrowing Base shall be determined
as of the last Business Day of each calendar month and shall be
certified pursuant to Borrowing Base Certificates delivered pursuant to
subsection 6.2(f); the Borrowing Base set forth in any such Borrowing
Base Certificate shall be in effect from the date of delivery of such
Borrowing Base Certificate until the date of delivery of the Borrowing
Base Certificate for the succeeding calendar month.
"Borrowing Base Certificate": a certificate substantially in the form
of Exhibit C, with such changes as the Documentation Agent may from time
to time reasonably request for the purpose of monitoring the Borrowing
Base.
"Borrowing Date": any day specified in a notice pursuant to subsection
2.3 or 2.4 as a date on which the Company requests that Loans be made
hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in Charlotte, North Carolina or New York, New
York, are authorized or required by law to close; provided, however,
that when used in connection with a Eurodollar Loan, the term "Business
Day" shall also exclude any day on which commercial banks are not open
for dealings in Dollar deposits in the London interbank market.
"Cash Equivalents": (a) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than 90 days from
the date of acquisition, (b) time deposits and certificates of deposit
of any of the Lenders, or of any domestic or foreign commercial bank
which has capital and surplus in excess of $500,000,000 or which has a
commercial paper rating meeting the requirements specified in clause (d)
below, having maturities of not more than 90 days from the date of
acquisition, (c) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clauses (a) and
(b) entered into with any bank meeting the qualifications specified in
clause (b) above and (d) commercial paper of any Person rated at least
A-2 or the equivalent thereof by S&P or P-2 or the equivalent thereof by
Moody's and in either case maturing within 90 days after the date of
acquisition.
"C/D Assessment Rate": for any day as applied to any C/D Rate Loan, the
annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Sec. 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's) insuring
time deposits at offices of such institution in the United States.
"C/D Base Rate": with respect to each day during each Interest Period
pertaining to a C/D Rate Loan, the rate of interest per annum determined
by the Administrative Agent to be the arithmetic average (rounded upward
to the nearest 1/100th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the average
rate bid at 10:00 A.M., Charlotte, North Carolina time, or as soon
thereafter as practicable, on the first day of such Interest Period by a
total of three certificate of deposit dealers of recognized standing
selected by such Reference Lender for the purchase at face value from
such Reference Lender of its certificates of deposit in an amount
comparable to the C/D Rate Loan of such Reference Lender to which such
Interest Period applies and having a maturity comparable to such
Interest Period.
"C/D Rate": with respect to each day during each Interest Period
pertaining to a C/D Rate Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
C/D Base Rate + C/D Assessment Rate
------------------------------
1.00 - C/D Reserve Percentage
"C/D Rate Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any C/D Rate Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) (the "Board"), for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars
having a maturity comparable to the Interest Period for such C/D Rate
Loan.
"Closing Date": the date on which the conditions specified in Section 5
are satisfied in full and the initial Loans are made hereunder.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Combined Net Income": with respect to a Person or segment for any
period, the combined net income (or loss) of such Person and its
Subsidiaries and Consolidated Joint Ventures or such segment for such
period (taken as a cumulative whole), determined on a combined basis in
accordance with GAAP.
"Combined Total Liabilities": with respect to a Person or segment at a
particular date, all amounts which would, in conformity with GAAP, be
included under total liabilities on a combined balance sheet of such
Person and its Subsidiaries and Consolidated Joint Ventures or such
segment as at such date.
"Commitment Fee Rate": (a) at any time when the Rating of Xxxxx'x is at
least Baa3 or the Rating of S&P is at least BBB-, .15% and (b) at all
other times, .375%.
"Commitment Percentage": as to any Lender at any time, the percentage
of the aggregate Revolving Credit Commitments then constituted by the
sum of such Lender's Revolving Credit Commitment.
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Revolving Credit Commitments shall terminate as provided herein.
"Commitments": the Revolving Credit Commitments, the Short-Term Funding
Line Commitments and the L/C Commitment.
"Common Stock": the Company's Common Stock, par value $1.00 per share,
as the same exists on the date hereof or any other class of stock of the
Company the right of which to share in distributions of earnings or
assets of the Company is without limit as to amount or percentage.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company
and which is treated as a single employer under Section 414 of the Code.
"Consolidated Adjusted Net Worth": at a particular date, (a)
Consolidated Net Worth of the Financial Services Segment at such date
plus (b) the amount of long-term subordinated debt of the Financial
Services Segment the maturity of which is no less than two years after
December 31, 1994 plus (c) an amount equal to 1% of the Financial
Services Segment's Servicing Portfolio, if any, minus (d) the amount of
Servicing Rights that are capitalized on the combined balance sheets of
the Financial Services Segment, minus (e) the book value of any other
assets reflected on the then-most-current combined balance sheets of the
Financial Services Segment that should be properly treated under GAAP as
intangible assets, including, without limitation, goodwill, trademarks,
trade names, service marks, copyrights, patents, licenses, rights with
respect to the foregoing, and the excess of the purchase price over the
net assets of businesses acquired by entities in the Financial Services
Segment.
"Consolidated Intangibles": with respect to any Person at any date, all
amounts, determined in accordance with GAAP, included in the
Consolidated Net Worth of such Person and attributable to (a) goodwill,
including any amounts (however designated on the balance sheet)
representing the cost of acquisitions of Subsidiaries in excess of
underlying tangible assets or (b) patents, trademarks and copyrights.
"Consolidated Joint Ventures": at any time, real estate joint ventures
in which the Company or any of its Subsidiaries has an investment at
such time and which are being consolidated in the Company's consolidated
financial statements.
"Consolidated Net Income": with respect to a Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
and Consolidated Joint Ventures for such period (taken as a cumulative
whole), determined in accordance with GAAP.
"Consolidated Net Worth": with respect to any Person at any date, all
amounts which would, in conformity with GAAP, be included under
shareholders' equity on a consolidated balance sheet of such Person and
its consolidated Subsidiaries and Consolidated Joint Ventures at such
date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Current Market Price": with respect to shares of Common Stock or any
other class of capital stock or other security of the Company or any
other issuer, the last reported sales price, regular way, or, in the
event that no sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in either case as reported on
the New York Stock Exchange Composite Tape or, if such security is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such security is listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, by NASDAQ National Market System or, if
such security is not quoted on such National Market System, the average
of the closing bid and asked prices on each such day in the over-the-
counter market as reported by NASDAQ or, if bid and asked prices for
such security on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished
by any New York Stock Exchange member firm regularly making a market in
such security selected for such purpose by the Board of Directors of the
Company or a committee thereof, in each case, on each trading day during
the applicable period.
"Default": any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Designated Event": the occurrence of any of the following: (i)
whether or not approved by the Board of Directors of the Company, any person,
entity or "group" within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act is or becomes the beneficial owner, directly or indirectly, of
securities having 30% or more of the voting power of the Voting Stock; (ii)
the Company shall engage in a Stock Repurchase or Stock Distribution where the
sum of the aggregate Fair Market Value of such Stock Repurchase and Stock
Distribution and all other such Stock Repurchases and Stock Distributions
effected during the 12-month period ending on the date on which such Stock
Repurchase or Stock Distribution is effected exceeds 20% of the Fair Market
Value of the Common Stock of the Company as of the date such Stock Repurchase
or Stock Distribution is effected; (iii) there shall occur any consolidation
of the Company with, or merger of the Company into, any other entity, any
merger of another entity into the Company, or any sale or transfer of all or
substantially all of the assets of the Company (other than any such sale or
transfer to one or more wholly-owned Subsidiaries of the Company), in one
transaction or a series of related transactions, to one or more persons or
entities (other than (w) a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares
of Common Stock of the
Company, or (x) a merger which is effected solely to change the
jurisdiction of incorporation of the Company, or (y) the sale or
transfer of any of the stock or assets of the Limited-Purpose
Subsidiaries, or (z) a merger pursuant to which the holders of Voting
Stock of the Company prior to the effective date of such merger hold
immediately after such effective date 70% or more of the class of stock
of the surviving entity or its parent corporation that is entitled to
vote generally for the election of directors); or (iv) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the Company's Board of Directors (together with any
new director whose election by the Company's Board of Directors or whose
nomination for election by the Company's stockholders was approved by a
vote of at least a majority of the directors then still in office who
either were directors of the Company at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors of the
Company then in office.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Dollar Loans": the collective reference to C/D Rate Loans and
ABR Loans.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning pollution or
protection of the environment, as now or may at any time hereafter be in
effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates
notified to the Administrative Agent by each of the Reference Lenders as
the rate at which such Reference Lender is offered Dollar deposits at or
about 10:00 A.M., Charlotte, North Carolina time, two Business Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of July 29,
1993, as amended, among the Company, the Lenders, Co-Agents and Co-
Manager parties thereto, and Chemical Bank, as Administrative Agent.
"Existing Letters of Credit": as defined in subsection 3.1(a).
"Fair Market Value": with respect to shares of Common Stock or any
other class of capital stock or securities of the Company which are
publicly traded, the average of the Current Market Prices of such shares
or securities for the five (5) consecutive trading days ending with the
fifth (5th) Business Day preceding the date on which the Stock
Repurchase or Stock Distribution is effected. Fair Market Value of any
security not publicly traded or any other property constituting a part
of a Stock Repurchase or Stock Distribution shall be the value thereof
as determined in good faith by the Board of Directors of the Company or
any designated committee of the Board of Directors of the Company after
giving consideration to such market prices, opinions and valuations as
such Board of Directors or committee may deem necessary or appropriate.
"FHLMC Securities": participation certificates representing undivided
interests in mortgage loans purchased by the Federal Home Loan Mortgage
Corporation or its successor pursuant to the Emergency Home Finance Act
of 1970, as amended.
"Financial Services Segment": the business segment of the Company and
its Subsidiaries engaged in the mortgage banking (including the title
and escrow businesses), mortgage servicing, securities issuance, bond
administration and management services and related activities, which
segment on the date of this Agreement consists principally of the
activities of Xxxxxx Mortgage Company and its Subsidiaries but excludes
the Limited-Purpose Subsidiaries.
"Financial Services Segment Combined Total Liabilities": at any time,
all amounts which would, in accordance with GAAP, be included as
liabilities on a combined balance sheet of the Financial Services
Segment as at such date; provided, that reverse repurchase agreements
secured by FHLMC Securities, FNMA Securities GNMA Securities and other
mortgage-backed securities, whether such securities are issued in
certificated form or book entry form, arising from the call of bonds
issued by Affiliates of Xxxxxx Mortgage Company may be excluded from
those liabilities so long as (a) the underlying collateral value is at
least 100.5% of the obligations of Xxxxxx Mortgage Company and/or
Associates Mortgage Funding Corporation under those agreements or (b)
the underlying collateral is subject to a hedging agreement.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage": for any fiscal period of the Company, the
ratio of (a) the sum for such fiscal period of the following items: (i)
Combined Net Income of the Homebuilding Segment, plus (ii) income taxes,
depreciation and amortization deducted from combined revenues in determining
such Combined Net Income, plus (iii) interest expense deducted from combined
revenues in determining such Combined Net Income, including, without
duplication, previously capitalized interest expense which would be included
in "Cost of Goods Sold" and deducted from combined revenues in determining
such Combined Net Income on a combined balance sheet of the Homebuilding
Segment determined in accordance with GAAP, plus (iv) the greater of (A) cash
dividends received by the Company from the Financial Services Segment,
determined in accordance with GAAP, and (B) 50% of Combined Net Income of the
Financial Services Segment plus income tax expense deducted in determining
such net income, determined in accordance with GAAP, plus (v) cash
distributions received by the Company from all unconsolidated joint ventures
in which the Company or any of its Subsidiaries within the Homebuilding
Segment is a participant, less (vi) the amount of the Company's equity
interest in
the earnings of such joint ventures, determined in accordance with GAAP,
to (b) the amount of cash interest expense deducted from combined
revenues in determining such Combined Net Income, and including, without
duplication, such cash interest expense constituting capitalized
interest for such period determined in accordance with GAAP.
"FNMA Securities": modified pass-through mortgage-backed certificates
guaranteed by the Federal National Mortgage Association or its successor
pursuant to the National Housing Act, as amended.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"GNMA Securities": modified pass-through mortgage-backed certificates
guaranteed by the Government National Mortgage Association or its
successor pursuant to Section 306(g) of the National Housing Act, as
amended.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty": each Guaranty executed and delivered by one or more of the
Guarantors, substantially in the form of Exhibit D, as the same may from
time to time be amended or otherwise modified.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Company in good faith.
"Guarantors": at any time, each of the Subsidiaries of the Company
which (i) has assets with an aggregate book value equal to or greater
than $1,000,000 and (ii) is included in the Homebuilding Segment,
including, without limitation, the Subsidiaries listed on Annex I
hereto.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or any fraction thereof), defined or
regulated as such in or under any Environmental Law.
"Homebuilding Segment": the business segment of the Company and its
Subsidiaries and Consolidated Joint Ventures engaged in the construction
and sale of single family attached and unattached dwellings and related
activities, which segment on the date of this Agreement consists
principally of the activities of the Xxxxxx Homes Division of the
Company and X. X. Xxxxx & Sons, Inc.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than trade liabilities and accrued expenses
incurred in the ordinary course of business and payable in accordance
with customary practices), (b) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument, (c)
all obligations of such Person under Financing Leases, (d) all
obligations of such Person in respect of acceptances issued or created
for the account of such Person and (e) all liabilities secured by any
Lien on any property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement, dated as of
September 22, 1994, among the Company and the other parties thereto, as
supplemented by joinder agreements executed by all Lenders not initially
parties thereto and as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less and any C/D Rate Loan having an Interest Period of
90 days or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan or C/D Rate Loan having an Interest Period longer than
three months or 90 days, respectively, each day which is three months or
90 days, respectively, or a whole multiple thereof, after the first day
of such Interest Period and the last day of such Interest Period and (d)
as to any Short-Term Funding Loan, the date which is the last day of
each calendar quarter.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter (or such other period (not to exceed six months) agreed
upon by the Administrative Agent and the Company), as selected by
the Company in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six months thereafter (or such other
period (not to exceed six months) agreed upon by the
Administrative Agent and the Company), as selected by the Company
by irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current
Interest Period with respect thereto;
and (b) with respect to any C/D Rate Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such C/D Rate
Loan and ending 30, 60, 90 or 180 days thereafter (or such other
period (not to exceed 180 days) agreed upon by the Administrative
Agent and the Company), as selected by the Company in its notice
of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such C/D Rate Loan
and ending 30, 60, 90 or 180 days thereafter (or such other period
(not to exceed 180 days) agreed upon by the Administrative Agent
and the Company), as selected by the Company by irrevocable notice
to the Administrative Agent not less than two Business Days prior
to the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(2) if any Interest Period pertaining to a C/D Rate Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day;
(3) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(4) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(5) the Company shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan or C/D Rate Loan
during an Interest Period for such Loan.
