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EXHIBIT 10.1
FOURTH AMENDED AND RESTATED
LOAN AGREEMENT
Dated as of February 28, 1996
among
XXXXXXX AND BROAD HOME CORPORATION,
THE BANKS PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Syndication Agents
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
THE FIRST NATIONAL BANK OF CHICAGO
CREDIT LYONNAIS LOS ANGELES BRANCH
and
NATIONSBANK OF TEXAS, N.A.,
as Managing Agents
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TABLE OF CONTENTS
Page
RECITALS ................................................................................................... 1
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS.................................................................. 2
1.1 Defined Terms................................................................................. 2
1.2 Use of Defined Terms.......................................................................... 36
1.3 Accounting Terms.............................................................................. 36
1.4 Rounding ..................................................................................... 36
1.5 Miscellaneous Terms........................................................................... 37
1.6 Exhibits and Schedules........................................................................ 37
1.7 References to "Borrower and its Subsidiaries"................................................. 37
ARTICLE 2 LOANS............................................................................................. 37
2.1 Loans-General................................................................................. 37
2.2 Alternate Base Rate Loans..................................................................... 39
2.3 LIBOR Loans................................................................................... 40
2.4 Notes ..................................................................................... 40
2.5 Letters of Credit............................................................................. 40
2.6 Voluntary Reduction of Line A Commitment...................................................... 47
2.7 Termination of Line B Commitment.............................................................. 48
2.8 Voluntary Reduction of Line C Commitment...................................................... 48
2.9 Administrative Agent's Right to Assume Funds
Available............................................................................ 48
ARTICLE 3 PAYMENTS; FEES.................................................................................... 49
3.1 Principal and Interest........................................................................ 49
3.2 Commitment Fees............................................................................... 55
3.3 Amendment Fee................................................................................. 56
3.4 Underwriting Fee.............................................................................. 56
3.5 Syndication Fee............................................................................... 56
3.6 Agency Fees................................................................................... 56
3.7 Capital Adequacy.............................................................................. 56
3.8 LIBOR Fees and Costs.......................................................................... 58
3.9 Late Payments/Default Interest................................................................ 62
3.10 Computation of Interest and Fees.............................................................. 62
3.11 Holidays ..................................................................................... 63
3.12 Payment Free of Taxes......................................................................... 63
3.13 Funding Sources............................................................................... 64
3.14 Failure to Charge or Making of Payment Not
Subsequent Waiver............................................................................. 64
3.15 Pro Rata Treatment............................................................................ 64
3.16 Time and Place of Payments; Evidence of
Payments...................................................................................... 64
3.17 Administrative Agent's Right to Assume
Payments Will be Made......................................................................... 65
3.18 Survivability................................................................................. 65
3.19 Bank Calculation Certificate.................................................................. 65
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.................................................................... 66
4.1 Existence and Qualification; Power; Compliance
with Law...................................................................................... 66
3
4.2 Authority; Compliance with Other Instruments
and Government Regulations.................................................................... 66
4.3 No Governmental Approvals Required............................................................ 67
4.4 Subsidiaries.................................................................................. 67
4.5 Financial Statements.......................................................................... 68
4.6 No Other Liabilities; No Material Adverse
Effect........................................................................................ 69
4.7 Title to Assets............................................................................... 69
4.8 Intangible Assets............................................................................. 70
4.9 Existing Indebtedness and Contingent Guaranty
Obligations................................................................................... 70
4.10 Governmental Regulation....................................................................... 70
4.11 Litigation.................................................................................... 70
4.12 Binding Obligations........................................................................... 70
4.13 No Default.................................................................................... 70
4.14 Pension Plans................................................................................. 70
4.15 Tax Liability................................................................................. 71
4.16 Regulation U.................................................................................. 71
4.17 Environmental Matters......................................................................... 71
4.18 Disclosure.................................................................................... 71
4.19 Projections................................................................................... 71
ARTICLE 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)........................................................................ 72
5.1 Payment of Taxes and Other Potential Liens.................................................... 72
5.2 Preservation of Existence..................................................................... 72
5.3 Maintenance of Properties..................................................................... 73
5.4 Maintenance of Insurance...................................................................... 73
5.5 Compliance with Laws.......................................................................... 73
5.6 Inspection Rights............................................................................. 73
5.7 Keeping of Records and Books of Account....................................................... 73
5.8 Use of Proceeds............................................................................... 73
5.9 Subsidiary Guaranty........................................................................... 74
ARTICLE 6 NEGATIVE COVENANTS................................................................................ 74
6.1 Payment or Prepayment of Subordinated
Obligations................................................................................... 74
6.2 Dispositions.................................................................................. 75
6.3 Mergers and Sale of Assets.................................................................... 75
6.4 Investments and Acquisitions.................................................................. 75
6.5 ERISA Compliance.............................................................................. 77
6.6 Change in Business............................................................................ 77
6.7 Liens and Negative Pledges.................................................................... 77
6.8 Non-Recourse Indebtedness..................................................................... 79
6.9 Subsidiary Indebtedness and Contingent Guaranty
Obligations................................................................................... 79
6.10 Money Market Indebtedness..................................................................... 80
6.11 Transactions with Affiliates.................................................................. 81
6.12 Consolidated Tangible Net Worth............................................................... 81
6.13 Domestic Leverage Ratio....................................................................... 81
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6.14 Domestic Interest Coverage Ratio.............................................................. 82
6.15 Distributions................................................................................. 82
6.16 Amendments.................................................................................... 82
6.17 Hostile Tender Offers......................................................................... 83
6.18 Inventory..................................................................................... 83
6.19 Domestic Standing Inventory................................................................... 83
6.20 Investments in Certain Subsidiaries........................................................... 84
6.21 Land Fund Joint Venture....................................................................... 84
ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS............................................................ 85
7.1 Financial and Business Information of Borrower
and Its Subsidiaries.......................................................................... 85
7.2 Compliance Certificate........................................................................ 89
ARTICLE 8 CONDITIONS........................................................................................ 89
8.1 Initial Advances.............................................................................. 89
8.2 Any Advance................................................................................... 91
8.3 Any Letter of Credit.......................................................................... 92
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENTS OF
DEFAULT............................................................................................ 92
9.1 Events of Default............................................................................. 92
9.2 Remedies Upon Event of Default................................................................ 94
ARTICLE 10 THE ADMINISTRATIVE AGENT......................................................................... 97
10.1 Appointment and Authorization................................................................ 97
10.2 Administrative Agent and Affiliates.......................................................... 98
10.3 Banks' Credit Decisions...................................................................... 98
10.4 Action by Administrative Agent............................................................... 98
10.5 Liability of Administrative Agent............................................................ 100
10.6 Indemnification.............................................................................. 101
10.7 Successor Administrative Agent............................................................... 102
10.8 No Obligations of Borrower................................................................... 102
ARTICLE 11 MISCELLANEOUS.................................................................................... 103
11.1 Cumulative Remedies; No Waiver............................................................... 103
11.2 Amendments; Consents......................................................................... 103
11.3 Costs, Expenses and Taxes.................................................................... 104
11.4 Nature of Banks' Obligations................................................................. 105
11.5 Representations and Warranties............................................................... 105
11.6 Notices ..................................................................................... 106
11.7 Execution in Counterparts.................................................................... 106
11.8 Binding Effect; Assignment................................................................... 106
11.9 Sharing of Setoffs........................................................................... 107
11.10 Indemnity by Borrower........................................................................ 108
11.11 Nonliability of Banks........................................................................ 109
11.12 Confidentiality.............................................................................. 110
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11.13 No Third Parties Benefited................................................................... 110
11.14 Other Dealings............................................................................... 110
11.15 Right of Setoff - Deposit Accounts........................................................... 110
11.16 Further Assurances........................................................................... 111
11.17 Integration.................................................................................. 111
11.18 Governing Law................................................................................ 111
11.19 Severability of Provisions................................................................... 111
11.20 Headings..................................................................................... 111
11.21 Conflict in Loan Documents................................................................... 112
11.22 Waiver Of Jury Trial......................................................................... 112
11.23 Purported Oral Amendments.................................................................... 112
11.24 Hazardous Materials Indemnity................................................................ 112
Exhibits
A - Compliance Certificate
B - Line A Note
C - Line B Note
D - Line C Note
E - Line B/C Commitment Assignment and Acceptance
F-1 - Opinion of Counsel
F-2 - Opinion of Counsel
G - Request for Letter of Credit
H - Request for Loan
I - Request for Redesignation
J - Subsidiary Guaranty
Schedules
1.1 Line B Commitment/Line C Commitment
4.4 Subsidiaries
4.7 Existing Liens and Rights of Others
4.9 Existing Indebtedness and Contingent Obligations
6.4 Investments
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FOURTH AMENDED AND RESTATED
LOAN AGREEMENT
Dated as of February 28, 1996
This Fourth Amended and Restated Loan Agreement ("Agreement")
is entered into by and among Xxxxxxx and Broad Home Corporation, a Delaware
corporation ("Borrower"), each bank set forth on the signature pages of this
Agreement or which from time to time becomes party hereto (collectively, the
"Banks" and individually, a "Bank"), Bank of America National Trust and Savings
Association, as Administrative Agent, The First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch and NationsBank of Texas, N.A., as
Managing Agents.
RECITALS
This Agreement is an amendment and restatement in full of that
certain Third Amended and Restated Loan Agreement dated as of November 21, 1994,
by and among Borrower, the Banks named therein, Bank of America National Trust
and Savings Association, as Administrative Agent, and various of such other
Banks in various agent capacities (the "Prior Loan Agreement"). The purpose of
this amendment and restatement is to add two new credit facilities (the Line B
Commitment and the Line C Commitment, as more completely defined hereinafter),
to redesignate the existing Commitment as the "Line A Commitment," to provide
for Banks to participate in the Line A Commitment, on the one hand, and the Line
B Commitment and Line C Commitment, on the other hand, at differing Pro Rata
Shares (or to participate in the Line A Commitment and not in the Line B
Commitment and Line C Commitment, or vice versa), and to amend various covenants
and other provisions of the Prior Loan Agreement. The Prior Loan Agreement, as
amended and restated by this Agreement including all loans made thereunder,
continues in full force and effect from the date thereof to the Amendment
Effective Date and at all times on and after the Amendment Effective Date.
The new Line B Commitment and Line C Commitment are for the
purpose of financing the Rayco Acquisition (defined herein) and the increased
working capital requirements arising therefrom. In the event that the Rayco
Acquisition does not occur promptly following the Amendment Effective Date, the
parties agree to reinstate the Prior Loan Agreement.
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WHEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Amendment Effective Date, by which
Borrower and/or any of its Subsidiaries directly or indirectly (a)
acquires any ongoing business or all or substantially all of the assets
of any firm, corporation or division thereof, whether through purchase
of assets, merger or otherwise, (b) acquires control of securities of a
corporation representing 50% or more of the ordinary voting power for
the election of directors or (c) acquires control of a 50% or more
ownership interest in any partnership, joint venture or other business
entity.
"Administrative Agent" means Bank of America or any
successor administrative agent.
"Administrative Agent's Office" means Bank of America National
Trust and Savings Association, Agency Management Services, 0000 Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or such other office as the
Administrative Agent may designate in writing to Borrower and the
Banks.
"Advance" means an advance made or to be made to
Borrower by a Bank pursuant to Article 2.
"Affiliate" means, with respect to any Person, any other
Person which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used in this
definition, "control" (including its correlative meanings, "controlled
by" and "under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise); provided that, in
any event, any Person which owns directly or indirectly 10% or more of
the securities having ordinary voting power for the election of
directors or other governing body of a corporation that has more than
100 record holders of such securities or 10% or more of the partnership
or other ownership interests of any other Person that has more than
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100 record holders of such interests will be deemed to control such
corporation or other Person.
"Agent" means any of the Administrative Agent, the
Documentation Agent, the Co-Syndication Agents, the Managing Agents or
any successor agent.
"Agreement" means this Fourth Amended and Restated Loan
Agreement, either as originally executed or as it may from time to time
be supplemented, modified, amended, renewed, extended or supplanted.
"Alternate Base Rate" means, as of any date of determination,
the rate per annum which is the greater of (a) the Reference Rate and
(b) the Federal Funds Rate plus one half percent (1/2%).
"Alternate Base Rate Advance" means an Advance made by a Bank
to fund its Pro Rata Share of an Alternate Base Rate Loan.
"Alternate Base Rate Loan" means a Loan made hereunder and
designated or redesignated as an Alternate Base Rate Loan in accordance
with Article 2, or converted to an Alternate Base Rate Loan in
accordance with Section 3.6.
"Amendment Effective Date" means the time and Banking Day on
which the conditions set forth in Section 8.1 are satisfied or waived
pursuant to Section 11.2.
"Amortization Amount" means, with respect to each Amortization
Date set forth below, the amount set forth opposite such Amortization
Date:
Amortization Date Amount
May 31, 1996 $10,000,000
August 31, 1996 $25,000,000
November 30, 1996 $25,000,000
Line B/C Maturity Date Principal balance of
all Line B Loans and
Line C Loans;
provided that (a) if Borrower elects to extend the Line B/C Maturity
Date to May 31, 1997 pursuant to Section 3.1(e)(i), the Amortization
Amount for February 28, 1997 shall be $17,000,000 and (b) if Borrower
elects to extend the Line B/C Maturity Date to August 31, 1997 pursuant
to Section 3.1(e)(ii), the Amortization Amount for May 31, 1997 shall
be $11,000,000.
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"Applicable Incremental Spread" means, as of any date of
determination, the interest rate spread set forth below opposite the
period during which such date occurs:
Incremental
Period Spread
------ ------
Amendment Effective Date
through August 31, 1996 .00%
September 1, 1996
through November 30, 1996 .25%
December 1, 1996
through February 28, 1997 .50%
March 1, 1997
through May 31, 1997 .75%
June 1, 1997
through August 31, 1997 1.00%
"Applicable Line A Alternate Base Rate Spread" means, as of
any date of determination, the interest rate spread set forth below
opposite the Line A Credit Rating Level as of such date:
Applicable Line A
Line A Alternate Base Rate
Credit Rating Level Spread
------------------- ------
I .00%
II .00%
III .25%
IV .50%
V .75%
VI 1.00%
"Applicable Line A Commitment Fee Rate" means, as of any date
of determination, the commitment fee rate set forth below opposite the
Line A Credit Rating Level as of such date:
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Line A Applicable Line A
Credit Rating Commitment
Level Fee Rate
----- --------
I .25%
II .30%
III .50%
IV .50%
V .50%
VI .50%
"Applicable Line A Letter of Credit Fee" means, as of any date
of determination, the letter of credit fee set forth below under the
caption "Financial L/C's" (in the case of Financial Letters of Credit)
and under the caption "Performance L/C's" (in the case of Performance
Letters of Credit), in each case opposite the Line A Credit Rating
Level as of such date:
Line A Line A
Line A Credit Financial Performance
Rating Level L/C's L/C's
------------ ----- -----
I 0.9875% 0.8625%
II 1.1375% 1.0125%
III 1.4375% 1.3125%
IV 1.6875% 1.5625%
V 1.9375% 1.8125%
VI 2.1875% 2.0625%
"Applicable Line A LIBOR Spread" means, as of any date of
determination, the interest rate spread set forth below opposite the
Line A Credit Rating Level as of such date:
Line A
Credit Rating Applicable Line A
Level LIBOR Spread
----- ------------
I 1.05%
II 1.20%
III 1.50%
IV 1.75%
V 2.00%
VI 2.25%
"Applicable Line B/C Alternate Base Rate Spread" means, as of
any date of determination, the sum of (a) the interest rate spread set
forth below opposite the Line B/C Credit Rating Level as of such date
plus (b) the Applicable Incremental Spread:
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Applicable Line
Line B/C B/C Alternate Base
Credit Rating Level Rate Spread
------------------- -----------
I .25%
II .50%
III .75%
IV 1.00%
"Applicable Line B/C LIBOR Spread" means, as of any date of
determination, the sum of (a) the interest rate spread set forth below
opposite the Line B/C Credit Rating Level as of such date plus (b) the
Applicable Incremental Spread:
Line B/C Applicable Line
Credit B/C LIBOR
Rating Level Rate Spread
------------ -----------
I 1.50%
II 1.75%
III 2.00%
IV 2.25%
"Applicable Line C Letter of Credit Fee" means, as of any date
of determination, the sum of (a) the letter of credit fee set forth
below under the caption "Financial L/C's" (in the case of Financial
Letters of Credit) and under the caption "Performance L/C's" (in the
case of Performance Letters of Credit), in each case opposite the Line
B/C Credit Rating Level as of such date plus (b) the Applicable
Incremental Spread:
Line B/C
Credit Rating
Level Financial L/C's Performance L/C's
----- --------------- -----------------
I 1.4375% 1.3125%
II 1.6875% 1.5625%
III 1.9375% 1.8125%
IV 2.1875% 2.0625%
"Asset Sale" means the sale or other disposition by Borrower
or any of its Domestic Subsidiaries of (a) shares of capital stock of
any Domestic Subsidiary or Foreign Subsidiary, (b) all or substantially
all of the assets of any Domestic Subsidiary or Foreign Subsidiary, (c)
any Domestic Unimproved Unmapped Land, (d) any Domestic Unimproved Land
and (e) any developed lots, Model Homes or residential housing units to
a Person who is not the end-user thereof in a bulk transaction.
