AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 1
TO
AMENDMENT NO. 1, dated as of May 19, 2016 (this “Amendment”), by and among FIRST HUNTINGDON FINANCE CORP. (the “Borrower”), TOLL BROTHERS, INC. (the “Company”), the other Subsidiaries of the Company party hereto, all of the Existing Lenders under the Credit Agreement and SunTrust Bank, as Administrative Agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of February 3, 2014 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the Company, the Lenders from time to time party thereto (the “Existing Lenders”) and the Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
WHEREAS, the Borrower has requested that all of the Existing Lenders amend the Credit Agreement as set forth on Exhibit A hereto; and
WHEREAS, the Existing Lenders party hereto constituting all of the Existing Lenders under the Credit Agreement on the date hereof have agreed to so amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:
| 1. | Amendments to the Credit Agreement and Schedule 3 |
The Credit Agreement is,
effective as of the Amendment No. 1 Effective Date (as defined below), hereby amended to (i) delete the stricken text (indicated textually in the same manner as the following example:
stricken text) and (ii) add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Credit Agreement attached hereto as
Exhibit A. Schedule 3 to the Credit Agreement is hereby amended and restated to read as set forth on Exhibit A hereto.
| 2. | Acknowledgements and Consents. |
Pursuant to Section 9.2 of the Credit Agreement, the Administrative Agent, the Borrower, the Company and each Existing Lender party hereto hereby consents to this Amendment, including, without limitation, the amendments set forth in Section 1 hereof.
| 3. | Conditions Precedent to the Effectiveness of this Amendment |
This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied (the “Amendment No. 1 Effective Date”):
(a) Executed Counterparts. The Administrative Agent shall have received duly executed counterparts to this Amendment from the Borrower, the Company, each other Loan Party and each Existing Lender;
(b) Copies of the articles or certificate of incorporation of each of the Borrower and the Company, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(c) Copies, certified by the Secretary or Assistant Secretary of each of the Borrower and the Company, of the by laws and Board of Directors’ resolutions and resolutions or actions of any other body authorizing the execution, delivery and performance of this Amendment;
(d) An incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Borrower and the Company, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or the Company (as applicable) authorized to sign this Amendment, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or the Company (as applicable);
(e) To the extent requested by the Administrative Agent, copies of the articles or certificate of incorporation, partnership agreement or limited liability company operating agreement of each other Loan Party, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(f) To the extent requested by the Administrative Agent, copies, certified by the Secretary or Assistant Secretary of each other Loan Party, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance of this Amendment;
(g) An incumbency certificate, executed by the Secretary or Assistant Secretary of each other Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign this Amendment;
(h) A certificate, signed by the chief financial officer, controller, chief accounting officer or treasurer of the Borrower, stating that on the Amendment No. 1 Effective Date, before and after giving effect to this Amendment, no Default or Unmatured Default has occurred and is continuing and that all of the representations and warranties in Article VI of the Credit Agreement (as amended by this Amendment) and Section 4 of this Amendment are true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects), except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such
-2-
representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) on and as of such earlier date; provided, however, that references therein to the “Credit Agreement” or any other term which includes the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents, waivers and amendments set forth herein;
(i) Fees and Expenses Paid. The Borrower shall have paid all expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto) to the extent invoiced at least one (1) Business Day prior to the Amendment No. 1 Effective Date;
(j) Opinion of Counsel. The Administrative Agent shall have received executed legal opinions, addressed to the Administrative Agent and the Lenders, and in form and substance reasonably satisfactory to the Administrative Agent, from:
(i) Xxxxxxx Xxxxx LLP, counsel to the Loan Parties;
(ii) Xxxx X. XxXxxxxx, Esq., general counsel to the Company;
(iii) Xxxxxxx Xxxxx, Esq., California counsel of the Subsidiaries of the Company;
(iv) Xxxxx & Lardner LLP, Florida counsel of the Subsidiaries of the Company;
(v) Xxxxxx X. Xxxxx, Esq., Maryland counsel of the Subsidiaries of the Company;
(vi) Xxxx X. Xxxxxxxxx, Esq., New Jersey counsel of the Subsidiaries of the Company;
(vii) Xxxxxxx X. Xxxxxxxxx Esq., Pennsylvania counsel of the Subsidiaries of the Company;
(viii) Xxxxx & Xxxxxx LLP, Texas counsel of the Subsidiaries of the Company;
(ix) Xxxxxx X. Xxxxx, Esq., Virginia counsel of the Subsidiaries of the Company; and
(x) Xxxxxx Xxxxxx, Esq., Washington counsel of the Subsidiaries of the Company.
(k) Solvency Certificate. A solvency certificate signed by the chief financial officer or treasurer of the Company, confirming the solvency of the Company and its Subsidiaries on a consolidated basis after giving effect to this Amendment on the Amendment No. 1 Effective Date.
(l) Regulatory Documentation. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT Act, that has been requested prior to the Amendment No. 1 Effective Date.
-3-
| 4. | Representations and Warranties |
On and as of the Amendment No. 1 Effective Date, after giving effect to this Amendment, each Loan Party hereby represents and warrants to the Administrative Agent and each Lender as follows:
(a) each Loan Party has the power and authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by each Loan Party of the Loan Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate (or, in the case of Loan Parties that are not corporations, other) proceedings, and the Loan Documents constitute legal, valid and binding obligations of the applicable Loan Parties enforceable against them in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar Laws affecting the enforcement of creditors’ rights generally and by equitable principles (regardless of whether enforcement is sought in equity or law);
(b) each of the representations and warranties of each Loan Party contained in Article VI of the Credit Agreement (as amended by this Amendment) and any other Loan Document is true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) on and as of the Amendment No. 1 Effective Date, as if made on and as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) on and as of such earlier date; provided, however, that references therein to the “Credit Agreement” or any other term which includes the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents, waivers and amendments set forth herein;
(c) no Default or Unmatured Default has occurred, is continuing or existed immediately prior to or will exist immediately after giving effect to this Amendment and the transaction contemplated hereby; and
(d) neither the execution and delivery by the Loan Parties of this Amendment, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof or of the Credit Agreement, as amended by this Amendment, will violate (i) any Law binding on any of the Loan Parties or their respective Property or (ii) the articles or
-4-
certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, by-laws, or operating or other management agreement, as the case may be, of the Loan Parties, or (iii) the provisions of any indenture, instrument or agreement to which any Loan Party is a party or is subject (including, without limitation, the Credit Agreement as in effect immediately prior to giving effect to this Amendment), or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of any Loan Party pursuant to the terms of any such indenture, instrument or agreement other than any such violation, conflict, default or Lien which, in the case of each of clauses (i) and (iii) above (other than in the case of clause (iii) as it relates to the Credit Agreement as in effect immediately prior to giving effect to this Amendment), would not reasonably be expected to have a Material Adverse Effect. As of the date hereof, no order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any Official Body or any other Person that has not been obtained by any Loan Party, is required to be obtained by any Loan Party in connection with the execution and delivery of this Amendment, any borrowings heretofore made under the Credit Agreement, the payment and performance by the Loan Parties of the Obligations or the legality, validity, binding effect or enforceability of any of the Loan Documents.
| 5. | Reference to the Effect on the Loan Documents |
(a) As of the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument.
(b) Except as expressly amended hereby or specifically waived above, all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrower, the Guarantors, any Agent or the Administrative Agent under any of the Loan Documents, nor constitute a waiver or amendment of any other provision of any of the Loan Documents or for any purpose except in each case as expressly set forth herein.
(d) This Amendment shall constitute a “Loan Document” for all purposes under the Credit Agreement and any other Loan Document.
| 6. | Reaffirmation |
Each Loan Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document to which it is a party (as modified hereby); (ii) with respect to the Guarantors, its guarantee of the Obligations under the Guaranty Agreement; and (iii) agrees that (A) each Loan Document to which it is a party shall continue to be in full force and effect (as modified hereby)
-5-
and (B) all guarantees, covenants and agreements by such Loan Party under the Loan Documents shall continue to be in full force and effect (as modified hereby) and shall accrue to the benefit of the Lenders and the Administrative Agent and shall not be affected, impaired or discharged hereby or by the transactions contemplated in this Amendment (except as expressly provided herein).
| 7. | Execution in Counterparts |
This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
| 8. | Governing Law |
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
| 9. | Section Titles |
The section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto, except when used to reference a section. Any reference to the number of a clause, sub-clause or subsection of any Loan Document immediately followed by a reference in parenthesis to the title of the section of such Loan Document containing such clause, sub-clause or subsection is a reference to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in case of direct conflict between the reference to the title and the reference to the number of such section, the reference to the title shall govern absent manifest error. If any reference to the number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document is followed immediately by a reference in parenthesis to the title of a section of any Loan Document, the title reference shall govern in case of direct conflict absent manifest error.
| 10. | Notices |
All communications and notices hereunder shall be given as provided in the Credit Agreement.
| 11. | Severability |
The fact that any term or provision of this Amendment is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.
-6-
| 12. | Successors |
The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
| 13. | Jurisdiction; Waiver of Jury Trial |
The jurisdiction and waiver of right to trial by jury provisions in Sections 16.2 and 16.3 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
[SIGNATURE PAGES FOLLOW]
-7-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.
| FIRST HUNTINGDON FINANCE CORP. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President & Chief | |||
| Financial Officer | ||||
| TOLL BROTHERS, INC., a Delaware corporation and each of the other Designated Guarantors listed below on Exhibit B | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Senior Vice President or Vice President of (i) each of the Designated Guarantors which is a corporation or limited liability company; (ii) each corporate general partner of each of the Designated Guarantors which is a general or limited partnership; and (iii) each corporate trustee of each of the Designated Guarantors which is a trust. | ||||
Toll Brothers - Credit Agreement
Amendment Xx. 0
| XXXX XXXX XXXX. XX. 00 and each of the other Designated Guarantors listed below on Exhibit C | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx, President of (i) each of the Designated Guarantors which is a corporation or limited liability company, (ii) each corporate general partner of each of the Designated Guarantors which is a general or limited partnership; and (iii) each corporate trustee of each of the Designated Guarantors which is a trust. | ||
Toll Brothers - Credit Agreement
Amendment No. 1
| SUNTRUST BANK, as Administrative Agent and a Lender | ||
| By: | /s/ Xxxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxxx X. Xxxxxxx | |
| Title: | Senior Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Executive Officer | |
Toll Brothers - Credit Agreement
Amendment No. 1
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxxx | |
| Title: | Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |
| Title: | Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| BENEFICIAL BANK, as a Lender | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| THE BANK OF NEW YORK MELLON, as a Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Managing Director | |
Toll Brothers - Credit Agreement
Amendment No. 1
| FIFTH THIRD BANK, AN OHIO BANKING CORPORATION, as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ J. Xxxxxxx Xxxxxx | |
| Name: | J. Xxxxxxx Xxxxxx | |
| Title: | Senior Vice President | |
Toll Brothers - Credit Agreement
Amendment No. 1
SCHEDULE 3
PERMITTED LIENS
| Lienholder |
Obligor |
Collateral | Balance | Maturity Date | Location | |||||||||
| Legal 1031 Exchange Service Inc |
Toll Land V Limited Partnership | Non-Recourse | 2,317,334.00 | 02/27/17 | Wappinger Falls, NY | |||||||||
| Xxxxxxx X Xxxxxxxxx & Xxxxxx X Xxxxxxxxx |
Toll PA LP | Non-Recourse | 1,239,000.00 | |
Payments due at sale or by 07/31/18 |
|
Perkasie, PA | |||||||
| Xxxxxxx B Hockamn, Trustee of the Irrevocable Agreement of Trust of Xxxxxx Xxxxxxx Date 10/10/01 (50%). Trustee of the Irrevocable Agreement of Trust of Xxxxxxxx X Xxxxxxx Dated 10/10/01 (50%) |
Toll PA VI, LP | Recourse | 2,420,000.00 | 10/24/16 | Perkasie, PA | |||||||||
| XxXxx Shores Construction Corp |
Toll CO I LLC | Non-Recourse | 480,000.00 | |
Qtrly payments due, balance due by 03/05/18 |
|
Westminster, CO | |||||||
| XxXxx Shores Construction Corp |
Toll CO I LLC | Non-Recourse | 1,225,000.00 | |
Qtrly payments due, balance due by 09/30/16 |
|
Westminster, CO | |||||||
| Lakehurst Land Investment |
Toll FL VIII Limited Partnership | Non-Recourse | 1,835,617.62 | |
Payments due at sale or by 10/31/19 |
|
Bonita Springs, FL | |||||||
| TLF II LLC |
Toll NY V LP | Non-Recourse | 2,338,801.00 | 07/09/18 | Mount Pleasant, NY | |||||||||
| Xxxxxx Xxxxxx and Xxxxx Xxxxxx |
Toll MD VIII Limited Partnership | Non-Recourse | 4,800,006.00 | |
11/12/17, 11/12/18 and 11/06/19 |
|
Abingdon, MD | |||||||
| Xxxxxx Floral Inc |
Toll PA XIV LP | Recourse | 2,500,000.00 | 07/23/17 | Horsham, PA | |||||||||
| Kenjo Legacy LLC (50%) |
Toll CO LP | Non-Recourse | 5,173,450.00 | |
05/23/16, 05/23/17, 05/23/18 |
|
Fort Xxxxxxx, CO | |||||||
| X.X. Xxxxxxx LLC (50%) |
||||||||||||||
| Highmeadow Investment Properties, LLC |
Toll CT Limited Partnership | Non-Recourse | 4,324,194.90 | |
11/02/17 & 00/00/00 |
|
Xxxxxxxxxxx, XX | |||||||
| Xxxxx |
Xxxx XX LP | Non-Recourse | 5,841,000.00 | |
06/23/16 & 12/23/17 |
|
Seattle, WA | |||||||
| Adero Canyon LLC |
Toll Brothers AZ Construction Company | Recourse | 7,930,000.00 | 10/31/16 | Maricopa County, AZ | |||||||||
| The Retreat at Firerock, LLP |
Toll Brothers AZ Construction Company | Non-Recourse | 4,387,500.00 | 10/31/20 | Fountain Hills, AZ | |||||||||
| Security Title Agency |
Tol Brothers AZ Construction Company | Non-Recourse | 5,900,000.00 | |
09/23/16, 03/23/17 & 11/23/17 |
|
Scottsdale, AZ | |||||||
| Xxxxxxxxx Reality LP |
Toll PA XIV LP | Recourse | 5,200,000.00 | 9/1/2019 | Whitemarsh Twp, PA | |||||||||
| Xxxxxxx X Xxxxxxx Xx & Xxxxxxxxx X Xxxxxxx |
Toll CT II Limited Partnership | Non-Recourse | 4,471,830.00 | 08/03/19 | Xxxxxx, XX | |||||||||
| Xxxxxxxxxx X0 Property LLC |
Tol WA LP | Non-Recourse | 2,500,000.00 | 05/02/2016 | Bellevue, WA | |||||||||
| Traditions Community Development District |
Toll FL III Limited Partnership | Non-Recourse | 3,049,682.00 | 0/0/0000 | Xxxx Xx. Xxxxx, Xxxxxxx | |||||||||
| Tolomato Community Development District |
Toll Jacksonville Limited Partnership | Non-Recourse | 12,378,853.00 | 5/1/2037 | Ponte Vedra, Florida | |||||||||
| City of Xxxxxxxxx |
Xxxxxxx Toll LP | Recourse | 19,122.35 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 68,724.54 | 5/1/2018 | Henderson, NV | |||||||||
| Xxxxx County Treasurer |
Toll South LV LLC | Recourse | 188,391.23 | 12/1/2020 | Las Vegas, NV | |||||||||
| City of Las Vegas |
Toll North LV LLC | Recourse | 783,434.79 | 4/1/2024 | Las Vegas, NV | |||||||||
| Xxxxx County Treasurer |
Toll South LV LLC | Recourse | 152,218.11 | 6/1/2023 | Las Vegas, NV | |||||||||
| City of Reno |
Toll North Reno LLC | Recourse | 24,857.91 | 3/1/2023 | Reno, NV | |||||||||
| City of Reno |
Toll North Reno LLC | Recourse | 198,246.13 | 3/1/2023 | Reno, NV | |||||||||
| Lienholder |
Obligor |
Collateral | Balance | Maturity Date | Location | |||||||||
| City of Reno |
Toll North Reno LLC | Recourse | 772,065.18 | 3/1/2023 | Reno, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 62,749.59 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 391,343.94 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 748,566.52 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 745,123.46 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 761,691.65 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 827,962.92 | 6/1/2035 | Henderson, NV | |||||||||
| City of Las Vegas |
Toll South LV LLC | Recourse | 755,296.91 | 4/1/2031 | Las Vegas, NV | |||||||||
| City of Las Vegas |
Toll South LV LLC | Recourse | 1,647,266.45 | 4/1/2031 | Las Vegas, NV | |||||||||
| Xxxxx County Treasurer |
Toll South LV LLC | Recourse | 7,414,685.31 | 6/1/2035 | Las Vegas, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 1,193,741.01 | 6/1/2035 | Henderson, NV | |||||||||
| City of Xxxxxxxxx |
Toll Henderson LLC | Recourse | 1,379,018.12 | 6/1/2035 | Henderson, NV | |||||||||
| City of Las Vegas |
Toll South LV LLC | Recourse | 1,615,822.54 | 4/1/2031 | Las Vegas, NV | |||||||||
| Industrial Development Authority Emporia VA |
Toll VA III, LP | Recourse | 2,660,000.00 | 11/1/2023 | Emporia, VA | |||||||||
| City of Xxxx, Indiana |
Toll IN LLC | Recourse | 11,300,000.00 | 2/1/2041 | Knox, IN | |||||||||
| Bank of America |
Toll VA III, LP | Recourse | 2,690,608.22 | 11/1/2023 | Emporia, VA | |||||||||
| Bank of America |
Toll IN LLC | Recourse | 11,408,357.00 | 2/1/2041 | Knox, IN | |||||||||
| 128,121,562.40 | ||||||||||||||
Exhibit A to
Amendment No. 1
EXECUTION VERSION
DEAL CUSIP NUMBER: 00000XXX0
TERM LOAN CUSIP NUMBER: 00000XXX0
CREDIT AGREEMENT
by and among
FIRST HUNTINGDON FINANCE CORP.,
TOLL BROTHERS, INC.,
and
THE LENDERS PARTY HERETO
and
SUNTRUST BANK,
as Administrative Agent
and
SUMITOMO MITSUI BANKING CORPORATION
and U.S. BANK NATIONAL ASSOCIATION,
as Co-Syndication Agents
and
CAPITAL ONE, NATIONAL ASSOCIATION
and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
Dated as of February 3, 2014
And as Amended by Amendment No. 1 on May 19, 2016
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
Lead Arranger and Bookrunner
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I | ||||||||
| DEFINITIONS | ||||||||
| ARTICLE II | ||||||||
| THE CREDITS | ||||||||
|
|
The Term Loan Facility |
|||||||
|
|
Term Loan Facility |
|||||||
|
|
Mandatory Termination of Commitments |
|||||||
|
|
Payment |
|||||||
|
|
Term Advances |
|||||||
|
|
Term Advances |
|||||||
|
|
Ratable Advance Rate Options |
|||||||
|
|
Method of Selecting Rate Options and |
|||||||
|
|
Conversion and Continuation of Outstanding Term Advances |
|||||||
|
|
Limitations |
|||||||
|
|
|
|||||||
|
|
Reserved |
|||||||
|
|
Reserved |
|||||||
|
|
Minimum Amount of Each Term Advance; Maximum Number of Term Advances |
|||||||
|
|
Optional Principal Payments |
|||||||
|
|
[Reserved] |
|||||||
|
|
Changes in Interest Rate,
Etc |
|||||||
|
|
Rates Applicable After Default, Past Due Amounts |
|||||||
|
|
Method and Allocation of Payments |
|||||||
|
|
Noteless Agreement; Evidence of Indebtedness |
|||||||
|
|
Telephonic Notices |
|||||||
|
|
Interest Payment Dates: Interest and Fee Basis |
|||||||
|
|
Notification of Term Advances, Interest Rates and Prepayments |
|||||||
|
|
Lending Installations | |||||||
|
|
Non-Receipt of Funds by the Administrative Agent |
|||||||
|
|
[Reserved] |
|||||||
|
|
Additional Term Loans |
|||||||
|
|
[Reserved] |
|||||||
|
|
Replacement of a Lender |
|||||||
|
|
Termination of Term Loans of Non-Consenting Lender |
|||||||
| ARTICLE III | ||||||||
| INCREASED COSTS; TAXES | ||||||||
|
|
Increased Costs |
|||||||
|
|
Capital Adequacy |
|||||||
|
|
Availability of Certain Term Advances; Illegality |
|||||||
| i |
|
|
Funding Indemnification |
|||||||
|
|
Taxes |
|||||||
|
|
Lender Statements: Survival of Indemnity |
|||||||
| ARTICLE IV | ||||||||
| RESERVED | ||||||||
| ARTICLE V | ||||||||
| CONDITIONS PRECEDENT | ||||||||
|
|
Closing Conditions |
|||||||
|
|
Each Term Advance |
|||||||
| ARTICLE VI | ||||||||
| REPRESENTATIONS AND WARRANTIES | ||||||||
|
|
Existence and Standing |
|||||||
|
|
Authorization and Validity |
|||||||
|
|
No Conflict; Consent |
|||||||
|
|
Financial Statements |
|||||||
|
|
Material Adverse Change |
|||||||
|
|
Taxes |
|||||||
|
|
Litigation and Contingent Obligations |
|||||||
|
|
Subsidiaries |
|||||||
|
|
Accuracy of Information |
|||||||
|
|
Regulation U |
|||||||
|
|
Material Agreements |
|||||||
|
|
Compliance with Laws |
|||||||
|
|
Ownership of Properties |
|||||||
|
|
ERISA |
|||||||
|
|
Plan Assets; Prohibited Transactions |
|||||||
|
|
Liabilities |
|||||||
|
|
Plans and Benefit Arrangements |
|||||||
|
|
Investment Company Xxx |
|||||||
|
|
Intentionally Omitted |
|||||||
|
|
Employment Matters |
|||||||
|
|
Environmental Matters |
|||||||
|
|
Senior Debt Status |
|||||||
|
|
Designated Guarantors |
|||||||
|
|
|
|||||||
|
|
|
|||||||
|
6.21 |
Anti-Corruption Laws and Sanctions |
51 | ||||||
|
6.22 |
EEA Financial Institution |
51 | ||||||
|
6.23 |
FATCA |
51 | ||||||
| ii |
| ARTICLE VII | ||||||||
| COVENANTS | ||||||||
|
|
Financial Reporting |
|||||||
|
|
Use of Proceeds |
|||||||
|
|
Notice of Default |
|||||||
|
|
Conduct of Business |
|||||||
|
|
Taxes |
|||||||
|
|
Insurance |
|||||||
|
|
Compliance with Laws |
|||||||
|
|
Maintenance of Properties |
|||||||
|
|
Inspection |
|||||||
|
|
Mergers; Consolidations; Dissolutions |
|||||||
|
|
Distributions of Securities |
|||||||
|
|
Disposition of Assets |
|||||||
|
|
Borrower a Wholly-Owned Subsidiary |
|||||||
|
|
Investments and Acquisitions |
|||||||
|
|
Liens |
|||||||
|
|
Additional Designated Guarantors |
|||||||
|
|
Subordinated Indebtedness |
|||||||
|
|
Intercompany Loans, Loans from Non-Loan Parties |
|||||||
|
|
Appraisals |
|||||||
|
|
Procedures |
|||||||
|
|
Costs |
|||||||
|
|
Appraisers |
|||||||
|
|
Mortgage Subsidiaries |
|||||||
|
|
[Reserved] |
|||||||
|
|
[Reserved] |
|||||||
|
|
Plans and Benefit Arrangements |
|||||||
|
|
Employment Matters |
|||||||
|
|
Environmental Matters |
|||||||
|
|
Environmental Certificates |
|||||||
|
|
Senior Debt Status |
|||||||
|
|
Financial Covenants |
|||||||
|
|
Leverage Ratio |
|||||||
|
|
Borrowing Base |
|||||||
|
|
Tangible Net Worth |
|||||||
|
|
Mortgage Subsidiaries |
|||||||
|
|
Financial Contracts |
|||||||
| iii |
| ARTICLE VIII | ||||||||
| DEFAULTS | ||||||||
| ARTICLE IX | ||||||||
| ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES | ||||||||
|
|
Acceleration |
|||||||
|
|
Amendments |
|||||||
|
|
Preservation of Rights |
|||||||
| ARTICLE X | ||||||||
| GENERAL PROVISIONS | ||||||||
|
|
Survival of Representations |
|||||||
|
|
Governmental Regulation |
|||||||
|
|
Headings |
|||||||
|
|
Entire Agreement |
|||||||
|
|
Several Obligations Benefits of This Agreement |
|||||||
|
|
Expenses; Indemnification |
|||||||
|
|
Numbers of Documents |
|||||||
|
|
Accounting |
|||||||
|
|
Severability of Provisions |
|||||||
|
|
Nonliability of Lenders |
|||||||
|
|
Confidentiality |
|||||||
|
|
Nonreliance |
|||||||
|
|
Conversion and Non-Designation of Designated Guarantors |
|||||||
|
|
PATRIOT Xxx |
|||||||
|
10.15 |
Acknowledgment and Consent to Bail-in of EEA Financial Institutions |
75 | ||||||
| ARTICLE XI | ||||||||
| THE ADMINISTRATIVE AGENT | ||||||||
|
|
Appointment and Authority | |||||||
|
|
Administrative Agent Individually | |||||||
|
|
Exculpatory Provisions | |||||||
|
|
Reliance by Administrative Agent | |||||||
|
|
Delegation of Duties | |||||||
|
|
Resignation of Successor Administrative Agent | |||||||
|
|
Non-Reliance on Administrative Agent and Other Lenders | |||||||
|
|
No Other Duties, Etc |
|||||||
|
|
Appointment of Supplemental Administrative Agents |
|||||||
|
|
Administrative Agent’s Reimbursement and Indemnification |
|||||||
|
|
Notice of Default |
|||||||
|
|
Administrative Agent’s Fee |
|||||||
|
|
Delegation to Affiliates |
|||||||
|
|
Agent’s Responsibilities and Duties |
|||||||
|
|
Withholding Taxes |
|||||||
| ARTICLE XII | ||||||||
| SETOFF; RATABLE PAYMENTS | ||||||||
|
|
Setoff |
|||||||
|
|
Ratable Payments |
|||||||
| iv |
| ARTICLE XIII | ||||||||
| BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS | ||||||||
|
|
Successors and Assigns |
|||||||
|
|
Participations |
|||||||
|
|
Permitted Participants; Effect |
|||||||
|
|
Voting Rights |
|||||||
|
|
Benefit of Setoff |
|||||||
|
|
Assignments |
|||||||
|
|
Permitted Assignments |
|||||||
|
|
Effect, Effective Date |
|||||||
|
|
[Reserved] |
|||||||
|
|
Dissemination of Information |
|||||||
| ARTICLE XIV | ||||||||
| NOTICES | ||||||||
|
|
Notices |
|||||||
|
|
Change of Address |
|||||||
| ARTICLE XV | ||||||||
| COUNTERPARTS | ||||||||
| ARTICLE XVI | ||||||||
| CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL | ||||||||
|
|
CHOICE OF LAW |
|||||||
|
|
CONSENT TO JURISDICTION |
|||||||
|
|
WAIVER OF JURY TRIAL |
|||||||
| v |
EXHIBITS AND SCHEDULES
Pricing Schedule
|
| ||
|
| ||
|
Exhibit A |
Form of Term Note | |
|
Exhibit B |
Form of Commitment and Acceptance | |
|
Exhibit C |
Form of Opinion of Company’s General Counsel | |
|
Exhibit D |
Form of Opinion of Xxxxxxx Xxxxx LLP | |
|
Exhibit E |
Form of Guaranty | |
|
Exhibit F |
Form of Compliance Certificate | |
|
Exhibit G |
Form of Environmental Certificate | |
|
Exhibit H |
Form of Assignment and Assumption | |
|
Exhibit I-1 |
Form of U.S. Tax Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) | |
| Exhibit I-2 |
Form of U.S. Tax Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) | |
| Exhibit I-3 |
Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) | |
| Exhibit I-4 |
Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes) | |
|
Schedule 1 |
Lenders and Commitments |
| vi |
| Schedule 2 | [Reserved] | |
| Schedule 3 | Permitted Liens | |
| Schedule 4 | Existing Subordinated Indebtedness | |
| Schedule 5 | Intentionally Omitted | |
| Schedule 6 | Litigation and Contingent Obligations | |
| Schedule 7 | Subsidiaries | |
| Schedule 8 | Other Liens | |
| Schedule 9 | ERISA Matters | |
| Schedule 10 | Environmental Matters |
| vii |
EXECUTION VERSION
DEAL CUSIP NUMBER: 00000XXX0
TERM LOAN CUSIP NUMBER: 00000XXX0
CREDIT AGREEMENT
This Credit Agreement, dated as of February 3, 2014, is among First Huntingdon Finance Corp. (the “Borrower”), Toll Brothers, Inc. (the “Company”), the Lenders party hereto and SunTrust Bank, as Administrative Agent (the “Administrative Agent”).
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree, as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
“ABR Advance” means an Advance that bears interest at the Alternate Base Rate.
“ABR Loan” means a Loan that bears interest at the Alternate Base Rate.
“Additional Borrowing Base Selected Assets” is defined in Section 7.19.2.
“Additional Lender” means a Qualified Bank (approved by the Administrative Agent, which approval shall not be unreasonably withheld or delayed) or an existing Lender that elects, upon request by the Borrower, to make an Additional Term Loan, pursuant to Section 2.18.