"Investments": any Advance to, or any contribution to or purchase of
stock or other equity securities of, or any purchase of assets
constituting a business unit of, any Person, excluding investments in
stock or other equity securities existing on the date of this Agreement
and any investment representing any interest of the Company or any
Subsidiary in the retained or undistributed earnings of any Person.
"Issuing Bank": (i) with respect to the Existing Letters of Credit,
Chemical Bank or the affiliate thereof which issued such Existing
Letters of Credit, as set forth in Schedule 3.1, and (ii) with respect
to any Letter of Credit issued after the Closing Date, NationsBank, or
such other Lender as the Documentation Agent, the Company and such other
Lender shall agree upon.
"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December.
"L/C Fee Rate": 1.25% per annum; provided, that (i) on the effective
date of any Rating Improvement occurring after the date of this
Agreement, the L/C Fee Rate then in effect shall decrease by .125% (but
not below .875%) and (ii) on the effective date of any Rating Reduction
occurring after the date of this Agreement, the L/C Fee Rate then in
effect shall increase by .125%.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection
3.5.
"L/C Participants": in respect of any Letter of Credit, the collective
reference to all the Lenders other than the Issuing Bank in respect of
such Letter of Credit.
"Letters of Credit": as defined in subsection 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any Financing Lease
having substantially the same economic effect as any of the foregoing,
and the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction in respect of any of the
foregoing).
"Limited-Purpose Subsidiaries": Subsidiaries included within the
Limited-Purpose Subsidiaries Segment.
"Limited-Purpose Subsidiaries Segment": the business segment of the
Company and its Subsidiaries which facilitates, through special-purpose
entities created or existing solely for such purpose, the financing of
mortgage loans and mortgage backed securities and the securitization of
mortgage loans and other related activities.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes, the Applications, the
Intercreditor Agreement and the Guaranty.
"Material Adverse Effect": a material adverse effect on (a) the
financial condition of the Company and its Restricted Subsidiaries taken
as a whole, (b) the ability of the Company to perform its obligations
under this Agreement or the Notes, or (c) the validity or enforceability
of this Agreement or any of the Notes or the rights or remedies of the
Agents or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Moody's": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"1992 Subordinated Debt Indenture": the Indenture, dated as of July 15,
1992, between the Company and Security Trust Company, N.A., or its
successor, as Trustee, pursuant to which the Company's 10-1/2% Senior
Subordinated Notes due July 15, 2002, and the Company's 9-5/8% Senior
Subordinated Notes due June, 2004 were issued.
"Non-Excluded Taxes": as defined in subsection 2.17.
"Notes": the collective reference to the Revolving Credit Notes and the
Short-Term Funding Line Notes.
"Participants": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted IRB Letters of Credit": letters of credit and other credit
enhancement instruments issued for the account of the Company or any of
its Subsidiaries which at any time support industrial revenue bonds
issued for the benefit of the Company or any of its Subsidiaries, which
are outstanding on the date of this Agreement and are shown on Schedule
7.2(f).
"Permitted Senior Indebtedness": at any date, the aggregate unpaid
principal amount of Indebtedness outstanding on such date permitted
under, without duplication, (i) subsection 7.2(c) (other than
Indebtedness of unconsolidated joint ventures permitted thereunder),
(e), (f), (h), (k) and (p), (ii) subsection 7.2(g), other than such
Indebtedness permitted thereunder by reference to subsection 7.4(c),
(iii) subsection 7.2(i), other than such Indebtedness permitted
thereunder in connection with acquisitions or mergers by any Subsidiary
in the Xxxxxx Financial Division and (iv) subsection 7.2(j), but only
such Indebtedness permitted thereunder relating to refinancings of
Indebtedness included in this definition of Permitted Senior
Indebtedness pursuant to clauses (i), (ii) and (iii) above.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Rating": each rating (actual or implied) by a Rating Agency of the
Company's senior, long-term, unsecured, non credit-enhanced debt.
"Rating Agency": each of Moody's and S&P.
"Rating Improvement": each increase by either Rating Agency of the
Rating of such Rating Agency by one incremental level (e.g. an increase
by Moody's of its Rating from Ba1 to Baa3 or by S&P of its Rating from
BB+ to BBB-). For purposes of this Agreement, the effective date of any
Rating Improvement will be the date of announcement by the relevant
Rating Agency of the increase in its Rating giving rise to such Rating
Improvement.
"Rating Reduction": each reduction by either Rating Agency of the
Rating of such Rating Agency by one incremental level (e.g. a reduction
by Moody's of its Rating from Baa3 to Ba1 or by S&P of its Rating from
BBB- to BB+). For purposes of this Agreement, the effective date of any
Rating Reduction will be the date of announcement by the relevant Rating
Agency of the reduction in its Rating giving rise to such Rating
Reduction.
"Reference Lenders": Chemical and NationsBank.
"Register": as defined in subsection 10.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System.
"Reimbursement Obligation": the obligation of the Company to reimburse
the Issuing Bank pursuant to subsection 3.5 for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Sec. 2615.
"Required Lenders": at any time, Lenders the Commitment Percentages of
which aggregate at least 66-2/3%.
"Requirement of Law": as to any Person, the Charter and By-Laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer": the chief executive officer and the president of
the Company or, with respect to financial matters, the chief financial
officer, the chief accounting officer or the treasurer of the Company.
"Restricted Subsidiary": any Subsidiary of the Company other than the
Limited-Purpose Subsidiaries and any Subsidiary that the Required
Lenders agree in writing is not to be treated hereunder as a Restricted
Subsidiary.
"Revolving Credit Commitment": as to any Lender, the amount set forth
opposite such Lender's name on Schedule 1.1 under the caption "Revolving
Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Lender at any time,
the percentage which such Lender's Revolving Credit Commitment then
constitutes of the aggregate Revolving Credit Commitments (or, at any
time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Loans
then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Xxxxxx Financial Division": all subsidiaries and operations of the
Company and its Subsidiaries other than the Homebuilding Segment.
"Xxxxxx Mortgage Company": Xxxxxx Mortgage Company, an Ohio corporation.
"Servicing Portfolio": for Xxxxxx Mortgage Company, at any time, an
amount equal to the aggregate unpaid principal amount of all loans with
respect to which Xxxxxx Mortgage Company or its Subsidiaries owns
Servicing Rights, other than loans serviced on behalf of the Resolution
Trust Corporation.
"Servicing Rights": all of Xxxxxx Mortgage Company's right, title and
interest in agreements between Xxxxxx Mortgage Company and Persons other
than Xxxxxx Mortgage Company and Associates Mortgage Funding Corporation
pursuant to which Xxxxxx Mortgage Company undertakes to service one-to-
four family and multifamily dwelling mortgage loans and pools of one-to-
four family and multifamily dwelling mortgage loans for such Persons.
"Short-Term Funding Lenders": Initially, Chemical Bank, NationsBank,
N.A. (Carolinas), Bank of America Illinois and The Industrial Bank of
Japan Trust Company, and, in the event that any of such Lenders is no
longer a Lender, such other Lender as shall be mutually agreed upon by
such other Lender, the Company, the Documentation Agent and the
Administrative Agent to replace such Short-Term Funding Lender.
"Short-Term Funding Line Commitment": as to any Lender, the amount set
forth opposite such Lender's name on Schedule 1.1 under the caption
"Short-Term Funding Line Commitments." It is understood that each
Lender's Short-Term Funding Line Commitment is included in, and not in
addition to, such Lender's Revolving Credit Commitment.
"Short-Term Funding Loan": as defined in subsection 2.4.
"Short-Term Funding Line Margin": 1.375%; provided, that (i) on the
effective date of any Rating Improvement occurring after the date of
this Agreement, the Short-Term Funding Line Margin then in effect shall
decrease by .125% (but not below 1%) and (ii) on the effective date of
any Rating Reduction occurring after the date of this Agreement, the
Short-Term Funding Line Margin then in effect shall increase by .125%.
"Short-Term Funding Line Note": as defined in subsection 2.4.
"Significant Subsidiary": a Subsidiary satisfying the requirements of
Rule 1-02(v) of Regulation S-X as adopted by the Securities and Exchange
Commission under the provisions of the Securities Act of 1933 and the
Exchange Act as in force on the date of this Agreement.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Sold Housing Inventory": at any date, an amount equal to the aggregate
capitalized cost, determined in accordance with GAAP consistently
applied, with respect to homes and lots under construction for which
final contracts of sale have been entered into on or prior to such date,
and are still in effect on such date, but with respect to which
settlement under such contracts has not occurred.
"Specified Debt": the Company's Senior Debt Securities issued pursuant
to the Company's Registration Statement on Form S-3 (Registration No.
33-28692) or any successor registration statement and outstanding on the
Closing Date.
"S&P": Standard & Poor's Ratings Group.
"Stock Distribution": any dividend or other distribution to holders of
Common Stock of cash, property or securities (excluding however any
dividends or distributions of Common Stock or rights to purchase Common
Stock).
"Stock Repurchase": any purchase of shares of Common Stock by the
Company or any Subsidiary, whether for cash, shares of capital stock of
the Company, other securities of the Company, evidences of indebtedness
of the Company or any other person or any other property (including
shares of a Subsidiary of the Company), or any combination thereof.
"Subordinated Debt": (i) Indebtedness of the Company outstanding on the
date hereof issued pursuant to the 1992 Subordinated Debt Indenture and
(ii) any other unsecured Indebtedness of the Company no part of the
principal of which is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption, mandatory prepayment or otherwise)
prior to December 31, 1998, and the payment of the principal of and
interest on which and other obligations of the Company in respect
thereof are subordinated to the prior payment in full of the principal
of and interest (including post-petition interest) on the Notes and all
other obligations and liabilities of the Company to the Agents and the
Lenders hereunder on terms and conditions identical to such provisions
under the 1992 Subordinated Debt Indenture except to the extent of any
differences therefrom that are not substantive, provided that any
different provisions thereof that are less favorable to the Lenders than
the provisions under the 1992 Subordinated Debt Indenture, are adverse
to the interests of the Lenders in any way or are otherwise substantive
shall be subject to prior approval in writing by the Required Lenders.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company and shall exclude any real
estate joint venture which the Company or any Subsidiary within the
Homebuilding Segment either directly or indirectly participates in or
controls.
"Termination Date": July 30, 1998.
"Total Housing Inventory": at any date, the amount which would be
included under "Housing inventories" on a combined balance sheet of the
Homebuilding Segment determined on a combined basis in accordance with
GAAP as at such date.
"Tranche": the collective reference to Eurodollar Loans or C/D Rate
Loans the Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "Eurodollar Tranches" or "C/D Rate Tranches", as
applicable.
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan, a
Eurodollar Loan or a C/D Rate Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication
No. 500, as the same may be amended from time to time.
"Unsold Housing Inventory": at any date, an amount equal to (i) the
amount which would be included under "Housing inventories: Unsold" less
(ii) the amounts which would be included under the definitions of
"Unsold Land Held" and "Unsold Land Under Development" in this
Agreement, determined on a combined basis in accordance with GAAP as at
such date.
"Unsold Land Held": at any date, the amount which would be included
under "Housing inventories: Unsold: Land held for future development
or resale" on a combined balance sheet of the Homebuilding Segment
determined on a combined basis in accordance with GAAP as at such date.
"Unsold Land Under Development": at any date, an amount equal to (i)
the amount which would be included under "Housing inventories: Unsold:
Homes and lots under construction" on a combined balance sheet of the
Homebuilding Segment determined on a combined basis in accordance with
GAAP as at such date less (ii) the portion of such amount attributable
to lots on which construction of a foundation or slab has been
commenced, determined on a combined basis in accordance with GAAP as at
such date less.
"Voting Stock": shares of stock of the Company entitling the holder
thereof to vote generally for the election of directors of the Company.
"Working Capital": at any date, an amount equal to (i) cash and Cash
Equivalents plus (ii) accounts and notes receivable plus (iii) prepaid
expenses and deposits (iv) less accounts payable less (v) accrued
expenses less (vi) customer deposits, in each case as such amounts would
be determined with respect to the Homebuilding Segment on a consolidated
basis in accordance with GAAP as at such date.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Accounting Principles. Unless otherwise defined or specified
herein, all accounting terms used in this Agreement shall be construed herein,
and all accounting determinations hereunder shall be made, in accordance with
GAAP, applied on a basis consistent with the most recent audited consolidated
financial statements of the Company and its Subsidiaries delivered to the
Lenders; provided, however, that if there shall occur any change after the
date hereof in GAAP and such change affects the method of calculating any of
the factors that go into any component of the financial covenants and ratios
set forth in this Agreement, the Required Lenders will, upon request of the
Company, and the Company will, upon request of the Required Lenders, make
adjustments to such covenants and ratios as reasonably required so that they
are consistent with the financial covenants and ratios made as of the date
hereof, notwithstanding such change.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Company from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed such Lender's Revolving Credit Commitment; provided, that no
Revolving Credit Loan may be made if, after giving effect thereto, the then
Aggregate Outstanding Revolving Extensions of Credit would exceed the lesser
of (i) the Revolving Credit Commitments then in effect and (ii) the excess of
the Borrowing Base then in effect over Permitted Senior Indebtedness then
outstanding. During the Commitment Period the Company may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv) a combination thereof, as
determined by the Company and notified to the Administrative Agent in
accordance with subsections 2.3 and 2.8, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan or a C/D Rate Loan if the last day of
any Interest Period in respect thereof would be after the Termination Date.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
Lender shall be evidenced by a promissory note of the Company, substantially
in the form of Exhibit A, with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of such
Lender and in a principal amount equal to the lesser of (a) the amount of the
Revolving Credit Commitment of such Lender and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Lender. Each
Lender is hereby authorized to record the date, Type and amount of each
Revolving Credit Loan made by such Lender, each continuation thereof, each
conversion of all or a portion thereof to another Type, the date and amount of
each payment or prepayment of principal thereof and, in the case of Eurodollar
Loans and C/D Rate Loans, the length of each Interest Period with respect
thereto, in its records in accordance with its usual practice, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded. Each Revolving Credit Note shall (x) be dated the
date hereof, (y) be stated to mature on the Termination Date and (z) provide
for the payment of interest in accordance with subsection 2.10.