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"Authorizations" has the meaning set forth for that
term in Section 4.1.
"Bank" means, as the context may require, a Line A Bank or a
Line B/C Bank and "Banks" means all of the Line A Banks and the Line
B/C Banks.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday,
or Friday other than a day on which banks are authorized or required to
be closed in California or New York.
"Bond Facility" means any bond facility pursuant to which a
municipality, or a community facilities district formed by a
municipality, at the request of Borrower or one of its Subsidiaries,
will issue bonds to finance a portion of the costs of acquisition of
and improvements to real property located in such municipality (or
district) by Borrower or one of its Subsidiaries (or to pay development
or "impact" fees in lieu thereof), and with respect to which Borrower
or one of its Subsidiaries will provide a letter of credit or other
reimbursement support. The real property that is the subject of any
such bond facility will be subject to a Lien for special taxes to repay
the Indebtedness evidenced by such bonds.
"Borrower" means Xxxxxxx and Broad Home Corporation, a
Delaware corporation, and its successors and permitted assigns.
"Both Majority Banks" means Banks comprising both the
Line A Majority Banks and the Line B/C Majority Banks.
"Capital Lease" means, with respect to any Person, a lease of
any Property by that Person as lessee that is, or should be in
accordance with Financial Accounting Standards Board Statement No. 13,
recorded as a "capital lease" on a balance sheet of that Person
prepared in accordance with Generally Accepted Accounting Principles.
"Cash" means all monetary items (including currency, coin and
bank demand deposits) that are treated as cash under Generally Accepted
Accounting Principles.
"Cash Equivalents" means, with respect to any Person,
that Person's Investments in:
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(a) Government Securities due within one year
of the making of the Investment;
(b) certificates of deposit issued by, deposits in,
bankers' acceptances of, and repurchase agreements covering
Government Securities executed by, (i) any Bank or (ii) any
bank and/or savings and loan association doing business in and
incorporated under the Laws of the United States of America or
any state thereof and having on the date of such Investment
combined capital, surplus and undivided profits of at least
$500,000,000 and which carries on the date of such Investment
a credit rating of P-1 or higher by Xxxxx'x Investors Service,
Inc. (or a successor rating agency) or A-1 or higher by
Standard & Poor's Rating Group (a division of XxXxxx-Xxxx,
Inc.) (or a successor rating agency), in each case due within
one year after the date of the making of the Investment; and
(c) readily marketable commercial paper of (i) any
Bank that is a Bank as of the Amendment Effective Date or (ii)
corporations doing business in and incorporated under the Laws
of the United States of America or any state thereof given on
the date of such Investment a credit rating of P-1 or higher
by Xxxxx'x Investors Service, Inc. (or a successor rating
agency), of A-1 or higher by Standard & Poor's Rating Group (a
division of XxXxxx-Xxxx, Inc.) (or a successor rating agency),
or F-1 or higher by Fitch Investor Services, Inc. (or a
successor rating agency), in each case due within one year of
the making of the Investment.
"Change in Control" has the meaning set forth for
such term in Section 3.1(j).
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Commission" means the Securities and Exchange
Commission and any successor commission.
"Commitments" means, collectively, the Line A Commitment, the
Line B Commitment and the Line C Commitment.
"Common Stock" means the $1.00 par value common stock and
special common stock of Borrower.
"Compliance Certificate" means a compliance certificate in the
form of Exhibit A signed, on behalf of Borrower, by a Senior Officer of
Borrower.
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"Consolidated Subsidiary" means, with respect to any Person
and as of any date of determination, a Subsidiary of that Person whose
financial statements should be consolidated with the financial
statements of the Person in accordance with Generally Accepted
Accounting Principles.
"Consolidated Tangible Net Worth" means, as of any date of
determination, the Tangible Net Worth of Borrower and its Consolidated
Subsidiaries on a consolidated basis; provided that (a) any positive or
negative adjustment to consolidated net worth attributable to foreign
currency translations shall be ignored and (b) for purposes only of
Section 6.12 (and not for purposes of determining Domestic Adjusted
Tangible Net Worth) Consolidated Tangible Net Worth shall be adjusted
by (i) adding thereto the lesser of (A) the after-tax effect of the
Contemplated Charge as applied to assets of Borrower and its
Consolidated Subsidiaries and (B) $96,000,000 and (ii) by subtracting
therefrom an amount equal to 50% of the amount, if any, by which the
after-tax effect of the Contemplated Charge exceeds $96,000,000.
"Contemplated Charge" means the Net Realizable Value
Adjustment contemplated to be made by Borrower in its Fiscal Year
ending November 30, 1996.
"Contingent Guaranty Obligation" means, as to any Person, any
(a) direct or indirect guarantee of Indebtedness of, or other
obligation performable by, any other Person (other than a performance
obligation undertaken in the ordinary and usual course of business),
including any endorsement (other than for collection or deposit in the
ordinary course of business), co-making or sale with recourse of the
obligations of any other Person or (b) assurance given to an obligee
with respect to the performance of an obligation (other than a
performance obligation undertaken in the ordinary and usual course of
business) by, or the financial condition of, any other Person, whether
direct, indirect or contingent, including any purchase or repurchase
agreement covering such obligation or any collateral security therefor,
any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to
support the solvency or level of any balance sheet item of such other
Person, or any "keep-well", "take-or-pay", "through put" or other
arrangement of whatever nature having the effect of assuring or holding
harmless any obligee against loss with respect to any obligation of
such other Person. The amount of any Contingent Guaranty Obligation
shall be deemed to be an amount equal to the stated or determinable
amount of the
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related primary obligation (unless the Contingent Guaranty Obligation
is limited by its terms to a lesser amount, in which case to the extent
of such amount) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by
the Person in good faith.
"Contractual Obligation" means, as to any Person, any
provision of any outstanding Securities issued by that Person or of any
material agreement, instrument or undertaking to which that Person is a
party or by which it or any of its Property is bound, other than, in
the case of Borrower and its Subsidiaries, any of the Loan Documents.
"Co-Syndication Agents" means Bank of America and The
First National Bank of Chicago.
"Curable KBMC Default" means a Material KBMC Default or a
Material KBMC Event of Default that can be cured by the payment of
money, including those arising under the following Sections of the
Mortgage Warehousing Agreement: 10.1, 10.2, 10.3, 10.4, 10.5, 10.21,
11.1(a), 11.1(e), 11.1(g), 11.1(h), 11.1(m), 11.1(o) and 11.1(q).
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, insolvency, reorganization, or
similar debtor relief Laws from time to time in effect affecting the
rights of creditors generally.
"Default" means any event that, with the giving of notice or
passage of time or both, would be an Event of Default.
"Default Rate" means the interest rate described in
Section 3.7.
"Designated Deposit Account" means a demand deposit account to
be maintained by Borrower with Bank of America, as from time to time
designated by Borrower by written notification to the Administrative
Agent.
"Disposition" means the sale, transfer or other disposition of
any of the capital stock of any Significant Subsidiary or of all or
substantially all of the assets of any Significant Subsidiary.
"Distribution" means, with respect to any shares of
capital stock or any warrant or right to acquire shares of
capital stock or any other equity security issued by a
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Person, (a) the retirement, redemption, purchase, or other acquisition
for value (other than for common stock of such Person) by such Person
of any such security, (b) the declaration or payment by such Person of
any dividend in Cash or in Property (other than in common stock of such
Person) on or with respect to any such security, and (c) any Investment
by such Person in any holder of 5% or more of the capital stock (or
other equity securities) of such Person, if a purpose of such
Investment is to avoid the characterization of the transaction between
such Person and such holder as a Distribution under clause (a) or (b)
above. In addition, to the extent any loan or advance by Borrower to
one of its Subsidiaries is deemed to be an "Investment" for purposes of
this Agreement, then any principal payment made by such Subsidiary in
respect of such loan or advance shall be considered a Distribution for
purposes of Section 6.19(a)(ii).
"Documentation Agent" means The First National Bank
of Chicago. The Documentation Agent shall have no duties
under the Loan Documents beyond those of a Bank.
"Dollars" means the national currency of the United
States of America.
"Domestic Adjusted Interest Expense" means, with respect to
any fiscal period of Borrower and its Consolidated Subsidiaries (other
than any Financial Subsidiary or Foreign Subsidiary), the aggregate
amount of interest, fees, charges and related expenses paid or payable
to a lender in connection with borrowed money that is treated as
interest (including without limitation accretion of original issue
discount on long-term debt existing during such fiscal period) and the
interest portion of any capitalized lease payment of Borrower and such
Consolidated Subsidiaries.
"Domestic Adjusted Operating Income" means, with respect to
any fiscal period of Borrower and its Consolidated Subsidiaries (other
than any Financial Subsidiary), (a) the consolidated gross revenues of
Borrower and its Consolidated Subsidiaries (other than any Financial
Subsidiary) for that fiscal period, minus (b) construction and land
costs for that fiscal period, minus (c) selling, general and
administrative expenses for that fiscal period, minus (d) with respect
to Foreign Subsidiaries, on a consolidated basis, consolidated gross
revenues during that fiscal period, minus (i) construction and land
costs for that fiscal period, minus (ii) selling, general and
administrative expenses for that fiscal period, plus (e) interest
income earned by Borrower and its Consolidated Subsidiaries (other than
any Foreign
- 11 -
17
Subsidiary) during that fiscal period, plus (f) dividend, royalty and
(without duplication) other intercompany payments paid in Cash by a
Foreign Subsidiary or a Financial Subsidiary to Borrower or any of its
Guarantor Subsidiaries, plus (g) Domestic Adjusted Interest Expense
which had previously been capitalized and has been amortized during
that fiscal period to the aggregate cost of sales of Borrower and its
Domestic Subsidiaries, plus (h) non-Cash losses incurred (and minus
non-Cash gains earned) by Borrower and its Consolidated Subsidiaries
(other than any Financial Subsidiary or any Foreign Subsidiary) in
connection with the abandonment of options to purchase Property, plus
(i) non-Cash Net Realizable Value Adjustments to Inventory located in
the United States of America (to the extent not reflected as an
extraordinary item), plus (j) depreciation expense for that fiscal
period, minus (k) Cash Investments made by Borrower during such fiscal
period in Financial Subsidiaries and Foreign Subsidiaries, all as
reported on the financial statements of Borrower and its Consolidated
Subsidiaries delivered to the Banks pursuant to Section 7.1.
"Domestic Adjusted Tangible Net Worth" means, as of any date
of determination, Consolidated Tangible Net Worth on that date minus
(a) an amount equal to 100% of the aggregate Tangible Net Worth of
Foreign Subsidiaries of Borrower and its Subsidiaries on that date,
minus (b) the amount by which the aggregate Investments of Borrower on
that date in Domestic Joint Ventures exceed 10% times the difference
between Consolidated Tangible Net Worth and the aggregate Tangible Net
Worth of Foreign Subsidiaries as of that date, minus (c) the aggregate
amount of intercompany receivables owed to Borrower and its Domestic
Subsidiaries by any Foreign Subsidiary as of that date, and plus (d)
the lesser of (A) the after-tax effect of the Contemplated Charge as
applied to assets of Borrower and its Domestic Subsidiaries and (B)
$70,000,000.
"Domestic Indebtedness" means, as of any date of
determination, the total outstanding Indebtedness of Borrower and its
Domestic Subsidiaries (other than Financial Subsidiaries) as of the
last day of the most recently ended Fiscal Quarter.
"Domestic Interest Coverage Ratio" means, with respect to any
Fiscal Quarter of Borrower and its Consolidated Subsidiaries (other
than any Financial Subsidiary), the ratio of (a) Domestic Adjusted
Operating Income for the twelve month period ending on the last day of
such Fiscal Quarter to (b) the sum of (i) Domestic Adjusted Interest
Expense (without including accretion of
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18
original issue discount on long-term debt existing during such fiscal
period) plus (ii) all dividends paid on any preferred stock of Borrower
issued subsequent to the Amendment Effective Date, in each case for the
twelve month period ending on the last day of such Fiscal Quarter.
"Domestic Joint Venture" means a Joint Venture (a) that is
organized under the laws of the United States of America or any state
thereof and (b) the majority of the assets of which (as reflected on a
balance sheet of such Joint Venture prepared in accordance with
Generally Accepted Accounting Principles) is located in the United
States of America.
"Domestic Lending Office" means, with respect to each Bank,
its office, branch or affiliate identified on the signature pages
hereof as its Domestic Lending Office or such other office, branch or
affiliate as such Bank may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent.
"Domestic Leverage Ratio" means, as of any date of
determination, the ratio of (a) Domestic Indebtedness on that date to
(b) Domestic Adjusted Tangible Net Worth on that date.
"Domestic Standing Inventory" means, as of any date of
determination, all items of unsold housing inventory (other than Model
Homes) of Borrower and its Domestic Subsidiaries, and with respect to
which either (a) 90% of the direct construction costs has been incurred
on such date or (b) at least ten months has elapsed from the date its
construction was commenced through and including such date.
Construction for purposes of this definition shall be deemed to have
commenced upon the pouring of foundation concrete.
"Domestic Subsidiary" means, with respect to any Person and as
of any date of determination, a Subsidiary of such Person (a) that is
organized under the Laws of the United States of America or any state
thereof and (b) the majority of the assets of which (as reflected on a
balance sheet of such Subsidiary prepared in accordance with Generally
Accepted Accounting Principles) is located in the United States of
America; provided that in no event shall Xxxxxxx and Broad
International or KBMHG be considered a Domestic Subsidiary of Borrower.
"Domestic Unimproved Land" means, as of any date of
determination, real Property located in the United States of America
(including real Property owned by the Land Fund
- 13 -
19
Joint Venture for at least four years) (a) owned by Borrower or any of
its Subsidiaries if on that date there has been expended by Borrower
and its Subsidiaries less than 50% of the physical construction costs
reasonably estimated by Borrower (in accordance with its past practices
as of the Amendment Effective Date) to bring such real Property to
"finished lot" status and (b) owned by other Persons but which, if
owned by Borrower or any of its Subsidiaries on that date, would have
satisfied the requirement set forth in clause (a), if on that date
Borrower or any of its Domestic Subsidiaries holds an option to
purchase such real Property for which it has paid an amount equal to
20% or more of the purchase price provided for in such option to
purchase. The "book value" with respect to Domestic Unimproved Land
referred to in Section 6.18 shall be calculated as if the option to
purchase had been exercised as of the date of determination, and
otherwise in accordance with Generally Accepted Accounting Principles,
consistently applied.
"Domestic Unimproved Unmapped Land"" means, as of any date of
determination, Domestic Unimproved Land that is not then covered by a
"tentative" or "final" subdivision map in compliance with applicable
Laws respecting subdivision maps or, in the opinion of the
Administrative Agent, an equivalent entitlement that authorizes the
development of real Property.
"Eligible Assignee" shall have the meaning for such term set
forth in the Override Agreement.
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974 and the regulations there- under, all as the same
shall be in effect at such date.
"ERISA Affiliate" means, with respect to any Person, any other
Person (or any trade or business, whether or not incorporated) that is
under common control with that Person within the meaning of Section 414
of the Code.
"Event of Default" has the meaning set forth for that
term in Section 9.1.