“Additional Term Loan” means, with respect to an Additional Lender, such Additional Lender’s Term Loan made pursuant to Section 2.18(c) with respect to the Term Loan Facility.
“Additional Term Loan Commitment” means, for each Additional Lender, the obligation of such Additional Lender to make Additional Term Loans not exceeding the amount set forth in any Commitment and Acceptance that has become effective pursuant to Section 2.18 of this Agreement.
“Additional Term Loan Effective Date” is defined in Section 2.18(c).
“Adjusted LIBO Rate” means, with respect to any Eurodollar Ratable Advance for the relevant Eurodollar Interest Period or, with respect to the determination of clause (b) of the definition of the Federal Funds/Euro Rate or
clause (iii) of the definition of Alternate Base Rate, for a
Eurodollaran Interest Period of one month, an interest rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to (a) the LIBO Rate for such Eurodollar
Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means SunTrust Bank, in its capacity as contractual representative of the Lenders pursuant to Article XI, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article XI.
“Administrative Agent’s Fee Letter” means the Fee Letter.
“Affected Lender” is defined in Section 2.20.
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
“AgentAgents” means any Lender under this Agreement designated, and in its capacity, as a
co-agent, documentation agent, managing agent or syndication agent (but not the Administrative Agent).
“Agent Parties” is defined in Section 14.1(b).
“Agent’s Group” is defined in Section 11.2(b).
“Agreement” means this credit agreement, as it may be amended or modified and in effect from time to time.
“Agreement of Sale” means a fully-executed written agreement (substantially in a form approved by the Administrative Agent, which approval shall not be unreasonably withheld or delayed) between a Loan Party and a purchaser that is not an Affiliate of the Company or any other member of Toll Group, providing for the sale of a residential unit to such purchaser, which agreement (i) shall include no contingency for the purchaser selling another residence, (ii) be accompanied by a non-refundable (except on terms set forth in such agreement or as may be prevented by applicable Law) deposit at least equal to the lesser of (x) ten percent (10%) of the purchase price of the unit sold (at least one-half of which deposit shall have been paid in cash), (y) the difference between the purchase price set forth in such agreement and the amount of the mortgage contingency set forth in such agreement (at least one-half of which deposit shall have been paid in cash) and (z) the maximum amount of deposit which applicable Law permits the seller of such unit to retain as liquidated damages if the closing of the sale of such unit does not occur, and (iii) shall provide that the purchase price shall be paid in cash or by title company check or by attorney check or by certified or bank check at or before the closing of the sale (such cash or check may be obtained by the purchaser from a loan provided by the seller or an Affiliate of the seller). For the purpose of clause (z) above, applicable Law shall be deemed to prohibit the seller from retaining a deposit if it creates a presumption that the amount of such deposit is unreasonable and as such may not be retained by the seller.
“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the sum of (a) the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% per annum and (iii) the Adjusted LIBO Rate applicable for an interest period of one month, plus 1.00% and (b) the Applicable Base Rate Margin.
“Alternative Letter of Credit” means any Existing Credit Agreement Letter of Credit that is cash collateralized in accordance with Section 4.12 of the Existing Credit Agreement.
| 2 |
“Amendment No. 1” means that certain amendment to this Agreement, dated as of May 19, 2016, between the Borrower, the Company, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Anti-Corruption Laws” means, at any time, all laws, rules, and regulations of any governmental authority to whose jurisdiction a Loan Party is subject at such time concerning or relating to bribery or corruption.
“Applicable Base Rate Margin” means with respect to an ABR Loan, the percentage rate per annum applicable to such Loan, as determined pursuant to the Pricing Schedule.
“Applicable Margins” means with respect to the Term Loan Facility, the Applicable Ratable Advance Margin for the Term Loan Facility and the Applicable Base Rate Margin for the Term Loan Facility, as applicable.
“Applicable Ratable Advance Margin” means, with respect to a Eurodollar Ratable Advance or a Federal Funds/Euro-Rate Advance under the Term Loan Facility, the percentage rate per annum applicable to such Term Loan, as determined pursuant to the Pricing Schedule.
“Arranger” means SunTrust Xxxxxxxx Xxxxxxxx, Inc. and its respective successors.
“Article” means an article of this Agreement unless another document is specifically referenced.
“Assignment and Assumption” is defined in Section 13.3.1.
“Assumed Purchase Money Loans” means at any time (a) the
outstanding principal amount of all loans secured by assets purchased by the
Designated Guarantors and assumed or entered into by the applicable Designated Guarantor on or within 90 days after the date of purchase, provided that (i) the
principal amount of any such loan does not exceed the purchase price of the
applicable asset and (ii) such loan may only be secured by a security interest or other lien on such asset and improvements constructed
thereonand construction thereon and other assets related to such purchased assets which are customarily subject to
liens and security interests in connection with transactions of this nature in the normal course of the Designated Guarantors’ business and (b) and any amendment, modification, extension or refinancing of such loans, provided that with respect to the loans, as
amended, modified, extended, or refinanced (X) the aggregate amount thereof shall not exceed the purchase price of the applicable asset and (Y) such loans and refinancings shall not be secured by any assets of any Loan Party other than those
initially purchased by the applicable Designated Guarantor and improvements constructed
thereonand construction thereon and other assets related to such purchased assets which are customarily subject to
liens and security interests in connection with transactions of this nature in the normal course of the Loan Parties’ homebuilding business.
“Authorized Officers” means those Persons designated by written notice to the Administrative Agent from the applicable Loan Party, authorized to execute notices, reports and other documents required hereunder. The Loan Parties may amend such list of Persons from time to time by giving written notice of such amendment to the Administrative Agent.
| 3 |
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Benefit Arrangement” means at any time an “employee benefit plan,” within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise contributed to by any member of the Controlled Group.
“Board” means The Board of Governors of the Federal Reserve System of the United States of America (or any successor).
“Borrower” means First Huntingdon Finance Corp., a Delaware corporation, and its successors and assigns.
“Borrowing Base” means at any time the sum (without duplication) of (i) 100% of unrestricted cash, Cash Equivalents or Marketable
Securities of the Loan Parties (excluding cash, Cash Equivalents and Marketable Securities that cash collateralize Alternative Letters of Credit and other outstanding letters of credit or similar arrangements) in excess of $10,000,000; (ii) 90% of
Category 1 Borrowing Base Assets (except as otherwise hereinafter provided); (iii) 80% of Category 2 Borrowing Base Assets (except as otherwise hereinafter provided); (iv) 65% of Category 3 Borrowing Base Assets; and (v) 50% of Category 4
Borrowing Base Assets. Notwithstanding the foregoing, the Borrower may elect to combine the Category 1 Borrowing Base Assets and Category 2 Borrowing Base Assets into one category, in which event, in place of items (ii) and (iii) above, 85% of
the sum (without duplication) of the Category 1 Borrowing Base Assets and Category 2 Borrowing Base Assets shall be included in the Borrowing Base, provided that the Borrower shall represent and warrant in the applicable Borrowing Base
Certificate that (A) 85% of the sum (without duplication) of the Category 1 Borrowing Base Assets and Category 2 Borrowing Base Assets is less than (B) the sum (without duplication) of items (ii) and (iii) above. All Borrowing Base Assets must
be assets owned by the Loan Parties subject only to Permitted Liens (other than clauses (vi)
and, (xii)(A), (xxiv) and (xxv) of such definition) and (except as otherwise provided in Section 7.19)
shall be valued at book value, reduced (without duplication) by the Remediation Adjustment (if any) applicable to such Borrowing Base
Assets. Notwithstanding anything to the contrary herein, assets owned by a Loan Party which secure Permitted Purchase Money
Loans, Permitted Nonrecourse Indebtedness or Permitted Recourse Indebtedness (and thus constitute Excluded Assets) shall not be included in the Borrowing Base.
“Borrowing Base Assets” means the Category 1 Borrowing Base Assets, Category 2 Borrowing Base Assets, Category 3 Borrowing Base Assets and Category 4 Borrowing Base Assets.
“Borrowing Base Certificate” means a certificate, in a form satisfactory to the Administrative Agent, calculating the Borrowing Base as of the last day of a fiscal quarter, and delivered pursuant to Section 7.1(viii).
| 4 |
“Borrowing Base Selected Assets” is defined in Section 7.19.2.
“Borrowing Date” means a date on which a Term Advance is made hereunder.
“Business Day” means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities.
“Capitalized Lease” of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.
“Captive Insurance Company” means a Subsidiary of the Company that is subject to regulation as an insurance company.
“cash collateralize” means, with respect to any Letter of Credit, cash in U.S. dollars in an amount equal to the undrawn face amount of such Letter of Credit.
“Cash Equivalents” means (i) securities with maturities of 180 days or less from the date of acquisition issued or fully guaranteed or insured by the United States or any agency or instrumentality thereof,
(ii) dollar denominated time and demand deposits and certificates of deposit with maturities of 180 days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital, surplus and undivided profits aggregating at least $500,000,000, (iii) repurchase obligations of any bank satisfying the requirements of clause
(ii) of this definition, (iv) commercial paper and variable or fixed rate notes of a domestic issuer rated at least A-2 or better by S&P or P-2 or better by Xxxxx’x and in either case maturing within 180 days after the date of acquisition, (v) securities with maturities of 180 days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States or by any
political subdivision or taxing authority of any such state, commonwealth or territory, and such securities of such state, commonwealth, territory, political subdivision or taxing authority, as the case may be, are rated at least A by S&P or A
by Xxxxx’x, (vi) securities with maturities of 180 days or less from the date of acquisition backed by standby
letters of credit issued by any commercial bank satisfying the requirements of clause (ii) of this definition, or (vii) shares of “money market funds” that comply with the criteria set forth in Rule 2a-7 of the Investment Company Act of
1940, as amended.
“Category 1 Borrowing Base Assets” means at any time the following assets owned by the Loan Parties (except any such assets that are Excluded Assets): (1) residential units and buildings under construction subject to an Agreement of Sale; (2) completed residential units and buildings subject to an Agreement of Sale; (3) land (and related site improvements and development costs) related to the assets described in items (1) and (2); and (4) interest, overhead, taxes and other costs (to the extent capitalized under GAAP) related to the assets described in items (1), (2) and (3).
| 5 |
“Category 2 Borrowing Base Assets” means at any time the following assets owned by the Loan Parties (except any such assets that are Excluded Assets): (1) residential units and buildings under construction not under Agreement of Sale; (2) completed residential units and buildings not under Agreement of Sale; (3) land (and related site improvements and development costs) related to the assets described in items (1) and (2); and (4) interest, overhead, taxes and other costs (to the extent capitalized under GAAP) related to the assets described in items (1), (2) and (3).
“Category 3 Borrowing Base Assets” means at any time the following assets owned by the Loan Parties (except any such assets that are Excluded Assets): (1) site improvements on land owned by a Loan Party that is not subject to an Agreement of Sale; and (2) interest, overhead, taxes and other costs (to the extent capitalized under GAAP) related to the assets described in item (1).
“Category 4 Borrowing Base Assets” means at any time the following assets owned by the Loan Parties (except any such assets that are Excluded Assets): (1) acquisition and development costs (excluding site improvement costs) of land owned by a Loan Party that is not subject to an Agreement of Sale; and (2) interest, overhead, taxes and other costs (to the extent capitalized under GAAP) related to the assets described in item (1).
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Official Body or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Official Body; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means the occurrence of any one or more of the following events:
(a) The acquisition by any Person, or two or more Persons acting in concert (in each case, other than the Company or any other Loan Party), of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 50% or more of the outstanding shares of voting stock of a Loan Party; or
(b) There shall be consummated any consolidation or merger to which the Company is a party except a merger or consolidation where the holders of voting stock of the Company prior to such merger or consolidation own more than 50% of the voting stock of the continuing or surviving corporation outstanding after such merger or consolidation (whether or not the Company is such continuing or surviving corporation).
“Closing Date” means the Business Day on which the conditions set forth in Section 5.1 are satisfied.
| 6 |
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment and Acceptance” is defined in Section 2.18(b).
“Communications” is defined in Section 14.1(b).
“Company” means Toll Brothers, Inc., a Delaware corporation.
“Compliance Certificate” means a compliance certificate in substantially the form of Exhibit F.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the Company and its Subsidiaries calculated on a consolidated basis for such period in accordance with GAAP.
“Consolidated Net Worth” means at any time the consolidated stockholders’ equity of the Company and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which such Person guarantees or in effect guarantees any Indebtedness of any other Person in any manner, whether directly or indirectly.
“Controlled Group” means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Company or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.
“Conversion” is defined in Section 10.13(a).
“Customary Recourse Exceptions” means exclusions from the exculpation provisions for fraud, waste, misapplication of cash, environmental claims, breach of representations or warranties, failure to pay taxes and insurance, bankruptcy and insolvency events, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financings of real estate and other matters customarily covered by a “carve out” guaranty in respect of transactions of the nature contemplated by Permitted Nonrecourse Indebtedness.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means an event described in Article VIII.
| 7 |
“Designated Guarantors” means any Subsidiary of the Company that at any time has executed and delivered a Guaranty Agreement (or a Supplemental Guaranty) and that has not been released from liability in accordance with the provisions of Section 10.13.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” is defined in Section 13.1.
“Embargoed Person” means any party that (i) is publicly identified
on the most current list of “Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or (ii) resides, is organized or chartered, or has a
place of business in a country or territory that is the subject of OFAC sanctions programs.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, land surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Certificate” is defined in Section 7.26.
“Environmental Complaint” means any written complaint setting forth a cause of action for personal or property damage or equitable relief, order, notice of violation, citation, request for information issued pursuant to any Environmental Laws by an Official Body, subpoena or other written notice of any type relating to, arising out of, or issued pursuant to any of the Environmental Laws or any Environmental Conditions, as the case may be.
“Environmental Conditions” means any conditions of the environment, including, without limitation, the work place, the ocean, natural resources (including flora or fauna), soil, surface water, ground water, any actual or potential drinking water supply sources, substrata or the ambient air, relating to or arising out of, or caused by the use, handling, storage, treatment, recycling, generation, transportation, Release or threatened Release or other management or mismanagement of Regulated Substances resulting from the use of, or operations on, the Property.
“Environmental Laws” means any Laws relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or Releases of Regulated Substances into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Regulated Substances or the clean-up or other remediation thereof.
| 8 |
“Environmentally Approved Land” means land owned by a Loan Party as to which there has been delivered to such Loan Party and, to the extent required under Section 7.26, the Administrative Agent an Environmental Certificate that either (a) contains no exceptions on Exhibit A thereto except for Permitted Environmental Exceptions, or (b) if it contains any exceptions other than Permitted Environmental Exceptions, such exceptions shall have been (i) approved by the Administrative Agent, which approval has not been reversed by the Required Lenders under Section 7.26 or (ii) approved by the Required Lenders if the Administrative Agent initially does not approve such exceptions.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.
“Escrow Agreement” means an agreement or other similar arrangement with a municipality or any other Official Body, including without limitation any utility, water or sewer authority, or other similar entity, for the purpose of assuring such municipality or other Official Body that the Company or an Affiliate of the Company will properly and timely complete work it has agreed to perform for the benefit of such municipality or other Official Body, under the terms of which a bank (including a Lender hereunder) or other Person agrees to set aside or otherwise make available a specified amount of funds which will be paid to such municipality or other Official Body upon request by such municipality or other Official Body in accordance with the terms of such agreement in the event the Company or such Affiliate fails to perform such work.
“Eurodollar Interest Period” means, with respect
to a Eurodollar Ratable Advance, a period of one, two, three or six months (or, subject to approval by all Term Lenders, twelve months) commencing on a Business Day selected by the Borrower pursuant to this Agreement or, with respect to the
determination of clause (b) of the definition of the Federal Funds/Euro Rate, a period of one month. Such Eurodollar Interest Period shall end on the day which corresponds numerically to such date one, two, three, six or twelve months thereafter, provided,
however, that if there is no such numerically corresponding day in such next, second, third, sixth or twelfth succeeding month, such
Eurodollar Interest Period shall end on the last Business Day of such next, second,
third, sixth or twelfth succeeding month. If a Eurodollar Interest Period would
otherwise end on a day which is not a Business Day, such Eurodollar Interest Period
shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Eurodollar Interest Period shall end on the immediately preceding Business Xxx.XX Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Eurodollar Loan” means a Loan (other than a Federal Funds/Euro- Rate Loan) which bears interest at a Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
“Eurodollar Ratable Advance” means a Term Advance (other than a Federal Funds/Euro-Rate Advance) which bears interest at a Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
“Eurodollar Rate” means, with respect to a Eurodollar
Ratable Advance under the Term Loan Facility for the relevant Eurodollar Interest Period or, with respect to the
determination of clause (b) of the definition of the Federal Funds/Euro-Rate, for a
Eurodollaran Interest Period of one month, a rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the sum of (i) the Adjusted LIBO Rate applicable to such Eurodollar Interest Period, plus (ii) the Applicable Ratable Advance Margin in effect two Business Days prior to such Term Advance.
| 9 |
“Excess Investments” means at any time the amount (if any) by which Special Investments
exceeds 3540% of Consolidated Net Worth.
“Excluded
Assets” means at any time any of the following assets of the Loan Parties: (1) assets subject to any Lien securing Indebtedness (exceptincluding, for the avoidance of doubt,
Permitted Purchase Money Loans in which the applicable Loan Party and its successors shall have full rights to prepay without
premium or penalty, or if a premium or penalty may be imposed, the total potential premium or penalty is added to the principal amount of such Indebtedness for computation purposes, provided, that the
Borrower may elect in its sole discretion to designate any asset subject to a Permitted Purchase Money Loan as an Excluded Asset (thereby excluding such asset from the calculation of the Borrowing Base), in which event any potential prepayment
penalties and premiums on such Permitted Purchase Money Loan shall not be included in computing, Permitted Nonrecourse
Indebtedness and Permitted Recourse Indebtedness); (2) land, site improvements, development costs and units or buildings
constructed or under construction on such land if the applicable Loan Party has not received Preliminary Approval with respect to such land or if such land is not Environmentally Approved Land; and (3) payments for options.
“Excluded Taxes” means, in the case of each Lender and any Agent, (i) Taxes imposed on or measured by its overall net income, branch profits or franchise Taxes (imposed in lieu of net income Taxes) to the extent any such Tax is imposed as a result of (a) such Lender or Agent being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Installation located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) a present or former connection between such Lender or Agent (as the case may be) and the taxing jurisdiction (other than as a result of this Agreement or any transaction pursuant to this Agreement), (ii) in the case of a Lender (other than an assignee pursuant to a request by the Administrative Agent or the Borrower under Section 2.20), any U.S. federal withholding Taxes to the extent imposed pursuant to a law in effect on the date such Lender becomes a party to this Agreement (or designates a new Lending Installation), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of the designation of a new Lending Installation (or assignment), to receive additional amounts from the Borrower with respect to such withholding Taxes pursuant to Section 3.5, (iii) withholding Taxes attributable to a Lender’s failure to comply with Section 3.5(d), and (iv) any U.S. federal withholding Taxes imposed under FATCA.
“Exhibit” refers to an exhibit to this Agreement, unless another document is specifically referenced.
“Existing Credit Agreement” means the Credit Agreement dated as of
August 1, 2013May 19, 2016 among the Borrower, the Company, the lenders party thereto and Citibank, N.A., as Administrative Agent.
“Existing Credit Agreement Letter of Credit Obligations” means at any time the sum of (i) the aggregate undrawn face amount of all outstanding Existing Credit Agreement Letters of Credit, and (ii) the aggregate amount paid by an Issuing Bank on any Existing Credit Agreement Letters of Credit to the extent (if any) not reimbursed by the Borrower or the lenders under the Existing Credit Agreement.
| 10 |
“Existing Credit Agreement Letters of Credit” means those letters of credit issued, pursuant to the Existing Credit Agreement (including any “Existing Letter of Credit” as defined in the Existing Credit Agreement).
“FATCA” means (i) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), (ii) any current or future regulations or other official interpretations thereof, (iii) any agreements entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above) and (iv) any intergovernmental agreement, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement implementing the foregoing.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next
1/100th of 1%) of the rates on overnight
Federalfederal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100th of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federalfederal funds brokers of recognized standing selected by it; provided that if the Federal Funds Effective Rate is less than 0%, such rate shall be deemed to be 0%.
“Federal Funds/Euro-Rate” means, for any day, an interest rate per annum equal to
the greater of (a) the sum of (i) the Federal Funds Effective Rate for the Business Day immediately preceding such day, plus (ii) the Applicable Ratable Advance Margin under the Term Loan Facility, plus (iii) 0.25% per annum, and (b) a rate equal to
the Eurodollar Rate for a Eurodollaran Interest Period of one month commencing on the second Business Day after such day. The Federal Funds/Euro-Rate shall be recomputed each day.
“Federal Funds/Euro-Rate Advance” means a Term Advance that bears interest at the Federal Funds/Euro-Rate.
“Federal Funds/Euro-Rate Loan” means a Loan that bears interest at the Federal Funds/Euro-Rate.
“Fee Letter” means that certain fee letter dated January 9, 2014 among the Borrower, the Company and SRH.
“Financial Contract” of a Person means (i) any exchange-traded or over-the-counter futures, forward, swap or option contract or other financial instrument with similar characteristics, and (ii) any agreements, devices or arrangements providing for payments related to fluctuations of interest rates, exchange rates or forward rates, including, but not limited to, interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options.
| 11 |
“Financial Letter of Credit” means any Letter of Credit issued on behalf of a Loan Party that is not a Performance Letter of Credit and that is issued to a Person to ensure payment by a Loan Party or other Affiliate of the Company of a financial obligation or satisfaction by a Loan Party or other Affiliate of any other obligation of a Loan Party or other Affiliate.
“Fitch” means Fitch, Inc.
“Floating Rate” means the Alternate Base Rate or the Federal Funds/Euro-Rate.
“Floating Rate Advance” means a Term Advance which bears interest at a Floating Rate requested by the Borrower pursuant to Section 2.2.
“Floating Rate Loan” means a Loan that bears interest at a Floating Rate.
“GAAP” is defined in Section 10.8.
“Guarantors” means the Company and the Designated Guarantors.
“Guaranty Agreement” means the guaranty agreement of even date herewith executed and delivered by the Company and the Designated Guarantors to the Administrative Agent for the benefit of the Lenders, as such guaranty agreement may be amended or modified (including, without limitation, by delivery of a Supplemental Guaranty) and in effect from time to time.
“Indebtedness” of a Person means, without duplication, such Person’s (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of Property or services which would appear as a liability on the consolidated balance sheet of such Person (other than accounts payable arising in the ordinary course of such Person’s business and any obligation to pay a contingent purchase price as long as such obligation remains contingent or is paid within 10 days after it becomes due and payable), (iii) Indebtedness of other Persons, whether or not assumed, secured by Liens on any property or asset of such Person (but only to the extent of the value of such Property or asset if such obligations have not been assumed by such Person), (iv) obligations which are evidenced by notes, acceptances, or other similar instruments, (v) obligations of such Person to purchase securities or other property arising out of or in connection with the sale of the same or substantially similar securities or property, (vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) the amount of Existing Credit Agreement Letter of Credit Obligations in respect of Financial Letters of Credit, (ix) unpaid reimbursement obligations (i.e., drawn but not reimbursed) under Performance Letters of Credit, and (x) any other obligation for borrowed money which in accordance with GAAP would be shown as a liability on the consolidated balance sheet of such Person. The amount of Indebtedness shall include potential prepayment penalties and premiums on such Indebtedness to the extent provided in the definition of “Excluded Assets.” In no event shall Indebtedness include (a) Indebtedness owed by one Loan Party to another Loan Party or to a Captive Insurance Company that is wholly-owned, directly or indirectly, by the Company or (b) any obligation of a Loan Party to reimburse the issuer of a performance bond issued in the ordinary course of business.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
| 12 |
“Interest Period” means, with respect to a Eurodollar Ratable Advance, a period of one, two, three or six months (or, subject to approval by all Term Lenders, twelve months), commencing on a Business Day selected by the Borrower pursuant to this Agreement or, with respect to the determination of clause (b) of the definition of the Federal Funds/Euro Rate, a period of one month. Such Interest Period shall end on the day which corresponds numerically to such date one, two, three, six or twelve months thereafter, provided, however, that if there is no such numerically corresponding day in such next, second, third, sixth or twelfth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third, sixth or twelfth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.
“Initial Term Loan” means Term Loans made by each Term Lender on the Closing Date.
“Initial Term Loan Commitment” means, for each Term Lender, the obligation of such Term Lender to make Term Loans on the Closing Date, not exceeding the amount set forth in Schedule 1.
“Intercompany Agreement” is defined in Section 7.18.
“Intercompany Loans” means the loans from the Borrower to the applicable Loan Party using the proceeds of Loans hereunder.
“Intercompany Notes” is defined in Section 7.18.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business) or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificate of deposit owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person.
“Investment Grade Rating” means a rating of (i) BBB- or higher by S&P, or (ii) Baa3 or higher by Xxxxx’x (other agencies’ ratings shall not apply to the determination of an Investment Grade Rating).
“Investments in Mortgage Subsidiaries” means, without duplication, at any time the sum of the following: (i) all Investments by any Loan Party directly or indirectly in the capital stock of or other payments (except in connection with transactions for fair value in the ordinary course of business) to any of the Mortgage Subsidiaries, (ii) all loans by any Loan Party directly or indirectly to any of the Mortgage Subsidiaries, (iii) all Contingent Obligations of any Loan Party directly or indirectly in respect of the obligations of any of the Mortgage Subsidiaries, and (iv) all other obligations, contingent or otherwise, of the Loan Parties to or for the benefit of any of the Mortgage Subsidiaries; provided that, Investments in Mortgage Subsidiaries shall not include any amounts that a Mortgage Subsidiary owes to a Loan Party to reimburse such Loan Party for any taxes paid or payable by such Loan Party on account of such Mortgage Subsidiary.
| 13 |
“IRS” means the U.S. Internal Revenue Service.
“Issuing Bank” means an “Issuing Bank” as defined in the Existing Credit Agreement.
“Labor Contracts” means all employee benefit plans, employment agreements, collective bargaining agreements and labor contracts to which any Loan Party is a party.
“Law” means any and all applicable federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses and other governmental restrictions, in each case of any Official Body.
“Lender” means Term Lender.
“Lending Installation” means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or affiliate of such Lender or the Administrative Agent listed on the signature pages hereof or on a Schedule or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.15.
“Letter of Credit” of a Person means a letter of credit or similar instrument (such as an Escrow Agreement) which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
“Leverage
Ratio” means at any time the ratio of (a) Total Indebtedness (including Permitted Recourse Indebtedness, Permitted Nonrecourse
Indebtedness and Permitted Purchase Money Loans but excluding Alternative Letters of Credit and outstanding Letters of Credit or similar arrangements included in Total Indebtedness and not issued
under the Existing Credit Agreement to the extent collateralized by cash, Marketable Securities or Cash Equivalents), less the
sum of (i) up to $300,000,000 of Permitted Nonrecourse Indebtedness, less and (ii) unrestricted cash, Cash Equivalents and Marketable Securities (excluding cash,
Cash Equivalents and Marketable Securities that cash collateralize Alternative Letters of Credit and other outstanding letters of credit or similar arrangements) in excess of $10,000,000 in the aggregate held by the Toll Group; provided that,
no more than
$200,000,000300,000,000 of unrestricted cash, Cash Equivalents and Marketable Securities (excluding cash, Cash Equivalents and Marketable Securities that cash collateralize Alternative Letters of Credit and other outstanding letters of
credit or similar arrangements) held by entities that are not Loan Parties may be netted from Total Indebtedness pursuant to this clause (a), to (b) the sum of (i) Tangible Net Worth and (ii) fifty percent (50%) of Subordinated Indebtedness that has
a maturity that is more than 90 days after the Term Loan Facility Maturity Date (provided that the amount in this clause
(b)(ii) shall not exceed 66-2/3% of Consolidated Net Worth).
“LIBO Rate” means, with respect to any Eurodollar Ratable Advance for
any Eurodollar Interest Period, or with respect to the determination of the Federal Funds/Euro-Rate, the ICE Benchmark Administration Limited LIBOR Rate (“ICE LIBOR”) as published by BloombergReuters (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time), at approximately 11:00 a.m., London time, two Business Days prior to the commencement of the Eurodollar Interest Period for such Eurodollar Ratable Advance, or, in the case of determination of
| 14 |
the Federal Funds/Euro-Rate, a
Eurodollaran Interest Period of one month, as the rate for dollar
deposits with a maturity comparable to such Eurodollar Interest Period. In the event that such rate is not available
at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar Ratable Advance (or Federal Funds/Euro-Rate) for such Eurodollar Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Eurodollar Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Eurodollar Interest Period; provided that, if the LIBO Rate is less than 0%, such rate shall be deemed to be 0%.
“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).
“Loan” means, with respect to a Lender, a loan made by such Lender pursuant to Article II (or any conversion or continuation thereof). For avoidance of doubt, the term “Loan” includes each Initial Term Loan and Additional Term Loan.
“Loan Documents” means this Agreement, Amendment No. 1, the Guaranty Agreements and any Notes issued pursuant to Section 2.11.
“Loan Parties” means the Company, the Borrower and (subject to the provisions of Section 10.13) the Designated Guarantors.
“Losses” is defined in Section 10.6(b).