2.3 Procedure for Revolving Credit Borrowing. The Company may borrow
under the Revolving Credit Commitments during the Commitment Period on any
Business Day, provided that the Company shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:30 A.M., Charlotte, North Carolina time, (a) three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, (b) two Business
Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially C/D Rate Loans, or (c) on
the requested Borrowing Date, otherwise), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans, C/D Rate Loans or a combination thereof and
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans or C/D
Rate Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in
the case of ABR Loans, $10,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if the then Available Commitments are less than $10,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans or C/D Rate Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt
of any such notice from the Company, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account
of the Company at the office of the Administrative Agent specified in
subsection 10.2 prior to 12:00 noon, Charlotte, North Carolina time, on the
Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Company by the Administrative Agent crediting the account of the Company on
the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.4 Short-Term Funding Line Commitments. (a) Subject to the terms and
conditions hereof, each Short-Term Funding Lender severally agrees to make
short-term funding loans ("Short-Term Funding Loans") to the Company from time
to time during the Commitment Period in an aggregate principal amount at any
one time outstanding not to exceed such Lender's Short-Term Funding Line
Commitment; provided, that no Short-Term Funding Loans may be made if, after
giving effect thereto, the then Aggregate Outstanding Revolving Extensions of
Credit would exceed the lesser of (i) the amount of the Revolving Credit
Commitments then in effect and (ii) the excess of the Borrowing Base then in
effect over Permitted Senior Indebtedness then outstanding. During the
Commitment Period the Company may use the Short-Term Funding Line Commitments
by borrowing, prepaying the Short-Term Funding Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Short-Term Funding Loans made by each Short-Term Funding Lender
shall be evidenced by a promissory note of the Company, substantially in the
form of Exhibit B, with appropriate insertions as to payee, date and principal
amount (a "Short-Term Funding Line Note"), payable to the order of such Lender
and in a principal amount equal to the lesser of (a) the amount of the Short-
Term Funding Line Commitment of such Short-Term Funding Lender and (b) the
aggregate unpaid principal amount of all Short-Term Funding Loans made by such
Short-Term Funding Lender. Each Lender is hereby authorized to record the
date and amount of each Short-Term Funding Loan made by such Short-Term
Funding Lender and the date and amount of each payment or prepayment of
principal thereof, in its records in accordance with its usual practice, and
any such recordation shall constitute prima facie evidence of the accuracy of
the information so recorded. Each Short-Term Funding Line Note shall (x) be
dated the date hereof, (y) be stated to mature as to each Short-Term Funding
Loan issued thereby on the date which is five Business Days after the
Borrowing Date of such Short-Term Funding Loan, and in any event on the
Termination Date and (z) provide for the payment of interest in accordance
with subsection 2.10.
(c) The Company may borrow under the Short-Term Funding Line
Commitments during the Commitment Period on any Business Day, provided that
the Company shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 2:00 P.M.,
Charlotte, North Carolina time, on the requested Borrowing Date, specifying
the amount to be borrowed. Each borrowing under the Short-Term Funding Line
Commitments shall be in an amount equal to 500,000 or a whole multiple of
$500,000 in excess thereof. Upon receipt of any such notice from the Company,
the Administrative Agent shall promptly notify each Short-Term Funding Lender
thereof. Each Short-Term Funding Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account
of the Company at the office of the Administrative Agent specified in
subsection 10.2 prior to 4:30 P.M., Charlotte, North Carolina time, on the
Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Company by the Administrative Agent crediting the account of the Company on
the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Short-Term Funding Lenders and in like funds
as received by the Administrative Agent.
(d) The Administrative Agent may at any time in its sole and absolute
discretion, and, with respect to each Short-Term Funding Loan which has not
been repaid by the Company in immediately available funds prior to 10:30 A.M.
on the day which is the fifth Business Day after the Borrowing Date with
respect to such Short-Term Funding Loan shall, on behalf of the Company (which
hereby irrevocably directs the Short-Term Funding Lender to act on its behalf)
request prior to 12:00 Noon (New York City time) each Lender on such fifth
Business Day after the Borrowing Date with respect to such Short-Term Funding
Loan to make a Revolving Credit Loan in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the amount of the Short-Term Funding
Loan (the "Refunded Short-Term Funding Loans") outstanding on the date such
notice is given. Unless any of the events described in paragraph (f) of
Section 8 shall have occurred (in which event the procedures of paragraph (e)
of this subsection 2.4 shall apply) each Lender shall make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the account of
the Short-Term Funding Lenders at the office of the Administrative Agent
specified in subsection 10.2 prior to 2:00 P.M. (New York City time) in funds
immediately available on the date such notice is given. The proceeds of such
Revolving Credit Loans shall be immediately applied to repay the Refunded
Short-Term Funding Loans. Each Revolving Credit Loan made pursuant to this
subsection 2.4(d) shall be an ABR Loan.
(e) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (d) of this subsection 2.4 one of the events described in paragraph
(f) of Section 8 shall have occurred, each Lender will on the date such
Revolving Credit Loan was to have been made, purchase an undivided
participating interest in the Refunded Short-Term Funding Loan in an amount
equal to its Revolving Credit Commitment Percentage of such Refunded Short-
Term Funding Loan. Each Lender will immediately transfer to the
Administrative Agent, in immediately available funds, the amount of its
participation and upon receipt thereof (i) the Administrative Agent will make
such funds available to each Short-Term Funding Lender based pro rata on their
respective portion of such Short-Term Funding Loan and (ii) each such Short-
Term Funding Lender deliver to the Administrative Agent, and the
Administrative Agent will in turn promptly deliver to each such Lender, a
Short-Term Funding Loan participation certificate dated the date of receipt of
such funds and in such amount.
(f) Whenever, at any time after the Administrative Agent has received
from any Lender such Lender's participating interest in a Refunded Short-Term
Funding Loan, the Administrative Agent receives any payment on account
thereof, the Administrative Agent will distribute to such Lender its
participating interest in such amount (appropriately adjusted in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by the Administrative Agent is required
to be returned, such Lender will return to the Administrative Agent any
portion thereof previously distributed by the Administrative Agent to it.
(g) Each Lender's obligation to purchase participating interests
pursuant to this subsection 2.4 shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender or
the Company may have against the Administrative Agent or any Short-Term
Funding Lender, the Company or anyone else for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default; (iii) any adverse change in
the financial condition of the Company; (iv) any breach of this Agreement by
the Company or any other Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.5 Fees. (a) The Company agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee for the period from and
including the Closing Date to the Termination Date, computed at the Commitment
Fee Rate on such Lender's Revolving Credit Commitment Percentage of the
average daily amount of the Available Commitments during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein, commencing on the
first of such dates to occur after the Closing Date.
(b) The Company agrees to pay to the Administrative Agent on the
Closing Date for the account of each Lender a facility fee equal to (i) in the
case of any Lender having an initial commitment notified to the Syndication
Agent during syndication of less than $25,000,000, .10% of such amount, (ii)
in the case of any Lender having an initial commitment notified to the
Syndication Agent during syndication of $25,000,000 or greater but less than
$50,000,000, .15% of such amount and (iii) in the case of any Lender having an
initial commitment notified to the Syndication Agent during syndication of at
least $50,000,000, .25% of such Lender's Revolving Credit Commitment on the
Closing Date.
(c) The Company agrees to pay to the Administrative Agent and the
Documentation Agent the fees in the amounts and on the dates agreed by the
Company in writing with the Administrative Agent and the Documentation Agent,
respectively.
2.6 Optional Termination and Reduction of Commitments. The Company
shall have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments,
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments or repayments of the Revolving
Credit Loans and the Short-Term Funding Loans made on the effective date
thereof, the Aggregate Outstanding Revolving Extensions of Credit would exceed
the Revolving Credit Commitments then in effect. Any such reduction shall be
in an amount equal to $10,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Revolving Credit Commitments then in
effect. The Revolving Credit Commitments may not be reduced to an amount less
than the amount of the Short-Term Funding Line Commitments after giving effect
to any simultaneous reduction of the Short-Term Funding Line Commitments.
2.7 Optional Prepayments; Mandatory Prepayments. (a) The Company may
on the last day of any Interest Period with respect thereto, in the case of
Eurodollar Loans or C/D Rate Loans, or at any time and from time to time, in
the case of ABR Loans and Short-Term Funding Loans, prepay the Revolving
Credit Loans and the Short-Term Funding Loans, in whole or in part, without
premium or penalty, upon (i) at least three Business Days' irrevocable notice,
which must be received prior to 10:30 A.M. on the day of such notice, to the
Administrative Agent with respect to Eurodollar Loans or C/D Rate Loans, and
(ii) upon irrevocable notice received prior to 10:30 A.M., in the case of ABR
Loans, and 2:00 P.M., in the case of Short-Term Funding Loans, on the date of
such prepayment with respect to ABR Loans, in each case specifying the date
and amount of prepayment and whether the prepayment is of Eurodollar Loans,
C/D Rate Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable
on the date specified therein. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 in the case of the Revolving Credit Loans, or
$1,000,000, in the case of the Short-Term Funding Loans, or, in each case, a
whole multiple of $1,000,000 in excess thereof.
(b) If on any date (including any date on which a Borrowing Base
Certificate is delivered pursuant to Section 6.2(f)) (i) the sum of (A) the
Aggregate Outstanding Revolving Extensions of Credit as of such date and (B)
Permitted Senior Indebtedness as of such date exceeds the then applicable
Borrowing Base or (ii) the Aggregate Outstanding Revolving Extensions of
Credit exceeds the aggregate Revolving Credit Commitments then in effect,
then, without notice or demand, the Company shall, on such date, prepay the
Loans in an amount equal to such excess, together with interest on the amount
paid or prepaid accrued to the date of such payment or prepayment and any
amounts payable pursuant to subsection 2.8 in connection therewith; provided,
that if the aggregate principal amount of Loans then outstanding is less than
the amount of such excess (because L/C Obligations constitute a portion
thereof), the Company shall, to the extent of the balance of such excess,
replace outstanding Letters of Credit and/or deposit an amount in cash in a
cash collateral account established with the Administrative Agent for the
benefit of the Lenders. The Company may, subject to the terms and conditions
of this Agreement, reborrow the amount of any prepayment made under this
subsection 2.7.
2.8 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert Eurodollar Loans or C/D Rate Loans to ABR Loans,
and/or to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans or C/D
Rate Loans may only be made on the last day of an Interest Period with respect
thereto. The Company may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election, provided that
any such conversion of C/D Rate Loans may, subject to the third succeeding
sentence, only be made on the last day of an Interest Period with respect
thereto. Any such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. If the last day of the then current Interest Period with
respect to C/D Rate Loans that are to be converted to Eurodollar Loans is not
a Business Day, such conversion shall be made on the next succeeding Business
Day, and during the period from such last day to such succeeding Business Day
such Loans shall bear interest as if they were ABR Loans. All or any part of
outstanding Eurodollar Loans, ABR Loans and C/D Rate Loans may be converted as
provided herein, provided that (i) no Loan may be converted into a Eurodollar
Loan or a C/D Rate Loan when any Event of Default has occurred and is
continuing and the Documentation Agent and the Administrative Agent have or
the Required Lenders have determined that such a conversion is not appropriate
and (ii) no Loan may be converted into a Eurodollar Loan or a C/D Rate Loan if
the last day of any Interest Period in respect thereof would be after the
Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as such
upon the expiration of the then current Interest Period with respect thereto
by the Company giving notice to the Administrative Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan or C/D Rate Loan may be continued
as such (i) when any Event of Default has occurred and is continuing and the
Agents have or the Required Lenders have determined that such a continuation
is not appropriate or (ii) if the last day of any Interest Period in respect
thereof would be after the Termination Date; and provided, further, that if
the Company shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period.
2.9 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising (i) each Eurodollar Tranche shall be equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof and (ii) each C/D Rate Tranche
shall be equal to $10,000,000 or a whole multiple of $1,000,000 in excess
thereof.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at
a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
(c) Each C/D Rate Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Margin.
(d) Each Short-Term Funding Loan made by a Short-Term Funding Lender
shall bear interest for each day during which such Short-Term Funding Loan is
outstanding at the rate per annum equal to the average determined by the
Administrative Agent to be the arithmetic average (rounded upward to the
nearest 1/100th of 1%) of the respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate at which such Reference
Lender is able to obtain funds for such day in the federal funds market in
which such Lender customarily acquires federal funds, plus the Short-Term
Funding Line Margin. The Administrative Agent shall, upon request, quote to
the Company the interest rate in effect for Short-Term Funding Loans on the
date of quotation.
(e) If all or a portion of (i) the principal amount of any Revolving
Credit Loan or Short-Term Funding Loan, (ii) any interest payable thereon or
(iii) any other amount payable hereunder shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum which is (x) in the case of overdue
principal, 2% above the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection until the earlier of
the date such amount is paid in full or the last day of the Interest Period
applicable to such overdue amount, and then 2% above the rate described in
paragraph (b) of this subsection or (y) in the case of overdue interest and
any other amount payable hereunder, 2% above the rate described in paragraph
(b) of this subsection, in each case from the date of such non-payment up to
but not including the date of actual payment in full (as well after as before
judgment).