"Federal Funds Rate" means the rate per annum equal to the
weighted average (rounded upwards, if necessary, to the nearest 1/100th
of one percent) of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers as published for such day (or, if such day is not a Banking
Day, for the next preceding Banking Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Banking Day, the
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20
average, the average (rounded upwards, if necessary,
to the nearest 1/100th of one percent) of the quotations for such day
on transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative
Agent.
"Financial Letter of Credit" means any standby letter of
credit issued pursuant to this Agreement, other than a Performance
Letter of Credit.
"Financial Subsidiary" means (a) the Mortgage Company, so long
as it continues to engage in the mortgage banking business, and its
Subsidiaries and (b) any other Subsidiary of Borrower that (i) is
engaged primarily in the business of origination, marketing, and
servicing of residential mortgage loans, the sale of servicing rights,
or the financing of long term residential mortgage loans, (ii) holds
not less than 95% of its total assets in the form of Cash, Cash
Equivalents, notes and mortgages receivable, Cash held by a trustee for
the benefit of such Subsidiary or other financial instruments and (iii)
is the subject of an Officer's Certificate of Borrower delivered to the
Administrative Agent stating that such Subsidiary is a Financial
Subsidiary within the meaning hereof.
"Fiscal Quarter" means each of the fiscal quarters of Borrower
ending on each February 28 (or 29, if a leap year), May 31, August 31
and November 30.
"Fiscal Year" means each of the fiscal years of Borrower
ending on each November 30.
"Foreign Subsidiary" means, with respect to any Person, a
Subsidiary of that Person which is not a Domestic Subsidiary and with
respect to Borrower, includes Xxxxxxx and Broad International, a
California corporation, but excludes KBMHG.
"Generally Accepted Accounting Principles" means, as of any
date of determination, accounting principles set forth as "generally
accepted" in then currently effective Statements of the Auditing
Standards Board of the American Institute of Certified Public
Accountants, or, if such Statements are not then in effect, accounting
principles that are then approved by a significant segment of the
accounting profession in the United States of America. The term
"consistently applied," as used in connection therewith, means that the
accounting principles applied to financial statements of a Person as of
any date or for any period are consistent in all material respects
(subject to Section 1.3) to those applied to financial statements of
that Person as of prior dates and for prior periods.
- 15 -
21
"Government Securities" means (a) readily marketable direct
full faith and credit obligations of the United States of America or
obligations unconditionally guaranteed by the full faith and credit of
the United States of America and (b) obligations of an agency or
instrumentality of, or corporation owned, controlled or sponsored by,
the United States of America that are generally considered in the
securities industry to be implicit obligations of the United States of
America.
"Governmental Agency" means (a) any federal, state, county or
municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality, or public body, (c) any court
or administrative tribunal, or (d) any arbitration tribunal or other
non-governmental authority to whose jurisdiction a Person has
consented, in each case whether of the United States of America or any
other nation.
"Guarantor Subsidiary" means any Domestic Subsidiary which is
a Significant Subsidiary, other than the Financial Subsidiaries.
"Indebtedness" means, with respect to any Person, (a) all
indebtedness of such Person for borrowed money, (b) that portion of the
obligations of such Person under Capital Leases which should properly
be recorded as a liability on a balance sheet of that Person prepared
in accordance with Generally Accepted Accounting Principles, (c) any
obligation of such Person that is evidenced by a promissory note or
other instrument representing an extension of credit to such Person,
whether or not for borrowed money, (d) any obligation of such Person
for the deferred purchase price of Property or services (other than
trade or other accounts payable in the ordinary course of business in
accordance with customary industry terms), (e) any obligation of the
types referred to in clauses (a) through (d) above that is secured by a
Lien (other than a Permitted Encumbrance) on assets of such Person,
whether or not that Person has assumed such obligation or whether or
not such obligation is non-recourse to the credit of such Person, but
only to the extent of the fair market value of the assets so subject to
the Lien, (f) obligations of such Person arising under acceptance
facilities or under facilities for the discount of accounts receivable
of such Person, (g) any obligation of such Person under letters of
credit issued for the account of such Person and that is not otherwise
a Contingent Guaranty Obligation and (h) any obligation of such Person
under a Swap Agreement.
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22
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
including (a) customer lists, goodwill, computer software, unamortized
deferred charges, unamortized debt discount, capitalized research and
development costs and other intangible assets and (b) any write-up in
book value of any asset subsequent to its acquisition, but excluding
any existing write-up in book value of any asset acquired by Borrower
or any of its Subsidiaries prior to the Amendment Effective Date, as
such write-up may decrease (but not increase) from time to time.
"Interest Period" means, as to each LIBOR Loan, a period of
one, two, three or six months (and one or two weeks; provided, that so
long as the restricted period for LIBOR Loans described in Section
2.1(i) is in effect, availability of one and two week Interest Periods
shall not be subject to funding availability), as designated by
Borrower; provided that (a) the first day of each Interest Period must
be a LIBOR Market Day, (b) any Interest Period that would otherwise end
on a day that is not a LIBOR Market Day (other than an Interest Period
of one or two weeks) shall be extended to the next succeeding LIBOR
Market Day, unless such LIBOR Market Day falls in the next calendar
month, in which case the LIBOR Period shall end on the next preceding
LIBOR Market Day, and (c) no Interest Period with respect to a Line A
Loan may extend beyond the Line A Maturity Date and no Interest Period
with respect to a Line B Loan or a Line C Loan may extend beyond the
Line B/C Maturity Date.
"Investment" means, with respect to any Person, any investment
by that Person, whether by means of purchase or other acquisition of
capital stock or other Securities of any other Person or by means of
loan, advance, capital contribution, guarantee, or other debt or equity
participation or interest in any other Person, including any
partnership or joint venture interest in any other Person; provided
that an Investment of a Person shall not include any trade or account
receivable arising in the ordinary course of the business of such
Person. The amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in
the market value of such Investment.
"Issuing Bank" means Bank of America and, with the consent of
the subject Bank and the approval of the Administrative Agent, any
other Bank as may be designated by Borrower from time to time.
"Joint Venture" means any joint venture or limited partnership
(i) in which Borrower or any Domestic
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23
Subsidiary of Borrower is, with respect to any joint venture, a partner
or, with respect to any limited partnership, the general partner, and
(ii) which has at least one partner that is not an Affiliate of
Borrower or any Subsidiary of Borrower.
"Joint Venturers" means, collectively, Borrower and certain
pension funds or a joint venture comprised of such pension funds which
are parties to the Land Fund Joint Venture.
"KBMHG" means Xxxxxxx and Broad Multi-Housing Group,
Inc., a Subsidiary of Borrower.
"Land Fund Joint Venture" means that certain land fund created
by the Joint Venturers on or about August 30, 1989 for the purpose of
acquiring unimproved real Property and processing it into legally
sub-divided lots.
"Laws" means, collectively, all foreign, federal, state and
local statutes, treaties, codes, ordinances, rules, regulations and
controlling precedents of any Governmental Agency.
"Letters of Credit" means, collectively, the Line A Letters of
Credit and the Line C Letters of Credit.
"Letter of Credit Usage" means, as of any date of
determination, the aggregate undrawn face amount of outstanding Letters
of Credit plus the aggregate amount of unreimbursed draws under Letters
of Credit (that is, draws for which no Alternate Base Rate Loan was
made pursuant to Section 2.5).
"LIBOR" means, for each LIBOR Loan, that rate per annum,
determined solely by the Administrative Agent, pursuant to the
following formula (with each component expressed as a decimal and
rounded upward to the nearest 1/100 of 1%):
London Interbank Offered Rate for that LIBOR Loan
1.00 - Reserve Percentage
"LIBOR Advance" means an Advance made by a Bank to fund its
Pro Rata Share of a LIBOR Loan.
"LIBOR Lending Office" means, with respect to each Bank, its
office, branch or affiliate identified on the signature page hereof as
its LIBOR Lending Office or such other office, branch or affiliate as
such Bank may hereafter designate as its LIBOR Lending Office by notice
to Borrower and the Administrative Agent.
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24
"LIBOR Loan" means a Loan made hereunder and designated or
redesignated as a LIBOR Loan in accordance with Article 2.
"LIBOR Market" means the London, England market established by
and among banks for the solicitation, offer and acceptance of Dollar
deposits in such banks.
"LIBOR Market Day" means any Banking Day on which commercial
banks are open for international business (including dealing in Dollar
deposits) in London, England.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property, including any
agreement to grant any of the foregoing (other than an agreement which
gives to a Person the right to become equally and ratably secured with
any other Person (other than the Administrative Agent and the Banks
with respect to the Obligations) to whom a Lien is granted on any item
of Property) any conditional sale or other title retention agreement,
any lease in the nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature
of a security interest) under the Uniform Commercial Code or comparable
Law of any jurisdiction with respect to any Property.
"Line A Banks" means any of the banks signatory to this
Agreement as a "Line A Bank", their successors and permitted assigns.
"Line A Commitment" means, as of any date of determination,
the amount of the "KBHC Commitment" then in effect pursuant to the
Override Agreement.
"Line A Commitment Assignment and Acceptance" means a
commitment assignment and acceptance prescribed by the Override
Agreement.
"Line A Credit Rating Level" means, as of any date of
determination, the credit rating level set forth below opposite the
specified credit ratings of Borrower's senior long-term unsecured debt
then in effect:
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25
Line A Credit
Rating Level Credit Ratings
------------ --------------
I S&P BBB- or better or
Moody's Baa 3 or better
II S&P BB+ or
Moody's Ba1
III S&P BB or
Moody's Ba2
IV S&P BB- or
Moody's Ba3
V S&P B+ or
Moody's B1
VI S&P B or lower or
Moody's B2 or lower
Determination of the Line A Credit Rating Level shall be based on the
lower of the credit ratings assigned by S&P and Moody's. For purposes
of the foregoing, "S&P" means Standard & Poor's Rating Group, a
division of McGraw Hill, Inc. (or a successor rating agency) and
"Moody's" means Xxxxx'x Investors Service, Inc. (or a successor rating
agency). The Line A Credit Rating Levels in effect as of any date shall
be as set forth in the then most recent Officer's Certificate delivered
to the Administrative Agent, attaching such evidence of the Line A
Credit Ratings, as may be reasonably required by the Administrative
Agent.
"Line A Financial Letter of Credit" means a Financial Letter
of Credit issued under the Line A Commitment.
"Line A Letters of Credit" means, collectively, the
Line A Financial Letters of Credit and the Line A Performance
Letters of Credit.
"Line A Letter of Credit Usage" means Letter of Credit Usage
with respect to Line A Letters of Credit.
"Line A Loan" means a Loan made by the Line A Banks under the
Line A Commitment.
"Line A Majority Banks" means, as of any date of
determination, Banks holding in the aggregate at least 51% of the
principal Indebtedness then evidenced by the Line A Notes or, if there
is then no such outstanding
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26
Indebtedness, Banks having in the aggregate at least a 51% Pro Rata
Share of the Line A Commitment.
"Line A Maturity Date" means December 31, 1997.
"Line A Note" means any of the promissory notes issued by
Borrower to each Line A Bank evidencing Advances by that Bank of its
Pro Rata Share under the Line A Commitment substantially in the form of
Exhibit B, either as originally executed or the same may from time to
time be supplemented, modified, amended, renewed, extended or
supplanted.
"Line A Obligations" means the Obligations with
respect to the Line A Provisions.
"Line A Performance Letter of Credit" means a Performance
Letter of Credit issued under the Line A Commitment.
"Line A Provisions" means (a) all of the provisions of the
Loan Documents relating to (or as related to) the Line A Commitment,
the Line A Notes and the Line A Letters of Credit and (b) all of the
representations, warranties, covenants, events of default and other
provisions of the Loan Documents insofar as they are obligations of
Borrower or any other Party running in favor of the Line A Banks.
"Line B Commitment" means, subject to Section 2.7,
$110,000,000. The respective Pro-Rata Shares of the Line B/C Banks with
respect to the Line B Commitment are set forth in Schedule 1.1.
"Line B Loan" means a Loan made by the Line B/C Banks under
the Line B Commitment.
"Line B Note" means any of the promissory notes issued by
Borrower to each Line B/C Bank evidencing Advances by that Bank of its
Pro Rata Share under the Line B Commitment substantially in the form of
Exhibit C, either as originally executed or the same may from time to
time be supplemented, modified, amended, renewed, extended or
supplanted.
"Line B/C Banks" means any of the banks signatory to this
Agreement as a "Line B/C Bank", their successors and permitted assigns.
"Line B/C Commitment Assignment and Acceptance" means a
commitment assignment and acceptance in the form of Exhibit E.
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27
"Line B/C Credit Rating Level" means, as of any date of
determination, the credit rating level set forth below opposite the
specified credit ratings of Borrower's senior long-term unsecured debt
then in effect:
Line B/C Credit
Rating Level Credit Ratings
------------ --------------
I S&P BB or better or
Moody's Ba2 or better
II S&P BB- or
Moody's Ba3
III S&P B+ or
Moody's B1
IV S&P B or lower or
Moody's B2 or lower
Determination of the Line B/C Credit Rating Level shall be based on the
lower of the credit ratings assigned by S&P and Moody's. For purposes
of the foregoing, "S&P" means Standard & Poor's Rating Group, a
division of McGraw Hill, Inc. (or a successor rating agency) and
"Moody's" means Xxxxx'x Investors Service, Inc. (or a successor rating
agency). The Line B/C Credit Rating Levels in effect as of any date
shall be as set forth in the then most recent Officer's Certificate
delivered to the Administrative Agent, attaching such evidence of the
Line B/C Credit Ratings, as may be reasonably required by then
Administrative Agent.
"Line B/C Majority Banks" means, as of any date of
determination, Banks holding in the aggregate at least 51% of the
principal Indebtedness then evidenced by the Line B Notes and Line C
Notes or, if there is then no such outstanding Indebtedness, Banks
having in the aggregate at least a 51% Pro Rata Share of the Line C
Commitment.
"Line B/C Maturity Date" means (a) February 28, 1997, (b) if
Borrower has so elected in compliance with Section 3.1(e)(i), May 31,
1997 or (c) if Borrower has so elected in compliance with Section
3.1(e)(ii), August 31, 1997.
"Line B/C Obligations" means the Obligations with
respect to the Line B/C Provisions.
"Line B/C Provisions" means (a) all of the provisions
of the Loan Documents relating to (or as related to), the
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28
Line B Commitment, the Line B Notes, the Line C Commitment, the Line C
Notes and the Line C Letters of Credit and (b) all of the
representations, warranties, covenants, events of default and other
provisions of the Loan Documents insofar as they are obligations of
Borrower or any other Party running in favor of the Line B/C Banks.
"Line C Commitment" means, subject to Section 2.8,
$20,000,000. The respective Pro Rata Shares of the Line B/C Banks with
respect to the Line C Commitment are set forth in Schedule 1.1.
"Line C Financial Letter of Credit" means a Financial Letter
of Credit issued under the Line C Commitment.
"Line C Letters of Credit" means, collectively, the Line C
Financial Lettersof of Credit and the Line C Performance Letters of
Credit.
"Line C Letter of Credit Usage" means Letter of Credit Usage
with respect to Line C Letters of Credit.
"Line C Loan" means a Loan made by the Line B/C Banks under
the Line C Commitment.
"Line C Note" means any of the promissory notes issued by
Borrower to each Line B/C Bank evidencing Advances by that Bank of its
Pro Rata Share under the Line C Commitment substantially in the form of
Exhibit D, either as originally executed or the same may from time to
time be supplemented, modified, amended, renewed, extended or
supplanted.
"Line C Performance Letter of Credit" means a Performance
Letter of Credit issued under the Line C Commitment.
"Loan" means any of the groups of Advances made at any one
time by the Line A Banks or the Line B/C Banks, as the case may be.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Subsidiary Guaranty, the Override Agreement and any other
agreement or instrument that may hereafter be executed and delivered by
Borrower or a Subsidiary of Borrower in favor of the Banks relating to
or in furtherance of this Agreement.