“Marketable Securities” means (i) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed or insured by the United States or any agency or instrumentality thereof,
(ii) dollar denominated time and demand deposits and certificates of deposit with maturities of two years or less from the date of acquisition and overnight bank deposits of any commercial bank having either capital, surplus and undivided profits aggregating at least $500,000,000, total Tier 1 capital as most recently reported by Bloomberg L.P. of at
least $500,000,000 or long-term debt or deposit ratings of A- by S&P or A3 by Moody’s, (iii) repurchase obligations of any bank satisfying the requirements of clause (ii) of this definition, (iv) commercial paper and variable or fixed rate
notes of a domestic issuer rated at least A-2 or better by S&P or P2 or better by Moody’s and in either case maturing within two years after the date of
acquisition, (v) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States or by any political subdivision or taxing authority of any such state, commonwealth or territory, and such securities of
such state, commonwealth, territory, political subdivision or taxing authority, as the case may be, are rated at least A- by S&P or A3 by Moody’s, (vi) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any member country of the OECD that are rated at least A- by S&P or
A3 by Moody’s, (vii) securities with maturities of two years or less from the date of acquisition backed by
standby letters of credit issued by any commercial bank satisfying the requirements of clause (ii) of this definition, (viii) shares of “money market funds” that comply with the criteria set forth in Rule 2a-7 of the Investment Company Act
of 1940, as amended, or (ix) bonds that mature within two years and that have an Investment Grade Rating.
| 15 |
“Material Adverse Effect” means a material adverse effect on (i) the business, Property, financial condition or results of operations of the Loan Parties taken as a whole, (ii) the ability of the Loan Parties taken as a whole to perform their obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.
“Material Indebtedness” is defined in Section 8.4.
“Maximum Deductible Amount” is defined in Section 7.28.3.
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor thereto.
“Mortgage Banking Business” means the business of issuing mortgage loans on residential properties (whether for purchase of homes or refinancing of existing mortgages), purchasing and selling mortgage loans, issuing securities backed by mortgage loans, acting as a broker of mortgage loans and other activities customarily associated with mortgage banking and related businesses.
“Mortgage Subsidiaries’ Adjusted Shareholders’ Equity” means at any time the stockholders’ equity (less goodwill) of the Mortgage Subsidiaries determined on a consolidated basis in accordance with GAAP, plus the outstanding amount of any loans made by the Loan Parties to the Mortgage Subsidiaries (except for intercompany payables to one or more of the Loan Parties in respect of the Mortgage Subsidiaries’ share of accrued consolidated income tax liabilities which have not yet been paid by the Loan Parties) or other Investments in Mortgage Subsidiaries that are not included in the stockholders’ equity of the Mortgage Subsidiaries.
“Mortgage Subsidiaries’ Liabilities” means at any time all Indebtedness of any of the Mortgage Subsidiaries at such date determined on a combined basis as a group in accordance with GAAP, plus accrued income taxes payable by any of the Mortgage Subsidiaries within one year of such date.
“Mortgage Subsidiary” means any corporation, limited partnership, limited liability company or business trust that is (a) organized on or after the Closing Date as a Mortgage Subsidiary or designated by the Company as a Mortgage Subsidiary on or after the Closing Date, (b) a Subsidiary of the Company and (c) engaged in the Mortgage Banking Business.
“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Company or any member of the Controlled Group is a party and to which more than one employer is obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Company or any member of the Controlled Group) at least two of whom are not under common control, as such a plan is described in Sections 4063 and 4064 of ERISA.
| 16 |
“New Term Lender” means an Additional Lender that, immediately prior to its purchase of the Term Loans of a Term Lender pursuant to Section 2.20 or its issuance of Additional Term Loans pursuant to Section 2.18, was not a Term Lender hereunder.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.2 and (ii) has been approved by the Required Lenders.
“Non-Designation” is defined in Section 10.13.
“Non-Loan Parties” means members of the Toll Group or any Affiliate thereof, excluding the Company, the Borrower and the Designated Guarantors.
“Non-U.S. Lender” means a Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.
“Notes” means the Term Notes; and “Note” means any one of the Notes.
“Notice” is defined in Section 14.1(c).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Loan Parties to the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan Documents.
“OECD” means the Organisation for Economic Co-operation and Development.
“OFAC” has the meaning set forth in the definition of
“Embargoed Person.”
“Officer’s Certificate” means a certificate signed by a Senior Executive of the Company.
“Official Body” means any national, federal, state, local or other government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any of the foregoing, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
“Other Taxes” is defined in Section 3.5(b).
“Participant” is defined in Section 13.2.1(a).
“Participant Register” is defined in Section 13.2.1(c).
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
| 17 |
“Performance Letter of Credit” means (a) any Letter of Credit issued on behalf of a Loan Party in favor of a municipality or any other Official Body, including without limitation, any utility, water or sewer authority, or other similar entity for the purpose of assuring such municipality, other Official Body, utility, water or sewer authority or similar entity that an Affiliate of the Company will properly and timely complete work it has agreed to perform for the benefit of such municipality, other Official Body, utility, water or sewer authority or similar entity or (b) an Escrow Agreement.
“Permitted Environmental Exception” means an exception set forth on an Environmental Certificate that a qualified independent environmental consultant certifies can, in the judgment of such consultant, be cured by corrective action that would reasonably be expected to cost less than $2,000,000 to complete and that the Borrower certifies to the Lenders that it or another Loan Party shall timely cure in accordance with applicable Environmental Laws. If the consultant cannot or does not determine and certify as to the cost of such corrective action, the exception shall not be a Permitted Environmental Exception.
“Permitted Investments” means Investments that are (i) cash or Cash Equivalents, Marketable Securities
and similar Investments; (ii) accounts receivable and trade credit created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (iii) Investments in a Guarantor or in a Person
that will become a Guarantor in connection with such Investment; (iv) loans to directors, officers, employees, agents, customers or suppliers in the ordinary course, including the financing to purchasers of homes and other residential properties
from a Loan Party; (v) Investments in Mortgage Subsidiaries; (vi) Investments in joint ventures (whether in partnership, corporate, limited liability company or other form); (vii) Investments in real estate and/or mortgages and/or receivables
secured by real estate including stock or partnership or membership interests in real estate related companies; (viii) loans to employees for the purpose of acquiring the Company’s stock; (ix) Financial Contracts permitted hereunder; (x)
Investments (including Special Investments) outstanding on the Closing
DateMay 19, 2016; (xi) other Investments in the ordinary course of
business; and (xii) other Investments not included in clauses (i)-(xi) of this definition which do not, in the aggregate, exceed 30% of Tangible Net Worth.
“Permitted Liens” means
(i)
(i) Liens for taxes, assessments, or similar charges which are not yet
due and payable or due but not yet delinquent and pledges or deposits made in the ordinary course of business to secure payment of workmen’s compensation, or to participate in any fund in connection with workmen’s compensation,
unemployment insurance, pensions or other social security programs;
(ii)
(ii) Statutory Liens, other Liens imposed by law and Liens of mechanics, workmen, warehousemen, carriers, landlords and contractors, provided that the Liens permitted by this
subsection (ii) have not been filed or, if such Liens have been filed, either
(iA) a stay of enforcement thereof has been obtained within 60 days,
(iiB) such Liens have been satisfied of record within 60 days after the date of filing thereof or (iiiC) such Liens are being contested in good faith by appropriate proceedings and adequate
reserves have been established therefor in accordance with GAAP;
| 18 |
(iii)
(iii) Liens granted or deposits made (A) by the Loan Parties in the
ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money), leases, development obligations, progress payments, government contracts, utility services, developer’s or other
obligations to make on-site or off-site improvements and other obligations of a like nature, or in conjunction with providing xxxxxxx money obligations, escrows or similar purpose undertakings or indemnifications in the ordinary course of business
of the Loan Parties; (B) by the Loan Parties in connection with or to secure statutory obligations and surety, appeal, indemnity, return of money, performance, completion, payment or other similar bonds and letters of credit or other similar
instruments, or (C) by third parties in favor of the Loan Parties pursuant to Agreements of Sale;
(iv)
(iv) Encumbrances consisting of zoning restrictions, easements, rights of way, matters of plat, minor defects or
irregularities in title or other restrictions, charges or encumbrances on the use of real property, none of which materially impairs the use of such property or the value thereof, and none of which is violated in any material respect by existing or
proposed structures or land use;
(v)
(v) Liens, security interests and mortgages, if any, in favor of the
Administrative Agent for the benefit of the Lenders and Liens on cash, Cash Equivalents, Marketable Securities, deposit accounts, warehouse receipts and related goods and documents granted to the administrative agent or a lender under the Existing
Credit Agreement as security for the
Obligationsobligations of the Loan Parties under the Existing Credit Agreement Letters of Credit;
(vi)
(vi) Liens on cash, Cash Equivalents or Marketable Securities in favor of any Lender or other bank or financial
institution (including as agent) as security for the obligations of any Loan Party under Letters of Credit or other similar arrangements issued other than under the Existing Credit Agreement; provided that the sum of (i) availability under
the Existing Credit Agreement and (ii) unrestricted cash, Cash Equivalents and Marketable Securities of the Loan Parties shall not be less than $50,000,000 immediately after giving effect to the granting of such Lien;
(vii)
(vii) Liens over a credit balance on a bank or deposit account or
other funds maintained with a creditor depository institution arising under the general business conditions of the bank or financial institution at which the account is held, including in any event under any credit card, purchasing card or similar
program;
(viii)
(viii) Liens arising by virtue of any statutory, contractual or common
law provisions relating to banker’s liens, rights of setoff or similar rights as to deposit or other accounts;
(ix)
(ix) Any Lien existing on the date of this AgreementMay 19, 2016 and described on Schedule 3 hereto and any Lien securing a refinancing of the Indebtedness secured by a Lien described on Schedule 3, provided that the principal amount secured thereby is not hereafter
increased and no additional assets (except for improvements constructed on such assets in the normal course of the Loan Parties’ business) become subject to such Lien unless such change would be permitted under other provisions hereof;
| 19 |
(x)
(x) The following, (A) if the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings diligently conducted so long as the property subject to any such Liens is not yet subject to foreclosure or sale or as to which levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged, stayed or bonded within thirty (30) days of entry:
(1) Claims or Liens for taxes, assessments or charges due and payable including those subject to interest or penalty, provided that the Loan Parties maintain such reserves and other appropriate provisions as shall be required by GAAP and pay all such taxes, assessments or charges forthwith upon the commencement of proceedings to foreclose any such Lien; or
(2) Claims, Liens or encumbrances upon, and defects of title to, real or personal property, including any attachment of personal or real property or other legal process prior to adjudication of a dispute on the merits; or
(xi)
(xi) Purchase money security interests (including Capitalized Leases) in equipment acquired or deemed to be
acquired;
(xii)
(xii) Liens securing (A) Permitted Purchase Money Loans and (B) Permitted Nonrecourse Indebtedness, in each case, as described in the definitions of such terms;
(xiii)
(xiii) Liens securing additional Senior Indebtedness, provided
such liens are either pari passu or subordinated to Liens in favor of the Administrative Agent for the benefit of the Lenders;
(xiv)
(xiv) Liens on assets of Non-Loan Parties;
(xv)
(xv) Liens on Investments in Non-Loan Parties;
(xvi)
(xvi) Liens on Investments in Mortgage Subsidiaries;
(xvii)
(xvii) Liens of a Loan Party which existed prior to such entity
becoming a Loan Party (and were not incurred in anticipation of becoming a Loan Party);
(xviii)
(xviii) Liens to which assets were subject prior to the acquisition of such assets by a Loan Party (and were not
incurred in anticipation of the acquisition of such assets);
(xix)
(xix) Judgment liens that would not constitute a Default under Section 8.8;
| 20 |
(xx)
(xx) Liens securing community development district bonds, municipal utility
district bonds or similar bonds issued by any governmental authority to accomplish similar purposes and Liens incurred in connection with pollution control, industrial revenue, water, sewage or other public improvement bonds or similar bonds in each
case incurred in the ordinary course of business of the Loan Parties;
(xxi) (xxi)
Liens securing a Loan Party’s obligations (not constituting Indebtedness) to third parties, in connection with joint development agreements with such third parties, to perform and/or pay
for or reimburse the costs of construction and/or development related to or benefiting the Loan Parties’ property and property belonging to such third parties, in each case incurred in the ordinary course of business of the Loan Parties;
(xxii)
(xxii)
leasesLeases or subleases granted to others not materially
interfering with the ordinary business of the Loan Parties taken as whole;
(xxiii) (xxiii)
Liens securing Indebtedness incurred to refinance any Indebtedness secured by a Lien referred to in clauses (ix), (xi), (xvii) or (xviii); provided the amount of Indebtedness secured
thereby is not increased and the Liens do not attach to any additional assets; and
(xxiv)
(xxiv) Liens securing other Indebtedness or obligations in an amount not in
excess of $10,000,000 individually or $20,000,000 in the aggregate; and
(xxv) Liens securing Permitted Recourse Indebtedness described in the definition of such term.
“Permitted Nonrecourse Indebtedness” means Indebtedness for
money borrowed that is incurred by a Loan Party in a transaction for purposes of acquiring or improving or financing construction on
real estate (or refinancings of such acquisition indebtedness)
and that is secured solely by such real estate and(including improvements thereon and other assets related to such real estate which are customarily
subject to liens and security interests in connection with transactions of this nature), provided (a) the amount of
the Investment of the Loan Parties in the assets that secure such Indebtedness (in excess of the amount of the loan secured
thereby)that (a) (x) the aggregate principal amount of such Permitted Nonrecourse Indebtedness does not exceed $75,000,000
forper parcel of real estate subject
to such acquisition as of the time of its acquisition or (for purposes of the Leverage Ratio) $200,000,000 in the aggregate
at any time for all such Investments and (b) either (x, improvement, construction and/or refinancing, and (y) the
aggregate principal amount of all such Permitted Nonrecourse Indebtedness outstanding at any time, together with the aggregate principal amount of all Permitted Recourse Indebtedness outstanding at such time, does not exceed an amount equal to 15%
of Consolidated Net Worth and (b) the liability of the Loan Parties for such
Permitted Nonrecourse Indebtedness is limited solely to the assets of the
Loan Parties that secure such Permitted Nonrecourse Indebtedness (other
than Customary Recourse Exceptions, completion guaranties, carry guaranties, debt service and operating deficit guaranties and similar obligations or guaranties) or (y) only a
Loan Party other than the Company and the Borrower is liable for the Indebtedness and the sum (without duplication) of the shareholders’ equity (including amounts owed by such Loan Party to another Loan Party or other Subsidiary of the Company
that is either
| 21 |
subordinate in right of payment to, or collection of which is postponed in favor of, such Indebtedness) of, Investments in, and
loans to (i) such Loan Party does not exceed $75,000,000 and (ii) all such Loan Parties does not exceed (for purposes of the Leverage Ratio) $200,000,000 in the aggregate.
“Permitted Purchase Money Loans” means, collectively, Seller Purchase Money Loans and Assumed Purchase Money Loans.
“Permitted Recourse Indebtedness” means Indebtedness for money borrowed that is incurred by a Loan Party in a transaction for purposes of acquiring or improving or financing construction on real estate (or refinancings of such indebtedness) and that is secured solely by such real estate (including improvements thereon and other assets related to such real estate which are customarily subject to liens and security interests in connection with transactions of this nature), provided that (a) the aggregate principal amount of such Permitted Recourse Indebtedness does not exceed $250,000,000 per parcel of real estate subject to such acquisition, improvement, construction and/or refinancing and (b) the aggregate principal amount of all such Permitted Recourse Indebtedness outstanding at any time, together with the aggregate principal amount of all Permitted Non-Recourse Indebtedness outstanding at such time, does not exceed an amount equal to 15% of Consolidated Net Worth.
“Person” means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Company or any member of the Controlled Group may have any liability.
“Platform” is defined in Section 14.1(b).
“Preliminary Approval” means preliminary approval from required state and local governmental authorities and agencies of a Loan Party’s preliminary development plan in accordance with provisions of the Pennsylvania Municipalities Planning Code or its equivalent in any other applicable jurisdiction in which such Loan Party is doing business such that in each instance there is vested in such Loan Party the right to develop such real estate for residential purposes substantially in accordance with the intentions of such Loan Party, subject only to obtaining such additional approvals which do not impose on such Loan Party any material burdens that are not usual and customary for a development of such type and with respect to which there is no reasonable expectation that final approval shall not be obtained.
“Pricing Schedule” means the Schedule attached hereto identified as such.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its “prime” rate in effect at its principal office, each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
| 22 |
“Prohibited Transaction” means a “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code for which neither a statutory exemption, an individual exemption nor a class exemption has been issued by the United States Department of Labor.
“Property” means any and all property, whether real, personal, tangible, intangible, or mixed, of a Loan Party, or other assets owned, leased or operated by a Loan Party.
“Purchaser” is defined in Section 13.3.1.
“Qualified Bank” means (a) any Lender or any Affiliate of a Lender, (b) a bank that has, or is a wholly-owned subsidiary of a corporation that has, (i) an unsecured long-term debt rating of not less than BBB+ from S&P or Baa1 from Xxxxx’x (or BBB+ from S&P and Baa1 from Xxxxx’x if both agencies issue ratings of its unsecured long-term debt) and (ii) if its unsecured short-term debt is rated, an unsecured short-term debt rating of A2 from S&P or P2 from Xxxxx’x (or A2 from S&P and P2 from Xxxxx’x if both agencies issue ratings of its unsecured short-term debt) or (c) in connection with the initial syndication of the Initial Term Loans or any Additional Term Loans, any other bank approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed. For the avoidance of doubt, none of the Borrower, the Company or any of their respective Affiliates or Subsidiaries may be a Qualified Bank for purposes of this Agreement.
“Ratable Borrowing Notice” is defined in Section 2.2.3.
“Rate Option” means the Alternate Base Rate, the Eurodollar Rate or the Federal Funds/Euro-Rate.
“Rate Option Notice” is defined in Section 2.2.4.
“Register” is defined in Section 13.3.2.
“Regulated Substances” means any pollutant, contaminant, waste, chemical or substance, including without limitation, Solid Waste, asbestos, asbestos containing material, mold and radon gas, the generation, manufacture, processing, distribution, treatment, storage, Release or threat of Release, transport, recycling, reclamation, use, reuse or other management or mismanagement of which is regulated by the Environmental Laws.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
| 23 |
“Related Parties” means, with respect to any Person, such Person’s Affiliate and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injecting or leaching into the Environment, or into, from or through any structure or facility.
“Remediation Adjustment” means, with respect to any Environmentally Approved Land that is subject to a Permitted Environmental Exception, an amount equal to 150% of the estimated remaining costs to complete remediation necessary to cure such exception.
“Replacement Lender” means a Qualified Bank (approved by the Administrative Agent which approval shall not be unreasonably withheld or delayed) or an existing Lender that elects, upon request by the Borrower, to purchase the Term Loans of another Lender pursuant to Section 2.20.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event.
“Required Lenders” means, at any time, Lenders whose Term Loans (in the aggregate) equal or exceed a majority of the Term Loans (in the aggregate) of all of the Lenders outstanding at such time.
“S&P” means Standard and Poor’s RatingsFinancial Services LLC, a division of McGraw
Hill Financial, Inc.
“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (on May 19, 2016, Cuba, Iran, North Korea, Sudan, Syria and the Crimean region of the Ukraine).
“Sanctioned Person” means, at any time, (a) any Person listed in any publicly-available Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.
“Schedule” refers to a specific schedule to this Agreement, unless another document is specifically referenced.
“SEC” means the Securities and Exchange Commission.
| 24 |
“Section” means a numbered section of this Agreement, unless another document is specifically referenced.
“Seller Purchase Money Loans” means at any time outstanding, either (a) purchase money loans made to a
Loan Party by the seller of improved or unimproved real estate in a single or separate transactions for the exclusive purpose of
acquiring, improving or construction on such real estate for development and secured by a
mortgage or deed of trust Lien on such real estate or (b) any amendment,
modification, extension or refinancing of such loans, provided that with respect to the loans, as amended, modified, extended or refinanced (i) the aggregate
principal amount thereof shall not exceed the purchase price of the applicable assetreal estate purchased, and (ii) such loans and refinancing shall not be secured by any assets of any Loan Party other than those initially purchased by the applicable Loan Party and improvements constructed thereonand construction thereon and other
assets related to such real estate which are customarily subject to liens and security interests in connection with transactions of this nature in the normal course of the Loan Parties’
homebuilding business.
“Senior Executive” means the Chairman of the Board, President, Executive Vice President, Chief Financial Officer, Chief Accounting Officer or General Counsel of any Loan Party.
“Senior Indebtedness” means at any time, on a consolidated basis for the Loan Parties, Total Indebtedness, less Subordinated Indebtedness.
“Single Employer Plan” means a Plan maintained by the Company or any member of the Controlled Group for employees of the Company or any member of the Controlled Group and no other employer.
“Solid Waste” means any garbage, refuse or sludge from any waste treatment plant, water supply plant or air pollution control facility generated by activities on the Property, and any unpermitted Release into the environment or the work place of any material as a result of activities on the Property, including without limitation, scrap and used Regulated Substances.
“Special Investments” means, at any time (but without duplication) all Investments by Loan Parties in Non-Loan Parties (other than Mortgage Subsidiaries), including, after its Conversion, any Non-Loan Party that was a Designated Guarantor prior to its Conversion. The amount of such Investments shall include, without limitation, the book value of stocks, partnership interests, notes or other securities, and the amount of loans, guaranties and recourse contingent obligations, and contributions of capital. For the sake of clarity, any Investment by a Loan Party in a Non-Loan Party that subsequently becomes a Designated Guarantor shall cease to be considered a Special Investment upon such designation, subject to the provisions in the first sentence of this definition relating to the conversion of a Designated Guarantor to a Non-Loan Party.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
| 25 |
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans and Floating Rate Loans bearing interest at the Federal Funds/Euro Rate shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subordinated Indebtedness” means, with respect to the Loan Parties, the existing subordinated Indebtedness described on Schedule 4 and any other unsecured Indebtedness subordinated under terms as favorable to the Lenders as the terms of the subordination governing the Indebtedness described on Schedule 4 or otherwise on market terms reasonably acceptable to the Administrative Agent; provided that the Administrative Agent shall have received an Officer’s Certificate to such effect by a responsible officer of the Company.
“Subordinated Loan Documents” means at any time the agreements and other documents then governing the Subordinated Indebtedness.
“Subsidiary” with respect to a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Company.
“Substantial Portion” means, with respect to the Property of the Company and its Subsidiaries, Property which represents more than 10% of the consolidated assets of the Company and its Subsidiaries as would be shown in the consolidated financial statements of the Company and its Subsidiaries as at the beginning of the period of four consecutive fiscal quarters ending with the fiscal quarter in which such determination is made.
“SunTrust” means SunTrust Bank, in its individual capacity, and its successors.
“Supplemental Administrative Agent” is defined in Section 11.9(a).
“SRH” means SunTrust Xxxxxxxx Xxxxxxxx, Inc., a Delaware corporation.
“Supplemental Guaranty” means a “Supplemental Guaranty” in the form provided for and as defined in the Guaranty Agreement.
“Tangible Net Worth” means at any time Consolidated Net Worth less the sum of (a) intangible assets (as determined in accordance with GAAP), (b) Excess Investments and (c) Investments in Mortgage Subsidiaries. The amount of Investments in Mortgage Subsidiaries shall include, without limitation, the book value of stocks, partnership interests, notes or other securities and the amount of loans, guaranties and recourse contingent obligations, and contributions of capital.
| 26 |
“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings (including backup withholdings), assessments, fees or other charges imposed by any governmental authority, and any and all liabilities with respect to the foregoing, including any interest, additions to tax or penalties applicable thereto.
“Term Advance” means a borrowing hereunder (or conversion or continuation thereof) consisting of the
aggregate amount of the several Initial Term Loans and Additional Term Loans (if any) made by the Term Lenders to the Borrower at the same time, and (except as otherwise provided in Section 3.3) at the same Rate Option, and, in the case of
Eurodollar Ratable Advances, for the same Eurodollar Interest Period.
“Term Lenders” means the lending institutions identified on Schedule 1 hereto as having a Term Loan Commitment and, from and after the respective dates of their Additional Term Loans, any New Term Lenders, and the respective successors and assigns of any of the foregoing.
“Term Loan” means a Loan made by a Term Lender under the Term Loan Facility.
“Term Loan Commitment” means Initial Term Loan Commitments and Additional Term Loan Commitments.
“Term Loan Facility” is defined in Section 2.1.1(a) and shall include any Additional Term Loans.
“Term Loan Facility Maturity Date” means February 3, 2019 or any earlier date on which all Term Loans become due or are declared due in accordance herewith or are paid in full.
“Term Loan Ratable Share” means, with respect to any Term Lender on any date, the ratio of (a) the amount of such Lender’s outstanding Term Loans to (b) the aggregate amount of the outstanding Term Loans of all Term Lenders.
“Term Note” means a promissory note, in substantially the form of Exhibit A hereto, duly executed by the Borrower and payable to a Term Lender (or its registered assigns) in the amount of its Term Loans, including any amendment, modification, renewal or replacement of such promissory note.
“Toll Group” means the Company, the Borrower and all other Subsidiaries of the Company.
“Total Indebtedness” means at any time all Indebtedness of the Loan Parties on a consolidated basis.
“Transferee” is defined in Section 13.4.
“Type” means, with respect to any Term Advance under the Term Loan Facility, its nature as an ABR Advance, Eurodollar Ratable Advance or Federal Funds/Euro-Rate Advance.
“U.S. Tax Compliance Certificate” is defined in Section 3.5(d)(2)(B)(iii).
| 27 |
“Unfunded Liabilities” means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using PBGC actuarial assumptions for single employer plan terminations.
“Unmatured Default” means an event that but for the lapse of time or the giving of notice, or both, would constitute a Default.
“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 2.1. The Term Loan Facility.
2.1.1 2.1.1. Term Loan Facility.
(a) The Term Lenders grant to the Borrower a term loan facility (the “Term Loan Facility”) pursuant to which, and upon the terms and subject to the conditions herein set forth, each Term Lender severally agrees to make to the Borrower on the Closing Date a Term Loan or Term Loans in an aggregate amount equal to such Term Lender’s Initial Term Loan Commitment on such date. The Term Loan Facility shall include any Additional Term Loans. Such Term Loan or Term Loans shall be made in accordance with Section 2.2 and, if applicable, Section 2.18. Amounts borrowed under this Section 2.1.1 or Section 2.18 and repaid or prepaid may not be reborrowed.
(b) Any outstanding Term Advances and all other unpaid Obligations shall be paid in full by the Borrower on the Term Loan Facility Maturity Date.
2.1.2 2.1.2. Mandatory Termination of Commitments. The Initial Term Loan
Commitments shall terminate upon funding of such Loans on the Closing Date. Any Additional Term Loan Commitments shall terminate upon funding such Loans on the applicable Additional Term Loan Effective Date.
| 28 |
2.1.3 2.1.3. Payment. At any time that there exists a breach of the covenant set
forth in Section 7.28.2, the Borrower shall immediately pay to the Administrative Agent, the administrative agent under the Existing Credit Agreement and/or other holders of Senior Indebtedness, as a payment of either the Term Loans, the
“Revolving Credit Advances” (as defined in the Existing Credit Agreement) or such other Senior Indebtedness, such amount (not to exceed the sum of the outstanding Term Loans, the “Revolving Credit Advances” (as defined in the
Existing Credit Agreement) and such other Senior Indebtedness) necessary to cure such breach, which, in the case of payments of the Term Loans, shall be applied against such Term Loans in accordance with Section 2.10.
2.2 2.2. Term Advances.
2.2.1 2.2.1. Term Advances. Each Term Advance hereunder shall consist of
borrowings made from the several Lenders under the Term Loan Facility in their respective Term Loan Ratable Shares thereof.
2.2.2 2.2.2.
Ratable Advance Rate Options. The Term Advances may be ABR Advances, Federal Funds/Euro-Rate Advances or Eurodollar Ratable Advances, or a combination thereof, selected by the
Borrower in accordance with Section 2.2.3. No Term Advance may mature after the Term Loan Facility Maturity Date.
2.2.3 2.2.3. Method of Selecting Rate Options and Eurodollar Interest Periods
for Term Advances. The Borrower shall select the Rate Option and, in the case of each Eurodollar Ratable Advance, the
Eurodollar Interest Period applicable thereto, from time to time. The Borrower shall give the Administrative Agent irrevocable notice (a “Ratable Borrowing Notice”) not later than
11:00 a.m. (New York time), (x) on the Borrowing Date of each Floating Rate Advance and (y) at least three Business Days prior to the Borrowing Date of each Eurodollar Ratable Advance. A Ratable Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of such Term Advance;
(ii) the aggregate amount of such Term Advance;
(iii) the Rate Option selected for such Term Advance; and
(iv) in the case of each Eurodollar Ratable Advance, the
Eurodollar Interest Period applicable thereto (which shall be subject to the limitations set forth in Section 2.2.6).