(f) Interest on Revolving Credit Loans and Short-Term Funding Loans
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (e) of this subsection shall be
payable on demand.
2.11 Repayment of Loans. (a) On the Termination Date, the Company
will pay to the Administrative Agent for the account of each Lender the unpaid
principal amount of each Revolving Credit Loan made by such Lender.
(b) The Company will pay to the Administrative Agent for the account of
each Lender the unpaid principal amount of each Short-Term Funding Loan in
accordance with subsection 2.4(b), and in any event not later than the
Termination Date.
2.12 Computation of Interest and Fees. (a) Commitment fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Company and the Lenders of each
determination of a Eurodollar Rate or of a C/D Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the eurocurrency
reserve costs (described in subsection 2.16), the C/D Assessment Rate or the
C/D Reserve Percentage shall become effective as of the opening of business on
the day on which such change becomes effective. The Administrative Agent
shall as soon as practicable notify the Company and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to this subsection 2.12.
(c) If any Reference Lender shall for any reason no longer have a
Revolving Credit Commitment or any Loans outstanding, such Reference Lender
shall thereupon cease to be a Reference Lender, and if, as a result, there
shall only be one Reference Lender remaining, the Documentation Agent and the
Administrative Agent (after consultation with the Company and with the consent
of the Required Lenders) shall, by notice to the Company and the Lenders,
designate another Lender as a Reference Lender so that there shall at all
times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If
any of the Reference Lenders shall be unable or shall otherwise fail to supply
such rates to the Administrative Agent upon its request, the rate of interest
shall, subject to the provisions of subsection 2.13, be determined on the
basis of the quotations of the remaining Reference Lenders or Reference
Lender.
2.13 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Company) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate or the C/D Rate
for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate or the C/D Rate determined or
to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Company and the Lenders as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans or C/D Rate Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans or C/D Rate Loans, as the case may
be, shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans or C/D Rate Loans, as the case may be, shall be converted, on
the first day following the last day of the then current Interest Period with
respect thereto, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans or C/D Rate Loans, as the
case may be, shall be made or continued as such, nor shall the Company have
the right to convert Loans to Eurodollar Loans or C/D Rate Loans, as the case
may be.
2.14 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Lenders hereunder, each payment by the Company on account of
any commitment fee hereunder and any reduction of the Revolving Credit
Commitments of the Lenders shall be made pro rata according to the respective
Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Company on account of the principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal of the Revolving Credit Loans, respectively,
then held by the Lenders. Notwithstanding any other provision of this
Agreement that requires payments hereunder to be allocated to any particular
category of obligations hereunder, if at any time (i) the Administrative Agent
shall have received insufficient funds to pay all amounts then due and payable
hereunder or (ii) the Documentation Agent shall have received written notice
from the Company or any Lender than an Event of Default has occurred and is
continuing, the amount of funds received shall be applied first to the payment
of commitment fees and other amounts then due and payable hereunder other than
fees in respect of Letters of Credit, principal and interest, and
Reimbursement Obligations, pro rata in respect of all such amounts owing to
each Lender, second to the payment of fees in respect of Letters of Credit and
interest then due and payable hereunder, pro rata in respect of all such
amounts owing to each Lender, and then to the payment of Reimbursement
Obligations and all principal amounts then outstanding (whether of not due and
payable) hereunder, pro rata in respect of all such amounts owing to each
Lender. All payments (including prepayments) to be made by the Company
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:30 P.M., Charlotte, North Carolina time, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the
Administrative Agent's office specified in subsection 10.2, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its Commitment Percentage of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Company a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to ABR
Loans hereunder, on demand, from the Company. Nothing contained in this
subsection 2.14(b) shall relieve any Lender that has failed to make available
its Commitment Percentage of any borrowing hereunder from its obligation to do
so in accordance with the terms hereof.
2.15 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 shall make it unlawful for any Lender to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Domestic Dollar Loans to Eurodollar Loans
shall forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR 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 Company shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
2.18.
2.16 Eurocurrency Reserve Costs; Requirements of Law. (a) The Company
agrees to pay to each Lender which requests compensation under this subsection
2.16(a) (by notice to the Company), on the last day of each Interest Period
with respect to any Eurodollar Loan made by such Lender, so long as such
Lender shall be required to maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board of Governors of the Federal
Reserve System (or, so long as such Lender may be required by such Board of
Governors or by any other Governmental Authority to maintain reserves against
any other category of liabilities which includes deposits by reference to
which the interest rate on Eurodollar Loans is determined as provided in this
Agreement or against any category of extensions of credit or other assets of
such Lender which includes any Eurodollar Loans), an additional amount
(determined by such Lender and notified to the Company) representing such
Lender's calculation or, if an accurate calculation is impracticable,
reasonable estimate (using such reasonable means of allocation as such Lender
shall determine) of the actual costs, if any, incurred by such Lender during
such Interest Period as a result of the applicability of the foregoing
reserves to such Eurodollar Loans, which amount in any event shall not exceed
the product of the following for each day of such Interest Period:
(i) the principal amount of the Eurodollar Loans made by such Lender
to which such Interest Period relates outstanding on such day; and
(ii) the difference between (x) a fraction the numerator of which
is the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan and the denominator of which is one minus the maximum
rate (expressed as a decimal) at which such reserve requirements are
imposed by such Board of Governors or other Governmental Authority on
such date minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the denominator
of which is 360.
(b) If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof 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 made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit,
any Application or any Eurodollar Loan or C/D Rate Loan made by
it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by
subsection 2.17 and changes in the rate of tax on the overall net
income of such Lender);
(ii) 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 eurocurrency
reserve costs pursuant to paragraph (a) above or the C/D Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender in good xxxxx xxxxx to be
material, of making, converting into, continuing or maintaining
Eurodollar Loans or C/D Rate Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Company shall promptly pay
such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the
Company, through the Documentation Agent, of the event by reason of
which it has become so entitled. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(c) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof or compliance by such Lender
or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from
any Governmental Authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder
or under any Letter of Credit to a level below that which such Lender or
such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Lender in
good faith to be material, then from time to time, after submission by
such Lender to the Company (with a copy to the Documentation Agent) of a
written request therefore, the Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction.
(d) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a), (b) or (c) of this subsection 2.16, as the case may be,
shall be delivered to the Company and shall, if submitted in good faith,
be conclusive absent manifest error; provided that any certificate
delivered by a Lender pursuant to this subsection 2.16(d) shall (i) in
the case of a certificate in respect of amounts payable pursuant to
paragraph (a) or (b) of this subsection 2.16, set forth in reasonable
detail the basis for and the calculation of such amounts, and (ii) in
the case of a certificate in respect of amounts payable pursuant to
paragraph (c) of this subsection 2.16, (A) set forth at least the same
amount of detail in respect of the calculation of such amount as such
Lender provides in similar circumstances to other similarly situated
borrowers from such Lender, and (B) include a statement by such Lender
that it has allocated to its Revolving Credit Commitment or outstanding
Loans no greater than a proportionately equal amount of any reduction of
the rate of return on such Lender's capital due to the adoption or
change in any Requirement of Law regarding capital adequacy as it has
allocated to each of its other commitments to lend or other outstanding
loans to similarly situated borrowers that are affected similarly by
such adoption or change.
2.17 Taxes. (a) All payments made by the Company under this Agreement
and the 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
Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on any Agent or any Lender as a
result of a present or former connection between such Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or the 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 the Notes, 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
Agreement and the Notes, provided, however, that the Company 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
(i) such Lender fails to comply with the requirements of paragraph (b) of this
subsection or (ii) either of the certifications made by such Lender as set
forth in such paragraph is not true and correct with respect to such Lender.
Whenever any Non-Excluded Taxes are payable by the Company, as promptly as
possible thereafter the Company shall send to the 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 Company showing payment
thereof. If the Company 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 Company shall
indemnify the Administrative Agent and the Lenders for any incremental 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 Agreement and the payment of the Notes
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) deliver to the Company and the Administrative Agent (with a copy
to the Documentation Agent) (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Company and the Administrative Agent (with a
copy to the Documentation 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 Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Documentation Agent and the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required 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 Company, the
Administrative Agent and the Documentation Agent. Such Lender shall certify
(i) in the case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes and (ii) in the case of a Form W-8 or W-9, that it
is entitled to an exemption from United States backup withholding tax. Each
Person that shall become a Lender or a Participant pursuant to subsection 10.6
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this subsection, provided
that in the case of a Participant such Participant shall furnish all such
required forms and statements to the Lender from which the related
participation shall have been purchased.
2.18 Indemnity. The Company agrees 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 Company in making a
borrowing of, conversion into or continuation of Eurodollar Loans or C/D Rate
Loans after the Company has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Company in making
any prepayment after the Company has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of
Eurodollar Loans or C/D Rate 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 the excess, if any, of (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 such 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 Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. This
covenant shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder. A certificate of any
Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section shall be delivered to the Company and shall
be conclusive absent manifest error.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Prior to the Closing Date, Chemical or an
affiliate thereof as specified on Schedule 3.1, as Issuing Bank, issued the
letters of credit described in Schedule 3.1 (the "Existing Letters of
Credit"). Subject to the terms and conditions hereof, NationsBank or an
Affiliate, as Issuing Bank, agrees, and other Lenders designated by the
Company with the consent of the Documentation Agent and the Administrative
Agent may agree, in each case in reliance on the agreements of the other
Lenders set forth in subsection 3.4(a), to issue letters of credit (together
with the Existing Letters of Credit, "Letters of Credit") for the account of
the Company on any Business Day during the Commitment Period in such form as
may be approved from time to time by the Issuing Bank; provided that the
Issuing Bank shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the Aggregate Outstanding Revolving Extensions of Credit
would exceed the lesser of (A) the aggregate Revolving Credit Commitments then
in effect and (B) the excess of the Borrowing Base then in effect over
Permitted Senior Indebtedness. Each Letter of Credit shall (i) be denominated
in Dollars and shall be either (x) a standby letter of credit issued to
support obligations of the Company and its Subsidiaries, contingent or
otherwise, arising in the ordinary course of business or (y) a documentary
letter of credit in respect of the purchase of goods or services by the
Company and its Subsidiaries in the ordinary course of business and (ii)
expire no later than the Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform Customs and,
to the extent not inconsistent therewith, the laws of the State of New York.
(c) The Issuing Bank shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Company may
from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may reasonably request in accordance with its customary
procedures (with a copy to the Administrative Agent). Upon receipt of any
Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Bank be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Bank and the Company. The Issuing Bank
shall furnish a copy of such Letter of Credit to the Company promptly
following the issuance thereof.
3.3 Fees, Commissions and Other Charges.
(a) The Company shall pay (i) to the Administrative Agent, for the
account of the Issuing Bank and the L/C Participants in accordance with their
respective Revolving Credit Commitment Percentages, a letter of credit
commission with respect to each Letter of Credit, computed for the period from
the Closing Date (in the case of the first such payment) or the date on which
the last such payment was due (in all other cases) to the date upon which such
payment is due hereunder at the L/C Fee Rate on the average daily aggregate
amount available to be drawn under such Letter of Credit and (ii) to the
Issuing Bank for its own account, a letter of credit commission with respect
to each Letter of Credit, computed for the period from the Closing Date (in
the case of the first such payment) or the date on which the last such payment
was due (in all other cases) to the date upon which such payment is due
hereunder at the rate of 1/8% per annum of the average daily aggregate amount
available to be drawn under such Letter of Credit during the period for which
such fee is calculated. Such commissions shall be payable in arrears on each
L/C Fee Payment Date and shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, the Company
shall pay or reimburse the Issuing Bank for such reasonable and customary
costs and expenses as are incurred or charged by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Bank and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection.
3.4 L/C Participations. (a) The Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
Issuing Bank, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage in the Issuing Bank's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Bank that, if a draft
is paid under any Letter of Credit for which the Issuing Bank is not
reimbursed in full by the Company in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Bank upon demand at
the Issuing Bank's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed; provided, that no L/C
Participant shall be obligated to make such payment to the extent that, after
giving effect to such payment, the sum of (i) such payment, (ii) such Lender's
Commitment Percentage of the L/C Obligations on the date of such payment other
than that with respect to which such payment would be made and (iii) such
Lender's Commitment Percentage of the Aggregate Outstanding Revolving
Extensions of Credit on such date other than the L/C Obligations exceeds such
Lender's Revolving Credit Commitment. Each L/C Participant's obligation to
purchase its participating interest in each Letter of Credit pursuant to this
subsection 3.4(a) shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right which such L/C Participant may have against the Issuing Bank, the
Company, any direct or indirect beneficiary of any Letter of Credit, the
Administrative Agent or any other Person whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default; (iii) any adverse change in
the condition (financial or otherwise) of the Company; (iv) any breach of this
Agreement by the Company, the Administrative Agent or any other Lender; or (v)
any other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing; and such obligation shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any reimbursement obligation of the Company is rescinded or must
otherwise be restored or returned by the Issuing Bank upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Company or any substantial part of its
property, or otherwise, all as though such payment had not been made.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Bank on demand
an amount equal to the product of (i) such amount, times (ii) the daily
average federal funds rate, as quoted by the Issuing Bank, during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Bank, times (iii) a fraction
the numerator of which is the number of days that elapse during such period
and the denominator of which is 360.If any such amount required to be paid by
any L/C Participant pursuant to subsection 3.4(a) is not in fact made
available to the Issuing Bank by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Bank shall be entitled to
recover from such L/C Participant, on demand, such amount with interest
thereon calculated from such due date at the rate per annum applicable to ABR
Loans hereunder. A certificate of the Issuing Bank submitted to any L/C
Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment under
any Letter of Credit and has received from any L/C Participant its pro rata
share of such payment in accordance with subsection 3.4(a), the Issuing Bank
receives any payment related to such Letter of Credit (whether directly from
the Company or otherwise, including proceeds of collateral applied thereto by
the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Bank shall be required to be returned by the Issuing Bank, such L/C
Participant shall return to the Issuing Bank the portion thereof previously
distributed by the Issuing Bank to it.