"London Interbank Offered Rate" means (a) for each LIBOR Loan
with an Interest Period of one month or more, the per annum rate
(rounded upward to the nearest 1/100 of 1%), determined solely by the
Administrative Agent, at which Bank of America's branch in London,
England would
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29
offer deposits of Dollars in the LIBOR Market at or about 11:00 a.m.,
London time, on the day two LIBOR Market Days preceding the first day
of the applicable Interest Period for approximately the same time
period as the applicable Interest Period and in an amount approximately
equal to Bank of America's Pro Rata Share of that LIBOR Loan and (b)
for each LIBOR Loan with an Interest Period of one or two weeks, the
rate per annum for such Interest Periods appearing on the Telerate
Screen Page 3750 as of 11:00 a.m. London time on the day two LIBOR
Market Days preceding the first day of the applicable Interest Period.
"Majority Banks" means (a) where used in any Loan Document
with respect to a waiver or amendment of the Line A Provisions, or any
consent or approval related thereto, or enforcement of any remedies
with respect to the Line A Notes or Line A Letters of Credit, the Line
A Majority Banks and (b) where used in any Loan Documents with respect
to a waiver or amendment of the Line B/C Provisions, or any consent or
approval related thereto, or enforcement of any remedies with respect
to the Line B Notes, the Line C Notes or Line C Letters of Credit, the
Line B/C Majority Banks.
"Managing Agents" means Bank of America National Trust and
Savings Association, The First National Bank of Chicago, Credit
Lyonnais Los Angeles Branch and NationsBank of Texas, N.A. The Managing
Agents shall have no duties under the Loan Documents beyond those of a
Bank.
"Material Adverse Effect" means any circumstance or event, or
any set of circumstances or events which, individually or when
aggregated with any other circumstances or events, (a) has or probably
will have any material adverse effect upon the validity or
enforceability of any Loan Document, (b) is or probably will be
material and adverse to the condition (financial or otherwise) or
operations of Borrower and its Subsidiaries, taken as a whole, (c)
materially impairs or probably will materially impair the ability of
Borrower and its Subsidiaries, taken as a whole, to perform the
Obligations or (d) were initiated or approved by Borrower or any of its
Subsidiaries and which materially impairs or probably will materially
impair the ability of the Banks to enforce any material legal remedy
pursuant to the Loan Documents.
"Material KBMC Default" means an event which, with the giving
of notice or passage of time or both, would become a Material KBMC
Event of Default.
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30
"Material KBMC Event of Default" means any "Event of Default"
described in Section 11.1(a), 11.1(b) (but only to the extent the same
relates to failure to comply with a covenant contained in Sections 10.1
through 10.23, inclusive, of the Mortgage Warehousing Agreement and, in
the case of Sections 10.16, 10.19, 10.20 and 10.22, only to the extent
the failure to comply has a Material Adverse Effect), 11.1(d) (but only
to the extent that the misrepresentation therein described has a
Material Adverse Effect) and 11.1(e) through 11.1(q), inclusive, of the
Mortgage Warehousing Agreement.
"Model Homes" means housing units which have been completed,
furnished and landscaped and are used in the marketing efforts with
respect to a residential home project, provided that up to twenty
percent (20%) of the total number of residential home projects may each
have up to six units that may be considered Model Homes, and in all
other residential home projects no more than four units shall be
considered Model Homes.
"Mortgage Company" means Xxxxxxx and Broad Mortgage
Company, an Illinois corporation and a wholly owned
Financial Subsidiary of Borrower.
"Mortgage Warehousing Agreement" means that certain Loan
Agreement dated as of September 15, 1993 among Mortgage Company, the
banks party thereto and Credit Lyonnais Los Angeles Branch, as agent
for the banks, as heretofore amended as of November 21, 1994, as
further amended as of the Amendment Effective Date and as the same may
from time to time be amended or modified.
"Mortgage Warehousing Guaranty" means Borrower's Guaranty
dated September 15, 1993, as amended or modified from time to time, of
up to $30,000,000 of the obligations of Mortgage Company under the
Mortgage Warehousing Agreement in the event of a "Delivery Failure", as
defined in such Guaranty.
"Multiemployer Plan" means any employee benefit plan of a type
described in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
sum of (a) the gross cash consideration received by Borrower and its
Domestic Subsidiaries in connection therewith plus (b) the aggregate
cash payments received by Borrower and its Domestic Subsidiaries in
respect of any promissory note or similar obligation received by
Borrower and its Domestic Subsidiaries in connection therewith plus (c)
the aggregate cash payments received by Borrower and its Domestic
Subsidiaries in consideration of the
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disposition of any non-Cash asset received by Borrower or its Domestic
Subsidiaries in connection therewith, net of (i) all transactional
costs (legal, accounting, brokerage and the like) incurred by Borrower
and its Domestic Subsidiaries in connection with such Asset Sale, (ii)
any development or entitlement expenditures which Borrower or its
Domestic Subsidiary is obligated to make with respect to the asset
which is the subject of such Asset Sale, (iii) any federal and state
income taxes payable by Borrower with respect to any gain realized on
such Asset Sale and (iv) the amount of any obligation secured by a Lien
on the asset which is the subject of such Asset Sale required by the
purchaser thereof to be released as a condition of such Asset Sale. In
determining Net Cash Proceeds where less than 100% of the sales price
is received in cash at the time of the Asset Sale, Borrower shall
reasonably estimate the deductions described in clauses (i), (ii),
(iii) and (iv) and deduct from all cash as received the same proportion
of such deductible amounts as the proportion which the cash received is
of the sales price for the Asset Sale, subject to confirmation when all
such cash has been received by Borrower or its Domestic Subsidiary.
"Net Orders" means, as of any date of determination, the
number of items of housing inventory that are in the process of being
sold and with respect to which a purchase contract has been signed, as
reported in Borrower's filings with the Securities Exchange Commission.
"Net Realizable Value Adjustment" means the adjustment
required pursuant to Generally Accepted Accounting Principles
(including FAS 121 issued by the Financial Accounting Standards Board)
to reflect a decrease in the book value of assets below their
historical costs.
"Non-Recourse Indebtedness" means Indebtedness incurred in
connection with the purchase or improvement of Property (a) that is
secured solely by the Property purchased or improved, (b) with respect
to which the holder of such Indebtedness has recourse only to such
Property, and (c) that is otherwise non-recourse (whether by contract
or under applicable Law) to any Person.
"Notes" means, collectively, the Line A Notes, the
Line B Notes and the Line C Notes.
"Obligations" means all present and future obligations of
every kind or nature of Borrower or any Party at any time and from time
to time owed to the Administrative Agent or the Banks or any one or
more of them under any
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32
one or more of the Loan Documents, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well as
obligations of payment, and including interest that accrues to the
extent permitted by applicable Law after the commencement of any
proceeding under any Debtor Relief Law by or against Borrower.
"Officer's Certificate" means, when used with reference to any
Person, a certificate signed by a Senior Officer of such Person.
"Opinions of Counsel" means the favorable written legal
opinions of (a) Xxxxx, Xxxx & Xxxxxxxx, special counsel to Borrower,
and (b) Xxxxxx X. Xxxxxxx, General Counsel of Borrower substantially in
the form of Exhibits F-1 and F-2, respectively, together with copies of
all factual certificates and legal opinions upon which such counsel has
relied.
"Override Agents" means Bank of America National
Trust and Savings Association and The First National Bank
of Chicago, in their capacity as the Override Agents under
the Override Agreement.
"Override Agreement" means that certain Amended And Restated
Override Agreement dated of even date herewith among Borrower, Mortgage
Company, the Override Agents and the Line A Banks, as the same may from
time to time be amended or modified.
"Party" means any Person other than the Banks or the Agents
which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in ERISA) which is subject to Title IV of ERISA
and which is maintained for employees of Borrower or any of its ERISA
Affiliates.
"Performance Letter of Credit" means any standby letter of
credit issued pursuant to this Agreement to assure completion of
performance of a nonfinancial or commercial obligation of Borrower or
any of its Subsidiaries.
"Permitted Encumbrances" means:
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(a) inchoate Liens incident to construction or
maintenance of real property; or Liens incident to
construction or maintenance of real property now or hereafter
filed of record for which adequate reserves have been set
aside and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations
secured by such Liens, no material property is subject to a
material risk of loss or forfeiture;
(b) Liens for taxes and assessments on real property
which are not yet past due; or Liens for taxes and assessments
on real property for which adequate reserves have been set
aside and are being contested in good faith by appropriate
proceedings and have not proceeded to judgment, provided that,
by reason of nonpayment of the obligations secured by such
Liens, no material property is subject to a material risk of
loss or forfeiture;
(c) minor defects and irregularities in title to any
real property which in the aggregate do not materially impair
the fair market value or use of the real property for the
purposes for which it is or may reasonably be expected to be
held;
(d) easements, exceptions, reservations, or other
agreements for the purpose of pipelines, conduits, cables,
wire communication lines, power lines and substations,
streets, trails, walkways, drainage, irrigation, water,
utilities, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like
purposes affecting real property, facilities, or equipment
which in the aggregate do not materially burden or impair the
fair market value or use of such property for the purposes for
which it is or may reasonably be expected to be held;
(e) easements, exceptions, reservations, or other
agreements for the purpose of facilitating the joint or common
use of property in a shopping center or similar real property
project affecting real property which in the aggregate do not
materially burden or impair the fair market value or use of
such property for the purposes for which it is or may
reasonably be expected to be held;
(f) rights reserved to or vested in any
Governmental Agency to control or regulate the use of
any real property;
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34
(g) any obligations or duties affecting any real
property to any Governmental Agency with respect to any right,
power, franchise, grant, license, or permit;
(h) present or future zoning laws and ordinances or
other laws and ordinances restricting the occupancy, use, or
enjoyment of real property;
(i) statutory Liens, including warehouseman's liens,
other than those described in clauses (a) or (b) above,
arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in
good faith, provided that, if delinquent, adequate reserves
have been set aside with respect thereto and, by reason of
nonpayment, no material property is subject to a material risk
of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting
the use of real property which in the aggregate do not
materially impair the fair market value or use of the real
property for the purposes for which it is or may reasonably be
expected to be held;
(k) rights of tenants under leases and rental
agreements covering real property entered into in the ordinary
course of business of the Person owning such real property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar
legislation, including Liens of judgments thereunder which are
not currently dischargeable;
(m) Liens consisting of pledges or deposits of
property to secure performance in connection with operating
leases made in the ordinary course of business to which the
Borrower or a Subsidiary is a party as lessee, provided the
aggregate value of all such pledges and deposits in connection
with any such lease does not at any time exceed 25% of the
annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of property to
secure statutory obligations of the Borrower or a Subsidiary
of Borrower in the ordinary course of its business; and
(o) Liens consisting of deposits of property to
secure (or in lieu of) surety, appeal or customs
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35
bonds in proceedings to which Borrower or a Subsidiary of
Borrower is a party in the ordinary course of its business.
"Permitted Right of Others" means a Right of Others consisting
of (a) an interest (other than a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a
ground lease), that does not materially impair the value or use of
property for the purposes for which it is or may reasonably be expected
to be held, (b) an option or right to acquire a Lien that would be a
Permitted Encumbrance or (c) the reversionary interest of a landlord
under a lease of Property.
"Person" means an individual, trustee, corporation, general
partnership, limited partnership, joint stock company, trust, estate,
unincorporated organization, union, tribe, business association or
firm, joint venture, Governmental Agency, or other entity.
"Prior Loan Agreement" has the meaning set forth for
that term in the Recitals hereto.
"Projections" means the financial projections of Borrower
transmitted to the Banks by letter dated February 20, 1996, giving
effect to the Rayco Acquisition and this Agreement.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Pro-Rata Share" means (a) with respect to each Line A Bank,
the percentage set forth opposite the name of that Bank on Schedule 1.1
to the Override Agreement and (b) with respect to each Line B/C Bank,
the percentage set forth on Schedule 1.1 to this Agreement.
"Quarterly Payment Date" means March 31, 1996 and each June
30, September 30, December 31 and March 31, thereafter through and
including the Line A Maturity Date.
"Rayco Acquisition" means the acquisition by Borrower
of all of the partnership interests of Rayco, Ltd. and the
capital stock of certain affiliated corporations pursuant
to the Rayco Acquisition Agreement.
"Rayco Acquisition Agreement" means that certain Purchase
Agreement dated as of January 22, 1996 among Borrower, the owners of
the partnership interests of
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36
Rayco, Ltd., and the owners of the capital stock of the corporations
affiliated with Rayco, Ltd.
"Recapture Gain" means any after tax gain realized by Borrower
or any of its Domestic Subsidiaries upon the sale or other disposition
of Domestic Unimproved Land which is a subject of the Contemplated
Charge; provided that, for the purpose of calculating such gain, any
amount expended by Borrower or its Domestic Subsidiaries to improve
such Domestic Unimproved Land subsequent to the date of the
Contemplated Charge shall be added to the book value of the Domestic
Unimproved Land.
"Reference Rate" means the per annum rate of interest publicly
announced from time to time by Bank of America at San Francisco,
California, as its Reference Rate. The Reference Rate is set by Bank of
America based on various factors, including Bank of America's costs and
desired return, general economic conditions and other factors, and is
used as a reference point for pricing loans. Bank of America may price
loans at, above or below the Reference Rate. Any change in the
Reference Rate shall take effect on the day specified in the public
announcement of such change.
"Regulation D" means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System or any other
regulation in substance substituted therefor.
"Regulatory Development" means (a) any change in the Laws, (b)
change in the application of any existing Laws or the interpretation
thereof by any Governmental Agency or central bank or comparable
authority (whether or not having the force of Law), or (c) compliance
by any Bank with any request or directive (whether or not having the
force of Law) of any Governmental Agency or central bank or comparable
authority.
"Request for Letter of Credit" means a written request for the
issuance of a Letter of Credit signed by a Responsible Official of
Borrower, substantially in the form of Exhibit G.
"Request for Loan" means a request for a Loan signed by a
Responsible Official of Borrower, substantially in the form of Exhibit
H.
"Request for Redesignation of Loans" means a written request
for redesignation of Loans signed by a Responsible Official of
Borrower, substantially in the form of Exhibit I.
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37
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, any Law or any judgment, award,
decree, writ or determination of, or any consent or similar agreement
with, a Governmental Agency, in each case applicable to or binding upon
such Person or any of its Property or to which such Person or any of
its Property is subject.
"Reserve Percentage" means, for each LIBOR Loan, the total of
the maximum reserve percentages for determining the reserves to be
maintained by member banks of the Federal Reserve System for
Eurocurrency Liabilities, as defined in Regulation D. The Reserve
Percentage shall be expressed in decimal form and rounded upward, if
necessary, to the nearest 1/100th of one percent, and shall include
marginal, emergency, supplemental, special and other reserve
percentages. The Reserve Percentage shall be determined solely by the
Administrative Agent, which determination shall be conclusive absent
manifest error.
"Responsible Official" means (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate
general partner of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly acting on behalf
thereof, and (b) when used with reference to a Person who is an
individual, such Person. Any document or certificate hereunder that is
signed or executed by a Responsible Official of a Person shall be
conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of that Person.
"Right of Others" means, with respect to any Property in which
a Person has an interest, (a) any legal or equitable claim or other
interest (other than a Lien) in or with respect to that Property held
by any other Person, and (b) any option or right held by any other
Person to acquire any such claim or other interest (including a Lien).
"Securities" means any capital stock, share, voting trust
certificate, bonds, debentures, notes or other evidences of
indebtedness, limited partnership interests, or any warrant, option or
other right to purchase or acquire any of the foregoing.
"Senior Officer" means the (a) chief executive officer, (b)
chief operating officer, (c) chief financial
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38
officer, or (d) treasurer, in each case whatever the title nomenclature
may be, of the Person designated.
"Shareholders' Equity" means, as of any date of determination,
shareholders' equity as of that date determined in accordance with
Generally Accepted Accounting Principles; provided that there shall be
excluded from Shareholders' Equity any amount attributable to capital
stock that is, directly or indirectly, required to be redeemed or
repurchased by the issuer thereof prior to the date which is one year
after the Maturity Date or upon the occurrence of specified events or
at the election of the holder thereof.