2.2.4 2.2.4. Conversion and Continuation of Outstanding Term Advances. Each
Floating Rate Advance under the Term Loan Facility shall continue as a Floating Rate Advance of that Type unless and until such Floating Rate Advance is either converted into the other Type of Floating Rate Advance or a Eurodollar Ratable Advance in
accordance with this Section 2.2.4 or is prepaid in accordance with Section 2.6. Each Eurodollar Ratable Advance under the Term Loan Facility shall continue as a Eurodollar Ratable Advance of such Type until the end of the then
applicable Eurodollar Interest Period therefor, at which time such Eurodollar Ratable Advance shall be automatically
converted into a Federal Funds/Euro-Rate Advance under the Term Loan Facility
| 29 |
unless such Eurodollar Ratable Advance shall have been either (a) prepaid in accordance with Section 2.6, (b) continued as a Eurodollar Ratable Advance of the same or a different Type for
the same or another Eurodollar Interest Period in accordance with this Section 2.2.4 or (c) converted into an ABR
Advance in accordance with this Section 2.2.4. Subject to the terms of Section 2.5, the Borrower may elect from time to time to convert and/or continue the Rate Option applicable to all or any part of a Term Advance into another Rate
Option; provided, that any conversion or continuation of any Eurodollar Ratable Advance shall be made on, and only on, the last day of the Eurodollar Interest Period applicable thereto. The Borrower shall give the Administrative Agent irrevocable notice (a “Rate Option Notice”) of each conversion of a Floating Rate Advance under the Term Loan
Facility into the other Type of Floating Rate Advance or into a Eurodollar Ratable Advance, or continuation of a Eurodollar Ratable Advance or the conversion of a Eurodollar Ratable Advance, not later than 11:00 a.m. (New York time) (x) on the
Business Day of the conversion of a Floating Rate Advance into the other Type of Floating Rate Advance or the conversion of a Eurodollar Ratable Advance into an ABR Advance or (y) at least three Business Days prior to the date of the requested
conversion or continuation of a Term Advance into a Eurodollar Ratable Advance, specifying:
(i) the requested date, which shall be a Business Day, of such conversion or continuation;
(ii) the aggregate amount and Rate Option applicable to the Term Advance which is to be converted or continued; and
(iii) the amount and Rate Option(s) of Term Advance(s) into
which such Term Advance is to be converted or continued and, in the case of a conversion into or continuation of a Eurodollar Ratable Advance, the duration of the Eurodollar
Interest Period applicable thereto (which shall be subject to the limitations set forth in Section 2.2.6).
2.2.5 2.2.5. Limitations. Term Advances under the Term Loan Facility shall
be subject to the applicable limitations set forth in Section 2.5.
2.2.6 2.2.6. Eurodollar Interest
Period. The Eurodollar Interest Period of a Eurodollar
Ratable Advance may not end later than the Term Loan Facility Maturity Date.
2.3 2.3. Reserved.
2.4 2.4. Reserved.
2.5 2.5. Minimum Amount of Each Term Advance; Maximum Number of Term
Advances. Each Eurodollar Ratable Advance shall be in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess thereof), and each Floating Rate Advance shall be in the minimum amount of $1,000,000 (and in multiples of
$1,000,000 if in excess thereof). There shall be no more than ten (10) Eurodollar Ratable Advances outstanding under the Term Loan Facility (in the aggregate) at any time.
2.6 2.6. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances under the Term Loan
| 30 |
Facility, or, in a minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of the outstanding Floating Rate Advances under the Term Loan Facility upon one Business Day’s prior notice to the Administrative Agent. The Borrower may from time to time pay, upon three Business Days’ prior notice to the Administrative Agent, subject to the payment of any funding indemnification amounts required by Section 3.4 but without penalty or premium, (i) all of a Eurodollar Ratable Advance under the Term Loan Facility, or (ii) in a minimum aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (and provided such payment would not reduce the outstanding principal amount of such Eurodollar Ratable Advance under the Term Loan Facility to less than $5,000,000) any portion of a Eurodollar Ratable Advance under the Term Loan Facility. Optional prepayments pursuant to this Section 2.6 made by the Borrower shall be applied to the Term Advances designated by the Borrower, provided such prepayments shall be allocated among the Lenders based on their pro rata shares of such Term Advances.
2.7 2.7. [Reserved].
2.8 2.8. Changes in Interest Rate, Etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and including the date such Term Advance is made or is automatically converted from a Eurodollar Ratable Advance into a Floating Rate Advance pursuant to Section 2.2.4, to
but excluding the date it is paid or is converted into a Eurodollar Ratable Advance pursuant to Section 2.2.4 or to a Floating Rate Advance of the other Type, at a rate per annum equal to (i) the Alternate Base Rate for such day (in the case of ABR
Advances) or (ii) the Federal Funds/Euro-Rate for such day (in the case of Federal Funds/Euro-Rate Advances). Changes in the rate of interest on that portion of any Term Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the applicable Floating Rate. Each Eurodollar Ratable Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Eurodollar Interest Period applicable thereto to (but not including) the last day of such Eurodollar Interest Period at the interest rate applicable to such Eurodollar Ratable Advance. No Eurodollar Interest Period may end after the Term Loan Facility Maturity Date.
2.9 2.9. Rates Applicable After Default, Past Due
Amounts. Notwithstanding anything to the contrary contained in Section 2.2, during the continuance of a Default or Unmatured Default (except for (a) Unmatured Defaults that will be cured, and that the Borrower certifies will be cured,
by the use of the proceeds of a revolving credit advance under the Existing Credit Agreement that the Borrower has requested thereunder or by the use of the proceeds of a loan or advance or by the issuance, amendment or extension of an Existing
Credit Agreement Letter of Credit that the Borrower has requested under the Existing Credit Agreement or (b) Unmatured Defaults (other than the failure to pay any Obligations hereunder) that are not reasonably likely to have a Material Adverse
Effect and that the Borrower certifies that it reasonably expects to cure before the date on which the same becomes a Default),the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 9.2 requiring unanimous consent of the Lenders under the Term Loan Facility to changes in interest rates under the Term Loan Facility), declare that no Term Advance may be converted into or
continued (after the then applicable Eurodollar Interest Period therefor) as a Eurodollar Ratable Advance.
| 31 |
If any principal of or interest on any Term Advance or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, until such amount shall have been paid in full (including default interest under this Section 2.9) at a rate per annum equal to (i) in the case of overdue principal or interest of any Term Advance, 2% plus the rate otherwise applicable to such Term Advance as provided herein or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Advances.
2.10 2.10. Method and Allocation of Payments.
(a) All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article XIV, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 1:00 p.m. (New York time) on the date when due. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article XIV or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender. The Administrative Agent is hereby authorized to charge the account of the Borrower maintained with SunTrust for each payment of principal, interest and fees as it becomes due hereunder.
(b) Payments of principal and interest on Term Loans received by Administrative Agent shall be allocated among the Lenders under the Term Loan Facility based on their pro rata shares of such Term Advances paid.
(c) [Reserved].
(d) [Reserved].
(e) If the Administrative Agent receives payments on any Business Day of any amounts payable to any Lender hereunder and fails to pay such amount to such Lender (i) on or before the close of business on such day if such payment was received by 1:00 p.m. (New York time) on such day or (ii) on or before the next succeeding Business Day if such payment was received after 1:00 p.m. (New York time) on such day of receipt, the Administrative Agent shall pay to such Lender interest on such unpaid amount at the Federal Funds Effective Rate until such amount is so paid to such Lender.
2.11 2.11. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder and the Rate
Option and Eurodollar Interest Period with
| 32 |
respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(c) The entries maintained in the accounts maintained pursuant to Sections 2.11(a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided however that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Term Loans be evidenced by a Term Note. In such event, the Borrower shall prepare, execute and deliver to such Lender the applicable Note or Notes payable to such Lender (or its registered assigns) in a form supplied by the Administrative Agent. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 13.3) be represented by one or more Notes payable to the payee named therein or any assignee pursuant to Section 13.3, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in Sections 2.11(a) and (b) above.
2.12 2.12.
Telephonic Notices. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Term Advances, effect selections of Rate Options and to
transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be an Authorized Officer acting on behalf of the Borrower. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.
2.13 2.13. Interest Payment Dates: Interest and Fee
Basis. Interest accrued on each Floating Rate Advance shall be payable on the first date of each calendar month, commencing with the first such date to occur after the date hereof. Interest accrued on each Eurodollar Ratable Advance
shall be payable on the last day of its applicable Eurodollar Interest Period, on any date on which the Eurodollar
Ratable Advance is prepaid, whether due to acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar Ratable Advance having an
Eurodollar Interest Period longer than three months shall also be payable on the first day of each calendar quarter during
such Eurodollar Interest Period. Interest and fees under this Agreement shall be calculated for actual days
elapsed on the basis of a 360-day year except that interest on Floating Rate Advances shall be calculated for actual days elapsed on the basis of a 365-day (or, if applicable, 366-day) year. Interest shall be payable for the day a Term Advance
is made but not for the day of any payment on the amount paid if payment is received prior to 1:00 p.m. (New York time) at the place of payment. If any payment of principal of or interest on a Term Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.
| 33 |
2.14 2.14. Notification of Term Advances, Interest Rates and
Prepayments. Promptly after receipt thereof, (a) the Administrative Agent will notify each Term Lender of the contents of each notice in respect of a prepayment of Term Loans under Section 2.6 and (b) the Administrative Lender shall
notify each Term Lender of each Ratable Borrowing Notice, Rate Option Notice and repayment notice received by the Administrative Agent with respect to the Term Loan Facility. The Administrative Agent will notify each Lender under the Term Loan
Facility of the interest rate applicable to each Eurodollar Ratable Advance under the Term Loan Facility promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.15 2.15. Lending Installations. Each Lender may book its Loans under the
Term Loan Facility at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the applicable Loans and Notes issued
hereunder shall be deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by written notice to the Administrative Agent and the Borrower in accordance with Article XIV, designate replacement or additional
Lending Installations through which Loans under the Term Loan Facility will be made by it and for whose account Loan payments under the Term Loan Facility are to be made.
2.16 2.16. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date, or time of day in the case of same-day borrowings, on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender,
the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of any of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume
that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case
may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.17 2.17. [Reserved].
2.18 2.18. Additional Term LoanLoans.
(a) The Borrower may, at any time and from time to time, by notice to the Administrative Agent, request an increase in the Term Loan Facility (“Additional Term Loans”) (within the limitations herein provided), which notice shall set forth the amount of such requested borrowing of Additional Term Loans. The Additional Term Loans may be effected by having one or more New Term Lenders become Lenders under the Term Loan Facility and/or by having any one or more of the then existing Lenders under the Term Loan Facility (at their respective election in their sole discretion) that have been approved by the Borrower and the Administrative Agent
| 34 |
(such approval by the Administrative Agent not to be unreasonably withheld or delayed), provide Additional Term Loans, provided that (i) each borrowing of Additional Term Loans shall be in
an amount not less than $5,000,000, (ii) after giving effect to the borrowing of Additional Term Loans, the aggregate principal amount of all Additional Term Loans borrowed under this Section 2.18 shall not exceed $400,000,000, (iii) no
Unmatured Event of Default or Default exists or would exist after giving effect to the Facility Increase, (iv) all
financial covenants set forth in Section 7.28 would be satisfied on a pro forma basis for the most recent determination period, after giving effect to such borrowing of Additional Term Loans as if it occurred on the last day of such determination
period and (v) any Additional Term Loans shall be on the terms and pursuant to the documentation applicable to the Term Loans under the Term Loan Facility immediately prior to the borrowing of such Additional Term Loans.
(b) As a condition to the borrowing of Additional Term Loans, (i) the Borrower and each Additional Lender shall have executed and delivered a commitment and acceptance (the “Commitment and Acceptance”) substantially in the form of Exhibit B hereto and the Administrative Agent shall have accepted and executed the same; (ii) if requested by an Additional Lender, the Borrower shall have executed and delivered to the Administrative Agent the applicable Note payable to such Additional Lender (or its registered assigns); (iii) the Guarantors shall have consented in writing to the borrowing of Additional Term Loans and shall have agreed that their Guaranty Agreements continue in full force and effect with respect to the Term Loan Facility after giving effect to such borrowing of Additional Term Loans; (iv) the Borrower and each Additional Lender shall otherwise have executed and delivered such other instruments and documents as the Administrative Agent shall have reasonably requested in connection with such borrowing of Additional Term Loans; (v) if requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent opinions of counsel (substantially similar to the forms of opinions provided for in Section 5.1 (viii), modified to apply to the borrowing of Additional Term Loans and to each Note, Commitment and Acceptance, and other documents executed and delivered in connection with such borrowing of Additional Term Loans); and (vi) a Ratable Borrowing Notice in accordance with Section 2.2.3 or as otherwise agreed among the Borrower, the Administrative Agent and the Additional Lenders. The form and substance of the documents required under clauses (i) through (v) above shall be fully acceptable to the Administrative Agent. The Administrative Agent shall promptly provide written notice to all of the Lenders hereunder of any borrowings of Additional Term Loans.
(c) Upon the effective date of any borrowing of Additional Term Loans pursuant to
the provisions hereof (the “Additional Term Loan Effective Date”), which Additional Term Loan Effective Date shall be mutually agreed upon by the Borrower, each applicable Additional Lender and the Administrative Agent, then: (A) on such
Additional Term Loan Effective Date, each Additional Lender under the Term Loan Facility shall advance its Additional Term Loan, which shall be combined with the other outstanding Term Advances and converted into one or more Term Advances under the
Term Loan Facility; (B) on such Additional Term Loan Effective Date, the Borrower shall pay all costs (if any) payable under Section 3.4 resulting from the termination of any Eurodollar Ratable Advances under the Term Loan Facility prior to the
last day of the applicable Eurodollar Interest Period; and (C) such Additional Lender under the Term Loan Facility shall have
all of the rights and obligations of a Term Lender hereunder on and after such Additional Term Loan Effective Date.
| 35 |
(d) [Reserved].
(e) For the avoidance of doubt, any borrowing of Additional Term Loans pursuant to the provisions of this Section 2.18 shall not require the consent of any Lender other than the applicable Additional Lenders. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or agreement on the part of any Lender to make an Additional Term Loan hereunder at any time or a commitment or agreement on the part of the Borrower or the Administrative Agent to give or grant any Lender the right to make an Additional Term Loan hereunder at any time.
2.19 2.19. [Reserved].
2.20 2.20. Replacement of a Lender. If a Lender (“Affected Lender”)
(a) sustains or incurs a loss or expense or reduction of income and requests reimbursement therefor from the Borrower pursuant to Section 3.1, 3.2, 3.4 or 3.5, (b) determines that maintenance of any of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable Law or it is otherwise impossible for such Lender (or its Lending Installation) to make, maintain or fund its Eurodollar Loan and so notifies the Administrative Agent pursuant to Section 3.3 or (c) is a
Non-Consenting Lender, the Borrower may within ninety (90)
xxxxxx or after the date on which the Borrower receives such
request (in the case of clause (a) above) or after the date on which the Administrative Agent gives the Borrower notice of the Administrative Agent’s receipt of the notice from such Lender under Section 3.3 (in the case of clause (b) above) or
at any time after the date that it is determined that such Lender is a Non-Consenting Lender (in the case of clause (c) above) notify the Administrative Agent and such Affected Lender that a Replacement Lender designated by the Borrower in the
notice has agreed to replace such Lender with respect to its outstanding Term Loans, provided that (i) any Replacement Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or
delayed); (ii) any assignment to a Replacement Lender shall be subject to Section 13.3; and (iii) the Borrower shall have paid any amounts due pursuant to Section 3.1, 3.2, 3.4 or 3.5 to the Affected Lender to be replaced on or before such
replacement. The Affected Lender to be replaced shall assign, as applicable, its Term Loans hereunder to the Replacement Lender pursuant to the procedures for assignments contained in Section 13.3 and shall receive, concurrently with such
assignments, payment of an amount equal to all outstanding amounts payable to such Affected Lender with respect to the aggregate outstanding principal amount of the Loans held by such Affected Lender, all interest thereon to the date of the
assignment, all accrued fees to the date of such assignment and any amounts payable under Section 3.4 with respect to any payment of any Eurodollar Loan resulting from such assignment. Such Affected Lender shall not be responsible for the
payment to the Administrative Agent of the fee provided for in Section 13.3.2, which fee shall be paid by such Replacement Lender. In the case of an assignment by a Non-Consenting Lender under this Section 2.20, the Replacement Lender
that is the assignee of the Non-Consenting Lender shall agree at the time of such assignment to the amendment, consent or waiver which such Non-Consenting Lender has not consented to, which agreement shall be set forth in a written instrument
delivered and satisfactory to the Borrower and the Administrative Agent.
2.21 2.21. Termination of Term Loans of Non-Consenting Lender. At any time
prior to the replacement of a Non-Consenting Lender pursuant to Section 2.20, the Borrower may, upon not less than 15 days’ prior notice to the Administrative Agent and such Non-Consenting Lender,
| 36 |
prepay the Term Loans of such Non-Consenting Lender in accordance with the provisions of this Article II, as of a Business Day set forth in such notice. In the event of such prepayment of
Term Loans of a Non-Consenting Lender, the Borrower shall pay to the Administrative Agent on the date of such prepayment of Term Loans, for the account of such Non-Consenting Lender, all Loans and other sums payable to such Non-Consenting Lender
under the Term Loan Facility and all amounts (if any) payable to such Non-Consenting Lender under Section 3.4 under the Term Loan Facility by reason of such payment. Such Non-Consenting Lender shall continue to be entitled to the benefits of
Sections 3.1, 3.2, 3.4, 3.5, 4.6, 4.93.5 and 10.6(b) to the extent such Non-Consenting Lender’s entitlement to such benefit arose out of its position as a Lender under the Term Loan Facility prior to the prepayment of its Term Loans.
ARTICLE III
INCREASED COSTS; TAXES
3.1 3.1. Increased Costs. If any Change in Law shall impose, modify or
deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System but excluding with respect to any Eurodollar Ratable Advance any
such requirement included in an applicable Statutory Reserve Rate) against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Lending Installation), shall impose on any Lender (or its Lending Installation) or
the Administrative Agent or on the London interbank market any other condition (other than Taxes) affecting its Eurodollar Ratable Advances or its obligation to make Eurodollar Ratable Advances, or shall subject such Lender to any Taxes (other than
Indemnified Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, and the result of any of the foregoing is to
increase the cost to such Lender (or its Lending Installation) of making or maintaining any Eurodollar Ratable Advance, or to reduce the amount of any sum received or receivable by such Lender (or its Lending Installation) or the Administrative
Agent under this Agreement or under its Note with respect thereto by an amount deemed by such Lender or the Administrative Agent to be material, then, within 30 days after demand by such Lender, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or reduction; provided, however, that at such time such Lender shall be generally assessing such amounts on a non-discriminatory basis against borrowers under
agreements having provisions similar to this Agreement.
For the avoidance of doubt, this Section 3.1 shall not apply to Indemnified Taxes or Excluded Taxes.
3.2 3.2. Capital Adequacy. If any Lender shall have determined that any Change
in Law affecting such Lender or any Lending Installation of such Lender regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital as a consequence of its
obligations hereunder to a level below that which such Lender could have achieved but for such Change in Law (taking into consideration such Lender’s policies with respect to capital adequacy or liquidity, as applicable) by an amount deemed by
such Lender to be material, then from time to time, within 30 days after demand by such Lender, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction; provided,
however, that at such time such Lender shall be generally
| 37 |
assessing such amounts on a non-discriminatory basis against borrowers under agreements having provisions similar to this Section. Notwithstanding anything to the contrary, this Section 3.2 shall not apply to Taxes, which shall be governed exclusively by Section 3.1 and Section 3.5.
3.3 3.3.
Availability of Certain Term Advances; Illegality.
(a) If the Required Lenders under the Term Loan Facility determine that (A) deposits of a type and maturity appropriate to match fund Eurodollar Ratable Advances are not available or (B) the interest rate applicable to a Rate Option does not accurately reflect the cost of making or maintaining the applicable Term Advance, then the Administrative Agent shall suspend the availability of the affected Rate Option under the Term Loan Facility or (b) if, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any Official Body charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Installation) with any request or directive issued after the date hereof (whether or not having the force of law) of any such Official Body shall make it unlawful or impossible for any Lender (or its Lending Installation) to make, maintain or fund its Eurodollar Ratable Advances hereunder such Lender shall so notify the Administrative Agent and the Borrower, whereupon until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make such Eurodollar Ratable Advances shall be suspended. Before giving any notice to the Administrative Agent and the Borrower pursuant to this Section 3.3, such Lender shall designate a different Lending Installation if such different Lending Installation is available to the applicable Lender, such designation will avoid the need for giving such notice and such designation will not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. If such Lender shall determine that it may not lawfully continue to maintain and fund any of its outstanding Eurodollar Ratable Advances to maturity and shall so specify in such notice, each such Eurodollar Ratable Advances will automatically, upon such demand, be converted into an ABR Advance.
3.4 3.4.
Funding Indemnification. If (a)(i) any payment of a Eurodollar Ratable Advance occurs on a date which is not the last day of the applicable Eurodollar Interest Period, whether because of acceleration, prepayment or otherwise, or (ii) a Eurodollar Ratable Advance is not
made on the date specified by the Borrower, or (iii) any Term Advance is
not continued as or converted into a Eurodollar Ratable Advance, on the date specified by the Borrower, in each case, for any reason other than default by the Lenders or (b) the assignment of any Eurodollar Loan occurs on a date which is not the
last day of the applicable Eurodollar Interest Period as a result of a request by the Borrower pursuant to Section
2.20, then the Borrower will indemnify each applicable Lender for any loss or cost (including any reasonable internal administrative costs but excluding any lost
profits (including loss of margin) and any loss, cost or expense resulting
from the failure of such Lender to make a Loan as a result of a default by such Lender) incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Ratable Advance. Determination of amounts payable under this Section 3.4 in connection with a Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the interest rate applicable to such Loan, whether in fact that is the case or not.
| 38 |
3.5 3.5. Taxes.
(a) Unless otherwise required by applicable law, any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without reduction or withholding for any Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct any Taxes from such payments, then (i) to the extent such Tax is an Indemnified Tax, the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions of Taxes (including deductions applicable to additional sums payable under this Section 3.5) have been made, the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the applicable withholding agent shall make such deductions, and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant governmental authority in accordance with applicable law. As soon as practicable after any payment of Taxes by a Loan Party to a governmental authority pursuant to this Section 3.5, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such governmental authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(b) The Borrower hereby agrees to pay any present or future stamp, court or documentary Taxes and any other intangible, recording, filing, excise or property Taxes, charges or similar levies which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document (“Other Taxes”).
(c) The Borrower agrees unconditionally to indemnify and save the Administrative Agent and the Lenders harmless from and against any or all Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.5), including any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted by the relevant governmental authority. Such indemnification payments by the Borrower shall be made within 20 days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 3.6.
(d) (1)(1) Any Lender that is eligible for an exemption from or reduction of withholding
Tax with respect to payments under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate or withholding. In addition, any Lender, at the time or times reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documentation required
below in this Section 3.5(d)) obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new
| 39 |
documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so. Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.5(d)(2)(A), (B) and (D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Notwithstanding any other provision of this Section 3.5, a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(2) (2) Without limiting the generality of the foregoing:
(A)
(A) Each Lender that is not a Non-U.S. Lender shall deliver to the Borrower
and the Administrative Agent on or before the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two properly completed and duly
executed originals of IRS Form W- 9 certifying that such Lender is exempt from U.S. federal
backup withholding Tax;
(B)
(B) Each Non-U.S. Lender shall deliver to the Borrower and the
Administrative Agent, on or prior to the date on which such Lender becomes a Lender under this Agreement) (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is
applicable:
(i) two properly completed and duly executed originals of IRS Form W- 8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code;
(ii) two properly completed and duly signed originals of IRS Form W- 8ECI (or any successor forms);
(iii) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) two properly completed and duly signed certificates substantially in the form of Exhibit I-1 (a “U.S. Tax Compliance Certificate”) and (y) two properly completed and duly signed originals of IRS Form W- 8BEN or W-8BEN-E; or
(iv) to the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS Form W- 8IMY, accompanied by IRS Form W- 8ECI, IRS W- 8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W- 9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S.
| 40 |
Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;
(C) (C)
any Non-U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be made; and
(D) (D)
if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine
the amount to deduct and withhold from such payment. For purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this agreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 3.5(d).
3.6 3.6. Lender Statements: Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its applicable Eurodollar Loans to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2, 3.4 and 3.5 or to avoid the
unavailability of the applicable Eurodollar Ratable Advances under Section 3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to
the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount
(which calculations shall be made in good faith) and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the interest rate
| 41 |
applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable within 30 days after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement. Notwithstanding anything to the contrary contained herein, the Borrower shall not be required to make any payments to any Lender pursuant to Section 3.1, 3.2 or 3.4 relating to any period of time which is greater than 90 days prior to such Person’s request for additional payment except for retroactive application of any law, rule or regulation, in which case the Borrower is required to make such payments so long as such Person makes a request therefor within 90 days after the public announcement of such retroactive application.
ARTICLE IV
RESERVED
ARTICLE V
CONDITIONS PRECEDENT
5.1 5.1. Closing Conditions. This Agreement shall not be effective unless
the following conditions precedent shall have been satisfied:
(i) The Administrative Agent shall have received copies of the articles or certificate of incorporation of each of the Borrower and the Company, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) The Administrative Agent shall have received copies, certified by the Secretary or Assistant Secretary of each of the Borrower and the Company, of the by-laws and Board of Directors’ resolutions and resolutions or actions of any other body authorizing the execution, delivery and performance of the Loan Documents to which the Borrower or the Company (as applicable) is a party.
(iii) The Administrative Agent shall have received an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Borrower and the Company, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or the Company (as applicable) authorized to sign the Loan Documents to which the Borrower or the Company (as applicable) is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or the Company (as applicable).
(iv) To the extent requested by the Administrative Agent, the Administrative Agent shall have received copies of the articles or certificate of incorporation, partnership agreement or limited liability company operating agreement of each other Loan Party, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(v) To the extent requested by the Administrative Agent, the Administrative Agent shall have received copies, certified by the Secretary or Assistant Secretary of each
| 42 |
other Loan Party, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party.
(vi) The Administrative Agent shall have received an incumbency certificate, executed by the Secretary or Assistant Secretary of each other Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party.
(vii) The Administrative Agent shall have received a certificate, signed by the chief financial officer, controller, chief accounting officer or treasurer of the Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing and that all of the representations and warranties in Article VI are true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects), except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) on and as of such earlier date.
(viii) The Administrative Agent shall have received a solvency certificate signed by the chief financial officer or treasurer of the Company, confirming the solvency of the Company and its Subsidiaries on a consolidated basis after giving effect to the borrowing of the Term Loans on the Closing Date.
(ix) The Administrative Agent shall have received written opinions of the Company’s and Borrower’s counsel, addressed to the Lenders in substantially the forms of Exhibit C and Exhibit D.
(x) The Administrative Agent shall have received any Notes requested by a Lender pursuant to Section 2.11 payable to each such requesting Lender (or its registered assigns).
(xi) The Administrative Agent shall have received the Guaranty Agreement duly executed by each of the Guarantors in substantially the form of Exhibit E hereto.
(xii) The Borrower shall have paid to the Administrative Agent the fees provided for in the Fee Letter.
(xiii) The Borrower shall have paid all fees and expenses due to the Arranger (including without limitation, expenses of counsel to the Administrative Agent and the Arranger) required to be paid on the Closing Date.
(xiv) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT Act, that has been requested prior to the Closing Date.
| 43 |
(xv) Such other documents as any Lender or its counsel may have reasonably requested.
(xvi) The Borrower shall have paid to the Administrative Agent for the account of each Lender on the Closing Date, an upfront fee equal to 0.30% of the aggregate principal amount of the Initial Term Loans made on the Closing Date, which may be reflected as original issue discount.
5.2 5.2. Each Term Advance. The Lenders shall not be required to make any
Term Advance unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default, except for Unmatured Defaults that will be cured on the applicable Borrowing Date, and that the Borrower certifies will be cured on the applicable Borrowing Date, by (x) the use of the proceeds of any loan or advance under the Existing Credit Agreement or (y) the issuance, amendment or extension of an Existing Credit Agreement Letter of Credit that has been requested under the Existing Credit Agreement.
(ii) The representations and warranties contained in Article VI are true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) as of such Borrowing Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) on and as of such earlier date.
(iii) All legal matters incident to the making of such Term Advance shall be satisfactory to the Administrative Agent and its counsel.
Each Ratable Borrowing Notice with respect to each such Term Advance shall constitute a representation and warranty by the Borrower that the condition contained in Section 5.2(i) has
been satisfied. The Administrative Agent may require a duly completed compliance certificate in substantially the form of Exhibit F (but without any requirement for updating the calculations of compliance with financial covenants) as a condition to
making a Term Advance. Notwithstanding the foregoing, any outstanding Term Loans may be continued as Eurodollar Ratable Advances
or converted to Eurodollar Ratable Advances notwithstanding the existence of a Default or Unmatured Default subject to the provisions of Section 2.9.
| 44 |
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower and the Company each represent and warrant to the Lenders that:
6.1 6.1. Existence and Standing. Each of the Borrower and the Company is
(i) a corporation, duly and properly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) has all requisite authority to conduct its business in each jurisdiction in which its business is
conducted, except with respect to clause (ii) as could not reasonably be expected to have a Material Adverse Effect. Each of the other Loan Parties is a corporation, partnership, limited liability company or trust duly and properly incorporated
or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business
in each jurisdiction in which its business is conducted, in each case to
the extent in each case it is material to the operation of the businesses of the Loan Parties taken as a whole.
6.2 6.2. Authorization and Validity. Each Loan Party has the power and
authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by each Loan Party of the Loan Documents to which it is a party and the performance of
its obligations thereunder have been duly authorized by proper corporate (or, in the case of Loan Parties that are not corporations, other) proceedings, and the Loan Documents constitute legal, valid and binding obligations of the applicable Loan
Parties enforceable against them in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar Laws affecting the enforcement of creditors’ rights generally and by equitable principles (regardless
of whether enforcement is sought in equity or law); and except, in each case in the case of any Designated Guarantor that, upon request by the Borrower
in accordance with Section 10.13 would be converted to a Non-Loan Party, any violation of the foregoing that does not have a material adverse effect on the ability of the Lenders or the Administrative Agent to substantially realize the benefits
afforded under the Loan Documents (it being agreed that the parties will work together diligently to remedy promptly any such violation).