3.5 Reimbursement Obligation of the Company. The Company agrees to
reimburse the Issuing Bank on each date on which the Issuing Bank notifies the
Company of the date and amount of a draft presented under any Letter of Credit
and paid by the Issuing Bank for the amount of (a) such draft so paid and (b)
any taxes, fees, charges or other costs or expenses incurred by the Issuing
Bank in connection with such payment, provided, that the failure of the
Company to so reimburse the Issuing Bank on such date shall not be deemed to
be an Event of Default if (i) the Company receives notice of such draft after
1:30 P.M. on such date and (ii) the Company makes such reimbursement in full
no later than the first Business Day following such date. Each such payment
shall be made to the Issuing Bank at its address for notices specified herein
in lawful money of the United States of America and in immediately available
funds. Interest shall be payable on any and all amounts remaining unpaid by
the Company under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) to but not
including the date of payment in full at the rate which would be payable on
any outstanding ABR Loans which were then overdue.
3.6 Obligations Absolute. The Company's obligations under this
SectionError! Reference source not found. 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which the Company may have or have had
against the Issuing Bank or any beneficiary of a Letter of Credit. The
Company also agrees with the Issuing Bank that the Issuing Bank shall not be
responsible for, and the Company's Reimbursement Obligations under subsection
3.5 shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, or any dispute between or
among the Company and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or any claims
whatsoever of the Company against any beneficiary of such Letter of Credit or
any such transferee, provided, that payment by the Issuing Bank under such
Letters of Credit against presentation of such documents shall not have been
determined by a final judgement of a court of competent jurisdiction to have
constituted gross negligence or willful misconduct by the Issuing Bank. The
Issuing Bank shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Bank's gross negligence or willful misconduct.
The Company agrees that any action taken or omitted by the Issuing Bank under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct and in
accordance with the standards or care specified in the Uniform Commercial Code
of the State of New York and the Uniform Customs, shall be binding on the
Company and shall not result in any liability of the Issuing Bank to the
Company.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify the
Company of the date and amount thereof. The responsibility of the Issuing Bank
to the Company in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment appear on their face to be in conformity with
such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3Error! Reference source not found., the provisions of this Section 3
shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans
and issue or participate in the Letters of Credit the Company hereby
represents and warrants to the Agents and each Lender that:
4.1 Financial Condition. The consolidated balance sheets of the
Company and its consolidated Subsidiaries as at December 31, 1994 and the
related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young, copies of which have
heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such dates, and the consolidated results of their operations and changes in
cash flows for the fiscal year then ended. The unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at March 31, 1995
and the related unaudited consolidated statements of income and of cash flows
for the three-month period ended on such date, certified by a Responsible
Officer, copies of which have heretofore been furnished to each Lender,
present fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of
their operations and changes in cash flows for the three-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as
the case may be, and as disclosed therein and except the quarterly statements
are unaudited and do not include footnotes as would be required for audited
financial statements). Neither the Company nor any of its Restricted
Subsidiaries had, at the date of the most recent balance sheet referred to
above, any Guarantee Obligation, contingent liability or liability for taxes,
or any long-term lease or any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or in
the notes thereto and which, in the aggregate, would be material to the
Company and its Subsidiaries taken as a whole, except as set forth on Schedule
4.6.
4.2 No Change. Since December 31, 1994, no development or event has
occurred which has had or could reasonably be expected to have a Material
Adverse Effect except as otherwise disclosed in the Company's audited or
unaudited financial statements including the periodic quarterly reports on
Form 10-Q, in each case delivered to the Lenders prior to the Closing Date.
Between December 31, 1994 and the Closing Date, no dividends or other
distributions have been declared, paid or made upon the capital stock of the
Company nor has any of the capital stock of the Company been redeemed,
retired, purchased or otherwise acquired for value by the Company or any of
its Subsidiaries, except for payment of regular quarterly dividends of not
more than $0.17 per share per quarter, payment of the dividend on the Series A
ESOP Convertible Preferred Stock and except as otherwise disclosed in the
Company's audited or unaudited financial statements including the periodic
quarterly reports on Form 10-Q delivered to the Lenders prior to the Closing
Date.
4.3 Corporate Existence; Compliance with Law. Each of the Company and
its Restricted Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except in the case of the foregoing clauses (c) and (d) to the extent
that the failure to be so qualified or to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority, and the legal right, to make,
deliver and perform this Agreement and the Notes and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and the Notes and to authorize the
execution, delivery and performance of this Agreement and the Notes. No
consent or authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any other Loan Document. This Agreement
has been, and, as of the Closing Date, the Notes will be, duly executed and
delivered on behalf of the Company. This Agreement constitutes, and each
other Loan Document when executed and delivered by the Company for value
received will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the Notes, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligation of
the Company or of any of its Subsidiaries and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
4.6 No Material Litigation. Schedule 4.6 sets forth information with
respect to certain litigation, investigations, or proceedings pending against
the Company and its Subsidiaries. Subject to the matters set forth on such
Schedule, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Company, threatened by or against the Company or any of its Restricted
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to this Agreement or the Notes or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
4.7 No Default. Neither the Company nor any of its Restricted
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property; Liens. Each of the Company and its
Restricted Subsidiaries has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to all
its other property, except for defects in title that do not interfere in any
material respect with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes, and none
of such property is subject to any Lien except as permitted by subsection 7.3.
4.9 Intellectual Property. The Company and each of its Restricted
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of
its business as currently conducted except for those the failure to own or
license which could not reasonably be expected to have a Material Adverse
Effect (the "Intellectual Property"). No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, which could reasonably be expected to have a Material
Adverse Effect nor does the Company know of any valid basis for any such
claim. The use of such Intellectual Property by the Company and its
Restricted Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
4.10 Taxes. Each of the Company and its Restricted Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Company, are required to be filed and which if not so filed could reasonably
be expected to have a Material Adverse Effect, and has paid all taxes shown to
be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges of a material
nature imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Company or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Company, no claim is being asserted, with respect to any such
tax, fee or other charge which reasonably could be expected to have a Material
Adverse Effect.
4.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations
of such Board of Governors. If requested by any Lender or the Documentation
Agent, the Company will furnish to the Documentation Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U.
4.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which
this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits to an extent which could reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan
which could reasonably be expected to have a Material Adverse Effect, and
neither the Company nor any Commonly Controlled Entity would become subject to
any liability under ERISA in an amount which could reasonably be expected to
have a Material Adverse Effect if the Company or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. To the knowledge of the Company or any Commonly
Controlled Entity, no such Multiemployer Plan for which the Company or any
Subsidiary could reasonably be expected to have a material liability is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits provided
and the employees participating) of the liability of the Company and each
Commonly Controlled Entity for post retirement 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) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits by an amount in excess
of $5,000,000.
4.13 Investment Company Act; Other Regulations. The Company is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.14 Subsidiaries. All the Subsidiaries of the Company at the date of
this Agreement are listed on Schedule 4.14 and the Subsidiaries that, as of
the date of this Agreement, are Significant Subsidiaries of the Company are
designated as such on Schedule 4.14.
4.15 Accuracy and Completeness of Information. The written
information, reports and other papers and data with respect to the Company
(other than projections and estimates) furnished to the Agents or the Lenders
in connection with this Agreement or the obtaining of the commitments of the
Lenders hereunder was, at the time so furnished and when considered as a
whole, complete and correct in all material respects, or has been subsequently
supplemented by other information, reports or other papers or data, to the
extent necessary to give in all material respects a true and accurate
knowledge of the subject matter in all material respects. All projections and
estimates with respect to the Company and its Subsidiaries so furnished by the
Company were prepared and presented in good faith, it being recognized by the
Documentation Agent and the Lenders that such projections as to future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results
and that such differences may be material; except as set forth and required
within this Agreement, the Company shall not be required to update such
projections.
4.16 Environmental Matters. Except to the extent that all of the
following, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect:
(a) To the knowledge of the Company, the facilities and properties
owned, leased or operated by the Company or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any Materials
of Environmental Concern in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to give rise
to liability under, any Environmental Law.
(b) To the knowledge of the Company, the Properties and all operations
at the Properties are in compliance, and, to the extent of the Company's and
its Subsidiaries' involvement with the Properties, have in the last five years
been in compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Company or any of its Subsidiaries (the "Business").
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business, nor does the
Company have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the knowledge of the Company, Materials of Environmental Concern
have not been transported or disposed of from the Properties while owned or
operated by the Company or any of its Subsidiaries in violation of, or in a
manner or to a location which could reasonably be expected to give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on or
under any of the Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be named
as a party with respect to the Properties or the Business, 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 the Properties or the Business.
(f) To the knowledge of the Company, there has been no release or
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower or
any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could
reasonably give rise to liability under Environmental Laws.
4.17 Status of the Notes. All indebtedness of the Company under this
Agreement, the Notes and the Applications (including, without limitation
principal, interest (including interest accruing after the occurrence of any
event described in Section 8(f), whether or not such interest constitutes an
allowed claim in any proceeding referred to in Section 8(f)), fees, expenses
and indemnities) constitutes, and the Company hereby expressly agrees that all
such indebtedness shall constitute, "Senior Debt" as such term is used in the
1992 Subordinated Debt Indenture.
4.18 Purpose of Loans. The proceeds of the Loans shall be used by the
Company for working capital purposes in the ordinary course of business and to
make the purchases and investments permitted by Section 7.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extensions of Credit. The agreement of each
Lender to make the initial extensions of credit requested to be made by it is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Documentation Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
the Company and each Agent, with a counterpart for each Lender, (ii) for
the account of each Lender, a Revolving Credit Note, conforming to the
requirements hereof and executed by a duly authorized officer of the
Company, (iii) for the account of each Short-Term Funding Lender, a
Short-Term Funding Line Note conforming to the requirements hereof and
executed by a duly authorized officer of the Company and (iv) the
Guaranty, executed by a duly authorized officer of each Guarantor.
(b) Intercreditor Agreement. A supplement to the Intercreditor
Agreement, in form satisfactory to the Documentation Agent, shall have
been executed and delivered by each Lender not already a party thereto.
(c) Corporate Proceedings. The Documentation Agent shall have
received, with a counterpart for each Lender, (i) a copy of the
resolutions, in form and substance reasonably satisfactory to the
Documentation Agent, of the Board of Directors of the Company and each
Guarantor authorizing (x) in the case of the Company, the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which it is a party, and the borrowings contemplated
hereunder, and (y) in the case of each Guarantor, the execution,
delivery and performance of the Guaranty, in each case, certified by the
Secretary or an Assistant Secretary of the Company or such Guarantor, as
the case may be, as of the Closing Date, which certificate shall state
that the resolutions thereby certified have not been amended, modified,
revoked or rescinded and shall be in form and substance satisfactory to
the Documentation Agent and (ii) an incumbency certificate of the
Company and each Guarantor, satisfactory in form and substance to the
Documentation Agent, with appropriate insertions and attachments.
(d) Corporate Documents. The Documentation Agent shall have received,
with a counterpart for each Lender, true and complete copies of the
Charter and By-laws of the Company and each Guarantor, certified as of
the Closing Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary of the Company or such Guarantor, as the case
may be.
(e) No Violation. The consummation of the transactions contemplated
hereby shall not contravene, violate or conflict with, nor involve the
Documentation Agent or any Lender in any violation of, any Requirement
of Law.
(f) Fees. The Syndication Agent, the Documentation Agent and the
Administrative Agent shall have received the fees to be received on the
Closing Date referred to in subsection 2.5.
(g) Legal Opinions. The Documentation Agent shall have received, with
a counterpart for each Lender, the executed legal opinions of (i) the
Corporate Counsel to the Company, substantially in the form of Exhibit
E-1 hereto, and (ii) Piper & Marbury L.L.P., counsel to the Company and
the Guarantors, substantially in the form of Exhibit E-2. Such legal
opinions shall cover such other matters incident to the transactions
contemplated by this Agreement as the Documentation Agent may reasonably
require.
(h) Borrowing Base Certificate. The Documentation Agent shall have
received a Borrowing Base Certificate, dated the Closing Date and
setting forth a calculation of the Borrowing Base as of April 30, 1995,
showing that the Aggregate Outstanding Revolving Extensions of Credit on
the Closing Date (after giving effect to the extension of credit
hereunder on the Closing Date), when added to the Permitted Senior
Indebtedness on the Closing Date, shall not exceed the Borrowing Base as
set forth therein.
(i) Existing Credit Agreement. The Documentation Agent shall have
received evidence satisfactory to it that, effective as of the Closing
Date and after giving effect for the initial extensions of Credit
hereunder all amounts outstanding under the Existing Credit Agreement
will have been paid in full and the Commitments thereunder will have
been replaced with the Commitments hereunder.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Company or any Guarantor in or pursuant to the
Loan Documents shall be true and correct in all material respects on and
as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Additional Documents. The Documentation Agent shall have received
each additional document, instrument, legal opinion or item of
information reasonably requested by it, including, without limitation, a
copy of any debt instrument, security agreement or other material
contract to which the Company may be a party.