"Significant Subsidiary" means, as of the Amendment Effective
Date, those Subsidiaries of Borrower identified as such in Schedule 4.4
and, as of any other date of determination, any Subsidiary of Borrower
(other than a Joint Venture) with respect to which any of the following
conditions is met:
(a) the aggregate book value of all Investments of
Borrower and its Subsidiaries in such Subsidiary exceeds 5% of
the consolidated total assets (other than assets of Financial
Subsidiaries) of Borrower and its Subsidiaries as of such
date; or
(b) the proportionate share of Borrower and its
Subsidiaries in the total assets of such Subsidiary (after
intercompany eliminations) exceeds 5% of the consolidated
total assets (other than assets of Financial Subsidiaries) of
Borrower and its Subsidiaries as of such date; or
(c) the equity of Borrower and its Subsidiaries in
the net income of such Subsidiary (before income taxes,
extraordinary items and cumulative effect of a change in
accounting principles) as of the end of the most recently
ended fiscal year or years of such Subsidiary exceeds the
greater of (i) an amount equal to 5% of the consolidated net
income of Borrower and its Subsidiaries (computed as
aforesaid) as of the end of the most recent Fiscal Year ended
prior to such date or (ii) $3,000,000.
"Subordinated Obligations" means, collectively, all
obligations of Borrower or any of its Subsidiaries that (a) do not
provide for any payment of principal, any sinking fund payment or any
scheduled redemption prior to the Line A Maturity Date, (b) are
expressly subordinated to the Obligations by a written instrument
containing subordination and related provisions (including interest
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39
payment blockage, standstill and related provisions) not materially
less favorable to the Banks in any respect whatsoever from those
applicable to Borrower's 9-3/8% Senior Subordinated Notes due 2003 (the
"Subordinated Notes") (or such other subordination and related
provisions as may be approved in writing by Both Majority Banks), (c)
are subject to financial covenants not materially more burdensome to
Borrower in any respect than those applicable to the Subordinated
Notes, except such covenants as may be approved in writing by Both
Majority Banks and (d) are subject to other covenants (other than the
covenant to pay interest) and events of default which in the aggregate
are not materially more burdensome to Borrower than those applicable to
the Subordinated Notes, except such covenants or events of default as
may be approved in writing by Both Majority Banks.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership or joint venture
whether now existing or hereafter organized or acquired: (a) in the
case of a corporation or limited liability company, of which securities
having a majority of the ordinary voting power for the election of the
board of directors (other than securities having such power only by
reason of the happening of a contingency) are at the time owned by such
Person and/or one or more Subsidiaries of such Person or (b) in the
case of a partnership, joint venture or other business entity, in which
such Person or a Subsidiary of such Person is a general partner, or (c)
in the case of a partnership, joint venture or other business entity
which would qualify as a Foreign Subsidiary, in which such Person or a
Subsidiary of such Person owns an equity interest of more than 50%,
provided that the Land Fund Joint Venture shall not be a Subsidiary so
long as each of the following conditions remains satisfied: (1) all
real Property purchased by the Land Fund Joint Venture shall be located
within the state of California, (2) the aggregate amount of Borrower's
Investment in the Land Fund Joint Venture shall not exceed the lesser
of $15,000,000 or 10% of the total capitalization of the Land Fund
Joint Venture, (3) the Land Fund Joint Venture shall not create, incur,
assume or suffer to exist any Indebtedness other than Non-Recourse
Indebtedness, (4) the aggregate outstanding principal amount of
Non-Recourse Indebtedness of the Land Fund Joint Venture (other than to
Joint Venturers as defined below) shall not exceed an amount equal to
50% of its total capitalization, and (5) Borrower shall not be liable
in any capacity for any amount in excess of its Investment in the Land
Fund Joint Venture.
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40
"Subsidiary Guaranty" means the guaranty of the Obligations
executed by each Guarantor Subsidiary of Borrower substantially in the
form of Exhibit J, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended
or supplanted.
"Swap Agreement" means one or more written agreements between
Borrower and one or more financial institutions providing for "swap",
"cap", "collar" or other interest rate protection with respect to any
Indebtedness.
"Tangible Net Worth" means, with respect to any Person and as
of any date of determination, the Shareholders' Equity of that Person
on that date minus all Intangible Assets of that Person on that date.
"Termination Event" means (a) a "reportable event" as defined
in Section 4043 of ERISA (other than a "reportable event" that is not
subject to the provision for 30 day notice to the PBGC), (b) the
withdrawal of Borrower or any of its ERISA Affiliates from a Pension
Plan during any plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of
intent to terminate a Pension Plan or the treatment of an amendment to
a Pension Plan as a termination thereof pursuant to Section 4041 of
ERISA, other than pursuant to Section 4041(b) of ERISA, (d) the
institution of proceedings to terminate a Pension Plan by the PBGC or
(e) any other event or condition which might reasonably be expected to
constitute grounds under ERISA for the termination of, or the
apportionment of a trustee to administer, any Pension Plan.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that such
representation, warranty or statement is a representation, warranty or
statement that (a) the Person making it has no actual knowledge of the
inaccuracy of the matters therein stated and (b) assuming the exercise
by the Person making it of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person would have done under similar circumstances), the Person making
it would have no actual knowledge of the inaccuracy of the matters
therein stated. Where the Person making the representation, warranty or
statement is not a natural Person, the aforesaid actual or constructive
knowledge shall be that of any Senior Officer of that Person.
1.2 Use of Defined Terms. Any defined term used in the plural preceded
by the definite article shall be taken to
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41
encompass all members of the relevant class. Any defined term used in the
singular preceded by "any" shall be taken to indicate any number of the members
of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles, consistently applied, except as
otherwise specifically prescribed herein. In the event that Generally Accepted
Accounting Principles change during the term of this Agreement such that the
financial covenants contained in Sections 6.4, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12,
6.13, 6.14, 6.18, 6.19, and 6.20 would then be calculated in a different manner
or with different components or would render the same not meaningful criteria
for evaluating Borrower's financial condition, (a) Borrower and the Banks agree
to amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in
Generally Accepted Accounting Principles and (b) Borrower shall be deemed to be
in compliance with the financial covenants contained in such Sections during the
90 day period following such change in Generally Accepted Accounting Principles
if and to the extent that Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect immediately prior to such
change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Miscellaneous Terms. The term "or" is disjunctive; the term "and"
is conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
1.6 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified, or amended, are incorporated herein by reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
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42
1.7 References to "Borrower and its Subsidiaries". Any reference herein
to "Borrower and its Subsidiaries" or the like shall refer solely to Borrower
during such times, if any, as Borrower shall have no Subsidiaries.
ARTICLE 2
LOANS
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement (including Section 8.2) and the Override Agreement, at any
time and from time to time from the Amendment Effective Date through
the Banking Day immediately preceding the Line A Maturity Date, each
Line A Bank shall, pro rata according to that Bank's Pro Rata Share of
the Line A Commitment then in effect, make Advances to Borrower under
the Line A Commitment in such amounts as Borrower may request; provided
that (i) after giving effect to such Advance, the aggregate outstanding
principal of the Line A Loans evidenced by that Bank's Line A Note plus
that Bank's Pro Rata Share of the Line A Letter of Credit Usage shall
not exceed that Bank's Pro Rata Share of the Line A Commitment and (ii)
no Advance under the Line A Commitment may be made if, giving effect
thereto and the application of proceeds therefrom, there is any Line C
Loan outstanding. Subject to the limitations set forth herein, Borrower
may borrow, repay and reborrow under this Section 2.1(a) without
premium or penalty.
(b) Subject to the terms and conditions set forth in this
Agreement (including Section 8.2), at any time from the Amendment
Effective Date through April 15, 1996, each Line B/C Bank shall, pro
rata according to that Bank's Pro Rata Share of the Line B Commitment
then in effect, make Advances to Borrower under the Line B Commitment
in such amounts as Borrower may request; provided that (i) after giving
effect to such Advance, the aggregate outstanding principal of the Line
B Loans evidenced by that Bank's Line B Note shall not exceed that
Bank's Pro Rata Share of the Line B Commitment and (ii) Borrower may
only request two (2) Line B Loans. Borrower may not repay and reborrow
under this Section 2.1(b).
(c) Subject to the terms and conditions set forth in this
Agreement (including Section 8.2), at any time and from time to time
from the Amendment Effective Date through the Banking Day immediately
preceding the Line C Maturity Date, each Line B/C Bank shall, pro rata
according to that Bank's Pro Rata Share of the Line C
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43
Commitment then in effect, make Advances to Borrower under the Line C
Commitment in such amounts as Borrower may request; provided that (i)
on that date there is no unused availability under the Line A
Commitment and (ii) after giving effect to such Advance, the aggregate
outstanding principal of the Line C Loans evidenced by that Bank's Line
C Note plus that Bank's Pro Rata Share of the Line C Letter of Credit
Usage shall not exceed that Bank's Pro Rata Share of the Line C
Commitment. Subject to the limitations set forth herein, Borrower may
borrow, repay and reborrow under this Section 2.1(c) without premium or
penalty.
(d) Subject to the next sentence and to Section 2.5(d), each
Loan shall be made pursuant to a Request for Loan which shall specify
whether such Loan is to be a Line A Loan, a Line B Loan or a Line C
Loan and the requested (i) date of such Loan, (ii) type of Loan, (iii)
amount of such Loan, and (iv) in the case of a LIBOR Loan, Interest
Period for such Loan. Unless the Administrative Agent, in its sole and
absolute discretion, has notified Borrower to the contrary, each Loan
shall be requested by telephone (promptly confirmed in writing) or
telecopier by a Responsible Official of Borrower, and Borrower shall
confirm such request by promptly mailing a Request for Loan conforming
to the preceding sentence to the Administrative Agent.
(e) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Line A Bank or Line B/C Bank (as
applicable) by telephone, tele-copier or telex of the date and type of
the Loan, the applicable Interest Period in the case of an LIBOR Loan,
and that Bank's Pro Rata Share of the Loan. Not later than 11:00 a.m.,
San Francisco time, on the date specified for any Loan, each Bank shall
make its Pro-Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's
Office. Upon fulfillment of the applicable conditions set forth in
Article 8, all Advances shall be credited in immediately available
funds to the Designated Deposit Account.
(f) The principal amount of each Loan shall be an integral
multiple of $1,000,000 and shall be in an amount not less than (i)
$1,000,000 if such Loan is an Alternate Base Rate Loan, (ii)
$10,000,000 if such Loan is a Line A Loan or a Line B Loan that is a
LIBOR Loan and (iii) $5,000,000 if such Loan is a LIBOR Loan that is a
Line C Loan.
(g) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof. The
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44
obligation of each Bank to make any Advance is several, and not joint
or joint and several, and is not conditioned upon the performance by
any other Bank of its obligation to make Advances. The failure by any
Bank to perform its obligation to make any Advance will not increase
the obligation of any other Bank to make Advances.
(h) Borrower may redesignate an Alternate Base Rate Loan as a
LIBOR Loan, or a LIBOR Loan as an Alternate Base Rate Loan or a LIBOR
Loan with a new Interest Period, by delivering a Request for
Redesignation to the Administrative Agent, within the time periods and
pursuant to the conditions set forth in Section 2.1(d), 2.2 or 2.3, as
applicable, and elsewhere in this Agreement (including Section 8.3). If
no Request for Redesignation (or telephonic or other request referred
to in the second sentence of Section 2.1(d), if applicable) has been
made prior to the last day of the Interest Period for an outstanding
LIBOR Loan within the requisite notice periods set forth in Section
2.3, then Borrower shall be deemed to have requested that such LIBOR
Loan be redesignated as an Alternate Base Rate Loan.
(i) Notwithstanding anything contained in this Section or
Section 2.3, Borrower may not request a LIBOR Loan that is a Line B
Loan or a Line C Loan with an Interest Period in excess of one week or
two weeks prior to the earlier of (A) the date upon which the
Co-Syndication Agents notify the Administrative Agent and Borrower that
the primary syndication of the Line B Commitment and Line C Commitment
has been completed or (B) the sixtieth (60th) day after the Amendment
Effective Date.
2.2 Alternate Base Rate Loans. Each request by Borrower
for an Alternate Base Rate Loan shall be made pursuant to a
Request for Loan (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(d), if
applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m., San
Francisco time, on the Banking Day on which the requested
Alternate Base Rate Loan is to be made. The Administrative
Agent shall notify each Bank of a request for an Alternate Base Rate Loan as
soon as practicable after receipt of the same. All Loans shall constitute
Alternate Base Rate Loans unless properly designated as LIBOR Loans pursuant to
Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower for a LIBOR Loan shall be made
pursuant to a Request for Loan (or telephonic or other request for loan
referred to in the second sentence
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45
of Section 2.1(d), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 9:00 a.m., San
Francisco time, at least three (3) LIBOR Market Days before the first
day of the applicable Interest Period. The Administrative Agent shall
notify each Bank of a request for a LIBOR Loan as soon as practicable
after receipt of the same.
(b) At or about 10:00 a.m., San Francisco time, two (2) LIBOR
Market Days before the first day of the applicable Interest Period, the
Administrative Agent shall determine the applicable LIBOR (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and the Banks by
telephone, telecopier or telex.
(c) No more than ten (10) LIBOR Loans may be
outstanding at any particular time.
(d) Unless the Majority Banks otherwise consent, no
LIBOR Loan may be requested during the continuance of an Event of
Default.
2.4 Notes. The Advances made by each Line A Bank under the Line A
Commitment shall be evidenced by that Bank's Line A Note, the Advances made by
each Line B/C Bank under the Line B Commitment shall be evidenced by that Bank's
Line B Note and the Advances made by each Line B/C Bank under the Line C
Commitment shall be evidenced by that Bank's Line C Note.
2.5 Letters of Credit.
(a) Subject to the terms and conditions of this Agreement
(including Section 8.4) and the Override Agreement, Borrower may
request from time to time during the period from the Amendment
Effective Date through the day prior to the Line A Maturity Date that
an Issuing Bank issue Line A Letters of Credit for the account of
Borrower, and each Issuing Bank agrees to issue for the account of
Borrower one or more Line A Letters of Credit, provided that (i)
Borrower shall not request that an Issuing Bank issue any Line A Letter
of Credit if, after giving effect to such issuance, the aggregate
outstanding principal of the Line A Loans evidenced by the Line A Notes
plus the Line A Letter of Credit Usage exceeds the Line A Commitment,
(ii) Borrower shall not request that an Issuing Bank issue any Line A
Letter of Credit if Borrower would not be in compliance with Sections
6.13 and 6.14, (iii) in no event shall an Issuing Bank issue any Line A
Letter of Credit having an expiration date after the Line A Maturity
Date, (iv) the Borrower shall not request any Line A Financial Letter
of Credit or Line A
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46
Performance Letter of Credit if, after giving effect to such issuance,
the Line A Letter of Credit Usage with respect to Line A Financial
Letters of Credit and Line A Performance Letters of Credit would exceed
$50,000,000 or any limit established by Law after the Amendment
Effective Date on that Issuing Bank's ability to issue the requested
Letter of Credit at any time, and (v) prior to the issuance of any
Letter of Credit the Issuing Bank shall request confirmation by
telephone from the Administrative Agent that such Letter of Credit may
be issued. Notwithstanding the foregoing, the Issuing Bank shall not be
obligated to issue a Letter of Credit if, on or prior to the Banking
Day immediately preceding the issuance thereof any Bank has notified
the Issuing Bank in writing that the conditions set forth in Section
8.4 have not been satisfied with respect to the issuance of such Letter
of Credit.
(b) Subject to the terms and conditions of this Agreement
(including Section 8.4), Borrower may request from time to time during
the period from the Amendment Effective Date through the day prior to
the Line B/C Maturity Date that an Issuing Bank issue Line C Letters of
Credit for the account of Borrower, and each Issuing Bank agrees to
issue for the account of Borrower one or more Line C Letters of Credit,
provided that (i) Borrower shall not request that an Issuing Bank issue
any Line C Letter of Credit if, after giving effect to such issuance,
the aggregate outstanding principal of the Line C Loans evidenced by
the Line C Notes plus the Line C Letter of Credit Usage exceeds the
Line C Commitment, (ii) Borrower shall not request that an Issuing Bank
issue any Line C Letter of Credit if Borrower would not be in
compliance with Sections 6.13 and 6.14, (iii) in no event shall an
Issuing Bank issue any Line C Letter of Credit having an expiration
date after the Line B/C Maturity Date, (iv) the Borrower shall not
request any Line C Financial Letter of Credit or Line C Performance
Letter of Credit if, after giving effect to such issuance, the Line C
Letter of Credit Usage with respect to Line C Financial Letters of
Credit and Performance Letters of Credit would exceed $5,000,000 or any
limit established by Law after the Amendment Effective Date on that
Issuing Bank's ability to issue the requested Line C Letter of Credit
at any time, and (v) prior to the issuance of any Letter of Credit
the Issuing Bank shall request confirmation by telephone from the
Administrative Agent that such Letter of Credit may be issued.