6.3 6.3. No Conflict; Consent. Neither the execution and delivery by the Loan Parties of the
Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate (i) any Law binding on any of the Loan Parties or their respective Property or (ii) the articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, by-laws, or operating or other management agreement, as the case may be, of the Loan Parties, or (iii) the provisions of any indenture,
instrument or agreement to which any Loan Party is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on
the Property of any Loan Party pursuant to the terms of any such indenture, instrument or agreement other than any such violation, conflict, default or Lien which, in the case of each of clauses (i) and (iii) above, would not reasonably be expected
to have a Material Adverse Effect. As of the Closing
Date,May 19, 2016, no order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any Official Body or any other Person that has not been obtained by any Loan Party, is required to be obtained by any
Loan Party in connection with the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment and performance by the Loan Parties of the Obligations or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
| 45 |
6.4 6.4. Financial Statements. The (i) October 31,
2012 and October 31, 20132015 consolidated financial statements of the Company and its Subsidiaries and (ii) January 31,
2016 consolidated financial statements of the Company and its Subsidiaries, in each case, heretofore delivered to the Lenders were prepared in accordance with GAAP in effect on the date such
statements were prepared and fairly present in all material respects the consolidated financial condition and operations of the Company and its Subsidiaries at such date and the consolidated results of their operations for the period then ended,
subject, in the case of clause (ii) to year-end audit adjustments and the absence of footnotes.
6.5 6.5. Material Adverse Change. As of the Closing Date,May 19, 2016, since October 31,
20122015 there has been no change in the business, Property, condition (financial or otherwise) or results of operations of the Loan Parties that could reasonably be expected to have a Material Adverse Effect.
6.6 6.6. Taxes. Except in each case for violations or failures that
individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, the Loan Parties
(i) have timely filed all U.S. federal tax returns and all other tax
returns which are required to be filed and (ii) have paid all Taxes due
pursuant to said returns and all other Taxes imposed on them or any of their Property, assets, income, businesses and franchises by any taxing authority, except such Taxes, if any, as are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been provided in accordance with GAAP. Except in each case for violations or failures that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, (i)
there are no current, proposed, or pending Tax assessments, deficiencies or audits against any Loan Party or any of their respective Subsidiaries, and no Tax Liens have been filed against any Loan Party or any of their Property, assets, income,
businesses or franchises, except with respect to such Taxes, if any, as are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been provided in accordance with GAAP and (ii) the charges,
accruals and reserves on the books of the Loan Parties in respect of any Taxes are adequate in all material respects.
6.7 6.7.
Litigation and Contingent Obligations. Except as set forth on Schedule 6 there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting any of the Loan Parties that (a) could reasonably be expected to have a Material Adverse Effect or (b) seeks to prevent, enjoin or delay the making of any Loans except (but only
in the case of any litigation, arbitration, governmental investigation, proceeding or inquiry described in this clause (b) arising after the Closing Date) to the extent that the Borrower has disclosed the same to the Administrative Agent and has
concluded, on the basis of advice of independent counsel and to the satisfaction of the Administrative Agent, that the same is not reasonably likely to result in the prevention, injunction or delay in the making of the Loans and that the pendency of
such litigation, arbitration, governmental investigation, proceeding or inquiry does not have a Material Adverse Effect. Other than (A) any Contingent Obligation or (B) any liability incident to any litigation, arbitration or proceeding that
(in the case of either (A) or (B)) (i) could not reasonably be expected to have a Material Adverse Effect or (ii) is set forth on Schedule 6, as of the Closing Date, the Loan Parties have no Contingent Obligations not provided for or disclosed in
the financial statements referred to in Section 6.4.
| 46 |
6.8 6.8. Subsidiaries. Schedule 7 contains an accurate list of all
Subsidiaries of the Company as of the date set forth in such Schedule, setting forth their respective jurisdictions of organization. All of the issued and outstanding shares of capital stock or other ownership interests of such Subsidiaries
have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and non-assessable.
6.9 6.9. Accuracy of Information. No information, exhibit or report
furnished by any of the Loan Parties to the Administrative Agent or to any Lender on or before the Closing DateMay 19, 2016 in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made and taken as a whole, not misleading.
6.10 6.10. Regulation U. None of the Loan Parties holds or intends to hold
margin stock (as defined in Regulation U) in amounts such that more than 25% of the value of the assets of any Loan Party are represented by margin stock.
6.11 6.11. Material Agreements. None of the Loan Parties is a party to any
agreement or instrument or subject to any charter or other corporate restriction which could reasonably be expected to have a Material Adverse Effect. None of the Loan Parties is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect.
6.12 6.12. Compliance with Laws. The Loan Parties have complied with all
Laws applicable to the conduct of their respective businesses or the ownership of their respective Property, except for any failure to comply that could not reasonably be expected to have a Material Adverse Effect.
6.13 6.13. Ownership of Properties. Except as set forth on
Schedule 8, on the Closing Date,May 19,
2016, the Loan Parties will have good title, free of all Liens other than Permitted Liens, to all of the Property and assets reflected in the Company’s most recent consolidated financial
statements provided to the Administrative Agent as owned by the Loan Parties, except (i) for transfers of such Property and assets permitted under the terms of the
“Existing Credit Agreement” (as defined in the Existing Credit Agreement) or (ii) where the failure to have
such good title could not reasonably be expected to have a Material Adverse Effect.
6.14 6.14.
ERISA.
6.14.16.14.1. Plan Assets; Prohibited Transactions. None of the Loan Parties is an entity deemed to hold “plan assets”
within the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the
execution of this Agreement nor the making of Loans hereunder gives rise to a Prohibited Transaction.
6.14.26.14.2. Liabilities. The Unfunded Liabilities of all Single Employer Plans do not in the aggregate exceed $10,000,000. Neither the Company nor any other member of the Controlled
| 47 |
Group has incurred, or is reasonably expected to incur, any withdrawal liability to Multiemployer Plans or Multiple Employer Plans that individually or in the aggregate with all such withdrawal liabilities exceeds $10,000,000.
6.14.36.14.3. Plans and Benefit Arrangements. Except as set forth in Schedule 9 or to the extent a violation of the
foregoing would not reasonably be expected to have a Material Adverse Effect:
(i) The Company and each member of the Controlled Group is in compliance with any applicable provisions of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans. There has not been any Prohibited Transaction with respect to any Benefit Arrangement or any Plan or, to the best knowledge of the Company, with respect to any Multiemployer Plan or Multiple Employer Plan. The Company and all members of the Controlled Group have made any and all payments required to be made under any agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the Company and each member of the Controlled Group (i) have fulfilled their obligations under the minimum funding standards of ERISA, (ii) have not incurred any liability to the PBGC and (iii) have not had asserted against them any penalty for failure to fulfill the minimum funding requirements of ERISA.
(ii) To the best of the Company’s knowledge, each Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder when due.
(iii) Neither the Company nor any other member of the Controlled Group has instituted proceedings to terminate any Plan.
(iv) No event requiring notice to the PBGC under Section 303(k)(4)(A) of ERISA has occurred or is reasonably expected to occur with respect to any Plan.
(v) The aggregate actuarial present value of all benefit liabilities (whether or not vested) under each Plan, determined on a plan termination basis, as disclosed from time to time to and as of the date of the actuarial reports for such Plan does not exceed the aggregate fair market value of the assets of such Plan.
(vi) Neither the Company nor any other member of the Controlled Group has been notified by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan has been terminated within the meaning of Title IV of ERISA and, to the best knowledge of the Company, no Multiemployer Plan or Multiple Employer Plan is or shall be reasonably expected to be reorganized or terminated, within the meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is insured, the Company and all members of the Controlled Group have paid when due all premiums required to be paid. To the extent that any Benefit Arrangement is funded other than with insurance, the Company and all members of the Controlled Group have made all contributions required to be paid for all prior periods.
| 48 |
6.15 6.15. Investment Company Act. None of the Loan Parties is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
6.16 6.16. Intentionally Omitted.
6.17 6.17. Employment Matters. The Loan Parties are in compliance with the
Labor Contracts and all applicable federal, state and local labor and employment Laws including, but not limited to, those related to equal employment opportunity and affirmative action, labor relations, minimum wage, overtime, child labor, medical
insurance continuation, worker adjustment and relocation notices, immigration controls and worker and unemployment compensation, except for failures to comply that would not individually or in the aggregate have a Material Adverse Effect. There
are no outstanding grievances, arbitration awards or appeals therefrom arising out of the Labor Contracts or current or threatened strikes, picketing, handbilling or other work stoppages or slowdowns at facilities of the Company or any Loan Party
that in any case or in the aggregate would have a Material Adverse Effect.
6.18 6.18. Environmental Matters. Except as disclosed on Schedule 10:
(i) In the ordinary course of its business, the officers of the Company consider the effect of Environmental Laws on the business of the Company and its Subsidiaries, in the course of which they identify and evaluate potential risks and liabilities accruing to the Company due to Environmental Laws, and, on the basis of this consideration, the Company has concluded that compliance with Environmental Laws cannot reasonably be expected to have a Material Adverse Effect.
(ii) Except for violations or failures that individually and in the aggregate are not reasonably likely to result in a Material Adverse Effect, (A) none of the Loan Parties has received any Environmental Complaint from any Official Body or other Person alleging that any Loan Party or any prior or subsequent owner of the Property is a potentially responsible party under the Comprehensive Environmental Response, Cleanup and Liability Act, 42 U.S.C. § 9601, et seq., and none of the Loan Parties has any reason to believe that such an Environmental Complaint might be received and (B) there are no pending or, to the Company’s knowledge, threatened Environmental Complaints relating to any Loan Party or, to the Company’s knowledge, any prior or subsequent owner of the Property.
(iii) Except for conditions, violations or failures which individually and in the aggregate are not reasonably likely to have a Material Adverse Effect, (A) there are no circumstances at, on or under the Property that constitute a breach of or non-compliance with any of the Environmental Laws, and (B) there are no past or present Environmental Conditions at, on or under the Property or, to the Company’s knowledge, at, on or under adjacent property, that could reasonably be expected to result in liability of any Loan Party under any Environmental Law.
(iv) Except for conditions, violations or failures which individually and in the aggregate are not reasonably likely to have a Material Adverse Effect, neither the Property
| 49 |
nor any structures, improvements, equipment, fixtures, activities or facilities thereon or thereunder contain or use Regulated Substances except in compliance with Environmental Laws. There are no processes, facilities, operations, equipment or other activities at, on or under the Property, or, to the Company’s knowledge, at, on or under adjacent property, that result in the Release or threatened Release of Regulated Substances onto the Property, except to the extent that such Releases or threatened Releases are not a breach of or otherwise a violation of any Environmental Laws, or are not likely to have a Material Adverse Effect.
(v) Except for violations or failures which individually and in the aggregate are not likely to have a Material Adverse Effect, (A) there are no underground storage tanks, or underground piping associated with such tanks, used for the management of Regulated Substances at, on or under the Property that do not have a full operational secondary containment system in place and are not in compliance with all Environmental Laws, and (B) there are no abandoned underground storage tanks or underground piping associated with such tanks, previously used for the management of Regulated Substances at, on or under the Property that have not been either abandoned in place, or removed, in accordance with the Environmental Laws.
(vi) Except for violations or failures which individually and in the aggregate are not likely to have a Material Adverse Effect, (A) each Loan Party has all material permits, licenses, authorizations and approvals necessary under the Environmental Laws for the conduct of the business of such Loan Party as conducted by such Loan Party and (B) the Loan Parties have submitted all material notices, reports and other filings required by the Environmental Laws to be submitted to an Official Body which pertain to past and current operations on the Property.
(vii) Except for violations which individually and in the aggregate are not likely to have a Material Adverse Effect, all past and present on-site generation, storage, processing, treatment, recycling, reclamation or disposal of Regulated Substances at, on, or under the Property and all off-site transportation, storage, processing, treatment, recycling, reclamation and disposal of Regulated Substances have been done in accordance with the Environmental Laws.
(viii) There are no violations of the type described in the foregoing clauses (i) through (vii), without giving effect to any materiality qualifiers therein, which would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.19 6.19.
Senior Debt Status. The Obligations rank (a) at least pari passu in priority of payment with all other Senior Indebtedness of the Loan Parties except Indebtedness secured by
Permitted Liens and (b) prior in right of payment over the Subordinated Indebtedness.
6.20 6.20.
Designated Guarantors. All Subsidiaries of the Company that are integral to the homebuilding business of the Toll Group are Designated Guarantors.
6.21. OFAC. No Loan Party (i) is a person whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
| 50 |
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) to any Loan Party’s knowledge, conducts any
business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person in violation of Section 2 of the Executive Order referenced in subclause (i) above, or (iii) is an Embargoed
Person.
6.22. PATRIOT Act
6.21 Anti-Corruption Laws and
Sanctions. Each Loan Party is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as
amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the PATRIOT
Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.The Borrower and the Company have implemented and maintain in effect policies and procedures designed to
promote compliance by the Borrower, the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and, to the knowledge of the
Senior Executives of the Company and the Borrower, their respective directors, officers, agents and employees are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, the Company
or any of its Subsidiaries or (b) to the knowledge of the Senior Executives of the Company and the Borrower, any of their respective directors, officers, or employees or any agent of the Company or any of its Subsidiaries that will act in any
capacity in connection with the credit facility established hereby, is a Sanctioned Person. Neither the making of any Loan or issuance of any Facility Letter of Credit to or for the account of the Borrower or any other Loan Party nor the use of the
proceeds of any Loan or any Facility Letter of Credit by the Borrower or any Loan Party will violate Anti-Corruption Laws or applicable Sanctions.
6.22 EEA Financial Institution. None of the Loan Parties is an EEA Financial Institution.
6.23 FATCA. For purposes of FATCA, from and after the Amendment No. 1 Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement and any Loan made hereunder (including any Loan that has been already outstanding) as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
| 51 |
ARTICLE VII
COVENANTS
Until payment in full of all obligations under this Agreement (other than in respect of contingent indemnification claims not yet asserted), unless the Required Lenders shall otherwise consent in writing, the Borrower and the Company will perform and observe, and (as and where applicable) will cause the other Loan Parties to perform and observe, the following covenants:
7.1 7.1. Financial Reporting. The Company will maintain, for itself and
each Subsidiary, a system of accounting established and administered in accordance with generally accepted accounting principles, and furnish to the Lenders (or the Administrative Agent, on behalf of the Lenders), which may be by electronic
transmission:
(i) Audited Financial Statements. Within 95 days after the close of each of its fiscal years, an audit report, which report shall not be subject to any “going concern” qualification or qualification as to the scope of the audit, certified by independent certified public accountants of national recognition or otherwise reasonably acceptable to the Administrative Agent, prepared in accordance with GAAP on a consolidated basis for the Company and its Subsidiaries, including balance sheets as of the end of such period, a related consolidated profit and loss statement, and a consolidated statement of cash flows, accompanied by any management letter prepared by said accountants. Filing of such financial statements with the SEC shall be deemed delivery of such financial statements to the Lenders.
(ii) Quarterly Financial Statements. Within 50 days after the close of the first three quarterly periods of each fiscal year of the Company, for the Company and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and a related consolidated profit and loss statement and a consolidated statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, which statements shall be a complete and accurate copy of such signed statements as filed with the SEC and certified by the Company’s chief financial officer, chief accounting officer, controller or treasurer (which certificate shall be satisfactory in form to the Administrative Agent). Filing of such financial statements with the SEC shall be deemed delivery of such financial statements to the Lenders.
(iii) Annual Plan and Forecast. As soon as available, but in any event within 120 days after the beginning of each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Company for such fiscal year.
(iv) Compliance Certificate. Within five (5) days after each of the dates on which financial statements are required to be delivered under Sections 7.1(i) and (ii), a compliance certificate in substantially the form of Exhibit F signed by the chief financial officer, chief accounting officer, controller or treasurer of the Company showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(v) Annual ERISA Statement. If applicable, within 270 days after the close of each fiscal year, a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA.
(vi) Reportable Event. As soon as possible and in any event within 10 days after any Loan Party knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer, chief accounting office, controller or treasurer of the Company, describing said Reportable Event and the action which the Company proposes to take with respect thereto.
| 52 |
(vii) Environmental Notices. As soon as possible and in any event within 10 days after a Senior Executive of a Loan Party receives the same, a copy of (a) any notice or claim to the effect that any Loan Party is or may be liable to any Person as a result of the Release by any Loan Party or any other Person of any Regulated Substances, and (b) any notice alleging any violation of any Environmental, Law by any Loan Party, that, in either case, could reasonably be expected to have a Material Adverse Effect.
(viii) Borrowing Base Certificate. At any time that the Leverage Ratio equals or exceeds 1.50 to 1.00 as of the last day of a fiscal quarter, simultaneous with the delivery of the Compliance Certificate required to be delivered with respect to such fiscal quarter pursuant to Section 7.1(iv), a Borrowing Base Certificate.
(ix) Notices Regarding Plans and Benefit Arrangements.
(A)
(A) Promptly upon becoming aware of the occurrence thereof, notice
(including the nature of the event and, when known, any action taken or threatened by the Internal Revenue Service or the PBGC with respect thereto) of: (1) any Prohibited Transaction that could subject the Company or any member of the
Controlled Group to a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in connection with any Plan, Benefit Arrangement or any trust created thereunder that in either case would
reasonably be expected to result in a liability in excess of $5,000,000; (2) any assertion of material withdrawal liability with respect to any Multiemployer Plan or Multiple Employer Plan; (3) any partial or complete withdrawal from a Multiemployer
Plan, by the Company or any member of the Controlled Group under Title IV of ERISA (or assertion thereof), which such withdrawal is likely to result in a material liability; (4) any withdrawal by the Company or any member of the Controlled Group
from a Multiple Employer Plan; (5) any failure by the Company or any member of the Controlled Group to make a payment to a Plan required to avoid imposition of a lien under Section 303(k) of ERISA; or (6) any change in the actuarial assumptions or
funding methods used for any Plan, where the effect of such change is to materially increase the unfunded benefit liability or to materially reduce the liability to make periodic contributions.
(B)
(B) Promptly after receipt thereof, copies of (a) all notices received by
the Company or any member of the Controlled Group of the PBGC’s intent to terminate any Plan administered or maintained by the Company or any member of the Controlled Group, or to have a trustee appointed to administer any such Plan; and (b) at
the request of the Administrative Agent or any Lender each annual report (IRS Form 5500 series) and all accompanying schedules, the most recent actuarial reports, the most recent financial information concerning the financial status of each Plan
administered or maintained by the Company or any member of the Controlled Group, and schedules showing the amounts contributed to each such Plan by or on behalf of the Company or any member of the Controlled Group in which any of their personnel
participate or from which such personnel may derive a benefit, and each Schedule B (Actuarial Information) to the annual report filed by the Company or any member of the Controlled Group with the Internal Revenue Service with respect to each such
Plan.
| 53 |
(C)
(C) Promptly upon the filing thereof, copies of any Form 5310, or any
successor or equivalent form to Form 5310, filed with the IRS in connection with the termination of any Plan.
(x) Project Reports. Within thirty (30) days after the end of each fiscal quarter of the Borrower and, from and after delivery of a Compliance Certificate evidencing that the Leverage Ratio exceeds 1.50 to 1.00 as of the last day of a fiscal quarter and until the delivery of a Compliance Certificate for a subsequent fiscal quarter evidencing that the Leverage Ratio does not exceed 1.50 to 1.00 as of the last day of such fiscal quarter, each calendar month, statements accompanied by a certificate of the chief financial officer, chief accounting officer, controller or treasurer of Company, actually setting forth for the last week of the prior calendar quarter or month (as applicable) sales reports showing unit sales and unsold inventory completed or under construction by the Loan Parties in connection with each of their projects.
(xi) Subordinated Loan Documents. Prior to any Loan Party’s entering into or amending any Subordinated Loan Documents, copies thereof and a description of any material differences between the subordination provisions of such Subordinated Loan Documents and the subordination provisions of the Subordinated Loan Documents identified in Schedule 4 or most recently approved hereunder.
(xii) Notice of Litigation. Promptly after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Official Body or any other Person against any Loan Party which would be required to be reported by the Company (regardless of whether the Company is no longer required to file such reports with the SEC by reason of the Company ceasing to be a reporting company) on Forms 10-Q, 10-K or 8-K filed with the SEC. Filing such information with the SEC shall be deemed delivery to the Lenders.
(xiii) Shareholder Reports. Promptly upon the furnishing thereof to the shareholders of the Company, complete and accurate copies of all financial statements, reports and proxy statements so furnished. Filing such information with the SEC shall be deemed delivery to the Lenders.
(xiv) Other Information. Such other information (including non-financial information) as the Administrative Agent may from time to time reasonably request, including, without limitation, pursuant to any reasonable request by any Lender.
7.2 7.2.
Use of Proceeds. The Borrower and each other Loan Party will use the proceeds of the Term Advances for lawful, general business purposes. Neither the Borrower nor any other Loan Party
will use any of the proceeds of the Term Advances to purchase or carry any “margin stock” (as defined in Regulation
U). The Company and the Borrower shall not use, and shall procure that their respective Subsidiaries shall not use, the proceeds
of any Loan in any manner which would result in any violation of Anti-Corruption Laws or applicable Sanctions.
| 54 |
7.3 7.3. Notice of Default. The Borrower will give prompt notice in
writing to the Lenders of the occurrence of any Default or Unmatured Default and of any other development, financial or otherwise, that could reasonably be expected to have a Material Adverse Effect.
7.4 7.4. Conduct of Business. The Loan Parties will carry on and conduct
their businesses in substantially the same manner and in substantially the same fields of enterprise as presently conducted (and fields reasonably related, ancillary or complimentary thereto) and, in the case of the Borrower and the Company, will do
(and in the case of any other Loan Party, to the extent that its failure to do so could reasonably be expected to have a Material Adverse Effect, will do) all things necessary to remain duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing as a domestic corporation, partnership, trust or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect, maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted.
7.5 7.5. Taxes. Except for violations or failures that individually and
in the aggregate could not reasonably be expected to have a Material Adverse Effect, each Loan Party will (i) file in a timely manner complete and correct U.S. federal and all applicable foreign, state and local tax returns required by law and
(ii) pay when due all Taxes upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been provided in accordance with GAAP.
7.6 7.6. Insurance. Each Loan Party will maintain with financially sound
and reputable insurance companies insurance on all its Property in such amounts and covering such risks as is consistent with sound business practice, and the Borrower will furnish to any Lender upon request full information as to the insurance
carried.
7.7 7.7. Compliance with Laws. Each Loan Party will comply with all Laws
(excluding Environmental Laws, compliance with which is governed by Section 7.25) to which it may be subject, to the extent that noncompliance could reasonably be expected to have a Material Adverse Effect. The Company and the Borrower will maintain in effect and enforce policies and procedures designed to promote compliance by the Borrower, the
Company, its Subsidiaries and their respective officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
7.8 7.8. Maintenance of Properties. Each Loan Party will maintain,
preserve, protect and keep its Property in good repair, working order and condition (ordinary wear and tear and casualty excepted) in accordance with the general practice of other businesses of similar character and size, and make all necessary and
proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times, except in each case to the extent that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
7.9 7.9. Inspection. Each Loan Party will permit the Administrative Agent
and the Lenders, by their respective representatives and agents, to inspect any of the Property, books and financial records of the Loan Parties, examine and make excerpts of the books of accounts and other financial records of the Loan Parties, and
to discuss the affairs, finances and accounts of the Loan Parties with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Administrative Agent or any Lender may reasonably designate.
| 55 |
7.10 7.10. Mergers; Consolidations; Dissolutions. No Loan Party shall merge
into or consolidate with any other Person or permit any other Person to merge into or consolidate with it unless (i) there is no Change of Control of the Loan Party; (ii) the character of the business of the Toll Group on a consolidated basis will
not be materially changed by such occurrence; (iii) such occurrence shall not constitute or give rise to a Default or Unmatured Default; and (iv) if, in the case of the Borrower or the Company, it is not the surviving entity of such merger or
consolidation, such surviving entity shall promptly execute and deliver to the Administrative Agent (A) an assumption of the Borrower’s or the Company’s (as applicable) obligations under the Loan Documents to which the Borrower or the
Company (as applicable) is party and (B) such certified resolutions, opinions of counsel and other supporting documentation as the Administrative Agent may reasonably request, all of which shall be reasonably satisfactory to the Administrative
Agent. Neither the Toll Group nor any portion thereof the dissolution, liquidation or winding up of which could reasonably be expected to have a Material Adverse Effect shall dissolve, liquidate, or wind up its business by operation of law or
otherwise.
7.11 7.11. Distributions of Securities. The Company shall not distribute
to its shareholders any securities of any Subsidiary unless (a) such Subsidiary is a Non-Loan Party; (b) such distribution does not constitute or give rise to a Default or Unmatured Default; (c) such distribution does not result in a Change of
Control of a Loan Party; and (d) such distribution does not materially change the operations of the Toll Group.
7.12 7.12.
Disposition of Assets. None of the Loan Parties will sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its Property
(including, but not limited to, sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock (other than capital stock of the Company),
shares of beneficial interest or partnership interests of another Loan Party or an Affiliate of a Loan Party), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets which are no longer necessary or required in the conduct of the business of the Loan Parties (taken as a whole);
(iii) any sale, transfer or lease of assets to any other Loan Party;
(iv) any sale, transfer or lease of assets which are replaced by substitute assets acquired or leased;
(v) any sale, transfer or lease of assets of, or interests in, a Non-Loan Party or any other Affiliate of the Company that is not a Loan Party; and
(vi) mergers or consolidations permitted in this Agreement.
| 56 |
7.13 7.13. Borrower a Wholly-Owned Subsidiary. The Borrower will at all
times be a Wholly-Owned Subsidiary of the Company or of a successor to the Company (but only if the ownership by such successor does not constitute or result in a Change of Control).
7.14 7.14. Investments and Acquisitions. None of the Loan Parties will
make or suffer to exist any Investments (including, without limitation, loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or will create any Subsidiary or will become or remain a partner in any partnership or
joint venture, except Permitted Investments.
7.15 7.15. Liens. None of the Loan Parties will create, incur, or suffer
to exist any Lien in, of or on any Property whether now owned or hereafter acquired, except Permitted Liens.
7.16 7.16.
Additional Designated Guarantors. The Borrower may at any time designate (in the manner hereinafter provided) any Wholly-Owned Subsidiary of the Company as a Designated Guarantor,
and shall designate (in the manner hereinafter provided) each newly-formed or newly-acquired Wholly-Owned Subsidiary of the Company (other than a Mortgage Subsidiary) as a Designated Guarantor on a quarterly basis simultaneously with its delivery of
the next Compliance Certificate pursuant to Section 7.1(iv) (unless, on or prior to the time of such delivery, the Borrower satisfies the requirements of Non-Designation of such Wholly-Owned Subsidiary in accordance with Section 10.13) in accordance
with the provisions of this Section 7.16. Such designation of a Wholly-Owned Subsidiary of the Company as a Designated Guarantor shall be effected by the delivery by the Borrower to the Administrative Agent of each of the following:
(i) Notice by the Borrower and the Company identifying such Designated Guarantor, the state of its formation, and the ownership of the capital stock or other ownership interests in such Designated Guarantor;
(ii) A Supplemental Guaranty duly executed and delivered by such Designated Guarantor;
(iii) Documents with respect to such Designated Guarantor addressing the requirements set forth in clauses (iv), (v) and (vi) of Section 5.1; and
(iv) Such information relating to the organization, operations and finances of such Designated Guarantor as the Administrative Agent shall reasonably request.
Upon the Administrative Agent’s receipt of the foregoing, all of which shall be reasonably satisfactory to the Administrative Agent in form and substance, such Wholly-Owned Subsidiary of the Company shall be a Designated Guarantor and a Loan Party hereunder.
7.17 7.17. Subordinated Indebtedness. Except as otherwise permitted in the last
sentence of this Section 7.17, no Loan Party will make any amendment or modification to any Subordinated Loan Document, without providing at least thirty (30) days’ prior written notice thereof to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and obtaining the
prior written consent of the Required Lenders thereto. The Loan Parties may amend or modify any Subordinated Loan Document without obtaining the consent of the Required
| 57 |
Lenders if after giving effect to such amendment or modification (a) the subordination provisions therein would be permitted under this Agreement, and (b) the covenants governing such Subordinated Indebtedness affected by the amendment are no more onerous to the borrower of such Subordinated Indebtedness than those contained under this Agreement and the Administrative Agent shall have received an officer’s certificate to such effect by an Authorized Officer of the Company.
7.18 7.18. Intercompany Loans, Loans from Non-Loan Parties. The Borrower may
make Intercompany Loans available to the Guarantors using proceeds of the Loans. Each Intercompany Loan shall be evidenced either by a promissory note of the obligor under such Intercompany Loan (individually, an “Intercompany Note” and
collectively, the “Intercompany Notes”), an intercompany account agreement between Borrower and the obligor under such Intercompany Loan (individually, an “Intercompany Agreement” and collectively, the “Intercompany
Agreements”) or by an entry on the books and records of the Borrower and the obligor under such Intercompany Loan, and repayment of such Intercompany Loans shall be on such terms as the Borrower and the Guarantors agree. Each Intercompany Loan
shall be subordinated to the Guarantors’ obligations under the Guaranty Agreements pursuant to the terms of the Guaranty Agreement and shall either be a demand loan or become due and payable upon the acceleration of the Loans pursuant to
Section 9.1 after the occurrence of a Default hereunder. Any Intercompany Note, Intercompany Agreement or book-entry claim may in turn be assigned by the Borrower to another Guarantor or any other member of the Toll Group as a capital contribution.