(d) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Documentation Agent, and the Documentation
Agent shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the Company
hereunder shall constitute a representation and warranty by the Company as of
the date of such Loan or such issuance that the conditions contained in
subsection 5.2(a) and (b) have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees as follows for so long as any of the
Commitments remain in effect, any Note or any Letter of Credit remains
outstanding and unpaid or any other amount is owing to any Lender or the
Agents hereunder:
6.1 Financial Statements. The Company will furnish to each Lender:
(a) as soon as available, but in any event within 100 days after the
end of each fiscal year of the Company, copies of the consolidated
balance sheets of the Company and its consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income
and retained earnings and changes in cash flows for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit (other
than qualifications related to the incorporation of reports by other
independent certified public accountants), by Ernst & Young or other
independent certified public accountants of nationally recognized
standing not unacceptable to the Required Lenders; and
(b) as soon as available, but in any event not later than 55 days after
the end of each of the first three quarterly periods of each fiscal year
of the Company, the unaudited consolidated balance sheets of the Company
and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and retained
earnings and changes in cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects when considered in relation
to the consolidated financial position of the Company and its
consolidated Subsidiaries (subject to normal year-end audit
adjustments);
all such financial statements to be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
6.2 Certificates; Other Information. The Company will furnish to each
Lender:
(a) concurrently with the delivery of the financial statements referred
to in subsection 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 6.1(a) and 6.1(b), a compliance certificate of a
Responsible Officer, substantially in the form of Exhibit G, stating
that, to the best of such officer's knowledge, the Company during such
period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and in the Notes to be observed, performed or satisfied by it (and
containing calculations demonstrating compliance with subsections 7.1
and 7.11 and such other financial information as requested by the
Documentation Agent), and that such officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate;
(c) not later than 95 days after the end of each fiscal year of the
Company, a copy of the projections by the Company of the operating
budget and cash flow budget of the Company and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer to the effect that while such
officer has no reason to believe such projections are incorrect or
misleading in any material respect, such projections are based upon
assumptions that may not materialize or may change adversely due to
factors related to the Company's business or industry, and unanticipated
events and circumstances may occur subsequent to the date of such
projections, such that the actual results achieved may vary from such
projections, and such variations may be material, and that the Company
is under no obligation to update such projections;
(d) promptly upon their becoming available, but in any event no later
than ten days after the same are sent, copies of all financial
statements, reports, notices and proxy statements sent or made available
generally by the Company to its stockholders, or by any Restricted
Subsidiary of the Company to its stockholders (other than the Company or
any Subsidiary of the Company), of all regular and periodic reports and
all registration statements (excluding exhibits thereto and Registration
Statements on Form S-8) and prospectuses, if any, filed by the Company
or any of its Restricted Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and all of press releases and other
statements made available generally by the Company or any of its
Restricted Subsidiaries to the public concerning material developments
in the business of the Company and any of its Restricted Subsidiaries;
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request;
(f) as soon as practicable, but in no event later than 25 days after the
end of each month, a Borrowing Base Certificate certifying in reasonable
detail the Borrowing Base as of the last day of such month, which
certificate shall be complete and correct as of the date thereof; and
(g) concurrently with the delivery of the financial statements referred
to in subsections 6.1(a) and 6.1(b), the financial information set forth
on Schedule 6.2(g) hereto.
6.3 Payment of Obligations. The Company and each Restricted Subsidiary
will pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all obligations of whatever nature
which if not so paid could reasonably be expected to have a Material Adverse
Effect, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Company
or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence. The Company and
the Restricted Subsidiaries, taken as a whole, will at all times remain
principally engaged in the business currently being conducted by the Company
and the Restricted Subsidiaries, and in all respects material to the business
of the Company and the Restricted Subsidiaries taken as a whole, the Company
shall, and will cause each of the Restricted Subsidiaries to, preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises required
for the normal conduct of such business, except (i) as otherwise permitted
pursuant to subsection 7.5 and (ii) the Company shall not be required to
preserve any such right, privilege or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company or any Subsidiary and that the loss thereof could not
reasonably be expected to have a Material Adverse Effect. The Company shall,
and will cause each Restricted Subsidiary to, comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not reasonably be expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. The Company and each
Restricted Subsidiary will keep in all material respects all property useful
and necessary in its business in good working order and condition (provided,
however, that nothing in this subsection 6.5 shall prevent the Company from
discontinuing the operation or maintenance, or both the operation and
maintenance, of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and could not reasonably be expected to have a
Material Adverse Effect); maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, reasonable information as to
the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. The
Company and each Restricted Subsidiary will keep proper books of records and
account in which full, true and correct entries in conformity with GAAP and
all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and permit representatives of any
Lender, at such Lender's expense, to visit and inspect as reasonably requested
any of its properties and the properties of the real estate joint ventures in
which the Company or any Subsidiary within the Homebuilding Segment
participates or manages and examine and make abstracts from any of its books
and records at any reasonable time and as often as may reasonably be desired
and to discuss the business, operations, properties and financial and other
condition of the Company and its Subsidiaries and such real estate joint
ventures in which the Company or any Subsidiary within the Homebuilding
Segment participates or manages, as reasonably requested with officers and
employees of the Company and its Subsidiaries and with its independent
certified public accountants.
6.7 Notices. The Company will promptly give notice to the
Documentation Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Restricted Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Restricted Subsidiaries and any
Governmental Authority, which, in either case, reasonably could be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Restricted Subsidiaries (i) in which the amount involved and not covered
by insurance is $10,000,000 or more or (ii) in which injunctive or
similar relief is sought which reasonably could be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, or any
withdrawal from, or the termination, Reorganization or Insolvency of any
Multiemployer Plan or (ii) the institution of proceedings or the taking
of any other action by the PBGC or the Company or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) any change in the Rating by either Rating Agency; and
(f) any event or occurrence which has a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
6.8 Environmental Laws. (a) The Company, each Restricted Subsidiary
and each joint venture in which the Company or any Restricted Subsidiary
participates or manages will comply with and insure compliance by all tenants
and subtenants, if any, with all Environmental Laws and obtain and comply in
all material respects with and maintain, and insure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, registrations or permits required by Environmental Laws, except in
each case to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and
(b) The Company, each Restricted Subsidiary and each such joint venture
will conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities respecting Environmental Laws,
except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) The Company will defend, indemnify and hold harmless each Agent and
the Lenders, and their respective employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to
the violation of or noncompliance with any Environmental Laws, or any orders,
requirements or demand of Governmental Authorities related thereto, including
without limitation reasonable attorney and consultant fees, investigation and
laboratory fees, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements
contained in this paragraph (c) shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable
hereunder.
6.9 Guarantees from Future Subsidiaries. The Company will promptly
secure the execution and delivery of the Guaranty to the Documentation Agent
on behalf of the Lenders from each Subsidiary, whether now existing or formed
and organized after the Closing Date, if such Subsidiary (i) has assets with
an aggregate book value equal to or greater than $1,000,000 and (ii) is
included in the Homebuilding Segment. Each such Subsidiary which hereafter
meets the criteria set forth in the preceding sentence shall execute and
deliver the Guaranty within 30 days after it meets such criteria.
Concurrently with the execution and delivery by such a Subsidiary of a
Guaranty, the Company will deliver to the Documentation Agent such legal
opinions and evidence of corporate action and authority in respect thereof as
shall be reasonably requested by the Documentation Agent.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees as follows for so long as any of the
Commitments remain in effect, any Note or any Letter of Credit remains
outstanding and unpaid or any other amount is owing to any Lender or any Agent
hereunder:
7.1 Financial Condition Covenants. The Company shall not:
(a) Maintenance of Consolidated Net Worth of the Company. Permit the
Consolidated Net Worth of the Company (i) on March 31, 1995, to be less
than $287,000,000 or (ii) on the last day of any fiscal quarter ending
after March 31, 1995, to be less than $287,000,000 plus the sum of (A)
50% of Consolidated Net Income of the Company for each fiscal quarter
for which such Consolidated Net Income is positive during the period
from April 1, 1995 through such date plus (B) the aggregate amount of
net proceeds received by the Company from all registered public
offerings of securities of the Company characterized as capital stock in
accordance with GAAP after April 1, 1995 through such date.
(b) Maintenance of Total Liabilities in Relation to Adjusted
Consolidated Tangible Net Worth. Permit Combined Total Liabilities of
the Homebuilding Segment on the last day of any fiscal quarter of the
Company to be greater than the sum of (i) 2.75 multiplied by that
portion of Adjusted Consolidated Tangible Net Worth on such day which is
less than or equal to $218,000,000 plus (ii) 2.0 multiplied by that
portion of Adjusted Consolidated Tangible Net Worth on such day which is
greater than $218,000,000; provided, that in the event that Fixed Charge
Coverage is less than 1.75 for any two consecutive fiscal quarters of
the Company, the multipliers specified in clauses (i) and (ii) of this
subsection (i.e. 2.75 and 2.0) shall each be reduced by 0.25, effective
as of the last day of the fiscal quarter immediately following the
second of such two consecutive fiscal quarters of the Company, and such
multipliers shall be further reduced by 0.1 on and as of the last day of
each subsequent fiscal quarter of the Company unless Fixed Charge
Coverage for such subsequent fiscal quarter is equal to or greater than
1.75, in which case such multipliers shall be as set forth in clauses
(i) and (ii) of this subsection effective as of such day. For purposes
of this subsection 7.1(b), Combined Total Liabilities of the
Homebuilding Segment shall exclude accounts payable and accrued
expenses.
(c) Maintenance of Fixed Charge Coverage. Permit Fixed Charge Coverage
to be less than 1.50 for any three consecutive fiscal quarters of the
Company.
(d) Maintenance of Net Worth Ratio of the Financial Services Segment.
Permit the ratio of Financial Services Segment Combined Total
Liabilities to the Consolidated Adjusted Net Worth of the Financial
Services Segment to be greater than 8.0 to 1.0 as of the end of any
quarter in Xxxxxx Mortgage Company's fiscal year.
7.2 Limitation on Indebtedness. Neither the Company nor any Restricted
Subsidiary will create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness in respect of the Loans, the Notes, and the other
obligations of the Company under this Agreement;
(b) Indebtedness of the Company to any Subsidiary and of any Subsidiary
to the Company or any other Subsidiary; provided, in each case, that
such Indebtedness be permitted as an Investment pursuant to subsection
7.8;
(c) Indebtedness of the Company or any of its Subsidiaries in respect
of purchase money mortgage financing for real estate inventory,
provided, that the holder of such Indebtedness shall have no recourse
against the Company or any Subsidiary in respect of such Indebtedness,
such recourse being limited solely to the assets financed with the
proceeds of such Indebtedness, and provided, further, that (i) at least
50% of the aggregate capitalized cost of the assets so acquired with
such purchase money mortgage financing by the Company, its Subsidiaries
and the Company's consolidated joint ventures shall have been financed
with such purchase money mortgage financing and (ii) the aggregate
capitalized cost of all assets pledged in respect of or otherwise
securing all such non-recourse purchase money mortgage financing of the
Company, its Subsidiaries and its consolidated and unconsolidated joint
ventures shall not at any time exceed $100,000,000;
(d) Subordinated Debt;
(e) Specified Debt;
(f) Indebtedness in respect of industrial revenue bonds outstanding on
the Closing Date and listed on Schedule 7.2(f) hereto;
(g) Indebtedness constituting, or constituting the primary obligations
guaranteed by, the Guarantee Obligations permitted pursuant to
subsection 7.4(a), (b) or (c);
(h) Indebtedness of the Company or any other entity in the Homebuilding
Segment in the form of reimbursement obligations in respect of letters
of credit issued for the account of the Company or such other entity
other than Letters of Credit issued hereunder and other than Permitted
IRB Letters of Credit, provided, that such Indebtedness shall not
include any letters of credit supporting obligations under any
Indebtedness having a final maturity of more than one year from the date
of incurrence of such Indebtedness;
(i) Indebtedness of a corporation which becomes a Subsidiary or which
is merged into the Company or any Subsidiary after the date hereof,
provided that (i) such Indebtedness existed at the time such corporation
became a Subsidiary or was so merged and was not created in anticipation
thereof and (ii) immediately after giving effect to the acquisition of
such corporation by the Company no Default or Event of Default shall
have occurred and be continuing;
(j) refinancing of existing Indebtedness of the Company or any
Restricted Subsidiary or other Indebtedness permitted under this
subsection 7.2 (a), (b), (c), (d), (e), (f), (g), (h), (i), (k), (l),
(m), (n), (o) and (p) on terms no less favorable to the Company and not
resulting in an Event of Default or Default hereunder, provided, that
the provisions of the applicable clause (other than this clause (j)) of
this subsection 7.2 under which such Indebtedness is permitted are
satisfied after giving effect thereto;
(k) subject to subsection 7.15 hereof, additional Indebtedness of the
Company or any of its Subsidiaries in the Homebuilding Segment (other
than the Indebtedness described in the paragraphs of this subsection 7.2
other than this paragraph) (i) having restrictive covenants no more
restrictive or less favorable to the Company than the terms and
provisions hereof, (ii) having a final maturity of greater than one year
from the date of incurrence of such Indebtedness and (iii) having no
revolving credit or other provisions for short-term repayment and
reborrowing, provided, that no more than an aggregate of $20,000,000 in
principal of such Indebtedness matures prior to the Termination Date;
(l) Indebtedness of any entity within the Xxxxxx Financial Division so
long as there is no recourse in respect thereof to the Company or any
entity in the Homebuilding Segment or so long as any such recourse to
the Company or any entity within the Homebuilding Segment is permitted
pursuant to subsection 7.4;
(m) Indebtedness of the Company and any of its Subsidiaries incurred to
finance the acquisition of fixed or capital assets (whether pursuant to
a loan, a Financing Lease or otherwise) in an aggregate amount at any
time outstanding not to exceed $15,000,000; provided, that such
Indebtedness shall be secured solely by the assets financed with the
proceeds of such Indebtedness;
(n) Indebtedness of the Company or any other entity in the Homebuilding
Segment in the form of reimbursement obligations in respect of
completion bonds issued for the account of the Company or such other
entity in the ordinary course of business of the Homebuilding Segment in
respect of construction projects undertaken by it;
(o) Indebtedness of the Company or any other entity in the Homebuilding
Segment in the form of reimbursement obligations in respect of letters
of credit issued for the account of the Company or such other entity for
the benefit of employee benefit or employee insurance programs of the
Company or any of its Subsidiaries; and
(p) Indebtedness of the Company or any of its Subsidiaries in the
Homebuilding Segment to any Lender, the proceeds of which are used to
finance acquisition, development or construction projects, the financing
of which projects by such Lender pursuant to this clause (p), in the
determination of such Lender, furthers the purposes applicable to it
under the Community Reinvestment Act of 1977, as amended, and the
regulations issued thereunder, provided that (i) the aggregate principal
amount of all such Indebtedness shall not exceed $15,000,000 at any time
outstanding and (ii) such Indebtedness, if secured by assets of the
Company or any Subsidiary, shall be secured solely by such assets
financed with the proceeds of such Indebtedness.