Notwithstanding the foregoing, the Issuing Bank shall not be obligated
to issue a Letter of Credit if, on or prior to the Banking Day
immediately preceding the issuance thereof any Bank has notified the
Issuing Bank in writing that the conditions set forth in Section 8.4
have
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47
not been satisfied with respect to the issuance of such Letter of
Credit.
(c) Whenever Borrower requests that an Issuing Bank issue a
Letter of Credit it shall deliver to such Issuing Bank (with a copy to
the Administrative Agent) (i) an executed application for such Letter
of Credit in the form customarily required by the Issuing Bank and a
Request for Letter of Credit by 10:00 a.m., San Francisco time, at
least three (3) Banking Days prior to the proposed date of issuance,
provided that the Issuing Bank shall use its best efforts to issue the
proposed Letter of Credit within two Banking Days after receipt of such
request, and (ii) the form of the Letter of Credit requested, together
with such other information or materials as the Issuing Bank may
reasonably request with respect to such Letter of Credit. The
Administrative Agent shall promptly thereafter notify each of the Line
A Banks or the Line B/C Banks, as applicable, of the contents of such
Request for Letter of Credit and proposed form of Letter of Credit.
Prior to the issuance of any Letter of Credit, the Issuing Bank shall
confirm by telephone with the Administrative Agent that, giving effect
to the issuance of such Letter of Credit, the limitations set forth in
Section 2.5(a) or 2.5(b), as applicable, have been satisfied.
(d) Each Issuing Bank shall notify the Administrative Agent
and Borrower of each issuance or amendment of any Letter of Credit
issued by it on the Banking Day upon which such issuance or amendment
occurs. Such notice shall indicate whether such Letter of Credit is, in
the reasonable determination of the Issuing Bank (which determination
shall be conclusive absent manifest error), a Financial Letter of
Credit or a Performance Letter of Credit. Upon the issuance of a Line A
Letter of Credit, each Line A Bank (other than the respective Issuing
Bank and any Bank that has notified the Issuing Bank pursuant to the
last sentence of Section 2.5(a) with respect to such Letter of Credit)
shall be deemed to have purchased a pro rata participation from the
Issuing Bank in an amount equal to that Bank's Pro Rata Share, of the
face amount of such Line A Letter of Credit. Upon the issuance of a
Line C Letter of Credit, each Line B/C Bank (other than the respective
Issuing Bank and any Bank that has notified the Issuing Bank pursuant
to the last sentence of Section 2.5(b) with respect to such Letter of
Credit) shall be deemed to have purchased a pro rata participation from
the Issuing Bank in an amount equal to that Bank's Pro Rata Share, of
the face amount of such Line C Letter of Credit. Without limiting the
scope and nature of each such Bank's participation in any Letter of
Credit, to the extent that the Issuing Bank has not been reimbursed for
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48
any payment required to be made by the Issuing Bank under any Letter of
Credit by the Banks through the making of an Alternative Base Rate Loan
in accordance with Section 2.5(e) or by the Borrower in accordance with
Section 2.5(f), each such Bank shall, according to its Pro Rata Share,
immediately reimburse the Issuing Bank upon demand for the amount of
such payment. If any Bank fails to reimburse the Issuing Bank in the
manner required by this Section on the same day upon which the related
payment has been made by the Issuing Bank, that Bank shall also pay
interest to the Issuing Bank on the amount of such reimbursement
obligations at the Federal Funds Rate for the first two days after
payment has been made by the Issuing Bank and at a rate equal to the
sum of the Federal Funds Rate plus 2% from and after the third day
after the date such payment was made (which interest shall not be for
the account of or otherwise reimbursable by Borrower). The obligation
of each such Bank to so reimburse the Issuing Bank shall be absolute
and unconditional and shall not be affected by (i) the occurrence of an
Event of Default or a Default, (ii) any set-off, counterclaim, defense
or other right that such Bank or Borrower may have against the Issuing
Bank, Borrower or any other Person, (iii) any adverse change in the
condition (financial or otherwise) of Borrower or (iv) any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrower to reimburse the Issuing
Bank under any Letter of Credit together with interest as hereinafter
provided.
(e) The Issuing Bank shall provide notice to Borrower and the
Administrative Agent of the amount of each demand for a draw under any
Letter of Credit and, where practicable, such notice may be provided on
the Banking Day immediately preceding the Banking Day of an expected
payment. If all of the limitations and requirements set forth in this
Agreement with respect to the making of an Alternate Base Rate Loan
(except the requirement that a Request for Loan be made as and when
specified herein) have been satisfied then the Line A Banks or the Line
B/C Banks (as applicable) shall be obligated to make an Alternate Base
Rate Loan to Borrower (without notice to or the consent of the
Borrower) under the Line A Commitment or Line C Commitment (as
applicable) in an aggregate amount equal to the amount paid by the
Issuing Bank on the related Letter of Credit. The Administrative Agent
shall thereupon promptly provide notice of such payment under the
Letter of Credit to the Banks, and within one Banking Day after such
notice from the Administrative Agent, each Line A Bank or Line B/C Bank
(as applicable) shall make its Pro Rata Share of the Alternate Base
Rate Loan made by the Issuing Bank (plus
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49
interest at the Federal Funds Rate for the first two days after the
date payment has been made by the Issuing Bank and at a rate equal to
the sum of the Federal Funds Rate plus 2% from and after the third day
after the date such payment has been made by he Issuing Bank, which
interest shall not be for the account of or otherwise reimbursable by
Borrower) available to the Administrative Agent for the account of the
Issuing Bank in immediately available funds, and such funds shall
collectively constitute the aforementioned Alternate Base Rate Loan,
the proceeds of which shall be paid to the Issuing Bank to reimburse it
for the payment made by it under the Letter of Credit.
(f) In the event that not all of the limitations and
requirements set forth in this Agreement with respect to the making of
an Alternative Base Rate Loan (other than the requirement that a
Request for Loan be made as and when specified herein) have been
satisfied, then Borrower agrees to pay to the Issuing Bank an amount
equal to the amount of the applicable demand for a draw under a Letter
of Credit (i) on the same Banking Day any payment is made, if the
Issuing Bank notifies Borrower of such payment prior to 12:00 p.m., San
Francisco time, on the Banking Day immediately preceding the Banking
Day upon which such payment is to be made or (ii) on the Banking Day
immediately following the Banking Day of the payment, if later notice
is given. The principal amount of any such payment made by Borrower to
the Issuing Bank shall be used to reimburse the Issuing Bank for the
payment made by it under the Letter of Credit. In the event that
Borrower does not make such payment when due, Borrower shall also pay
interest to the Administrative Agent for the account of the Line A
Banks or Line B/C Banks (as applicable) on such amount from the date of
any payment to, but not including, the date of payment by Borrower at
the rate provided for in Section 3.7; provided that not less than one
day's interest shall be due. Each Bank that has reimbursed the Issuing
Bank pursuant to this Section 2.5(f) in accordance with its Pro Rata
Share of any payment made by the Issuing Bank under a Letter of Credit
shall thereupon acquire a pro rata participation, to the
extent of such reimbursement, in the claim of the Issuing Bank against
Borrower under this Section 2.5(f).
(g) Borrower agrees to pay to the Administrative Agent (which
shall promptly pay the same to the Banks or the respective Issuing
Bank, as the case may be), (i) for the account of the Line A Banks
(other than a Bank that has notified the Issuing Bank pursuant to the
last sentence of Section 2.5(a) with respect to such Letter of Credit)
with respect to each Line A Letter of Credit (whether a Financial
Letter of Credit or a Performance
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50
Letter of Credit), a per annum letter of credit fee in an amount equal
to the Line A Applicable Letter of Credit Fee times the face amount of
such Line A Letter of Credit (including increases in the undrawn face
amount thereof) for the term of such Line A Letter of Credit, and (ii)
for the account of the applicable Issuing Bank with respect to each
Line A Letter of Credit (whether a Financial Letter of Credit or a
Performance Letter of Credit), an issuance fee in an amount equal to
the greater of $500 or one eighth percent (1/8%) per annum times the
face amount of such Line A Letter of Credit (including increases in the
undrawn face amount thereof) for the term of such Line A Letter of
Credit, together with such Issuing Bank's standard charges and
out-of-pocket costs in connection with such issuance. Borrower agrees
to pay to the Administrative Agent (which shall promptly pay the same
to the Line B/C Banks or the respective Issuing Bank, as the case may
be), (i) for the account of the Line B/C Banks (other than a Bank that
has notified the Issuing Bank pursuant to the last sentence of Section
2.5(b) with respect to such Line C Letter of Credit) with respect to
each Line C Letter of Credit (whether a Financial Letter of Credit or a
Performance Letter of Credit), a per annum letter of credit fee in an
amount equal to the Line C Applicable Letter of Credit Fee times the
face amount of such Line C Letter of Credit (including increases in the
undrawn face amount thereof) for the term of such Line C Letter of
Credit, and (ii) for the account of the applicable Issuing Bank with
respect to each Line C Letter of Credit (whether a Financial Letter of
Credit or a Performance Letter of Credit), an issuance fee in an amount
equal to the greater of $500 or one eighth percent (1/8%) per annum
times the face amount of such Line C Letter of Credit (including
increases in the undrawn face amount thereof) for the term of such Line
C Letter of Credit, together with such Issuing Bank's standard charges
and out-of-pocket costs in connection with such issuance. The letter of
credit fees for each Letter of Credit are payable in advance for each
six month period (or portion thereof) during the term of the applicable
Letter of Credit, on the issuance date and on each six month
anniversary thereof during the term the applicable Letter of Credit is
outstanding. In the event a Letter of Credit is cancelled or terminated
prior to its original expiration date, the fee provided for in clause
(i) of the first and second sentences in this subsection (g) shall be
refundable by the Banks on a pro rata basis over the period such Letter
of Credit will no longer be outstanding, and one-half of the issuance
fee referred to in clause (ii) of the first and second sentences in
this subsection (g) shall be refundable by the Issuing Bank
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over the period such Letter of Credit will no longer be outstanding
(and the balance will be non-refundable).
(h) The obligation of Borrower to reimburse each Issuing Bank
for drawings or payments made under each Letter of Credit shall be
unconditional and irrevocable. Without limiting the foregoing, such
obligation of Borrower shall not be affected by any of the following
circumstances:
(A) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any letter of credit application
or other agreement or instrument relating thereto;
(B) compliance by the Issuing Bank with any amendment
or waiver of or any consent to departure from the Letter of Credit,
this Agreement or any letter of credit application or other agreement
or instrument relating thereto previously approved by Borrower pursuant
to Section 2.5(c);
(C) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against any Bank, any
beneficiary of the Letter of Credit (or any Persons for whom any such
beneficiary may be acting) or any other Person, whether in connection
with the Letter of Credit, this Agreement, or any letter of credit
application or other agreement or instrument relating thereto, or any
unrelated transactions;
(D) any demand, statement, or any other document
presented under a Letter of Credit proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever so long as any such
document appeared to comply with the terms of the Letter of Credit;
(E) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of Credit;
(F) any failure or delay in notice of shipments or
arrival of any property;
(G) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing Bank, or any
delay or interruption in any such message;
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52
(H) any error, neglect or default of any
correspondent of any Bank in connection with a Letter of
Credit;
(I) any consequence arising from acts of God, war,
insurrection, disturbances, labor disputes, emergency conditions or
other causes beyond the control of the Banks;
(J) the form, accuracy, genuineness or legal effect
of any contract or document referred to in any document submitted to
the Issuing Bank in connection with a Letter of Credit so long as the
Issuing Bank in good faith determines that the draft or document
appears to comply with the terms of the Letter of Credit; and
(K) where the Issuing Bank has acted in good faith
and without gross negligence and observed general banking usage, any
other circumstance whatsoever. IN DETERMINING WHETHER TO PAY UNDER ANY
LETTER OF CREDIT, THE ISSUING BANK SHALL BE RESPONSIBLE ONLY TO
DETERMINE THAT THE DOCUMENTS AND CERTIFICATES REQUIRED TO BE DELIVERED
UNDER THAT LETTER OF CREDIT HAVE BEEN DELIVERED AND THAT THEY COMPLY ON
THEIR FACE WITH THE REQUIREMENTS OF THAT LETTER OF CREDIT AND THE
ISSUING BANK SHALL OBTAIN THE CONSENT OF THE BORROWER PRIOR TO MAKING
ANY PAYMENT WITH RESPECT TO ANY DOCUMENT OR CERTIFICATE WHICH DOES NOT
SO COMPLY ON ITS FACE.
(i) Each Issuing Bank shall be entitled to the protections
accorded to the Administrative Agent pursuant to Article 10, mutatis
mutandis.
2.6 Voluntary Reduction of Line A Commitment. Borrower shall have the
right, at any time and from time to time, without penalty or charge, voluntarily
to reduce or terminate all or a portion of any of the unused Line A Commitment,
on the terms and conditions set forth in Section 2.4 of the Override Agreement.
Borrower shall pay to the Administrative Agent on the date of such termination
all commitment fees which have accrued to such date in respect of the terminated
portion of the Line A Commitment.
2.7 Termination of Line B Commitment. Any unused portion of the Line B
Commitment shall automatically terminate at the close of business on April 15,
1996.
2.8 Voluntary Reduction of Line C Commitment. Borrower shall have the
right, at any time and from time to time, without penalty or charge, upon at
least five (5) Banking Days' prior written notice to the Administrative Agent,
voluntarily to reduce, permanently and irrevocably, in aggregate principal
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53
amounts in an integral multiple of $1,000,000 but not less than $5,000,000, or
to terminate, all or a portion of the unused Line C Commitment.
2.9 Administrative Agent's Right to Assume Funds Available. Unless the
Administrative Agent shall have been notified by any Bank at least two hours
prior to the funding by the Administrative Agent of any Loan that such Bank does
not intend to make available to the Administrative Agent such Bank's Pro Rata
Share of such Loan, the Administrative Agent may, in its discretion (but shall
not be so obligated), assume that such Bank has made such amount available to
the Administrative Agent on the date of the Loan and the Administrative Agent
may, in reliance upon such assumption, make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Bank, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Bank, which
demand shall be made in a reasonably prompt manner. If such Bank does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent promptly shall notify Borrower and Borrower
shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Bank interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to Borrower
to the date such corresponding amount is recovered by the Administrative Agent,
at a rate per annum equal to the Federal Funds Rate as notified by the
Administrative Agent to such Bank or the Borrower, as the case may be. Nothing
herein shall be deemed to relieve any Bank from its obligation to fulfill its
Pro Rata Share of the Commitment hereunder or to prejudice any rights which the
Administrative Agent or Borrower may have against any Bank as a result of any
default by such Bank hereunder.
ARTICLE 3
PAYMENTS; FEES
3.1 Principal and Interest
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Loan from the date thereof until payment in
full and shall accrue and be payable at the rates set forth herein, to
the extent permitted by applicable Laws, before and after default,
before and after maturity, before and after any judgment, and before
and after the commencement of any proceeding under any Debtor Relief
Law, with interest on overdue interest to bear interest at the Default
Rate.
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54
(b) Interest accrued on each Alternate Base Rate Loan shall be
due and payable on the last day of each calendar month. Except as
otherwise provided in Section 3.9, the unpaid principal amount of any
Alternate Base Rate Loan that is a Line A Loan shall bear interest at a
fluctuating rate per annum equal to the sum of the Alternate Base Rate
plus the Applicable Line A Alternate Base Rate Spread; and the unpaid
principal amount of any Alternate Base Rate Loan that is a Line B Loan
or a Line C Loan shall bear interest at a fluctuating rate per annum
equal to the sum of the Alternate Base Rate plus the Applicable Line
B/C Alternate Base Rate Spread. Each change in the interest rate
hereunder shall take effect simultaneously with the corresponding
change in the Alternate Base Rate. Each change in the Alternate Base
Rate shall be effective as of the Banking Day on which the change in
the Alternate Base Rate is announced, unless otherwise specified in
such announcement, in which case the change shall be effective as so
specified.