The Company shall establish and maintain such books and records relating to Intercompany Loans and other Investments in the Designated Guarantors as are required to enable it and the Administrative Agent to trace advances and repayments of principal
of Intercompany Loans and other investments in the Guarantors.
7.19 7.19. Appraisals.
7.19.17.19.1. Procedures. The Loan Parties shall cooperate with the Lenders and the appraisers in making appraisals of the
Borrowing Base Assets which the Administrative Agent, at the direction of the Required Lenders, may from time to time request. The Borrower may, within ten (10) days following any such request by the Administrative Agent, specify which other of
the Borrowing Base Assets it requests to have similarly appraised. Following the first to occur of (A) completion of all appraisals requested at any one time by the Administrative Agent and the Borrower under this Section 7.19, and (B) a date
specified by the Administrative Agent no earlier than 45 days after the last request for an appraisal has (or could have) been made by the Borrower in accordance with the immediately preceding sentence, the appraised values of all Borrowing Base
Assets which have been appraised (rather than their book value) shall be used for purposes of applying the covenant contained in Section 7.28.2. The Required Lenders shall have the right to request appraisals pursuant to this Section 7.19 not
more than two times in any period of twelve consecutive months, and shall specify in such request all of the Borrowing Base Assets for which the Lenders desire appraisals.
7.19.27.19.2. Costs. Any appraisals by the Administrative Agent shall be at the Lenders’ expense (in the proportion of their
respective Term Loan Ratable Shares), unless using such appraised values would result in the covenant contained in Section 7.28.2 being violated, in which event all such appraisals shall be at the Borrower’s expense; provided, that, in addition
to the
| 58 |
foregoing, if at any time that the Borrowing Base provisions set forth in Section 7.28.2 are in effect because the Leverage Ratio is above the threshold set forth therein as of the end of the
most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 7.1(i) or (ii), the amount of the Borrowing Base (determined as of the end of such fiscal quarter and set forth on the
Borrowing Base Certificate required to be delivered pursuant to Section 7.1(viii)) is not greater than the aggregate principal amount of the Senior Indebtedness then outstanding (excluding
outstanding Alternative Letters of Credit and other outstanding Letters of Credit
or similar arrangements to the extent collateralized by cash, Marketable Securities or Cash Equivalents and it being understood that a Permitted Purchase Money Loan shall not
be included in the foregoing calculation unless the Borrower has included in the Borrowing Base the assets securing such Permitted Purchase Money Loan) by at least an amount equal to 10% of
the aggregate principal amount of such Senior Indebtedness then outstanding (with Senior Indebtedness being calculated in accordance with the prior
parentheticalSection 7.28.2), then the Administrative Agent, at
the written request of the Required Lenders, shall have the right to request appraisals of a selection of Borrowing Base Assets that constitute (x) Borrowing Base Assets with the highest individual book values and (y) Borrowing Base Assets that in
the aggregate constitute 50% of the aggregate book value of all Borrowing Base Assets (both (x) and (y) to be determined by the Company in good faith in consultation with the Administrative Agent) (such assets, the “Borrowing Base Selected
Assets”) not more than once in any twelve consecutive months with all such appraisals conducted at the Borrower’s expense; provided, further, that if the aggregate appraised value of the Borrowing Base Selected Assets is less than the
aggregate book value of the Borrowing Base Selected Assets as set forth in the above-referenced Borrowing Base Certificate, then the Administrative Agent shall have the right, at the written request of the Required Lenders (but only so long as the
Borrowing Base provisions set forth in Section 7.28.2 are in effect as provided above) to request appraisals of additional Borrowing Base Assets on the same basis as provided in clauses (x) and (y) above that in the aggregate, together with the
Borrowing Base Selected Assets, constitute 80% of the aggregate book value of all Borrowing Base Assets (such additional Borrowing Base Assets to be determined by the Company in good faith in consultation with the Administrative Agent as provided
above and defined herein as the “Additional Borrowing Base Selected Assets”) not more than once in any twelve consecutive months with all such appraisals conducted at the Borrower’s expense; provided, further, that if the aggregate
appraised value of the Borrowing Base Selected Assets and the Additional Borrowing Base Selected Assets is less than ninety percent (90%) of the aggregate book value of such assets as set forth on the above-referenced Borrowing Base Certificate,
then the Administrative Agent shall have the right, at the written request of the Required Lenders (but only so long as the Borrowing Base provisions set forth in Section 7.28.2 are in effect as provided above), to request appraisals of all
remaining Borrowing Base Assets at the Borrower’s expense, but no more than once in any twelve consecutive months; provided, further, that, notwithstanding the foregoing, if a Default or Unmatured Default shall have occurred and be continuing
as a result of a breach of Section 7.28.2, then all appraisals under this Section 7.19 shall be at the Borrower’s expense.
7.19.37.19.3. Appraisers. Any appraisals requested at any one time pursuant to this Section 7.19 shall be made by one or more appraisers for all properties (there shall be no more than one appraiser for each
property) located in each state selected by the Borrower from a list of at least three appraisers submitted by the Administrative Agent with respect to such state at the time it makes its request. All appraisers submitted by the Administrative
Agent pursuant to this Section 7.19 shall be appraisers who have been approved by the Required Lenders and the Borrower (such approval not to be unreasonably withheld or delayed) and in either event have committed to prepare appraisals within 45
days following the date such appraisals are requested.
| 59 |
7.20 7.20. Mortgage Subsidiaries. The Company shall notify the Administrative
Agent of the creation of any Mortgage Subsidiary within seven (7) Business Days after such creation. Such notice shall include the name, state of formation and ownership of the capital stock or other ownership interests thereof. The
Company shall cause the Mortgage Subsidiaries to engage exclusively in the Mortgage Banking Business. The Company shall deliver information relating to the organization, operations and finances of the Mortgage Subsidiaries as the Administrative
Agent may reasonably request from time to time.
7.21 7.21. [Reserved].
7.22 7.22. [Reserved].
7.23 7.23. Plans and Benefit Arrangements. Except as set forth in Schedule
9 or to the extent a violation of the foregoing would not reasonably be expected to have a Material Adverse Effect either individually or in the aggregate with all other violations:
(i) The Company and each member of the Controlled Group shall comply with any applicable provisions of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans. The Company shall not permit to occur any Prohibited Transaction with respect to any Benefit Arrangement or any Plan or with respect to any Multiemployer Plan or Multiple Employer Plan. The Company and all members of the Controlled Group shall make all payments required to be made under any agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the Company and each member of the Controlled Group (i) shall fulfill their obligations under the minimum funding standards of ERISA, (ii) shall not incur any liability to the PBGC and (iii) shall not have asserted against them any penalty for failure to fulfill the minimum funding requirements of ERISA.
(ii) Each Multiemployer Plan and Multiple Employer Plan shall be able to pay benefits thereunder when due.
(iii) Neither the Company nor any other member of the Controlled Group shall institute proceedings to terminate any Plan.
(iv) The Company shall not permit to occur any event requiring notice to the PBGC under Section 303(k)(4)(A) of ERISA with respect to any Plan.
(v) The aggregate actuarial present value of all benefit liabilities (whether or not vested) under each Plan, determined on a plan termination basis, as disclosed from time to time in and as of the date of the actuarial reports for such Plan shall not exceed the aggregate fair market value of the assets of such Plan.
| 60 |
(vi) Neither the Company nor any other member of the Controlled Group shall incur any withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Company nor any other member of the Controlled Group shall be notified by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan has been terminated within the meaning of Title IV of ERISA and no Multiemployer Plan or Multiple Employer Plan shall be reorganized or terminated, within the meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is insured, the Company and all members of the Controlled Group shall pay when due all premiums required to be paid. To the extent that any Benefit Arrangement is funded other than with insurance, the Company and all members of the Controlled Group shall make all contributions required to be paid for all prior periods.
7.24 7.24. Employment Matters. The Loan Parties shall comply with the
Labor Contracts and all applicable labor and employment Laws including, but not limited to, those related to equal employment opportunity and affirmative action, labor relations, minimum wage, overtime, child labor, medical insurance continuation,
worker adjustment and relocation notices, immigration controls and worker and unemployment compensation, in each case where the failure to comply would have a Material Adverse Effect either individually or in the aggregate with all other such failures. The Company and the Borrower shall not permit any grievances,
arbitration awards or appeals therefrom arising out of the Labor Contracts or strikes or threatened strikes, picketing, handbilling or other work stoppages or slowdowns at facilities of any Loan Party that in any case or in the aggregate would have
a Material Adverse Effect.
7.25 7.25. Environmental Matters. Except as disclosed on Schedule 10
hereto:
(i) Except for violations or failures which individually and in the aggregate are not reasonably likely to have a Material Adverse Effect, (A) no Environmental Complaint shall be issued by any Official Body or other Person alleging that any Loan Party or any prior or subsequent owner of the Property is a potentially responsible party under the Comprehensive Environmental Response, Cleanup and Liability Act, 42 U.S.C. § 9601, et seq. and (B) the Company and the Borrower shall not permit to occur any Environmental Complaint relating to any Loan Party or any prior or subsequent owner of the Property pertaining to, or arising out of, any Environmental Conditions.
(ii) Except for conditions, violations or failures which individually and in the aggregate are not reasonably likely to have a Material Adverse Effect, (A) the Company and the Borrower shall not permit to occur any circumstances at, on or under the Property that constitute a breach of or non-compliance with any of the Environmental Laws or (B) any past or present Environmental Conditions at, on or under the Property or at, on or under adjacent property, that prevent compliance with Environmental Laws at the Property.
(iii) Except for conditions, violations or failures which individually and in the aggregate are not reasonably likely to have a Material Adverse Effect, neither the Property nor any structures, improvements, equipment, fixtures, activities or facilities thereon or thereunder shall contain or use Regulated Substances except in compliance with
| 61 |
Environmental Laws. The Company and the Borrower shall not permit to occur any processes, facilities, operations, equipment or other activities at, on or under the Property, or at, on or under adjacent property that result in the release or threatened release of Regulated Substances onto the Property, except to the extent that such releases or threatened releases are not a breach of or otherwise a violation of any Environmental Laws, or are not likely to have a Material Adverse Effect either individually or in the aggregate.
(iv) Except for violations or failures which individually and in the aggregate are not likely to have a Material Adverse Effect, (A) the Company and the Borrower shall not permit any underground storage tanks, or underground piping associated with such tanks, to be used for the management of Regulated Substances at, on or under the Property that do not have a full operational secondary containment system in place or are not in compliance with all Environmental Laws, and (B) the Company and the Borrower shall not permit the abandonment of any underground storage tanks or underground piping associated with such tanks, previously used for the management of Regulated Substances at, on or under the Property, except those abandoned in place, or removed, in accordance with the Environmental Laws.
(v) Except for violations or failures which individually and in the aggregate are not likely to have a Material Adverse Effect, (A) each Loan Party shall have all material permits, licenses, authorizations and approvals necessary under the Environmental Laws for the conduct of the business of such Loan Party as conducted by such Loan Party and (B) the Loan Parties shall submit all material notices, reports and other filings required by the Environmental Laws to be submitted to an Official Body which pertain to operations on the Property.
(vi) Except for violations which individually and in the aggregate are not likely to have a Material Adverse Effect, all on-site generation, storage, processing, treatment, recycling, reclamation of disposal of Solid waste at, on, or under the Property and all off-site transportation, storage, processing, treatment, recycling, reclamation and disposal of Solid Waste shall be done in accordance with the Environmental Laws.
7.26 7.26. Environmental Certificates. The Borrowing Base Assets shall not
include any Property for which a Loan Party has not obtained a completed certificate (including an accompanying Phase I Environmental site assessment in conformity with industry standards) in respect of such Property in substantially the form of
Exhibit G or otherwise in a form reasonably satisfactory to the Administrative Agent (an “Environmental Certificate”) from a qualified independent environmental consultant. The Borrower shall, at the request of the Administrative
Agent, furnish to the Administrative Agent Environmental Certificates with respect to any Property requested by the Administrative Agent that the Borrower has included in the Borrowing Base, and may, in order to request approval of any exception on
Exhibit A of an Environmental Certificate that is not a Permitted Environmental Exception so that the underlying assets may be included in the Borrowing Base, furnish a supplemental Environmental Certificate to the Administrative Agent from a
qualified independent environmental consultant. The Administrative Agent shall with reasonable promptness notify the Borrower and the Lenders of the Administrative Agent’s approval or disapproval of any exception on Exhibit A of any such
Environmental Certificate that is not a Permitted Environmental Exception. The other Lenders shall have ten (10)
| 62 |
Business Days to reverse such approval or disapproval by the vote of the Required Lenders, in the absence of which vote the Administrative Agent’s decision shall stand. The Borrower shall have the right from time to time to submit another Environmental Certificate in respect of Property that was not initially Environmentally Approved Land following substantial completion of corrective action in accordance with Environmental Laws applicable to exceptions to a prior Environmental Certificate in respect of such Property and provision of documentation of such corrective action reasonably acceptable to the Administrative Agent. Neither the Administrative Agent nor any other Lender shall be liable or otherwise have any responsibility or obligation to any Lender or to any Loan Party for any approval or disapproval of any exceptions in any Environmental Certificate made by it.
7.27 7.27. Senior Debt Status. The Obligations will at all times rank (a)
at least pari passu in priority of payment with all other Senior Indebtedness of the Loan Parties
except(except the Obligations may rank junior
in priority with respect to the liens securing Indebtedness secured by Permitted
Liens) and (b) prior in right of payment to all Subordinated Indebtedness.
7.28 7.28. Financial Covenants.
7.28.17.28.1. Leverage Ratio. The Company and the Borrower will not permit the Leverage Ratio at any time to be greater than
1.75 to 1.00.
7.28.27.28.2. Borrowing Base. At any time that the Leverage Ratio as of the end of a fiscal quarter equals or exceeds 1.50 to
1.00, the Company and the Borrower will not permit the Borrowing Base (determined as of the end of such fiscal quarter and set forth on the Borrowing Base Certificate required to be delivered for such fiscal quarter pursuant to Section 7.1(viii)) to
be less than the aggregate principal amount of Senior Indebtedness then outstanding (excluding outstanding Alternative Letters of Credit and other Letters of Credit or similar arrangements included in Senior Indebtedness and not issued under the
Existing Credit Agreement to the extent collateralized by cash, Marketable Securities or Cash Equivalents), it being understood that a(i) if any Permitted Purchase Money Loans or Permitted Recourse Indebtedness are secured by assets which have a book value at the time of the
calculation of the Leverage Ratio which is greater than or equal to the amount of Indebtedness outstanding in respect of such Permitted Purchase Money LoanLoans or Permitted Recourse Indebtedness, as
applicable, then the amount of such Indebtedness shall not be included in the foregoing calculation unless the Borrower has
included in the Borrowing Base theof Senior Indebtedness, (ii) if any Permitted Purchase Money Loans or Permitted
Recourse Indebtedness are secured by assets which have a book value at the time of the calculation of the Leverage Ratio which is less than the amount of Indebtedness in respect of such Permitted Purchase Money Loans or Permitted Recourse
Indebtedness, as applicable, and such Permitted Purchase Money Loans or Permitted Recourse Indebtedness, as applicable, are recourse to any Loan Party (on a secured or unsecured basis) then only the difference between the outstanding principal
amount of Indebtedness in respect of such Permitted Purchase Money Loans or Permitted Recourse Indebtedness, as applicable, and the book value of such assets securing such Permitted Purchase Money
LoanLoans or Permitted Recourse Indebtedness,
as applicable, shall be included in the foregoing calculation of Senior Indebtedness (but in no event in an amount greater than the amount of recourse to any Loan Party) and (iii) the amount of Indebtedness in respect of Permitted Nonrecourse
Indebtedness shall not be included in the foregoing calculation of Senior Indebtedness.
| 63 |
7.28.37.28.3. Tangible Net Worth. The Company will maintain at the end of each fiscal quarter a Tangible Net Worth of not
less than the amount by which (i) the sum of (a)
$2,216,000,000,2,650,000,000, (b) 50% of Consolidated Net Income after April 30,
20132016 (provided that the amount in this clause (b) may not be less than zero), (c) 50% of the cash proceeds of capital stock of the Company sold by the Company after April 30, 2013May 19, 2016 and (d) 50% of the aggregate increase in Tangible Net Worth after April 30, 2013May 19, 2016 by reason of the issuance of capital stock of the Company upon conversion
of Indebtedness of any member of the Toll Group into such capital stock exceeds (ii) the aggregate amount paid by the Company for repurchase of its capital stock at any time after
April 30, 2013May 19, 2016 (but only to the extent such repurchases do not exceed the Maximum Deductible Amount (as defined below)). As used herein, the term “Maximum Deductible Amount” shall mean an amount equal to (A) the cost
of purchases and repurchases by the Toll Group of capital stock of the Company made after April 30,
2013May 19, 2016 not to exceed, in the aggregate during any
one-year period (as measured from November 1 to October 31 of each year) ten percent (10%) of the Tangible Net Worth as of the end of the fiscal year of the Company preceding such one-year period, plus (B) in addition to the purchases and
repurchases of capital stock under clause (A), the cost of other purchases or repurchases by the Toll Group of capital stock of the Company at any time, not to exceed
$200,000,000300,000,000 in the aggregate after April 30,
2013.2016.
7.28.47.28.4. Mortgage Subsidiaries. The Company and the Borrower shall not permit the ratio of Mortgage Subsidiaries’
Liabilities to Mortgage Subsidiaries’ Adjusted Shareholders’ Equity to exceed at the end of any fiscal quarter 12.0 to 1.0.
7.29 7.29. Financial Contracts. No Loan Party will enter into or remain
liable upon any Financial Contract, except for Financial Contracts entered into for the purpose of managing interest rate risks associated with Indebtedness of the Toll Group and other risks associated with the business of the Toll Group and not for
speculative purposes.
ARTICLE VIII
DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
8.1 8.1. Any representation or warranty made or deemed made by or on behalf of any
Loan Party to the Lenders or the Administrative Agent under or in connection with this Agreement, any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material
respect on the date as of which made or deemed made.
8.2 8.2. (i) Nonpayment of principal of any Loan when due under this Agreement, or
(ii) nonpayment of interest upon any Loan or of any fee or other Obligations under any of the Loan Documents within five days after notice (which notice may include a billing statement therefor) that the same is due.
8.3 8.3. The breach by any Loan Party (other than a breach which constitutes a
Default under another Section of this Article VIII) of any of the terms or provisions of this Agreement or any of the other Loan Documents which is not cured within thirty days after
the
| 64 |
earlier of notice thereof
given by the Administrative Agent or the Required Lenders to the Borrower in accordance with Section 14.1 or afterand the date on which any Senior Executive becomes aware of the occurrence thereof,
whichever first occurs (such grace period to be applicable only in the event such breach can be cured by corrective action of the Loan Parties as determined by the Administrative Agent in its reasonable discretion).
8.4 8.4. Failure of any Loan Party to pay when due any Indebtedness (other than (i)
Permitted Nonrecourse Indebtedness and (ii) guarantees of Indebtedness of Non-Loan Parties, to the extent and for so long as the payment obligation by a Loan Party under such guarantee is being contested in good faith by appropriate proceedings, and
any judgment against any Loan Party is subject to an appeal and does not otherwise result in a Default under Section 8.5) aggregating in excess of $50,000,00075,000,000 (“Material Indebtedness”); or the default by any Loan Party in the
performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which any such Material Indebtedness was created or is governed, or any other event
shall occur or condition exist, the effect of which default or event is to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of any Loan Party shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or in connection with a mandatory prepayment or offer with respect to the sale, casualty or
condemnation of any Property secured by such Material Indebtedness) prior to the stated maturity thereof; or any Loan Party shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due; or any
“Default” (as such term is defined in the Existing Credit Agreement) shall have occurred and be continuing under the Existing Credit Agreement.
8.5 8.5. Any Loan Party shall (i) have an order for relief entered with respect to it
under the Federalfederal bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the
Federalfederal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate,
partnership or limited liability company action to authorize or effect any of the foregoing actions set forth in this Section 8.5 or (vi) fail to contest in good faith any appointment or proceeding described in Section 8.6.
8.6 8.6. Without the application, approval or consent of a Loan Party, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for such Loan Party or any Substantial Portion of the Property of the Loan Parties, or a proceeding described in Section 8.5(iv) shall be instituted against any Loan Party and such
appointment continues undischarged, or such proceeding continues
undismissed or unstayed, for a period of 60 consecutive days.
8.7 8.7. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the Property of any Loan Party which, when taken together with all other Property of the Loan Parties so condemned, seized, appropriated, or taken custody or control of,
during the period of four consecutive fiscal quarters ending with the quarter in which any such action occurs, constitutes a Substantial Portion.
| 65 |
8.8 8.8. The Loan Parties shall fail within 30 days to pay, bond or otherwise
discharge any one or more judgments or orders for the payment of money (other than in respect of Permitted Nonrecourse Indebtedness) in excess of $50,000,00075,000,000 in the aggregate (to the extent not covered by insurance provided by an
independent solvent third-party insurer who has been notified of such judgment, order or decree and has not denied coverage), which are not stayed on appeal or otherwise being appropriately contested in good faith.
8.9 8.9. The Unfunded Liabilities of all Single Employer Plans shall exceed in the
aggregate $10,000,000 or any Reportable Event shall occur in connection with any Plan.
8.10 8.10.
The Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan or Multiple Employer Plan that it has incurred withdrawal liability to
such Multiemployer Plan or Multiple Employer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans or Multiple Employer Plan by the Company or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such notification), exceeds $10,000,000 or requires payments exceeding $5,000,000 per annum.
8.11 8.11. The Company or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans and Multiple Employer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed to such Multiemployer Plans and Multiple Employer Plans for the respective plan years of each such Multiemployer Plan and Multiple Employer Plans immediately preceding the plan
year in which the reorganization or termination occurs by an amount exceeding $25,000,000.
8.12 8.12.
Any Loan Party shall (i) be the subject of any proceeding or investigation pertaining to the release of any Regulated Substance into the environment, or (ii) violate any Environmental Law,
which, in the case of an event described in clause (i) or clause (ii) or all such events in the aggregate, could reasonably be expected to have a Material Adverse Effect.
8.13 8.13. Any Change of Control shall occur.
8.14 8.14. Any action shall be taken by a Loan Party to discontinue or to assert the
invalidity or unenforceability of any Guaranty Agreement, or any Guarantor shall deny that it has any further liability under any Guaranty Agreement to which it is a party, or shall give notice to such effect.
8.15 8.15. Any Loan Document shall fail to remain in full force and effect unless
released by the Lenders.
| 66 |
8.16 8.16. The representations and warranties set forth in Section 6.14.1 (“Plan
Assets; Prohibited Transactions”) shall at any time not be true and correct.
The Borrower may cure any Default (other than any failure to pay the Obligations) that relates exclusively to a Designated Guarantor by Conversion of such Designated Guarantor to a Non-Loan Party, to the extent permitted by and subject to and in accordance with the provisions of Section 10.13, provided that such Conversion is completed (except as otherwise provided in Section 10.13(b)) not later than thirty (30) days after the first to occur of (a) such Default or (b) the day that a Senior Executive of the Company first learned of the Unmatured Default that, with the lapse of time or giving of notice, or both, has ripened or may ripen into such Default.
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1 9.1. Acceleration. If any Default described in Section 8.5 or 8.6
occurs and is continuing with respect to the Borrower or the Company the Obligations shall immediately become due and payable without any election or action on the part of the Administrative Agent or any Lender. If any other Default occurs and
is continuing, the Required Lenders (or the Administrative Agent with the written consent of the Required Lenders) may declare the Obligations to be due and payable, whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of the Obligations as a result of any Default (other than any Default as described in Section 8.5 or 8.6 with respect to the Borrower or the Company) and before any judgment or decree for the payment of the Obligations due shall have been obtained or entered, the Required Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by notice to the Borrower, rescind and annul such acceleration.
9.2 9.2. Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders), the Borrower and the Company may enter into agreements for the purpose of adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder or waiving any Default hereunder; provided, however, that no such agreement or any waiver shall, (a) without the consent of each Lender directly and adversely affected thereby:
(i) Forgive all or any portion of the principal amount of any Loan, or reduce the rate, whether by modification of the Pricing Schedule or otherwise (it being understood that any change to the definition of Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest for purposes of this clause), or extend the time for payment of or forgive interest or fees thereon; or
(ii) Extend the Term Loan Facility Maturity Date under the Term Loan Facility, or increase the amount of Term Loans of any Lender (except as agreed to by such Lender pursuant to the provisions of Section 2.18);
| 67 |
or (b) without the consent of all Lenders:
(iii)
(i) Permit the Borrower to assign its rights under this Agreement; or
(iv)
(ii) [Reserved]; or
(v)
(iii) Change, directly or indirectly, the percentage specified in the
definition of “Required Lenders,” or change any provision that calls for consent, approval or other action by the Required Lenders, all Lenders or any particular affected Lender; or
(vi)
(iv) Amend Section 2.10(b), this Section 9.2 or9.2, Section 12.1 or Section 12.2; or
(vii) (v)
Release any Guarantor (except for the release of a Designated Guarantor as provided in Section 10.13).
No amendment of any provision of this Agreement relating to the Administrative Agent shall be effective without its written consent. The Administrative Agent may waive payment of the fee required under Section 13.3.2 without obtaining the consent of any other party to this Agreement. Notwithstanding the foregoing, any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency (including amendments, supplements or waivers to any of the Loan Documents or related documents executed by any Loan Party or any other Subsidiary in connection with this Agreement or any other Loan Document if such amendment, supplement or waiver is delivered in order to cause such Loan Documents or related documents to be consistent with this Agreement and the other Loan Documents) so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.
9.3 9.3. Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Loan notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 9.2, and then only to the extent
in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all
shall, subject to the terms hereof, be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
| 68 |
ARTICLE X
GENERAL PROVISIONS
10.1 10.1.
Survival of Representations. All representations and warranties of the Borrower contained in this Agreement shall survive the making of the Loans herein contemplated.
10.2 10.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.
10.3 10.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents.
10.4 10.4.
Entire Agreement. The Loan Documents embody the entire agreement and understanding among the Borrower, the Company, Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrower, the Company, the Administrative Agent and the Lenders relating to the subject matter thereof (other than the Administrative Agent’s Fee Letter).
10.5 10.5. Several Obligations Benefits of This Agreement. The respective
obligations of the Lenders hereunder are several and not joint or joint and several and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties
to this Agreement and their respective successors and assigns; provided, however, that the parties hereto expressly agree that the Arranger (and, in the case of the provisions of Section 10.6(b), any other Person indemnified by the
Borrower thereunder) shall enjoy the benefits of the provisions of Sections 10.6, 10.10 and 11.10 to the extent specifically set forth therein and shall have the right to enforce such provisions on its, his or her own behalf and in its, his or her
own name to the same extent as if it, he or she were a party to this Agreement.
10.6 10.6.
Expenses; Indemnification.
(a) The Borrower shall reimburse the Administrative Agent and the Arranger for any reasonable costs, internal charges and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of attorneys for the Administrative Agent and the Arranger and (but only with the Borrower’s prior approval, which shall not be unreasonably withheld or delayed) other advisors and professionals engaged by the Administrative Agent) paid or incurred by the Administrative Agent or the Arranger in connection with the preparation, negotiation, execution, delivery, syndication, amendment, modification, and administration of the Loan Documents. In addition, the Borrower also agrees to pay for all reasonable out-of-pocket costs and expenses of the Administrative Agent and each Lender incurred in connection with the enforcement or preservation of rights under the Loan Documents (including but not limited to reasonable legal fees and expenses of counsel, provided that legal fees and legal expenses shall be limited to the fees and expenses of one legal counsel for the Administrative Agent and, if applicable, one legal
| 69 |
counsel for the Lenders plus, if necessary, one special counsel for each relevant specialty and one local counsel per jurisdiction; provided, that, in the event of any actual or potential conflict of interest, the Borrower shall be liable for the fees and expenses of one additional counsel for each person or group of persons subject to such conflict).
(b) The Borrower hereby further agrees to indemnify the Administrative Agent, the Arranger and each Lender, their respective Affiliates, directors, officers and employees (each an “Indemnitee”) against all losses, claims, obligations, damages,
penalties, actions, judgments, suits, liabilities, costs, expenses and disbursements (including, without limitation, all reasonable fees and expenses of attorneys and other expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Arranger or any Lender is a party thereto, provided that legal fees and legal expenses shall be
limited to the fees and expenses of one legal counsel and one local counsel in each relevant jurisdiction for all such Indemnitees, taken as a whole; provided, that, in the event of any actual or potential conflict of interest, the Borrower shall be
liable for the fees and expenses of one additional counsel for each person or group of persons subject to such conflict) (“Losses”) which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder including any Losses arising out of any actual or alleged
presence or Release of Regulated Substances at, on, under or emanating from any Property, or any liability related to the Borrower or any of its Subsidiaries under any Environmental Laws except to the extent that they (i) are determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the party seeking indemnification. such Indemnitee, (ii) arose from a material breach of the obligations of such Indemnitee’s or any of its Related Parties’
obligations under any Loan Document (as determined by a court of competent jurisdiction in a final, non-appealable judgment) or (iii) arose from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an
act or omission of the Loan Parties and is brought by an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any Agent, Arranger or the Administrative Agent in its
capacity as such). The obligations of the Borrower under this Section 10.6 shall survive the termination of this
Agreement. This Section 10.6(b) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages,
etc. arising from any non-Tax claim.
10.7 10.7.