7.3 Limitation on Liens. Neither the Company nor any Restricted
Subsidiary will create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(f) Liens in existence on the Closing Date securing Indebtedness
permitted by subsection 7.2(f), a refinancing thereof pursuant to
subsection 7.2(j) or any extensions, renewals or replacements thereof,
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured
thereby is not increased;
(g) Liens securing Indebtedness of the Company and its Subsidiaries
permitted by subsection 7.2(c) or 7.2(m) incurred to finance the
acquisition of real estate inventory or fixed or capital assets or a
refinancing thereof pursuant to subsection 7.2(j), provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such real estate inventory or fixed or capital assets
(or, in the case of a refinancing pursuant to subsection 7.2(j), such
Liens shall be renewals or replacements of Liens created substantially
simultaneously with the acquisition of such real estate inventory or
fixed or capital assets), (ii) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and
(iii) if applicable, the percentage of such acquisition financed with
proceeds of Indebtedness shall satisfy the requirements set forth in
clause (ii) to the last proviso to subsection 7.2(c);
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary or which is merged into the Company or a Subsidiary after the
date hereof securing Indebtedness permitted by subsection 7.2(i) (or
subsection 7.2(j) in respect of such Indebtedness), provided that (i)
such Liens existed at the time such corporation became a Subsidiary or
was so merged and were not created in anticipation thereof, (ii) any
such Lien is not spread to cover any additional property or assets of
such corporation after the time such corporation becomes a Subsidiary or
is so merged, and (iii) the amount of Indebtedness secured thereby is
not increased;
(i) Liens on assets of the Financial Services Segment securing
Indebtedness of the Financial Services Segment permitted by subsection
7.2(g) or 7.2(l);
(j) judgment and other similar Liens arising in connection with court
proceedings; provided (i) the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being actively
contested in good faith by appropriate proceedings and (ii) no Default
or Event of Default shall have occurred and be continuing and
(k) Liens securing Indebtedness permitted under subsection 7.2(p),
provided that such Liens cover only such assets financed with the
proceeds of such Indebtedness.
7.4 Limitation on Guarantee Obligations. Neither the Company nor any
Restricted Subsidiary will create, incur, assume or suffer to exist any
Guarantee Obligation except:
(a) the Company and other entities within the Homebuilding Segment may
incur Guarantee Obligations for the benefit of the Xxxxxx Financial Division
if the aggregate amount of such Guarantee Obligations, plus the net amount of
Investments by the Homebuilding Segment in the Financial
Services Segment, does not exceed the sum of (i) $50,000,000, and (ii)
an amount, if a positive number, equal to (A) the aggregate value of all
cash dividends received by the Company from the Financial Services
Segment, determined in accordance with GAAP, during the period from
April 1, 1995 to and including such date less (B) an amount equal to the
excess of (1) the aggregate amount of cash dividends paid by the Company
on its common stock during such period over (2) 50% of the Consolidated
Net Income of the Homebuilding Segment for such period;
(b) subject to subsection 7.15 hereof, the Company may incur Guarantee
Obligations other than those described in paragraphs (a) and (e) of this
subsection 7.4 in an aggregate amount at any time outstanding not
exceeding 25% of Adjusted Consolidated Tangible Net Worth at such time,
provided, that Guarantee Obligations of the Company for the benefit of
unconsolidated joint ventures permitted under subsection 7.8(e) hereof
shall not at any time exceed an aggregate amount equal to 15% of
Adjusted Consolidated Tangible Net Worth at such time;
(c) the Company and its Restricted Subsidiaries may incur Guarantee
Obligations in respect of Permitted IRB Letters of Credit;
(d) the entities within the Financial Services Segment may incur other
Guarantee Obligations;
(e) the Company and other entities within the Homebuilding Segment may
incur Guarantee Obligations in respect of letters of credit and
completion bonds permitted pursuant to subsection 7.2(h), (n) or (o);
and
(f) Subsidiaries of the Company may incur Guarantee Obligations in
respect of the Specified Debt, provided that simultaneously with the
execution and delivery of any guaranty in respect thereof by any
Subsidiary, such Subsidiary shall execute and deliver a substantially
identical guaranty in respect of all obligations of the Company under
this Agreement and the other Loan Documents.
7.5 Limitations of Fundamental Changes. Neither the Company nor any
Restricted Subsidiary will enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets except:
(a) any Restricted Subsidiary of the Company may be merged or
consolidated with or into the Company provided that the Company shall be
the continuing or surviving corporation, or with or into any one or more
wholly owned Restricted Subsidiaries of the Company provided that the
wholly owned Restricted Subsidiary or Subsidiaries shall be the
continuing or surviving corporation;
(b) any wholly owned Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other wholly owned
Restricted Subsidiary of the Company;
(c) the Company or any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets to the Company or any
Restricted Subsidiary of the Company, whether existing on or created
after the date of this Agreement; provided, that if the transferor is
the Company or a Guarantor, the transferee shall be the Company or a
Guarantor; and
(d) sales, conveyances, leases, assignments, transfers or other
dispositions of property, business or assets permitted under subsection
7.6.
7.6 Limitation on Sale of Assets. Neither the Company nor any
Restricted Subsidiary will convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including, without
limitation, stock of Subsidiaries, receivables and leasehold interests and,
with respect to the Financial Services Segment, its loan servicing
portfolios), whether now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary course of
business;
(b) the sale of inventory in the ordinary course of business;
(c) the sale or discount of accounts receivable arising in the ordinary
course of business in connection with the compromise or collection
thereof;
(d) the sale or discount without recourse of mortgage loan receivables;
(e) the sale by the Financial Services Segment in the ordinary course
of its business of its rights under loan servicing portfolios owned on
the Closing Date;
(f) as permitted by subsection 7.5 (other than pursuant to subsection
7.5(d));
(g) the sale of mortgages and mortgage-backed or other securities by
the Financial Services Segment in the ordinary course of business;
(h) the sale, transfer or other disposition of any stock, property or
assets of the Limited-Purpose Subsidiaries;
(i) the sale, transfer or other disposition of Cash Equivalents; and
(j) any other sale or disposition of property or assets (including
stock or assets of Subsidiaries), provided that the aggregate book value
of all assets so sold or disposed of in any period of twelve consecutive
months shall not exceed 10% of the book value of the consolidated total
assets of the Company (excluding the assets of the Limited Purpose
Subsidiaries) as at the beginning of such twelve-month period.
7.7 Limitation on Dividends. The Company will not declare or pay any
dividend (other than dividends payable solely in common stock of the Company)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of stock of the Company or any
warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Company or any Subsidiary (such declarations, payments, setting apart,
purchases, redemptions, defeasances, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except that (i) the
Company may make any Restricted Payment so long as, after giving effect
thereto, no Default or Event of Default will be in existence and (ii) the
Company may in any event pay dividends in respect of the Company's Series A
ESOP Convertible Preferred Stock for any period in any amount not exceeding
the amount of principal and interest payable to the Company for such period by
the recipient of such dividends.
7.8 Limitation on Investments. Neither the Company nor any Restricted
Subsidiary will make any Investments, except:
(a) extensions of trade credit and other payables in the ordinary
course of business;
(b) Investments in Cash Equivalents;
(c) acquisitions by the Company or any of its Restricted Subsidiaries
within the Homebuilding Segment of assets constituting a business unit
or the capital stock of any Person; provided, that such business unit or
Person is engaged in the same general type of business as conducted by
the Company or one of its Restricted Subsidiaries; provided, further,
that the aggregate amount of consideration paid by the Company and its
Restricted Subsidiaries for all such acquisitions of assets or capital
stock (including as a part of such consideration any Indebtedness
assumed as a part thereof) does not exceed (i) in any fiscal year, an
amount equal to 25% of Adjusted Consolidated Tangible Net Worth as at
the end of the immediately prior fiscal year of the Company or (ii)
since the Closing Date, an aggregate amount equal to $100,000,000; and
provided, finally, that after giving effect thereto, no Default or Event
of Default shall be in existence;
(d) acquisitions by the Company or any of its Restricted Subsidiaries
other than acquisitions permitted under subsection 7.8(c) or (h) of, or
investments in, assets constituting a business unit or the capital stock
of any Person; provided, that the aggregate amount of consideration paid
by the Company and its Restricted Subsidiaries for all such acquisitions
of assets or capital stock (including as a part of such consideration
any Indebtedness assumed as a part thereof) does not exceed an aggregate
amount equal to $25,000,000; and provided, further, that after giving
effect thereto, no Default or Event of Default shall be in existence;
(e) (i) Investments by the Company or any of its Subsidiaries within
the Homebuilding Segment in joint ventures, other than Consolidated
Joint Ventures, in an aggregate amount for all such Investments not
exceeding at any date the sum of (A) $41,500,000, (B) an amount equal to
the aggregate value of all cash distributions attributable to such
Investments received by the Company from all joint ventures in which the
Company or any of its Subsidiaries within the Homebuilding Segment is a
participant, determined in accordance with GAAP, during the period from
April 1, 1995 to and including such date and (C) 15% of cumulative
Adjusted Consolidated Net Income of the Company for the period from and
including April 1, 1995 to and including the last day of the fiscal
quarter of the Company ending immediately prior to such date;
(f) Investments by the Company in any Subsidiary within the
Homebuilding Segment or in any Consolidated Joint Venture or by any
Subsidiary within the Homebuilding Segment in the Company, in any other
Subsidiary within the Homebuilding Segment or in any Consolidated Joint
Venture;
(g) Investments by the Company or any other entity within the
Homebuilding Segment in the Financial Services Segment if the aggregate
amount of such Investments outstanding on any date, plus the aggregate
amount of all Guarantee Obligations incurred by the Homebuilding Segment
for the benefit of the Xxxxxx Financial Division outstanding on such
date, does not at any time exceed the sum of (i) $50,000,000 and (ii) an
amount, if a positive number, equal to (A) the aggregate value of all
cash dividends received by the Company from the Financial Services
Segment, determined in accordance with GAAP, during the period from
April 1, 1995 to and including such date less (B) an amount equal to the
excess of (1) the aggregate amount of cash dividends paid by the Company
on its common stock during such period over (2) 50% of the Consolidated
Net Income of the Homebuilding Segment for such period;
(h) Investments by entities within the Financial Services Segment in
any Person and acquisitions of assets constituting a business unit or
the capital stock of any Person by entities within the Financial
Services Segment;
(i) loans and advances to employees of the Company or its Subsidiaries
for travel, entertainment and relocation expenses in the ordinary course
of business; and
(j) other loans and advances to employees of the Company in connection
with incentive or stock purchase plans or arrangements in an aggregate
amount not to exceed $3,000,000 at any time outstanding.
7.9 Limitation on Optional Payments and Modification of Debt
Instruments. (a) Neither the Company nor any Restricted Subsidiary will (i)
make any optional payment or prepayment on or redemption of any Subordinated
Debt or (ii) amend, modify or change, or consent or agree to any amendment,
modification or change to any of the terms (including, without limitation, the
subordination terms) of any Subordinated Debt (other than any such amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon or would otherwise make the terms of the
Subordinated Debt more favorable to the Company and no less favorable to the
holders of the senior debt to which such Subordinated Debt is subordinated);
provided that so long as no Default is in existence or would result therefrom,
the Company may prepay Subordinated Debt to the extent that the aggregate face
amount of the Subordinated Debt so prepayed after the Closing Date does not
exceed $25,000,000.
(b) No Restricted Subsidiary within the Financial Services Segment will
amend, modify or change, or consent or agree to any amendment, modification or
change to any of the terms of any debt instrument to which it is a party the
effect of which would be to (i) impose restrictions on the payment of
dividends, directly or indirectly, to or for the benefit of the Company which
would limit such dividends to an aggregate amount for all Restricted
Subsidiaries in the Financial Services Segment in any fiscal year which is
less than the Combined Net Income of the Financial Services Segment for the
current fiscal year or (ii) impose restrictions on the making by such
Restricted Subsidiaries of Advances, directly or indirectly, to or for the
benefit of the Company which would limit such Advances to an aggregate amount
for all Restricted Subsidiaries in the Financial Services Segment which is
less than $25,000,000 at any time outstanding, provided, that provisions which
by their terms would impose such restrictions only in the event of a default
under such debt instrument and solely as a result of such default shall not be
deemed to be included in the restrictions described in the foregoing clauses
(i) or (ii).
7.10 Transactions with Affiliates. Neither the Company nor any
Restricted Subsidiary will enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate unless such transaction is otherwise
permitted under this Agreement, or is upon fair and reasonable terms no less
favorable to the Company or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an
Affiliate.
7.11 Limitation on Inventory. The Company will not permit (a) Unsold
Land Held at the end of any month to exceed 20% of Adjusted Consolidated
Tangible Net Worth of the Company at such date, or (b) Unsold Land Under
Development to exceed an amount equal to 150% of Adjusted Consolidated
Tangible Net Worth or (c) the ratio of (i) the sum of (A) the average Unsold
Land Held on the last day of each month during the six-month period ending on
such date plus (B) the average Unsold Land Under Development on the last day
of each month during the six-month period ending on such date plus (C) the
average Unsold Housing Inventory on the last day of each month during the six-
month period ending on such date to (ii) the average Total Housing Inventory
on the last day of each month during the six-month period ending on such date
to exceed .75 to 1. Notwithstanding any of the foregoing to the contrary, in
the event that Fixed Charge Coverage is less than 1.20 for any two consecutive
fiscal quarters of the Company, then for each fiscal quarter of the Company
subsequent to the second such consecutive fiscal quarter, the aggregate amount
of purchases of land which, immediately after such purchase, would be included
under the definition herein of "Unsold Land Held" during such subsequent
quarter shall be limited to an amount equal to 50% of the average quarterly
amount attributable to the purchase cost of land which would be included in
"Cost of Goods Sold" on a combined balance sheet of the Homebuilding Segment
determined in accordance with GAAP for the four fiscal quarters of the Company
immediately prior to such subsequent quarter, effective until the fiscal
quarter of the Company immediately following the first subsequent fiscal
quarter of the Company for which Fixed Charge Coverage is 1.20 or greater.