(c) Interest accrued on each LIBOR Loan which has an Interest
Period of three months or less shall be due and payable on the last day
of the related Interest Period. Interest accrued on each other LIBOR
Loan shall be due and payable on the date which is three months after
the date such LIBOR Loan was made, every three months thereafter and on
last day of the related Interest Period. Except as otherwise provided
in Section 3.9, the unpaid principal amount of any LIBOR Loan that is a
Line A Loan shall bear interest at a rate per annum equal to the sum of
LIBOR for that LIBOR Loan plus the Applicable Line A LIBOR Spread; and
the unpaid principal amount of any LIBOR Loan that is a Line B Loan or
a Line C Loan shall bear interest at a rate per annum equal to the sum
of LIBOR for that LIBOR Loan plus the Applicable Line B/C LIBOR Rate
Spread.
(d) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal Indebtedness evidenced by the Line
A Notes shall be immediately payable in Cash, to the extent
that such Indebtedness exceeds at any time the Line A
Commitment as then in effect;
(ii) the principal Indebtedness evidenced by the Line
B Notes shall be immediately payable in Cash, to the extent
that such Indebtedness exceeds at any time the Line B
Commitment as then in effect;
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55
(iii) the principal Indebtedness evidenced by the
Line C Notes shall be immediately payable in Cash, to the
extent that such Indebtedness exceeds at any time the Line C
Commitment as then in effect;
(iv) the principal Indebtedness evidenced by the Line
B Notes shall be payable on each Amortization Date by the
related Amortization Amount;
(v) the principal Indebtedness evidenced by the Line
A Notes shall in any event be immediately payable in Cash on
the Line A Maturity Date; and
(vi) the principal Indebtedness evidenced by the Line
B Notes and the Line C Notes shall in any event be immediately
payable in Cash on the Line B/C Maturity Date.
(e) Borrower may elect to extend the Line B/C Maturity Date
(i) to May 31, 1997 by delivering written notice thereof to the
Administrative Agent; provided that (A) such written notice shall have
been so delivered not later than February 15, 1997, (B) the Domestic
Leverage Ratio as of November 30, 1996 shall not have been greater than
2.10 to 1.00, (C) the Domestic Interest Coverage Ratio as of November
30, 1996 shall not have been less than 2.00 to 1.00, (D) the
outstanding principal balance of the Line B Loans as of February 28,
1997 shall not be greater than $33,000,000 (after giving effect to any
prepayment on that date) and (E) as of February 28, 1997, no Default or
Event of Default shall exist and (ii) to August 31, 1997 by delivering
written notice thereof to the Administrative Agent; provided that (A)
such written notice shall have been so delivered not later than May 15,
1997, (B) the Domestic Leverage Ratio as of February 28, 1997 shall not
have been greater than 2.40 to 1.00, (C) the Domestic Interest Coverage
Ratio as of February 28, 1997 shall not have been less than 2.25 to
1.00, (D) the outstanding principal balance of the Line B
Loans as of May 31, 1997 shall not be greater than $22,000,000 (after
giving effect to any prepayment on that date) and (E) as of May 31,
1997, no Default or Event of Default shall exist.
(f) The Line B Notes shall be prepaid within five (5) Banking
Days after the consummation of any Asset Sale in an amount equal to the
Net Cash Proceeds of such Asset Sale; provided that (i) to the extent
necessary to avoid the application of Section 3.8(d), such prepayment
may be delayed to the end of the Interest Period next ending but not in
any event for a period longer than thirty (30) days
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and (ii) if such prepayment would, when combined with all other
prepayments then deferred under this clause (ii), be less than
$1,000,000, such prepayment may be deferred until the next Quarterly
Payment Date, at which date all prepayments then deferred under this
clause (ii) shall be due and payable. Such prepayments shall be applied
to Amortization Amounts in the direct order of their maturity (provided
that if the Amortization Amount due on the next Amortization Date is
paid in full by such a mandatory prepayment, then an amount equal to
any excess Net Cash Proceeds may at the option of Borrower instead be
applied to permanently reduce the Line C Commitment in lieu of
application to further Amortization Amounts).
(g) The Line B Notes shall be prepaid within five (5) Banking
Days after the issuance by Borrower Subsidiaries of any equity security
or any debt security the proceeds of which may be used for general
corporate purposes, in an amount equal to the net Cash proceeds of such
issuance (net of transactional costs payable by Borrower); provided
that to the extent necessary to avoid the application of Section
3.8(d), such prepayment may be delayed to the end of the Interest
Period next ending but not in any event for a period longer than thirty
(30) days. Such prepayments shall be applied to Amortization Amounts in
the reverse order of their maturity.
(h) The Line B Notes shall be prepaid within five (5) Banking
Days after Borrower receives any payment from the sellers under the
Rayco Acquisition Agreement in respect of (i) a downward adjustment of
the purchase price thereunder or (ii) a breach of any representation or
warranty by the sellers in the Rayco Acquisition Agreement; provided
that such payment is not in compensation for an unanticipated liability
of Rayco, Ltd. or any of the corporations affiliated with Rayco, Ltd.
whose capital stock is purchased by Borrower pursuant to the Rayco
Acquisition Agreement. Such prepayments shall be applied to
Amortization Amounts in the reverse order of their maturity.
(i) The Notes may, at any time and from time to time,
voluntarily be prepaid at the election of Borrower in whole or in part
without premium or penalty; provided that: (i) any partial prepayment
shall be in integral multiples of $1,000,000, (ii) any partial
prepayment shall be in an amount not less than $1,000,000 on a
Alternate Base Rate Loan, and not less than $5,000,000 on a LIBOR Loan,
(iii) the Administrative Agent must have received written notice (or
telecopied notice confirmed promptly in writing) of any prepayment at
least three Banking Days before the date of prepayment in the case of a
LIBOR Loan
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and by 10:00 a.m., San Francisco time, on the date of prepayment in the
case of an Alternate Base Rate Loan, (iv) each prepayment of principal,
except for partial prepayments on Alternate Base Rate Loans, shall be
accompanied by prepayment of interest accrued to the date of payment on
the amount of principal paid, (v) in the case of any prepayment of any
LIBOR Loan, Borrower shall promptly upon demand reimburse each Bank for
any loss or cost directly or indirectly resulting from the prepayment,
determined as set forth in Section 3.6 and (vi) no prepayment may be
made on the Line A Notes if there is then any principal amount
outstanding under the Line C Notes.
(j) (i) If a Change in Control (as defined below) shall have
occurred, at the option of the Line A Majority Banks, Borrower shall
repay in Cash the entire principal Indebtedness evidenced by the Line A
Notes, together with Interest thereon and all other amounts due in
connection with the Line A Notes and this Agreement, and deliver to the
Administrative Agent an amount equal to the Line A Letter of Credit
Usage then outstanding, to be held as cash collateral as provided in
Section 9.2(c) (the "Change in Control Line A Repayment"), on the date
that is 27 Banking Days after the occurrence of the Change of Control
(the "Change of Control Line A Payment Date"), subject to receipt by
Borrower of Change in Control Line A Payment Notice as set forth in
Section 3.1(j)(iii). On the Change in Control Line A Payment Date, the
Line A Commitment shall automatically terminate. If a Change in Control
shall have occurred, at the option of the Line B/C Majority Banks,
Borrower shall repay in Cash the entire principal Indebtedness
evidenced by the Line B Notes and the Line C Notes, together with
Interest thereon and all other amounts due in connection with the Line
B Notes and the Line C Notes and this Agreement, and deliver to the
Administrative Agent an amount equal to the Line C Letter of Credit
Usage then outstanding, to be held as cash collateral as provided in
Section 9.2(c) (the "Change in Control Line B/C Repayment"), on the
date that is 27 Banking Days after the occurrence of the Change of
Control (the "Change of Control Line B/C Payment Date"), subject to
receipt by Borrower of Change in Control Line B/C Payment Notice as set
forth in Section 3.1(j)(iii). On the Change in Control Line B/C Payment
Date, the Line B Commitment and the Line C Commitment shall
automatically terminate.
A "Change in Control" shall be deemed to have occurred at such
time as any of the following events shall occur:
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(A) There shall be consummated any consolidation or
merger of Borrower in which Borrower is not the continuing or
surviving corporation or pursuant to which the Voting Stock
(as defined below) would be converted into Cash, securities or
other property, other than a merger of Borrower in which the
holders of Voting Stock immediately prior to the merger have
the same or greater proportionate ownership, directly or
indirectly, of the Voting Stock of the surviving corporation
immediately after such merger as they had of the Voting Stock
immediately prior to such merger; or
(B) There is a report filed by any person, including
its Affiliates and Associates, on Schedule 13D or 14D-1 (or
any successor schedule, form or report) pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"),
disclosing that such person (for the purposes of this Section
3.1(j) only, the term "person" is used as defined in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act or any
successor provision to either of the foregoing) has become the
beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of the
voting power of Borrower's Voting Stock then outstanding;
provided, however, that a person shall not be deemed
beneficial owner of, or to own beneficially (1) any Securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates or
Associates (as defined below) until such tendered Securities
are accepted for purchase or exchange thereunder, or (2) any
Securities if such beneficial ownership (a) arises solely as a
result of a revocable proxy delivered in response to a proxy
or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations under the Exchange
Act, and (b) is not also then reportable on Schedule 13D (or
any successor schedule) under the Exchange Act; or
(C) A "Change in Control" (or analogous term) as
defined in an indenture or agreement governing any
Subordinated Obligation occurs.
Notwithstanding the foregoing provisions of this
Section 3.1(j), a Change in Control shall not be deemed to
have occurred if at any time Borrower, any Subsidiary of
Borrower, any employee stock ownership plan or any other
employee benefit plan, including any Pension Plan of Borrower
or any Subsidiary of
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Borrower, or any person holding Voting Stock for or pursuant
to the terms of such employee benefit plan, files or becomes
obligated to file a report under or in response to Schedule
13D or Schedule 14D-1 (or any successor schedule, form or
report) under the Exchange Act disclosing beneficial ownership
by it of shares of Voting Stock, whether in excess of 50% or
otherwise.
"Voting Stock" means, with respect to any Person, the
capital stock of such Person having general voting power under
ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person
(irrespective of whether or not at the time capital stock of
any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Associate" shall have the meaning ascribed to such
term in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on the date hereof.
(ii) Within 15 Banking Days after the occurrence of a
Change in Control, Borrower shall provide written notice of the Change
in Control to the Administrative Agent and each Bank. The notice shall
state:
(a) the events causing a Change in Control and
the date of such Change in Control;
(b) the date by which the Change in Control
Payment Notice (as defined in Section 3.1(j)(iii))
must be given; and
(c) the Change in Control Payment Date.
(iii) At the direction of the Line A Majority Banks, the
Administrative Agent shall, on behalf of the Line A Banks, exercise the
rights specified in Section 3.1(j)(i) by delivery of a written notice
(a "Change in Control Line A Payment Notice") to Borrower at any time
prior to or on the Change in Control Payment Date, stating that the
Line A Notes shall be prepaid and cash collateral shall be provided for
the Line A Letter of Credit Usage on the Change in Control Line A
Payment Date. On the Change in Control Line A Payment Date, Borrower
shall make the Change in Control Line A Repayment to the Administrative
Agent for the benefit of the Line A Banks, and the Line A Commitment
shall terminate.
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At the direction of the Line B/C Majority Banks, the
Administrative Agent shall, on behalf of the Line B/C Banks, exercise
the rights specified in Section 3.1(j)(i) by delivery of a written
notice (a "Change in Control Line B/C Payment Notice") to Borrower at
any time prior to or on the Change in Control Line B/C Payment Date,
stating that the Line B Notes and the Line C Notes shall be prepaid and
cash collateral shall be provided for the Line C Letter of Credit Usage
on the Change in Control Payment Date. On the Change in Control Line
B/C Payment Date, Borrower shall make the Change in Control Line B/C
Repayment to the Administrative Agent for the benefit of the Line B/C
Banks, and the Line B Commitment and the Line C Commitment shall
terminate.
3.2 Commitment Fees. From the Amendment Effective Date to the Line A
Maturity Date, Borrower shall pay to the Administrative Agent, for the account
of each Line A Bank pro rata according to that Bank's Pro Rata Share of the Line
A Commitment, a commitment fee equal to the Applicable Line A Commitment Fee
Rate per annum in effect from time to time times the average daily amount by
which the Line A Commitment exceeds the aggregate outstanding principal of the
Line A Loans evidenced by the Notes plus the Line A Letter of Credit Usage. This
commitment fee shall accrue daily and be payable in arrears with respect to each
calendar quarter on the Quarterly Payment Date falling at the end of such
calendar quarter. The Administrative Agent shall calculate the commitment fee
and the amount thereof allocable to each Line A Bank according to that Bank's
Pro Rata Share of the Line A Commitment and shall notify Borrower in writing of
such amounts.
From the Amendment Effective Date to the Line B/C Maturity Date, Borrower shall
pay to the Administrative Agent, for the account of each Line B/C Bank pro rata
according to that Bank's Pro Rata Share of the Line C Commitment, a commitment
fee equal to .50% (50 basis points) per annum times the average daily amount by
which the Line C Commitment exceeds the aggregate outstanding principal of the
Line C Loans evidenced by the Line C Notes plus the Line C Letter of Credit
Usage. This commitment fee shall accrue daily and be payable in arrears with
respect to each calendar quarter on the Quarterly Payment Date falling at the
end of such calendar quarter. The Administrative Agent shall calculate the
commitment fee and the amount thereof allocable to each Bank according to that
Bank's Pro Rata Share of the Line C Commitment and shall notify Borrower in
writing of such amounts.
3.3 Amendment Fee. On the Amendment Effective Date, Borrower shall pay
to the Administrative Agent, for the account of each Line A Bank pro rata
according to that Bank's Pro Rata
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Share of the Line A Commitment, an amendment fee equal to .125% (12.5 basis
points) times the Line A Commitment.
3.4 Underwriting Fee. On the Amendment Effective Date, Borrower shall
pay to the Administrative Agent, for the account of the Managing Agents, an
underwriting fee as set forth in a letter agreement between Borrower and the
Managing Agents.
3.5 Syndication Fee. On the Amendment Effective Date, Borrower shall
pay to the Administrative Agent, for the account of the Co-Syndication Agents, a
syndication fee as set forth in a letter agreement between Borrower and the
Co-Syndication Agents.
3.6 Agency Fees. Borrower shall pay to the Administrative Agent and the
Override Agents, respectively, for the account solely of each respective Agent,
such agency fees as are referred to in the Override Agreement.
3.7 Capital Adequacy.
(a) If any Bank (an "Affected Bank") determines that
compliance with any Law or regulation or with any guideline or request
from any central bank or other Governmental Agency (whether or not
having the force of Law) enacted or issued after the Amendment
Effective Date relating to the capital adequacy of banks or
corporations in control of banks has or would have the effect of
reducing the rate of return on the capital of such Affected Bank or any
corporation controlling such Affected Bank as a consequence of, or with
reference to, such Affected Bank's Pro Rata Share of the Commitment
below the rate which the Bank or such other corporation could have
achieved but for such compliance (taking into account the policies of
such Bank or corporation with regard to capital adequacy), then
Borrower shall from time to time, upon demand by such Affected Bank in
accordance with this Section 3.7 (with a copy of such demand to the
Administrative Agent), within 15 days after demand pay to such Affected
Bank additional amounts sufficient to compensate such Affected Bank or
other corporation for such reduction.
(b) An Affected Bank may not seek compensation under Section
3.7(a) unless the demand for such compensation is delivered to Borrower
within six months following the date of enactment or issuance of the
Law, regulation, guideline or request giving rise to such demand for
compensation.
(c) A certificate as to any amounts for which an Affected Bank
is seeking compensation under Section 3.7(a), submitted to Borrower and
the Administrative
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Agent by such Affected Bank, shall be conclusive and binding for all
purposes, absent manifest error. Each Affected Bank shall calculate
such amounts in a manner which is consistent with the manner in which
it makes calculations for comparable claims with respect to similarly
situated borrowers from such Affected Bank, will not allocate to
Borrower a proportionately greater amount of such compensation than it
allocates to each of its other commitments to lend or other loans with
respect to which it is entitled to demand comparable compensation, and
will not include amounts already factored into the rates of interest or
fees already provided for herein. Each Bank agrees promptly to notify
Borrower and the Administrative Agent of any circumstances that would
cause Borrower to pay additional amounts pursuant to this Section,
provided that the failure to give such notice shall not affect
Borrower's obligation to pay such additional amounts hereunder.