Numbers of Documents. All statements, notices, closing documents, and requests hereunder shall (if the Administrative Agent so requests) be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to each of the Lenders.
10.8 10.8.
Accounting. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance
with generally accepted accounting principles in the United States, as in effect from time to time (“GAAP”); provided, however, if at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document (including for pricing purposes), and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or
| 70 |
requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding
the foregoing, any obligation of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP
as in effect on the date of closing shall not be treated as a capital lease solely as a result of the adoption of any changes in, or changes in the application of, GAAP after the
Closing Date.May 19, 2016.
10.9 10.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability,
or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
10.10 10.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders and the Administrative Agent on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent, the Arranger nor any Lender shall have any fiduciary responsibilities to the Borrower, the
Company or any other Loan Party. Neither the Administrative Agent, the Arranger nor any Lender undertakes any responsibility to the Borrower, the Company or any other Loan Party to review or inform the Borrower, the Company or any other Loan Party
of any matter in connection with any phase of the Borrower’s, the Company’s or any other Loan Party’s business or operations. The Borrower and the Company agree that neither the Administrative Agent, the Arranger nor any Lender shall
have liability to the Borrower, the Company or any other Loan Party (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower, the Company or any other Loan Party in connection with, arising out of, or in any way related
to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent
jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Administrative Agent, the Arranger nor any Lender shall have any liability (whether sounding in tort, contract or otherwise) with respect to, and the Borrower, the
Company and each other Loan Party hereby waives, releases and agrees not to xxx for, any special, indirect or consequential damages suffered by the Borrower, the Company or any other Loan Party (or suffered by any of their respective officers,
directors, employees, agents, advisors or representatives) in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby.
10.11 10.11. Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it
being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority); (c) to the extent required by
| 71 |
applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as
those of this Section 10.11 (or as may otherwise be reasonably acceptable to the Borrower), to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee or pledgee of or Participant in, any of its rights or obligations under
this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.11; (h) to any state, Federalfederal or foreign authority or examiner or self-regulatory body (including the National Association of Insurance Commissioners or any other similar organization) (in which case such Person shall, except with respect to
any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify the Borrower, in advance, to the extent lawfully permitted to do so); (i) to any
rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); (j) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder to the extent reasonably
necessary in connection with such enforcement or any such litigation or proceeding to which the Arranger, the Administrative Agent or any Lender or any of its Affiliates may be a party to the extent reasonably necessary; or (k) to any actual or
prospective party (or its managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives) to any swap derivative or other transaction under which payments are to be made by reference to the
Borrower and its Obligations, this Agreement or payments hereunder or such contractual counterparty’s professional advisor (so long as
such actual or prospective contractual counterparty or professional advisor
to such contractual counterparty agrees to be bound by the provisions of this Section 10.11). In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents and the Term Loans. For the purposes of this
Section 10.11, “Information” means all information received from the Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or its or their business, other than any such information that is publicly available
to any Agent or any Lender prior to disclosure by the Company or any of its Subsidiaries other than as a result of a breach of this Section 10.11. Any Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
10.12 10.12. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) for the repayment of the Loans provided for herein.
10.13 10.13. Conversion and Non-Designation of Designated Guarantors.
(a) The Borrower may, by written notice to the Administrative Agent, request that a Designated Guarantor be released from its Guaranty Agreement and thereby be converted to a Non-Loan Party (a “Conversion”) or that a Wholly-Owned Subsidiary of the Company not be required to be designated as a Designated Guarantor (a “Non-Designation”), on and subject to the following conditions:
(i) No Default or Unmatured Default shall exist (except any Default or Unmatured Default that will be cured as a result of such Conversion or Non-Designation) and no other Default or Unmatured Default will exist as a result of such Conversion or Non-Designation.
| 72 |
(ii) In the case of a Conversion, the stockholders’ equity in such Designated Guarantor and in the case of a Non-Designation, the stockholders’ equity in such Wholly-Owned Subsidiary, shall not exceed five percent (5%) of the total consolidated stockholders’ equity in all Loan Parties before giving effect to such Conversion or Non-Designation. Determination of such percentages of stockholders’ equity shall be made as of the end of the most recent fiscal quarter of the Company for which the financial statements required under Sections 7.1(i) or (ii) (as applicable) are available at the time of such request for Conversion or Non-Designation.
(iii) The stockholders’ equity in all Designated Guarantors that the Borrower requests to be converted into Non-Loan Parties in any period of four consecutive fiscal quarters and in all Wholly-Owned Subsidiaries of the Company that the Borrower requests not to be designated as Designated Guarantors during such four-quarter period shall not in the aggregate exceed ten percent (10%) (or fifteen percent (15%) if and to the extent necessary to permit the Borrower to cure a Default by Conversion of a Designated Guarantor) of the lowest total consolidated stockholders’ equity in all Loan Parties at the end of any fiscal quarter during such four-quarter period. Determination of such aggregate amounts of stockholders’ equity of such applicable Designated Guarantors or Wholly-Owned Subsidiaries shall be made by adding the amounts of stockholders’ equity of each such applicable Designated Guarantor and Wholly-Owned Subsidiary (as determined at the time of request for Conversion of such Designated Guarantor or Non-Designation of such Wholly-Owned Subsidiary in accordance with clause (ii) above).
(iv) The stockholders’ equity in all Designated Guarantors that the Borrower requests to be converted into Non-Loan
Parties after the Closing DateMay 19, 2016 and in all Wholly-Owned Subsidiaries of the Company that the Borrower requests not to be designated as Designated Guarantors after the
Closing DateMay 19, 2016 (in each case excluding Non-Loan Parties as of May 19, 2016) shall not in the aggregate exceed thirty percent (30%) of the total consolidated stockholders’ equity in all Loan Parties. Determination of such aggregate amounts of stockholders’ equity of such
applicable Designated Guarantors or Wholly-Owned Subsidiaries shall be made by adding the amounts of stockholders’ equity of each such applicable Designated Guarantor and Wholly-Owned Subsidiary. Determinations of such stockholders’ equity
shall be made as of the end of the most recent fiscal quarter of the Company for which financial statements required under Section 7.1(i) or (ii) (as applicable) are available at the time of the last such request for Conversion or Non-Designation.
(v) The disposition by the Company of such Designated Guarantor (in the case of a Conversion) or Wholly-Owned Subsidiary (in the case of a Non-Designation) would not have a material effect on the homebuilding business of the other Loan Parties, operationally or otherwise.
| 73 |
(vi) The Borrower shall deliver to the Administrative Agent, together with the
Borrower’s notice requesting the Conversion of a Designated Guarantor or Non-Designation of a Wholly-Owned Subsidiary, a certificate of the Borrower and the Company, certifying that the conditions set forth in clauses (i) through (v) above are
satisfied with respect to such Conversion or Non-Designation, together with (A) in the case of a Conversion, a Compliance Certificate, as of the end of the most recent fiscal quarter for which financial statements are available, prepared taking into
account such Conversion and a projection of the calculations for the Compliance Certificate for the next succeeding fiscal quarter and (B) in any case, such other evidence in support of the satisfaction of such conditions as the Administrative Agent shall reasonably request.
(vii) Such Conversion or Non-Designation shall comply with the provisions of Section 10.13(d).
Upon the Administrative Agent’s determination (which may be made solely by relying on the certificate delivered pursuant to clause (vi) above) that the foregoing conditions with respect to the Conversion of a Designated Guarantor have been satisfied, the Administrative Agent shall (except as otherwise provided in Section 10.13(b)) promptly (1) execute and deliver, for and on behalf of itself and the Lenders, a release of such Designated Guarantor from its Guaranty Agreement, whereupon such Designated Guarantor shall cease to be a Designated Guarantor and Loan Party and shall be a Non-Loan Party, and (2) give notice to the Lenders of the Conversion of such Designated Guarantor. Upon the Administrative Agent’s determination (which may be made solely by relying on the certificate delivered pursuant to clause (vi) above) that the foregoing conditions with respect to the Non-Designation of a Wholly-Owned Subsidiary of the Company have been satisfied, the Administrative Agent shall promptly give notice of such Non-Designation to the Borrower and the Lenders.
(b) Notwithstanding the satisfaction of the conditions for Conversion of a Designated Guarantor pursuant to Section 10.13(a), if requested by the Borrower, the Administrative Agent may elect, in its sole discretion, not to release such Designated Guarantor from its Guaranty, in which event such Designated Guarantor shall remain a Guarantor but shall not constitute a Loan Party hereunder for purposes of compliance with the representations, warranties and covenants contained in this Agreement (including, without limitation, the covenants contained in Section 7.28) and the provisions of Article VIII. If the Administrative Agent so elects not to release such Designated Guarantor, it shall so notify the Borrower and the Lenders, and the Required Lenders may at any time direct the Administrative Agent to release such Designated Guarantor from its Guaranty.
(c) If prior to the release of a Designated Guarantor from its Guaranty, the Borrower determines and certifies to the Administrative Agent that the inclusion of such Designated Guarantor as a Loan Party hereunder for all purposes (including, without limitation, compliance with the covenants contained in Section 7.28) would not result in a Default or Unmatured Default, the Borrower may request the Administrative Agent to reinstate such Designated Guarantor as a Loan Party hereunder for all purposes. As a condition of any such reinstatement, the
| 74 |
Administrative Agent may request the Borrower to deliver to the Administrative Agent evidence in support of the Borrower’s certification, including, without limitation, (i) a Compliance Certificate with respect to the most recent fiscal quarter for which financial statements of the Company are
available, reflecting the inclusion of such Designated Guarantor as a Loan Party and evidencing compliance with the covenants hereunder and (ii) a projection of the Compliance
Certificate for the next fiscal quarter, also reflecting the inclusion of such Designated Guarantor as a Loan Party and projecting compliance with the covenants hereunder. Upon the
Administrative Agent’s approval of the Borrower’s certification and supporting evidence (which approval may be made
solely by relying on such certification and supporting evidence), the Administrative Agent shall notify the Borrower and the Lenders that such Designated Guarantor has been so reinstated, and from
and after the delivery of such notice, such Designated Guarantor shall again be a Loan Party hereunder for all purposes.
(d) At all times after the Borrower has satisfied the conditions of Conversion of a Designated Guarantor as provided in Section 10.13(a) but prior to the release of such Designated Guarantor from its Guaranty, all reports required to be furnished under Section 7.1 hereof or any other provisions of this Agreement shall exclude such Designated Guarantor as a Loan Party hereunder unless and until such Designated Guarantor is reinstated as a Loan Party as provided in this Section 10.13.
(e) Notwithstanding anything in this Section 10.13 to the contrary, if, after a Subsidiary has been converted into a Non-Loan Party or, at the request of the Borrower, has not been designated as a Designated Guarantor (in each case in accordance with the above provisions of this Section 10.13), the Borrower thereafter designates such Subsidiary as a Designated Guarantor (and such Subsidiary becomes a Designated Guarantor), such Subsidiary shall not, so long as such Subsidiary is a Designated Guarantor, be considered a Non-Loan Party for purposes of the above calculations.
10.14 10.14. PATRIOT Act. Each Lender that is subject to the PATRIOT Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the BorrowerLoan Parties, which information includes the name and address of the
BorrowerLoan Parties and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the BorrowerLoan Parties in accordance with the Act.
10.15 Acknowledgment and Consent to Bail-in of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution;
| 75 |
(b) the effects of any Bail-In Action on any such liability, including, if applicable;
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.1 11.1. Appointment and Authority. Each of the Lenders hereby
irrevocably appoints SunTrust to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and,
other than as expressly set forth herein, neither the Borrower nor any other Loan Party hereto shall have rights as a third party beneficiary of any of such provisions.
11.2 11.2. Administrative Agent Individually.
(a) The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
(b) Each Lender understands that the Person serving as Administrative Agent, acting in its individual capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide range of financial services and businesses (including investment management, financing, securities trading, corporate and investment banking and research) (such services and businesses are collectively referred to in this Section 11.2 as “Activities”) and may engage in the Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates. Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial products or undertake other investment businesses for its own account or on behalf of others (including the Loan Parties and their Affiliates and including holding, for its own account or on behalf of others, equity, debt and similar positions in the Borrower, another Loan Party or their respective
| 76 |
Affiliates), including trading in or holding long, short or derivative positions in securities, loans or other financial products of one or more of the Loan Parties or their Affiliates. Each Lender understands and agrees that in engaging in the Activities, the Agent’s Group may receive or otherwise obtain information concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) which information may not be available to any of the Lenders that are not members of the Agent’s Group. None of the Administrative Agent nor any member of the Agent’s Group shall have any duty to disclose to any Lender or use on behalf of the Lenders, and shall not be liable for the failure to so disclose or use, any information whatsoever about or derived from the Activities or otherwise (including any information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to account for any revenue or profits obtained in connection with the Activities, except that the Administrative Agent shall deliver or otherwise make available to each Lender such documents as are expressly required by any Loan Document to be transmitted by the Administrative Agent to the Lenders.
(c) Each Lender further understands that there may be situations where members of the Agent’s Group or their respective customers (including the Loan Parties and their Affiliates) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Lenders (including the interests of the Lenders hereunder and under the other Loan Documents). Each Lender agrees that no member of the Agent’s Group is or shall be required to restrict its activities as a result of the Person serving as Administrative Agent being a member of the Agent’s Group, and that each member of the Agent’s Group may undertake any Activities without further consultation with or notification to any Lender. None of (i) this Agreement nor any other Loan Document, (ii) the receipt by the Agent’s Group of information (including Information) concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter shall give rise to any fiduciary, equitable or contractual duties (including without limitation any duty of trust or confidence) owing by the Administrative Agent or any member of the Agent’s Group to any Lender including any such duty that would prevent or restrict the Agent’s Group from acting on behalf of customers (including the Loan Parties or their Affiliates) or for its own account.
11.3 11.3. Exculpatory Provisions. NoNeither the Administrative Agent nor any Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a) (a) shall not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;
(b)
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative
| 77 |
Agent to liability or that is contrary to any Loan Document or applicable Laws including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law;
(c) (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity; and
(d)
(d) nothing in this Agreement or any other Loan Document shall
require the Administrative Agent or any of its Related Parties to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Administrative Agent that it is solely
responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Administrative Agent or any of its Related Parties.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.1 and 9.2) or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower or a Lender.
Neither the Administrative Agent nor any member of the Agent’s Group shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty, representation or other information made or supplied in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith or the adequacy, accuracy and/or completeness of the information contained therein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than (but subject to the foregoing clause (ii)) to confirm receipt of items expressly required to be delivered to the Administrative Agent.
11.4 11.4. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms
| 78 |
must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan and such Lender shall not have made available to the Administrative Agent, to the extent applicable, such Lender’s ratable portion of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
11.5 11.5. Delegation of Duties. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more
sub- agents appointed by the Administrative Agent. The Administrative Agent
and any such sub- agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such
sub- agent and to the Related Parties of the Administrative Agent and any such
sub- agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
11.6 11.6.
Resignation of Successor Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the consent of the Borrower, which consent shall not be unreasonably withheld or delayed and shall not be required if any Default has occurred and is continuing, to appoint a successor,
which shall be a bank with an office in any state in the United States, or an Affiliate of any such bank with an office in any state in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the consent of the Borrower, which consent shall not be unreasonably withheld or
delayed and shall not be required if any Default has occurred and is continuing, on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation or removal shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations as Administrative Agent hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the
| 79 |
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.6 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub- agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
11.7 11.7. Non-Reliance on Administrative Agent and Other Lenders.
(a) Each Lender confirms to the Administrative Agent, each other Lender and each of their respective Related Parties that it (i) possesses (individually or through its Related Parties) such knowledge and experience in financial and business matters that it is capable, without reliance on the Administrative Agent, any other Lender Party or any of their respective Related Parties, of evaluating the merits and risks (including tax, legal, regulatory, credit, accounting and other financial matters) of (x) entering into this Agreement, (y) making Loans and other extensions of credit hereunder and under the other Loan Documents and (z) in taking or not taking actions hereunder and thereunder, (ii) is financially able to bear such risks and (iii) has determined that entering into this Agreement and making Loans and other extensions of credit hereunder and under the other Loan Documents is suitable and appropriate for it.
(b) Each Lender acknowledges that (i) it is solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with this Agreement and the other Loan Documents, (ii) that it has, independently and without reliance upon the Administrative Agent, any other Lender Party or any of their respective Related Parties, made its own appraisal and investigation of all risks associated with, and its own credit analysis and decision to enter into, this Agreement based on such documents and information, as it has deemed appropriate and (iii) it will, independently and without reliance upon the Administrative Agent, any other Lender or any of their respective Related Parties, continue to be solely responsible for making its own appraisal and investigation of all risks arising under or in connection with, and its own credit analysis and decision to take or not take action under, this Agreement and the other Loan Documents based on such documents and information as it shall from time to time deem appropriate, which may include, in each case:
(i) the financial condition, status and capitalization of the Borrower and each other Loan Party;
(ii) the legality, validity, effectiveness, adequacy or enforceability of this Agreement and each other Loan Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document;
(iii) determining compliance or non-compliance with any condition hereunder to the making of a Loan and the form and substance of all evidence delivered in connection with establishing the satisfaction of each such condition;
(iv) the adequacy, accuracy and/or completeness of any information delivered by the Administrative Agent, any other Lender or by any of their respective Related Parties under or in connection with this Agreement or any other Loan Document, the transactions
| 80 |
contemplated hereby and thereby or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document.
11.8 11.8. No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Arranger, the Co-Syndication Agents, the Co-Documentation
Agentssyndication agents, documentation agents, the Administrative Agent or any other Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or a Lender hereunder.
11.9 11.9. Appointment of Supplemental Administrative Agents.
(a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Administrative Agent” and collectively as “Supplemental Administrative Agents”).
(b) Should any instrument in writing from the Borrower or any other Loan Party be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such reasonably requested instruments promptly upon request by the Administrative Agent, at no cost to the Borrower. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.
11.10 11.10.
Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify the Administrative Agent, solely in its capacity as such,
ratably, in their respective Term Loan Ratable Shares, (a) for any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (b) for any other expenses incurred
by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including, without limitation, for any expenses incurred by the Administrative Agent
in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders) and (c) for any liabilities, obligations, losses,
| 81 |
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including, without limitation, for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents; provided, however, that no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent. The obligations of the Lenders under this Section 11.10 shall survive payment of the Obligations and termination of this Agreement.
11.11 11.11. Notice of Default. The Administrative Agent shall not be deemed to
have actual knowledge or notice of the occurrence of any Default or Unmatured Default hereunder (other than a Default under Section 8.2) unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this
Agreement describing such Default or Unmatured Default and stating that such notice is a “notice of default” or that such notice is delivered pursuant to Section 7.3 hereof. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Lenders.
11.12 11.12.
Administrative Agent’s Fee. The Borrower agrees to pay to the Administrative Agent, for its own account, the fees agreed to by the Borrower and the Administrative
Agent pursuant to the Administrative Agent’s Fee Letter or as otherwise agreed by them from time to time.
11.13 11.13.
Delegation to Affiliates. The Borrower, the Company and the Lenders agree that the Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates.
Any such Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles X and XI.
11.14 11.14. Agent’s Responsibilities and Duties. None of the
Agents shall have any responsibilities hereunder in its capacity as an Agent. Without limiting the foregoing, none of the Agents
or the Administrative Agent shall have or be deemed to have a fiduciary relationship with the Borrower or any Lender.
11.15 11.15. Withholding Taxes. To the extent required by any applicable laws,
the Administrative Agent and the applicable Loan Party may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax with respect to such Lender. Without limiting or expanding the provisions of Section 3.5, each
Lender shall indemnify and hold harmless the Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of
any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other governmental authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or
for the account of such
| 82 |
Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 11.15. The agreements in this Section 11.15 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of the Term Loans and all other Obligations.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1 12.1.
Setoff. In addition to, and without limitation of, any rights of the Lenders under applicable law, if the Borrower or the Company becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of any Lender to or for the
credit or account of the Borrower or the Company may be offset and applied toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part hereof, shall then be due.
12.2 12.2. Ratable Payments. If any Lender under the Term Loan Facility,
whether by setoff or otherwise, has payment made to it upon its Loans under the Term Loan Facility (other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5 or as otherwise expressly set forth herein) in a greater proportion than that
received by any other Lender under the Term Loan Facility, such Lender agrees, promptly upon demand, to purchase for cash a participation interest in such portion of the Term Loans held by the other Lenders under the Term Loan Facility as shall be
necessary to cause such Lender to share the excess payment ratably with each of the Lenders. If any Lender under the Term Loan Facility, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations under the Term Loan Facility or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders under the Term Loan
Facility share in the benefits of such collateral ratably in proportion to their Loans under the Term Loan Facility. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 13.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the Company and the Lenders and their respective successors and assigns, except that (a) neither the Borrower nor the Company shall have the right to assign its rights or
obligations under the Loan Documents and (b) any assignment by any Lender must be made in compliance with Section 13.3 (such assignee, an “Eligible Assignee”). Notwithstanding clause (b) of this Section, any Lender may at any time, without
the
| 83 |
consent of the Borrower, the Company or the Administrative Agent transfer its rights or obligations by, assigning, pledging or granting a security interest in all or any portion of its rights under this Agreement, any Note, any Guaranty Agreement or any other Loan Document to secure obligations to a Federal Reserve Bank (or its foreign equivalent); provided, however, that no such assignment to a Federal Reserve Bank (or its foreign equivalent) shall release the transferor Lender from its obligations hereunder. Any assignee or transferee of the rights to any Loan or any Note agrees by acceptance of such transfer or assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder, transferee or assignee of the rights to such Loan.
13.2 13.2.
Participations.
13.2.1 13.2.1.
Permitted Participants; Effect.
(a) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to any Person (other than a natural person, the Company, Borrower or any Affiliate thereof)) (“Participant”) participating interests in any Note held by such Lender, any Term Loan of such Lender or any other interest of such Lender under the Loan Documents. The consent of the Borrower and the Administrative Agent shall be required prior to a sale of a participating interest becoming effective with respect to a Participant (except a sale of a participating interest by a Lender to its Affiliate or in the case of the consent of the Borrower only, a participating interest to another Lender or an Affiliate thereof); provided, however, that if a Default has occurred and is continuing, the consent of the Borrower shall not be required. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Loans and the holder of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower, the Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents. Any consents of the Borrower or the Administrative Agent under this Section 13.2.1 shall not be unreasonably withheld or delayed, provided, that the Borrower shall be deemed to have consented to any such sale unless it shall object thereto by written notice to the Administrative Agent within eight (8) calendar days after having received written notice thereof.
(b) The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 and 3.5 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.3; provided that such Participant shall not be entitled to receive any greater payment under Section 3.1 or Section 3.5, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the sale of the participation takes place.
(c) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and related interest amounts) of each participant’s interest in the Loans (the “Participant Register”). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary in connection with a tax audit or other proceeding to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations; provided, for the avoidance of doubt, that the foregoing shall not limit or expand the rights of the Borrower or the Administrative Agent to consent to such participation under clause (a) above to the extent provided in such clause. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation such person is shown as owning, notwithstanding any notice to the contrary.
| 84 |
13.2.2 13.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents except that any participation agreement may provide that the applicable Lender will not, without the consent of the Participant,
approve any amendment, modification or waiver with respect to any Loan in which such Participant has an interest which forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Loan, extends the Term
Loan Facility Maturity Date under the Term Loan Facility, postpones any date fixed for any regularly-scheduled payment of principal of, or interest or fees on, any such Loan, releases any Guarantor (except for a release of a Designated Guarantor as
provided in Section 10.13) of any such Loan or releases all or substantially all of the collateral, if any, securing any such Loan.
13.2.3 13.2.3. Benefit of Setoff. The Borrower agrees that each Participant shall
be deemed to have the right of setoff provided in Section 12.1 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender
under the Loan Documents, provided that each Lender shall retain the right of setoff provided in Section 12.1 with respect to the amount of participating interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in Section 12.1, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with
Section 12.2 as if each Participant were a Lender.
13.3 13.3. Assignments.
13.3.1 13.3.1. Permitted Assignments. Any Lender may, subject to any consent
required below, in the ordinary course of its business and in accordance with applicable law, at any time assign to a Qualified Bank (or, while a Default under Section 8.2, 8.5 or 8.6 has occurred and is continuing, to any Person (other than a
natural person, the Company, Borrower or any Affiliate thereof)) (“Purchaser”) all or any part of its rights and obligations under the Loan Documents. Such assignment shall be substantially in the form of Exhibit H or in such other
form as may be agreed to by the parties thereto (an “Assignment and Assumption”). Except as otherwise hereinafter provided, the consent of the Borrower and the Administrative Agent shall be required
| 85 |
prior to an assignment becoming effective with respect to a Purchaser (except in the case of the consent of the Borrower only, an assignment to an Affiliate of such Lender, another Lender or an Affiliate of such other Lender thereof); provided, however, that if a Default under Section 8.2, 8.5 or 8.6 has occurred and is continuing, the consent of the Borrower shall not be required. Unless each of the Administrative Agent and the Borrower otherwise consents (except that, if a Default has occurred and is continuing, the consent of the Borrower shall not be required), (a) each such assignment shall (unless it is an assignment of a Lender’s entire interest in the Term Loan Facility) be in an amount not less than $5,000,000 and in integral multiples of $1,000,000, and (b), except as otherwise hereinafter provided, no assignment shall be made that would reduce the Term Loans of a Lender and its Affiliates (in the aggregate) to an amount less than the greater of (i) $10,000,000 or (ii) twenty-five percent (25%) of the Term Loans held by such Lender on the Closing Date or as of any later date on which it first became a Lender hereunder (or, in the case of this clause (ii), such lesser amount to which the Borrower may, in its sole discretion, agree in writing); provided that while a Default under Section 8.2, 8.5 or 8.6 has occurred and is continuing clause (b) of this sentence shall not apply. Any consents of the Borrower or the Administrative Agent under this Section 13.3.1 shall not be unreasonably withheld or delayed, provided, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within eight (8) calendar days after having received written notice thereof.
13.3.2 13.3.2.
Effect, Effective Date. Upon (i) delivery to the Administrative Agent of an Assignment and Assumption, together with any consents required by Section 13.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its discretion) for processing such assignment, such assignment shall become effective on the effective date specified in such Assignment and Assumption.
On and after the effective date of such assignment, such Purchaser shall for all purposes be a Term Lender party to this Agreement and any other Loan Document executed by or on behalf of the Lenders and shall have all the rights and obligations of a
Term Lender under the Loan Documents, to the same extent as if it were an original party hereto, and, with respect to any sale of all of the Term Loans of a Term Loan Lender, no further consent or action by any Loan Party, the Lenders or the
Administrative Agent shall be required to release the transferor Lender as a Lender under this Agreement. Upon the consummation of any assignment to a Purchaser pursuant to this Section 13.3.2, the transferor Lender, the Administrative Agent and the
Borrower shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Term Loans, as adjusted pursuant to such assignment. Such transferor Lender shall continue to be entitled to the benefit of
Sections 3.1, 3.2, 3.4, 3.5 and 10.6(b) (to the extent such Lender’s entitlement to such benefit arose out of its position as a Lender prior to the applicable assignment except in respect of a Change in Law after the applicable assignment). The
Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain a register for the recordation of the names and addresses of the Lenders and principal amounts (and related interest amounts) of the Loans owing to each
Lender from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, Administrative Agent, and Lenders shall treat each person whose name is recorded in the Register as the
Lender with respect to the Loans shown in the Register as owing to such person, notwithstanding any notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon prior reasonable notice.
| 86 |
13.3.3 13.3.3. [Reserved].
13.4 13.4. Dissemination of Information. The Borrower and the Company authorize
each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a “Transferee”) and any prospective Transferee any and all information in such Lender’s
possession concerning the creditworthiness of the Borrower, the Company and its Subsidiaries; provided that each Transferee and prospective Transferee agrees in writing to be bound by Section 10.11 of this Agreement.
ARTICLE XIV
NOTICES
14.1 14.1. Notices.
(a) Except as otherwise permitted by Section 2.12, all notices, requests, demands, consents and other communications to any party hereunder
shall be in writing (including electronic transmission, facsimile transmission or similar writing) and shall be given to such party: (x) in the case of the Borrower, the Company or the Administrative Agent, at the address(es) or facsimile number(s)
set forth on the signature pages hereof, (y) in the case of any Lender, at its address or facsimile number set forth in its administrative questionnaire delivered to the Administrative Agent or (z) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the purpose by notice to the Administrative Agent and the Borrower in accordance with the provisions of this Section 14.1. Each such notice, request, demand, consent or other communication
shall be effective (i) if given by facsimile transmission, when transmitted to the facsimile number specified in this Section during the applicable recipient’s normal business hours and confirmation of receipt is received, (ii) if given by
mail, 72 hoursfour (4) Business Days after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given by any other means, when delivered (or, in the case of electronic transmission during
the applicable recipient’s normal business hours, received) at the address specified in this Section; provided that notices to the Administrative Agent under Article II shall not be effective until received.
(b) So long as SunTrust or any of its Affiliates is the Administrative Agent, such materials as the Borrower and the Administrative Agent may agree in their sole discretion shall be delivered to the Administrative Agent in an electronic/soft medium in a format acceptable to the Administrative Agent and the Lenders by e-mail at xxxxxx.xxxxxxxx@xxxxxxxx.xxx. The Borrower agrees that the Administrative Agent may make such materials, as well as any other written information, documents, instruments and other material relating to the Company, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (other than any Ratable Borrowing Notice, Rate Option Notice, request for conversion or continuation of any Term Advance or notices constituting service of process or relating to legal process) (collectively, the “Communications”) available to the Lenders by posting such notices on SyndTrak or a substantially similar electronic system (the “Platform”). The Borrower acknowledges that (i) the distribution of material through an electronic medium is
| 87 |
not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) no Agent Party (as defined below) warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other person or entity for damages of any kind, including, without limitation, direct or indirect, special, indirect or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Party’s gross negligence or willful misconduct. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each Lender and each Loan Party hereby approves distribution of the Communications through the Platform and understands and assumes the risks of such distribution.