7.12 Fiscal Year . The Company will not permit the fiscal year of
the Company to end on a day other than December 31.
7.13 Compliance with ERISA . Neither the Company nor any
Restricted Subsidiary will (a) terminate any Plan so as to result in any
material liability to PBGC, (b) engage in any "prohibited transaction" (as
defined in Section 4975 of the Code or Section 406 of ERISA) involving any
Plan which would result in a material liability for an excise tax or civil
penalty in connection therewith, (c) incur or suffer to exist any material
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, involving any Plan, or (d) allow or suffer to exist any event
or condition which presents a material risk of incurring a material liability
to PBGC by reason of termination of any such Plan.
7.14 Preferred Stock . The Company will not permit any Restricted
Subsidiary within the Homebuilding Segment to issue preferred stock to any
Person other than the Company.
7.15 Limitation on Indebtedness of New Subsidiaries.
Notwithstanding anything to the contrary in subsection 7.2 or subsection 7.4
hereof, the Company shall not permit any Subsidiary of the Company in the
Homebuilding Segment created or acquired after the Closing Date to create,
incur, assume or suffer to exist any Indebtedness which otherwise would be
permitted under subsection 7.2(k) or subsection 7.4(b) hereof.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof
or hereof; or the Company shall fail to pay any interest on any Note, or
any other amount payable hereunder, within 2 days after any such
interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Company
or any Guarantor herein or in any other Loan Document or which is
contained in any certificate or document furnished at any time under or
in connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any
agreement contained in Section 7 (other than subsection 7.11); or
(d) The Company shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section 8), and such default shall
continue unremedied (i) for a period of 90 days, in the case of
subsection 7.11, or (ii) for a period of 30 days, in the case of any
other such provision; or
(e) The Company or any of its Restricted Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness having
a principal balance of $10,000,000 or more (other than the Notes) or in
the payment of any Guarantee Obligation of $10,000,000 or more, beyond
the period of grace (not to exceed 15 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; provided that the
failure by Xxxxxx Mortgage Company or any of its Subsidiaries to pay any
such Indebtedness or Guarantee Obligation in the form of reimbursement
obligations in respect of letters of credit issued for the account of
Xxxxxx Mortgage Company or any of its Subsidiaries backing obligations
under master servicing agreements shall not constitute an Event of
Default under this paragraph (e) until the date which is 90 days after
the date on which such reimbursement obligations become due and payable;
or
(f) (i) The Company or any of its Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or the Company or any of its Restricted Subsidiaries shall make
a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Company or any of its Restricted
Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Restricted
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Company or any of its Restricted Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Company or any of its Restricted
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Company or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Company or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Restricted Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance) of $10,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) If a Designated Event shall occur;
(j) The Company shall cease to own, directly or indirectly and free and
clear of any Lien, 100% of the issued and outstanding capital stock of
X.X. Xxxxx & Sons, Inc. and Xxxxxx Mortgage Company; or
(k) The Guaranty shall cease, for any reason, to be in full force and
effect, or the Company or any Guarantor shall so assert in writing;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Company, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Notes (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder)
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Required Lenders, the Documentation Agent may, or upon
the request of the Required Lenders, the Documentation Agent shall, by notice
to the Company declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Documentation Agent may, or upon the request of the
Required Lenders, the Documentation Agent shall, by notice of default to the
Company, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the Notes (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries
of the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to
the preceding paragraph, the Company shall at such time deposit in a cash
collateral account opened by the Documentation Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Documentation Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Company hereunder and under the Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the Company hereunder and under the Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Company.
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENTS
9.1 Appointment . (a) Each Lender hereby irrevocably designates
and appoints Chemical as the Documentation Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
Chemical, as the Documentation Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Documentation Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Documentation Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Documentation Agent
(b) Each Lender hereby irrevocably designates and appoints NationsBank as
the Administrative Agent of such Lender under this Agreement and the other
Loan Documents, and each Lender irrevocably authorizes NationsBank, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties . Any Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions . Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Company or any
officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided
for in, or received by any Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or
any other Loan Document or for any failure of the Company to perform its
obligations hereunder or thereunder. No Agent shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company.
9.4 Reliance by Agents . Any Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation 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 the Company), independent accountants and other
experts selected by such Agent. Each Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Agent. Any Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document 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. Each Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the Notes and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
9.5 Notice of Default . No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Documentation Agent receives such a notice, the Documentation Agent shall give
notice thereof to the Lenders. The Documentation Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Documentation Agent shall have received such directions, the Documentation
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders . Each Lender
expressly acknowledges that neither any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of the Company, shall be deemed to
constitute any representation or warranty by such Agent to any Lender. Each
Lender represents to the Agents that it has, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agents hereunder, no Agent shall have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company which may come into the possession of such
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
9.7 Indemnification . The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their
Commitment Percentages immediately prior to such date), 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
the payment of the Notes) be imposed on, incurred by or asserted against any
Agent in any way relating to or arising out of this Agreement, any of the
other Loan 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 such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable to any Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from such
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Notes and all other amounts
payable hereunder.
9.8 Agents in Individual Capacity . Any Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Company as though such Agent were not an Agent hereunder and
under the other Loan Documents. With respect to its Loans made or renewed by
it and any Note issued to it, each Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent . The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Company, whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and
the other Loan Documents.
9.10 Successor Documentation Agent . The Documentation Agent may
resign as Documentation Agent upon 30 days' notice to the Lenders. If the
Documentation Agent shall resign as Documentation Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Company, whereupon such successor agent shall succeed
to the rights, powers and duties of the Documentation Agent, and the term
"Documentation Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Documentation Agent's rights, powers
and duties as Documentation Agent shall be terminated, without any other or
further act or deed on the part of such former Documentation Agent or any of
the parties to this Agreement or any holders of the Notes. After any retiring
Documentation Agent's resignation as Documentation Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Documentation Agent under this Agreement and
the other Loan Documents.
9.11 The Co-Agents and the Syndication Agent. Neither the Co-
Agents nor the Syndication Agent, in such capacities, shall have any duties,
responsibilities, obligations, liabilities or functions under this Agreement
or the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers . Neither this Agreement, any Note,
any other Loan Document, nor any terms hereof of thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. With the written consent of the Required Lenders, the
Documentation Agent and the Company may, from time to time, enter into written
amendments, supplements or modifications hereto and to the Notes and the other
Loan Documents for the purpose of adding any provisions to this Agreement or
the Notes or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Company hereunder or thereunder or waiving, on such
terms and conditions as the Documentation Agent may specify in such
instrument, any of the requirements of this Agreement or the Notes or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) reduce the amount or extend the maturity of any Note or
any installment thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any fee payable to any Lender hereunder, in each
case without the consent of the Lender affected thereby, (b) change the amount
of any Lender's Revolving Credit Commitment without the consent of the Lender
affected thereby and each Issuing Bank, (c) change the amount of any Lender's
Short-Term Funding Line Commitment without the consent of the Lender affected
thereby, (d) amend, modify or waive any provision of this subsection or reduce
the percentage specified in the definition of Required Lenders, or consent to
the assignment or transfer by the Company of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without the
written consent of all the Lenders, (e) amend, modify or waive any provision
of Section 9 without the written consent of the then Administrative Agent,
Documentation Agent and Co-Agents, (f) amend, modify or waive any provision of
subsection 2.4 without the written consent of the Administrative Agent, (g)
amend, modify or waive any provision of Section 3 without the written consent
of each Issuing Bank affected thereby or (h) release the obligation of any
Guarantor under the Guaranty without the written consent of all the Lenders.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Company, the
Lenders, the Agents and all future holders of the Notes. In the case of any
waiver, the Company, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the outstanding Notes and any
other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereon.
10.2 Notices . All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by
hand, or 5 days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received, or, in the case of telegraphic notice,
when delivered to the telegraph company, or, in the case of telex notice, when
sent, answerback received, addressed as follows in the case of the Company,
the Administrative Agent and the Documentation Agent, and as set forth in
Schedule 1.1 in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
The Company: The Xxxxxx Group, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial
Officer
Telecopy: 000-000-0000
The Documentation Agent:
Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopy:
The Administrative Agent:
NationsBank, N.A. (Carolinas)
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telecopy: 000-000-0000
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsection 2.3A, 2.3B, 2.4, 2.6, 2.7 or 2.8
shall not be effective until received.
10.3 No Waiver; Cumulative Remedies . No failure to exercise and
no delay in exercising, on the part of the Documentation Agent or any Lender,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties . All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
10.5 Payment of Expenses and Taxes . The Company agrees (a) to
pay or reimburse the Documentation Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to the Documentation Agent,
(b) to pay or reimburse each Lender and each Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes, the other Loan Documents and any such
other documents, including, without limitation, reasonable fees and
disbursements of counsel to such Agent and to the several Lenders, and (c) to
pay, indemnify, and hold each Lender and each Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the Notes, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender and each Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes, the other Loan Documents or the
use of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"), provided, that the Company shall have no
obligation hereunder to any Agent or any Lender with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of
such Agent or any such Lender, (ii) legal proceedings commenced against any
Agent or any such Lender by any security holder or creditor thereof arising
out of and based upon rights afforded any such security holder or creditor in
its capacity as such, or (iii) legal proceedings commenced against any Agent
or any such Lender by any other Lender or by any Transferee (as defined in
subsection 10.6). Any person which may seek indemnification under this
subsection 10.5 will promptly notify the Company of any claim, litigation,
investigation or proceeding of which it shall receive notice which may give
rise to any liability subject to indemnification under this subsection 10.5
and shall permit the Company to participate, at the Company's expense, in the
defense of such claim, litigation, investigation or proceeding unless such
person seeking indemnification shall have determined, in its sole discretion,
that such participation by the Company would be disadvantageous to such
person; provided, however, that the failure so to notify the Company will not
relieve it of its indemnification obligations under this subsection 10.5,
except to the extent of any damages directly suffered by the Company as a
result of such failure to notify. The agreements in this subsection shall
survive repayment of the Notes and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments . (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Lenders, each Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of
a participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Note for all purposes under this
Agreement and the other Loan Documents, such Lender shall retain the sole
right to enforce against the Company the Obligations of the Company relating
to the Loans and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or changing the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the
Loans), and the Company and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The Company
agrees that if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed
to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under this Agreement or any Note, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.7(a)
as fully as if it were a Lender hereunder. The Company also agrees that each
Participant shall be entitled to the benefits of subsections 2.16, 2.17, 2.18
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it were a Lender; provided that, in the case of
subsection 2.18, such Participant shall have complied with the requirements of
said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the consent of the
Company, the Documentation Agent and the Administrative Agent, to an
additional bank or financial institution ("an Assignee") all or any part of
its rights and obligations under this Agreement and the Notes pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit F, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Documentation Agent, the
Administrative Agent and the Company) and delivered to the Documentation Agent
for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto) and (z) after giving effect to each
such assignment, each of the assigning Lender (unless such assigning Lender
shall have assigned its entire Commitment pursuant to such assignment) and
each assignee shall have a Commitment in an amount not less than $5,000,000.
(d) The Documentation Agent shall maintain at its address referred to
in subsection 10.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "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 entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the
Documentation Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Company and the Documentation
Agent) together with payment to the Documentation Agent of a registration and
processing fee of $2,500, the Documentation Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Company.
On or prior to such effective date, the Company, at its own expense, shall
execute and deliver to the Documentation Agent (in exchange for the Revolving
Credit Note of the assigning Lender, which such Note shall be returned to the
Company marked "Cancelled") a new Revolving Credit Note to the order of such
Assignee in an amount equal to the Revolving Credit Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Revolving Credit Commitment hereunder, a new Revolving Credit Note
to the order of the assigning Lender in an amount equal to the Revolving
Credit Commitment retained by it hereunder. Such new Notes shall be dated the
Closing Date and shall otherwise be in the form of the Note replaced thereby.
(f) The Company authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning the Company and
its Affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Company in connection with such Lender's credit
evaluation of the Company and its Affiliates prior to becoming a party to this
Agreement, provided that, prior to any such disclosure of nonpublic
information, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree to be bound by the provisions contained in Section 10.14 hereof.
(g) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off . (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
Section 8(f), or otherwise), other than in respect of Short-Term Funding Loans
pursuant to the provisions of this Agreement, in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans or the Reimbursements Obligations owing to it, or
interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders such portion of each such other Lender's Loan or the
Reimbursement Obligations owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Company agrees that each
Lender so purchasing a portion of another Lender's Loan may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) If an Event of Default shall occur and be continuing, in addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Company, any such notice being
expressly waived by the Company to the extent permitted by applicable law, to
set-off and appropriate and apply against any amount becoming due and payable
by the Company hereunder or under the Notes (whether at the stated maturity,
by acceleration or otherwise)any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender to or for the credit or the account of the Company. Each
Lender agrees promptly to notify the Company and the Documentation Agent after
any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
10.8 Counterparts . This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Documentation Agent.
10.9 Severability . Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
10.10 Integration . This Agreement represents the agreement of
the Company, the Agents and the Lenders with respect to the subject matter
hereof, and there are no promises or representations by any Agent or any
Lender relative to subject matter hereof not reflected herein.
10.12 Submission To Jurisdiction The Company hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in subsection 9.2 or at such other
address of which the Documentation Agent shall have been notified
pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
10.14 Confidentiality Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of non-public
information provided to it by the Company or any Subsidiary in connection with
this Agreement or any other Loan Document; provided, however, that any Lender
may disclose such information (a) at the request of any regulatory authority
or in connection with an examination of such Lender by any such authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the direction of
any other Governmental Authority, (e) to such Lender's independent auditors
and other professional advisors, (f) to any Transferee or potential Transferee
or (g) to the extent such information is public when received by such Lender
or becomes public thereafter due to the act or omission of any person other
than such Lender or its advisors, agents, employees or representatives;
provided that such Transferee agrees to comply with the provisions of this
subsection 10.14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
THE XXXXXX GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------
Title: Executive Vice President and
Chief Financial Officer
(..continued)