(c) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that, if requested by any Lender, the Administrative Agent shall deliver a copy of the Communications to such Lender by e-mail or facsimile. Each Lender agrees (i) to notify the Administrative Agent in writing of such Lender’s e-mail address(es) to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Administrative Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address(es) as such Lender shall instruct. The Administrative Agent agrees that it will, upon any Lender’s reasonable request, furnish materials posted on the Platform to such Lender in hard copy to such Lender’s address set forth on the signature pages hereof.
(d) Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
(e) Each of the Lenders and each Loan Party agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Communications on the Platform in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies.
| 88 |
14.2 14.2. Change of Address. The Borrower, the Company, the Administrative
Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto.
ARTICLE XV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of
the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Administrative Agent and the Lenders and each party has notified the Administrative Agent
by facsimile transmission or telephone that it has taken such action. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or, e
-mail or
other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
ARTICLE XVI
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
16.1 16.1. CHOICE OF LAW. THIS AGREEMENT AND
THE OTHER LOAN
DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
16.2 16.2.
CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE SOUTHERN DISTRICT OF NEW YORK (OR THE STATE COURTS SITTING IN
THE BOROUGH OF MANHATTAN IN THE EVENT THE FEDERAL COURTS LACK SUBJECT JURISDICTION) IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANYTHIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE BORROWER AND THE COMPANY HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
16.3 16.3. WAIVER OF JURY TRIAL. THE BORROWER, THE COMPANY, EACH OTHER LOAN
PARTY AND THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
| 89 |
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
[Signature Pages to Follow]
| 90 |
EXECUTION VERSION
DEAL CUSIP NUMBER: 00000XXX0
TERM LOAN CUSIP NUMBER: 00000XXX0
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
|
| ||
|
| ||
| [Signature Page to Credit Agreement] | ||||
| BORROWER: | ||
| FIRST HUNTINGDON FINANCE CORP. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| COMPANY: | ||
| TOLL BROTHERS, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
|
| ||||
|
| ||||
| Addresses for the Borrower and the Company: | ||||
| Toll Brothers, Inc. 000 Xxxxxxxxx Xxxx Xxxxxxx, XX 00000 Attention: Xxxxxx X. Xxxxxx Telecopy: 215/938-8010 | ||||
| with copies to: | ||||
| Toll Brothers, Inc. 000 Xxxxxxxxx Xxxx Xxxxxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx Telecopy: 215/938-8004 | ||||
| and | ||||
| Toll Brothers, Inc. 000 Xxxxxxxxx Xxxx Xxxxxxx, XX 00000 Attention: Xxxx X. XxXxxxxx Telecopy: 215/938-8253 | ||||
[Signature Page to Credit Agreement]
| and |
| Xxxxxxx Xxxxx LLP 0000 Xxxxxx Xxxxxx 00xx Xxxxx Xxxxxxxxxxxx, XX 00000-0000 Attention: Xxxxxxx Xxxxxxxx Telecopy: 215/864-8999 |
[Signature Page to Credit Agreement]
| SUNTRUST BANK, as Administrative Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| SunTrust Bank Agency Services MC: GA-Atl-7662 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, XX 00000 Attention of: Xxxx Xxxxx Telecopier No.: 404.495.2170 E-Mail Address: xxxxxx.xxxxxxxx@xxxxxxxx.xxx |
| With a copy to |
| SunTrust Bank 000 Xxxxxxxxx Xxxxxx, X.X. Mail Code: GA-ATL-0661 Xxxxxxx, XX 00000 Attention of: Xxxxxxxxxx X. Xxxxxxx Telecopier No.: 000-000-0000 E-Mail Address: Xxxxxxxxxx.Xxxxxxx@xxxxxxxx.xxx |
[Signature Page to Credit Agreement]
|
| ||
| SUNTRUST BANK, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| SUMITOMO MITSUI BANKING CORPORATION, as Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
|
| ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| BENEFICIAL MUTUAL SAVINGS BANK as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| FIFTH THIRD BANK, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| THE BANK OF NEW YORK MELLON, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Credit Agreement]
|
| ||
|
| ||
|
| ||
|
| ||
|
| ||
|
| ||
|
| ||
PRICING SCHEDULE
| Level I | Level II | Level III | Level IV | |||||||||||||||||
| Leverage Ratio |
>. |
> |
>1.25x |
|||||||||||||||||
| Applicable Margin for Eurodollar Ratable Advance and Federal Funds/Euro Rate Advance |
1.15 | % | 1.40 | % | 1.65 | % | 1.90 | % | ||||||||||||
| Applicable Margin for ABR Advances |
0.15 | % | 0.40 | % | 0.65 | % | 0.90 | % | ||||||||||||
[Signat.ure Page to Credit Agreement] Pricing Schedule
For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:
“Financials” means the annual or quarterly financial statements of the Company delivered pursuant to Section 6.4 or Section 7.1(i) or (ii).
“Level” means the level (whether I, II, III, IV or VIV) in the foregoing table that corresponds to an applicable item in any other column in
the foregoing table. For purposes of comparing Levels, Level I is referred to as the lowest Level and Level VIV as the highest Level.
“Pricing Level” means, with respect to the Applicable Margins, at any date, the Level in the foregoing table that corresponds to the then current Level of the Leverage Ratio.
The Applicable Margins shall be determined in accordance with the foregoing table based on the then current Pricing Level. Adjustments, if any, in the Applicable Margins resulting from a change in the Leverage Ratio shall be effective five Business Days after the Administrative Agent has received the applicable Financials. If the Borrower fails to deliver the Financials to the Administrative Agent at the time required pursuant to Section 7.1, then, until five days after such Financials are so delivered, the Applicable Margins shall be at the highest Pricing Level set forth in the foregoing table. If the annual Financial Statements at any time delivered pursuant to Section 7.1(i) result in a Pricing Level that is higher than the Pricing Level that was in effect at any time on or after the first day of the third calendar month (the “Adjustment Date”) following the fiscal year to which such Financial Statements apply, there shall be a retroactive adjustment of the Pricing Level to the Adjustment Date such that all interest and fees determined hereunder from and after the Adjustment Date shall be determined as if such higher Pricing Level were in effect on the Adjustment Date. To the extent that the Borrower has theretofore made any payments of interest or fees with respect to the period from and after such Adjustment Date, the Borrower will pay to the Administrative Agent for the account of the Lenders, within ten (10) days of request therefor, an amount equal to the amount by which (A) the amount of interest and fees that would have been payable hereunder, on any date on which payments were made hereunder on or after the Adjustment Date and on or before the date of such request, had such payments been based upon the higher Pricing Level exceed (B) the interest and fees actually paid on any such date. Interest and fees payable hereunder after such request shall be based upon the adjusted Pricing Level.
[Signature Page to Credit Agreement] Pricing Schedule
EXHIBIT B
CORPORATIONS
000-000 Xxxxx Xxx. Realty Corp.
ESE Consultants, Inc.
Fairway Valley, Inc.
First Brandywine Investment Corp. II
First Brandywine Investment Corp. IV
Franklin Farms G.P., Inc.,
HQZ Acquisitions, Inc.
MA Limited Land Corporation
PRD Investors, Inc.
Shapell Homes, Inc.
Shapell Industries, Inc.
SH Homes Corporation
SI Investment Corporation
The Xxxxxxxxx Building Companies, Inc.
TB Proprietary Corp.
Tenby Xxxx, Inc.
Toll Architecture I, P.A.
Toll Architecture, Inc.
Toll AZ GP Corp.
Toll Bros. of Arizona, Inc.
Toll Bros. of North Carolina, Inc.
Toll Bros. of North Carolina II, Inc.
Toll Bros. of North Carolina III, Inc.
Toll Bros., Inc. (a Delaware corporation)
Toll Bros., Inc. (a Pennsylvania corporation)
Toll Bros., Inc. (a Texas corporation)
Toll Brothers AZ Construction Company
Toll Brothers Canada USA, Inc.
Toll Brothers Finance Corp.
Toll Brothers Real Estate, Inc.
Toll Buckeye Corp.
Toll CA GP Corp.
Toll CA Holdings, Inc.
Toll Centennial Corp.
Toll CO GP Corp.
Toll Corp.
Toll Development Company, Inc.
Toll Diamond Corp.
Toll FL GP Corp.
Toll GA GP Corp.
Toll Golden Corp.
Toll Granite Corp.
Toll Holdings, Inc.
Toll IL GP Corp.
Toll Land Corp. No. 20
Toll Land Corp. No. 43
Toll Land Corp. No. 50
Toll MD Builder Corp.
Toll Mid-Atlantic LP Company, Inc.
Toll Mid-Atlantic Note Company, Inc.
Toll Midwest Note Company, Inc.
Toll MI GP Corp.
Toll MN GP Corp.
Toll NC GP Corp.
Toll NH GP Corp.
Toll NJX-I Corp.
Toll Northeast LP Company, Inc.
Toll Northeast Note Company, Inc.
Toll Northeast Services, Inc.
Toll NV GP Corp.
Toll OH GP Corp.
Toll PA Builder Corp.
Toll PA GP Corp.
Toll PA II GP Corp.
Toll PA III GP Corp.
Toll Palmetto Corp.
Toll Peppertree, Inc.
Toll Realty Holdings Corp. I
Toll Realty Holdings Corp. II
Toll RI GP Corp.
Toll SC GP Corp.
Toll Southeast LP Company, Inc.
Toll Southeast Note Company, Inc.
Toll Southwest Note Company, Inc.
Toll SW Holding I Corp.
Toll TN GP Corp.
Toll TX GP Corp.
Toll VA GP Corp.
Toll VA Member Two, Inc.
Toll Westcoast Note Company, Inc.
Toll WA GP Corp.
Toll WV GP Corp.
Toll YL, Inc.
Upper K Investors, Inc.
PARTNERSHIPS
| PARTNERSHIP |
GENERAL PARTNER(S) | |
| 00 X. 0xx Xxxxxx L.P. | 00 X. 0xx Xxxxxx I LLC | |
| Ashford Land Company, X.X. | Xxxxxxx, LLC | |
| Audubon Ridge, L.P. | Toll PA GP Corp. | |
| Belmont Land, L.P. | Toll VA GP Corp. | |
| Binks Estates Limited Partnership | Toll FL GP Corp. | |
| The Bird Estate Limited Partnership | Franklin Farms G.P., Inc. | |
| Blue Xxxx Country Club, L.P. | Toll PA GP Corp. | |
| Broad Run Associates, L.P. | Toll PA GP Corp. | |
| Xxxxx Commercial XX | Xxxxx Commercial LLC | |
| CC Estates Limited Partnership | Franklin Farms G.P., Inc. | |
| Cold Spring Xxxx, X.X. | Toll PA GP Corp. | |
| Xxxxxxx-Toll Limited Partnership | Toll NV GP Corp. | |
| Dominion Country Club, L.P. | Toll VA GP Corp. | |
| Fairfax Investment, L.P. | Toll VA GP Corp. | |
| Farmwell Xxxx, X.X. | Toll VA GP Corp. | |
| First Brandywine Partners, L.P. | Toll PA GP Corp. | |
| Great Falls Xxxx, X.X. | Toll VA GP Corp. | |
| Greens at Waynesborough, L.P. | Toll PA GP Corp. | |
| Hockessin Chase, L.P. | Tenby Xxxx, Inc. | |
| Xxxxxxx Farm Limited Partnership | Franklin Farms G.P., Inc. | |
| Loudoun Valley Associates, L.P. | Toll VA GP Corp. | |
| NC Country Club Estates Limited Partnership | Toll NC GP Corp. | |
| Xxxxxx Ranch Development Co. | Shapell Industries, Inc. | |
| PRD Investors, Inc. | ||
| PRD Investors, LLC | ||
| Xxxxxxxxx-Toll Limited Partnership | Toll MI GP Corp. | |
| Sorrento at Dublin Ranch I LP | Toll CA GP Corp. | |
| Sorrento at Dublin Ranch III LP | Toll CA GP Corp. | |
| South Riding Amberlea LP | Toll VA GP Corp. | |
| South Riding, L.P. | Toll VA GP Corp. | |
| South Riding Partners Amberlea LP | Toll VA GP Corp. | |
| South Riding Partners, L.P. | Toll VA GP Corp. | |
| Southport Landing Limited Partnership | Toll Land Corp. No. 20 | |
| Springton Pointe, L.P. | Toll PA GP Corp. | |
| Stone Mill Estates, L.P. | Toll PA GP Corp. | |
| Swedesford Chase, L.P. | Toll PA GP Corp. | |
| TBI/Naples Limited Partnership | Toll FL GP Corp. | |
| TBI/Palm Beach Limited Partnership | Toll FL GP Corp. | |
| Toll at Brier Creek Limited Partnership | Toll NC GP Corp. | |
| Toll at Honey Creek Limited Partnership | Toll MI GP Corp. | |
| Toll at Whippoorwill, L.P. | Toll Peppertree, Inc. | |
| Toll Brooklyn L.P. | Toll Peppertree, Inc. | |
| Toll Brothers AZ Limited Partnership | Toll AZ GP Corp. | |
| Toll CA, L.P. |
Toll CA GP Corp. | |
| Toll CA II, L.P. |
Toll CA GP Corp. | |
| Toll CA III, L.P. |
Toll CA GP Corp. | |
| Toll CA IV, L.P. |
Toll CA GP Corp. | |
| Toll CA V, L.P. |
Toll CA GP Corp. | |
| Toll CA VI, L.P. |
Toll CA GP Corp. | |
| Toll CA VII, L.P. |
Toll CA GP Corp. | |
| Toll CA VIII, L.P. |
Toll CA GP Corp. | |
| Toll CA IX, L.P. |
Toll CA GP Corp. | |
| Toll CA X, L.P. |
Toll CA GP Corp. | |
| Toll CA XI, L.P. |
Toll CA GP Corp. | |
| Toll CA XII, L.P. |
Toll CA GP Corp. | |
| Toll CA XIX, L.P. |
Toll CA GP Corp. | |
| Toll CA XX, L.P. |
Toll CA GP Corp. | |
| Toll CO, L.P. |
Toll CO GP Corp. | |
| Toll CO II, L.P. |
Toll CO GP Corp. | |
| Toll CO III, L.P. |
Toll CO GP Corp. | |
| Toll CT Limited Partnership |
Toll Land Corp. No. 20 | |
| Toll CT II Limited Partnership |
Toll Land Corp. No. 20 | |
| Toll CT III Limited Partnership |
Toll Land Corp. No. 20 | |
| Toll CT IV Limited Partnership |
Toll Land Corp. No. 20 | |
| Toll DE LP |
Tenby Xxxx, Inc. | |
| Toll DE II LP |
Tenby Xxxx, Inc. | |
| Toll Estero Limited Partnership |
Toll FL GP Corp. | |
| Toll FL Limited Partnership |
Toll FL GP Corp. | |
| Toll FL II Limited Partnership |
Toll FL GP Corp. | |
| Toll FL III Limited Partnership |
Toll FL GP Corp. | |
| Toll FL IV Limited Partnership |
Toll FL GP Corp. | |
| Toll FL V Limited Partnership |
Toll FL GP Corp. | |
| Toll FL VI Limited Partnership |
Toll FL GP Corp. | |
| Toll FL VII Limited Partnership |
Toll FL GP Corp. | |
| Toll FL VIII Limited Partnership |
Toll FL GP Corp. | |
| Toll FL X Limited Partnership |
Toll FL GP Corp. | |
| Toll FL XII Limited Partnership |
Toll FL GP Corp. | |
| Toll FL XIII Limited Partnership |
Toll FL GP Corp. | |
| Toll Ft. Xxxxx Limited Partnership |
Toll FL GP Corp. | |
| Toll GA LP |
Toll GA GP Corp. | |
| Toll IL, L.P. |
Toll IL GP Corp. | |
| Toll IL II, L.P. |
Toll IL GP Corp. | |
| Toll IL III, L.P. |
Toll IL GP Corp. | |
| Toll IL IV, L.P. |
Toll IL GP Corp. | |
| Toll IL HWCC, L.P. |
Toll IL GP Corp. | |
| Toll IL WSB, L.P. |
Toll IL GP Corp. | |
| Toll Jacksonville Limited Partnership |
Toll FL GP Corp. | |
| Toll Land V Limited Partnership |
Toll Peppertree, Inc. | |
| Toll Land VI Limited Partnership |
Toll Peppertree, Inc. | |
| Toll Land IX Limited Partnership |
Toll VA GP Corp. | |
| Toll Land X Limited Partnership |
Toll VA GP Corp. | |
| Toll Land XV Limited Partnership |
Toll VA GP Corp. |
| Toll Land XVIII Limited Partnership |
Toll Land Corp. No. 20 | |
| Toll Land XIX Limited Partnership |
Toll CA GP Corp. | |
| Toll Land XX Limited Partnership |
Toll CA GP Corp. | |
| Toll Land XXI Limited Partnership |
Toll VA GP Corp. | |
| Toll Land XXII Limited Partnership |
Toll CA GP Corp. | |
| Toll Land XXIII Limited Partnership |
Toll CA GP Corp. | |
| Toll Land XXVI Limited Partnership |
Toll OH GP Corp. | |
| Toll Xxxxxxxxxx at Naples Limited Partnership |
Toll FL GP Corp. | |
| Toll MA Land Limited Partnership |
Franklin Farms G.P., Inc. | |
| Toll MD AF Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD Builder I, L.P. |
Toll MD Builder Corp. | |
| Toll MD Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD II Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD III Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD IV Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD V Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD VI Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD VII Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD VIII Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD IX Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD X Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MD XI Limited Partnership |
Toll Land Corp. No. 43 | |
| Toll MI Limited Partnership |
Toll MI GP Corp. | |
| Toll MI II Limited Partnership |
Toll MI GP Corp. | |
| Toll MI III Limited Partnership |
Toll MI GP Corp. | |
| Toll MI IV Limited Partnership |
Toll MI GP Corp. | |
| Toll MI V Limited Partnership |
Toll MI GP Corp. | |
| Toll MI VI Limited Partnership |
Toll MI GP Corp. | |
| Toll MN, L.P. |
Toll MN GP Corp. | |
| Toll MN II, L.P. |
Toll MN GP Corp. | |
| Toll Naval Associates |
Toll Bros. Inc. | |
| Toll NC, L.P. |
Toll NC GP Corp. | |
| Toll NC II LP |
Toll NC GP Corp. | |
| Toll NC III LP |
Toll NC GP Corp. | |
| Toll NH Limited Partnership |
Toll NH GP Corp. | |
| Toll NJ Builder I, L.P. |
Toll Northeast LP Company, Inc. | |
| Toll Northville Limited Partnership |
Toll MI GP Corp. | |
| Toll NV Limited Partnership |
Toll NV GP I LLC | |
| Toll NY LP |
Toll Peppertree, Inc. | |
| Toll NY III L.P. |
Toll Peppertree, Inc. | |
| Toll NY IV L.P. |
Toll Peppertree, Inc. | |
| Toll NY V L.P. |
Toll Peppertree, Inc. | |
| Toll Orlando Limited Partnership |
Toll FL GP Corp. | |
| Toll PA, L.P. |
Toll PA GP Corp. | |
| Toll PA II, L.P. |
Toll PA GP Corp. | |
| Toll PA III, L.P. |
Toll PA GP Corp. | |
| Toll PA IV, L.P. |
Toll PA GP Corp. | |
| Toll PA V, L.P. |
Toll PA II GP Corp. |
| Toll PA VI, L.P. |
Toll PA GP Corp. | |
| Toll PA VIII, L.P. |
Toll PA GP Corp. | |
| Toll PA IX, L.P. |
Toll PA GP Corp. | |
| Toll PA X, L.P. |
Toll PA GP Corp. | |
| Toll PA XI, L.P. |
Toll PA GP Corp. | |
| Toll PA XII, L.P. |
Toll PA III GP Corp. | |
| Toll PA XIII, L.P. |
Toll PA GP Corp. | |
| Toll PA XIV, L.P. |
Toll PA GP Corp. | |
| Toll PA XV, L.P. |
Toll PA GP Corp. | |
| Toll PA XVI, L.P. |
Toll PA GP Corp. | |
| Toll PA XVII, L.P. |
Toll PA GP Corp. | |
| Toll PA XVIII, L.P. |
Toll PA GP Corp. | |
| Toll PA XIX, L.P. |
Toll PA GP Corp. | |
| Toll PA Development LP |
Toll PA GP Corp. | |
| Toll PA Management LP |
Toll PA GP Corp. | |
| Toll Realty Holdings LP |
Toll Realty Holdings Corp. I | |
| Toll RI, L.P. |
Toll RI GP Corp. | |
| Toll RI II, L.P. |
Toll RI GP Corp. | |
| Toll SC, L.P. |
Toll SC GP Corp. | |
| Toll SC II, L.P. |
Toll SC GP Corp. | |
| Toll SC III, L.P. |
Toll SC GP Corp. | |
| Toll SC IV, L.P. |
Toll SC GP Corp. | |
| Toll Stonebrae LP |
Toll CA GP Corp. | |
| Toll VA, L.P. |
Toll VA GP Corp. | |
| Toll VA II, L.P. |
Toll VA GP Corp. | |
| Toll VA III, L.P. |
Toll VA III, L.L.C. | |
| Toll VA IV, L.P. |
Toll VA GP Corp. | |
| Toll VA V, L.P. |
Toll VA GP Corp. | |
| Toll VA VI, L.P. |
Toll VA GP Corp. | |
| Toll VA VII, L.P. |
Toll VA GP Corp. | |
| Toll VA VIII, L.P. |
Toll VA GP Corp. | |
| Toll WA LP |
Toll WA GP Corp. | |
| Toll WV LP |
Toll WV GP Corp. | |
| Toll YL II, L.P. |
Toll YL, Inc. | |
| Toll YL, L.P. |
Toll YL, Inc. | |
| Toll-Dublin, L.P. |
Toll CA GP Corp. | |
| Village Partners, L.P. |
Toll PA Builder Corp. | |
| Xxxxxx Concord, L.P. |
Toll TN GP Corp. |
LIMITED LIABILITY COMPANIES
5-01 – 0-00 00xx Xxxxxx LLC
5-01 – 0-00 00xx Xxxxxx II LLC
5-01 – 5-17 48th Avenue GC LLC
5-01 – 5-17 48th Avenue XX XX LLC
00 X. 0xx Xxxxxx I LLC
00 X. 0xx Xxxxxx GC LLC
00 X. 0xx Xxxxxx XX XX LLC
00 Xxxx Xxxxxx LLC
000-000 Xxxxx Xxx. GC LLC
000-000 Xxxxx Xxx. XX XX LLC
000-000 Xxxxxxxx LLC
000-000 Xxxxxxxx Member LLC
0000 Xxxxxxxx Xxxx LLC
Arbor Hills Development LLC
Arbors Xxxxxx Ranch, LLC
Arthur’s Xxxxx, LLC
Belmont Country Club I LLC
Belmont Country Club II LLC
Block 268 LLC
Brier Creek Country Club I LLC
Brier Creek Country Club II LLC
Xxxxx Commercial LLC
C.B.A.Z Construction Company LLC
C.B.A.Z. Holding Company LLC
Component Systems I LLC
Component Systems II LLC
Dominion Valley Country Club I LLC
Dominion Valley Country Club II LLC
First Brandywine LLC III
First Brandywine LLC IV
Frenchman’s Reserve Realty LLC
Golf I Country Club Estates at Moorpark LLC
Golf II Country Club Estates at Moorpark LLC
Goshen Road Land Company LLC
Hatboro Road Associates LLC
Hawthorn Xxxxx Country Club II LLC
Hoboken Land I LLC
Jacksonville TBI Realty LLC
Lighthouse Point Land Company, LLC
Liseter Land Company LLC
Liseter, LLC
Longmeadow Properties LLC
Long Xxxxxxx TBI, LLC
Martinsburg Ventures, L.L.C.
Xxxxxx Realty L.L.C.
Naples TBI Realty LLC
Orlando TBI Realty LLC
Paramount Village LLC
Xxxxxxxx Drive LLC
Placentia Development Company, LLC
Plum Canyon Master LLC
PRD Investors, LLC
Prince Xxxxxxx Land I LLC
Prince Xxxxxxx Land II LLC
Rancho Costera LLC
Regency at Dominion Valley LLC
The Regency Golf Club I LLC
The Regency Golf Club II LLC
The Ridges at Belmont Country Club I LLC
The Ridges at Belmont Country Club II LLC
Shapell Hold Properties No. 1, LLC
Shapell Land Company, LLC
South Riding Realty LLC
SR Amberlea LLC
SRLP II LLC
Tampa TBI Realty LLC
XX Xxxx Partners LLC
Toll Austin TX LLC
Toll Austin TX II LLC
Toll Austin TX III LLC
Toll BBC LLC
Toll BBC II LLC
Toll CA I LLC
Toll CA III LLC
Toll CA Note II LLC
Toll Cedar Xxxx LLC
Toll CO I LLC
Toll Corners LLC
Toll Dallas TX LLC
Toll-Dublin, LLC
Toll Equipment, L.L.C.
Toll FL I, LLC
Toll FL IV LLC
Toll FL V LLC
Toll Glastonbury LLC
Toll Xxxxxxxxx LLC
Toll Houston Land LLC
Toll Houston TX LLC
Toll Jupiter LLC
Toll IN LLC
Toll Land VII LLC
Toll Lexington LLC
Toll MA I LLC
Toll MA II LLC
Toll MA III LLC
Toll MA IV LLC
Toll MA Development LLC
Toll MA Holdings LLC
Toll MA Land II GP LLC
Toll MA Management LLC
Toll MD I, L.L.C.
Toll MD II LLC
Toll MD III LLC
Toll MD IV LLC
Toll Midwest LLC
Toll NC I LLC
Toll NC IV LLC
Toll NC Note LLC
Toll NC Note II LLC
Toll North LV LLC
Toll North Reno LLC
Toll NV GP I LLC
Toll NV Holdings LLC
Toll NY II LLC
Toll Prasada LLC
Toll Realty L.L.C.
Toll San Antonio TX LLC
Toll South LV LLC
Toll South Reno LLC
Toll Southwest LLC
Toll Southwest II LLC
Toll Stratford LLC
Toll SW Holding LLC
Toll TX Note LLC
Toll VA L.L.C.
Toll VA III L.L.C.
Toll Van Wyck, LLC
Toll Vanderbilt I LLC
Toll Vanderbilt II LLC
Toll West Coast LLC
Toll West Coast II LLC
Upper K Investors, LLC
Upper-K Shapell, LLC
Vanderbilt Capital LLC
Virginia Construction Co. I, LLC
Virginia Construction Co. II, LLC
| LIMITED LIABILITY COMPANY |
SOLE MEMBER | |
| First Brandywine LLC I | First Brandywine Investment Corp. II | |
| First Brandywine LLC II | First Brandywine Investment Corp. II | |
EXHIBIT C
CORPORATIONS
Amwell Chase, Inc.
Toll Land Corp. Xx. 0
Xxxx Xxxx Xxxx. Xx. 00
PARTNERSHIPS
| PARTNERSHIP |
GENERAL PARTNER | |
| Estates at Princeton Junction, L.P. | Toll Land Corp. No. 10 | |
| Estates at Rivers Edge, L.P. | Toll Land Corp. No. 10 | |
| Greenwich Chase, LP. | Toll Land Corp. No. 10 | |
| Hoboken Land LP | Toll Land Corp. No. 10 | |
| Laurel Creek, L.P. | Toll Land Corp. No. 10 | |
| Toll at Westlake, L.P. | Toll Land Corp. No. 10 | |
| Toll Grove LP | Toll Land Corp. No. 10 | |
| Toll Xxxxxx XX | Toll Land Corp. No. 10 | |
| Toll Land IV Limited Partnership | Toll Land Corp. No. 10 | |
| Toll Land XI Limited Partnership | Toll Land Corp. No. 10 | |
| Toll Land XVI Limited Partnership | Toll Land Corp. No. 10 | |
| Toll Land XXV Limited Partnership | Toll Land Corp. No. 10 | |
| Toll NJ, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ II, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ III, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ IV, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ V, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ VI, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ VII, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ VIII, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ XI, L.P. | Toll Land Corp. No. 10 | |
| Toll NJ XII LP | Toll Land Corp. No. 10 | |
| West Amwell Limited Partnership | Toll Land Corp. No. 6 | |
LIMITED LIABILITY COMPANIES
000-000 Xxxxxx Xxxxxx Xxxxx Renewal LLC
000 Xxx Xxxxxx LLC
000 Xxxxx Xxxxxx Xxxxx Renewal LLC
1400 Xxxxxx LLC
1451 Xxxxxx LLC
1450 Washington LLC
0000 Xxxxxx Xx. LLC
Block 255 LLC
CWG Construction Company LLC
Enclave at Long Valley I LLC
Enclave at Long Valley II LLC
Hoboken Cove LLC
Xxxxxx Street JV LLC
PT Xxxxxxx Holdings, LLC
PT Xxxxxxx, L.L.C.
Regency at Denville LLC
Regency at Mansfield I LLC
Regency at Mansfield II LLC
Regency at Washington I LLC
Regency at Washington II LLC
Toll EB LLC
Toll Hoboken LLC
Toll Xxxxxx Street LLC
Toll NJ I, L.L.C.
Toll NJ II, L.L.C.
Toll NJ III LLC