(d) Without limiting its obligation to reimburse an Affected
Bank for compensation theretofore claimed by an Affected Bank pursuant
to Section 3.7(a), Borrower may, within 60 days following any demand by
an Affected Bank, request that one or more Persons that constitute
"Eligible Assignees" under the Override Agreement and that are
acceptable to Borrower and approved by the Managing Agents (which
approval shall not be unreasonably withheld) purchase all (but not
part) of the Affected Bank's then outstanding Advances, its Notes and
its participation interest in outstanding Letters of Credit, and assume
its Pro Rata Share of the Commitments and its obligations hereunder.
Borrower shall have the same right as to any Bank which has claimed
compensation for a capital adequacy charge pursuant to Section 4.4 of
the Mortgage Warehousing Agreement, and such a Bank shall be an
"Affected Bank" for purposes of this Section 3.7(d). If one or more
such Banks or banks so agree in writing (each, an "Assuming Bank" and
collectively, the "Assuming Banks"), the Affected Bank shall assign its
Pro Rata Share of the Commitments, together with the Indebtedness then
evidenced by its Notes and its participation interest in outstanding
Letters of Credit, to the Assuming Bank or Assuming Banks in accordance
with Section 5.1 of the Override Agreement. On the date of any such
assignment, the Affected Bank which is being so replaced shall cease to
be a "Bank" for all purposes of this Agreement and shall receive (x)
from the Assuming Bank or Assuming Banks the principal amount of its
Advances then outstanding and (y) from Borrower all interest and fees
accrued and then unpaid with respect to such Advances, together with
any other amounts then payable to such Bank by Borrower. In the event
the Affected Bank is also an Issuing Bank, then the Assuming Bank shall
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also become an Issuing Bank for all purposes of this Agreement and
shall either (at the Affected Bank's election, subject to the approval
of Borrower, the Administrative Agent and the Assuming Bank (which
approvals shall not be unreasonably withheld) and the approval of the
applicable Letter of Credit beneficiary) (i) issue new Letters to
Credit to replace the outstanding Letters of Credit issued by the
Affected Bank, or (ii) issue new Letters of Credit in support of the
outstanding Letters of Credit issued by the Affected Bank, whereupon
such outstanding letters shall no longer be considered "Letters of
Credit" under this Agreement, and such new Letters of Credit shall be
considered Letters of Credit for all purposes of this Agreement
(including the participation therein by the other Banks pursuant to
Section 2.5). The Affected Bank shall be obligated to reimburse to
Borrower a portion of the issuance fees referred to in clause (ii) of
the first and second sentences of Section 2.5(g) based on the period
during which each new Letter of Credit issued by the Assuming Bank will
be outstanding in replacement or support of a Letter of Credit issued
by the Affected Bank. Notwithstanding the foregoing, Borrower may not
cause the replacement of an Affected Bank under this Section 3.7 unless
the Affected Bank is also concurrently replaced as a Bank under Section
14.4 of the Mortgage Warehousing Agreement.
3.8 LIBOR Fees and Costs.
(a) If the occurrence of any Regulatory
Development after the Amendment Effective Date:
(1) shall subject any Bank or its LIBOR
Lending Office to any tax, duty or other charge or cost with
respect to any LIBOR Advance or its obligation to make LIBOR
Advances, or shall change the basis of taxation of payments to
any Bank of the principal of or interest on any LIBOR Advance
or any other amounts due under this Agreement in respect of
any LIBOR Advance or its obligation to make LIBOR Advances
(except for changes in any tax on the overall net income,
gross income or gross receipts of such Bank or its LIBOR
Lending Office);
(2) shall impose, modify or deem applicable
any reserve (including, without limitation, any reserve
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirements (excluding
any such requirement included in any applicable Reserve
Percentage) against assets
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of, deposits with or for the account of, or credit extended
by, any Bank or its LIBOR Lending Office; or
(3) shall impose on any Bank or its LIBOR
Lending Office or the LIBOR Market any other condition
affecting any LIBOR Advance or its obligation to make LIBOR
Advances, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined by such Bank,
increases the cost to such Bank or its LIBOR Lending Office of making
or maintaining any LIBOR Advance or in respect of any LIBOR Advance or
its obligation to make LIBOR Advances or reduces the amount of any sum
received or receivable by such Bank or its LIBOR Lending Office with
respect to any LIBOR Advance or its obligation to make LIBOR Advances
(assuming such Bank's LIBOR Lending Office had funded 100% of its LIBOR
Advance in the LIBOR Market), then, within 15 days after demand by such
Bank (with a copy to the Administrative Agent), Borrower shall pay to
such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction (determined as though such
Bank's LIBOR Lending Office had funded 100% of its LIBOR Advance in the
LIBOR Market); provided that Borrower shall not be liable to any Bank
for any such increased cost or reduction pursuant to this Section in
respect of any period which is more than six months prior to such
Bank's demand for such compensation. A statement of any Bank claiming
compensation under this subsection and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. Each Bank agrees to endeavor promptly to
notify Borrower of any event of which it has actual knowledge which
will entitle such Bank to compensation pursuant to this Section, and
agrees to designate a different LIBOR Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the judgment of such Bank, otherwise be
disadvantageous to such Bank. If any Bank claims compensation under
this Section, Borrower may at any time, upon at least four (4) LIBOR
Market Days' prior notice to the Administrative Agent and such Bank and
upon payment in full of the amounts provided for in this Section
through the date of such payment plus any prepayment fee required by
Section 3.8(d), pay in full the affected LIBOR Advances of such Bank or
request that such LIBOR Advances be converted to Alternate Base Rate
Advances.
(b) If after the Amendment Effective Date the
occurrence of any Regulatory Development shall, in the opinion of any
Bank, make it unlawful or impossible for
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such Bank or its LIBOR Lending Office to make, maintain or fund its
portion of any LIBOR Loan, or to take deposits of, dollars in the LIBOR
Market, or to determine or charge interest rates based upon the LIBOR,
and such Bank shall so notify the Administrative Agent, then such
Bank's obligation to make LIBOR Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative
Agent forthwith shall give notice thereof to the other Banks and
Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section, such Bank shall designate a different Lending Office
if such designation will avoid the need for giving such notice and will
not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. Upon receipt of such notice, the outstanding principal amount of
such Bank's LIBOR Advances, together with accrued interest thereon,
automatically shall be converted to Alternate Base Rate Advances with
Interest Periods corresponding to the LIBOR Loans of which such LIBOR
Advances were a part on either (1) the last day of the Interest
Period(s) applicable to such LIBOR Advances if such Bank may lawfully
continue to maintain and fund such LIBOR Advances to such day(s) or (2)
immediately if such Bank may not lawfully continue to fund and maintain
such LIBOR Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a prepayment fee under
Section 3.8(d). In the event that any Bank is unable, for the reasons
set forth above, to make, maintain or fund its portion of any LIBOR
Loan, such Bank shall fund such amount as an Alternate Base Rate
Advance for the same period of time, and such amount shall be treated
in all respects as an Alternate Base Rate Advance.
(c) If, with respect to any proposed LIBOR Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting the
LIBOR Market generally that are beyond the reasonable control
of the Banks, deposits in dollars (in the applicable amounts)
are not being offered to each of the Banks in the LIBOR Market
for the applicable Interest Period; or
(2) the Majority Banks advise the
Administrative Agent that the LIBOR as determined by the
Administrative Agent will not adequately and fairly reflect
the cost to such Banks of making the applicable LIBOR
Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Banks, whereupon until the
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Administrative Agent notifies Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of the Banks to
make any future LIBOR Advances shall be suspended. If at the time of
such notice there is then pending a Request for Loan that specifies a
LIBOR Loan, such Request for Loan shall be deemed to specify an
Alternate Base Rate Loan.
(d) Upon payment or prepayment of any LIBOR Advance
(other than as the result of a conversion required under Section
3.8(b)) on a day other than the last day in the applicable Interest
Period (whether voluntarily, involuntarily, by reason of acceleration,
or otherwise), or upon the failure of Borrower to borrow on the date or
in the amount specified for a LIBOR Loan in any Request for Loan,
Borrower shall pay to each Bank an amount equal to the sum of
(1) $250; plus
(2) the amount, if any, by which (x) the additional interest
that would have accrued (without any Applicable LIBOR Spread) on the
principal amount prepaid on account of the LIBOR Advance had it
remained outstanding until the last day of the applicable Interest
Period, exceeds (y) the interest that Bank could recover by placing
funds in the amount of the prepayment on deposit in the LIBOR Market
selected by that Bank for a period beginning on the date of the
prepayment and ending on the last day of the applicable Interest
Period, or for a comparable period for which an appropriate rate quote
may be obtained; plus
(3) an amount equal to all costs and expenses which that Bank
incurred or reasonably expects to incur in liquidating and reinvesting
the prepayment.
Each Bank's determination of the amount of any prepayment fee or
failure to borrow fee payable under this Section 3.8(d) shall be
conclusive in the absence of manifest error.
(e) Any statement or certificate given by a Bank
under this Section 3.6 shall satisfy the requirements set forth in
Section 3.5(c) with respect to requests for reimbursement under Section
3.5(a)
3.9 Late Payments/Default Interest. If any installment of principal or
interest under the Line A Notes or any other amount payable to the Line A Banks
under any Loan Document is not paid when due, it shall thereafter bear interest
at a fluctuating interest rate per annum at all times equal to the sum of the
Alternate Base Rate plus the Applicable Line A
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Alternate Base Rate Spread plus 2%, to the extent permitted by applicable Law,
until paid in full (whether before or after judgment). If any installment of
principal or interest under the Line B Notes or Line C Notes or any other amount
payable to the Line B/C Banks under any Loan Document is not paid when due, it
shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the sum of the Alternate Base Rate plus the Applicable Line B/C
Alternate Base Rate Spread plus 2%, to the extent permitted by applicable Law,
until paid in full (whether before or after judgment). Upon and during the
continuance of any Event of Default, the Indebtedness evidenced by the Line A
Notes shall, at the election of the Line A Majority Banks and upon notice to
Borrower (and in lieu of interest provided for in the preceding sentences), bear
interest at a fluctuating interest rate per annum at all times equal to the sum
of the Alternate Base Rate plus the Applicable Line A Alternate Base Rate Spread
plus 2%, to the extent permitted by applicable Law, until no Event of Default
exists (whether before or after judgment). Upon and during the continuance of
any Event of Default, the Indebtedness evidenced by the Line B Notes and the
Line C Notes shall, at the election of the Line B/C Majority Banks and upon
notice to Borrower (and in lieu of interest provided for in the preceding
sentences), bear interest at a fluctuating interest rate per annum at all times
equal to the sum of the Alternate Base Rate plus the Applicable Line B/C
Alternate Base Rate Spread plus 2%, to the extent permitted by applicable Law,
until no Event of Default exists (whether before or after judgment).
Notwithstanding the preceding two sentences, after the occurrence of any Event
of Default under Section 6.7, 6.13 or 6.20, the Indebtedness evidenced by the
Notes may not bear interest at the increased rate provided for in the preceding
sentence until such Event of Default has continued for at least 15 days, in the
case of Section 6.7, or 30 days, in the case of Section 6.13 or 6.20.
3.10 Computation of Interest and Fees. All computations of interest and
fees hereunder shall be calculated on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day and excluding the
last day), which results in greater interest than if a year of 365 days
were used. Any Loan that is repaid on the same day on which it
is made shall bear interest for one day.
3.11 Holidays. If any principal payment to be made by Borrower on an
Alternate Base Rate Loan shall come due on a day other than a Banking Day,
payment shall be made on the next succeeding Banking Day and the extension of
time shall be reflected in computing interest. If any principal payment to be
made by Borrower on a LIBOR Loan shall come due on a day other than a LIBOR
Market Day, payment shall be made on the next preceding or succeeding LIBOR
Market Day as determined by
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the Administrative Agent in accordance with the then
current banking practice in the LIBOR Market and the adjustment shall be
reflected in computing interest.
3.12 Payment Free of Taxes.
(a) Any payments made by any Party under the Loan Documents
shall be made free and clear of, and without reduction by reason of,
any tax, assessment or other charge imposed by any Governmental Agency,
central bank or comparable authority (other than taxes on income or
gross receipts generally applicable to banks). To the extent that
Borrower is obligated by applicable Laws to make any deduction or
withholding on account of taxes, assessments or other charges imposed
by any Governmental Agency from any amount payable to any Bank under
this Agreement, Borrower shall (a) make such deduction or withholding
and pay the same to the relevant Governmental Agency and (b) pay such
additional amount to that Bank as is necessary to result in that Bank's
receiving a net after-tax (or after-assessment or after-charge) amount
equal to the amount to which that Bank would have been entitled under
this Agreement absent such deduction or withholding. If and when
receipt of such payment results in an excess payment or credit to that
Bank on account of such taxes, assessments or other charges, that Bank
shall refund such excess to Borrower. Each Bank that is incorporated
under the Laws of a jurisdiction other than the United States of
America or any state thereof shall deliver to Borrower, with a copy to
the Administrative Agent, within twenty days after the Amendment
Effective Date (or such later date on which such Bank becomes a "Bank"
hereunder), a certificate signed by a Responsible Official of that Bank
to the effect that such Bank is entitled to receive payments of
interest and other amounts payable under this Agreement without
deduction or withholding on account of United States of America federal
income taxes, which certificate shall be accompanied by two copies of
Internal Revenue Service Form 1001 or Form 4224, as applicable, also
executed by a Responsible Official of that Bank. Each such Bank agrees
(i) promptly to notify the Administrative Agent and Borrower if any
fact set forth in such certificate ceases to be true and correct and
(ii) to take such steps as may be reasonably necessary to avoid any
requirement of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts payable to that Bank under this
Agreement.
(b) Without limiting its obligation to pay any additional
amount to a Bank pursuant to Section 3.12(a), Borrower, may within 60
days following any such payment by that Bank, treat that Bank as an
"Affected Bank" under
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Section 3.7(d), and exercise the remedies set forth in such Section
3.7(d).
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for its share of any Loan in any
particular place or manner or to constitute a representation by any Bank that it
has obtained or will obtain the funds for its share of any Loan in any
particular place or manner.
3.14 Failure to Charge or Making of Payment Not Subsequent Waiver. Any
decision by any Bank not to require payment of any fee or costs, or to reduce
the amount of the payment required for any fee or costs, or to calculate any fee
or any cost in any particular manner, shall not limit or be deemed a waiver of
any Bank's right to require full payment of any fee or costs, or to calculate
any fee or any costs in any other manner. Any decision by Borrower to pay any
fee or costs shall not limit or be deemed a waiver of any right of Borrower to
protest or dispute the payment amount of such fee or costs.
3.15 Pro Rata Treatment. Except as otherwise provided herein, each
payment on account of the Obligations shall be made pro rata according to each
Bank's Pro Rata Share of the Line A Commitment or of the Line B Commitment and
Line C Commitment, as applicable.
3.16 Time and Place of Payments; Evidence of Payments. The amount of
each payment hereunder, under the Notes or under any Loan Document shall be made
to the Administrative Agent at the Administrative Agent's Office, for the
account of each of the Banks or the Administrative Agent, as the case may be, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The amount of all payments received by the Administrative
Agent for the account of a Bank shall be promptly paid by the Administrative
Agent to that Bank in immediately available funds. Each Bank shall keep a record
of Advances made by it and payments of principal with respect to each Note, and
such record shall be presumptive evidence of the principal amount owing under
such Note; provided that failure to keep such record shall in no way affect the
Obligations of Borrower hereunder.
3.17 Administrative Agent's Right to Assume Payments Will be Made.
Unless the Administrative Agent shall have been notified by Borrower prior to
the date on which any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment, the Administrative Agent may, in
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its discretion (but shall not be so obligated), assume that Borrower has
remitted such payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available to each Bank on
such payment date an amount equal to such Bank's Pro Rata Share of such assumed
payment. If Borrower has not in fact remitted such payment to the Administrative
Agent, each Bank shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Bank, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Bank to but excluding the
date such amount is repaid to the Administrative Agent at a rate per annum equal
to the actual cost to the Administrative Agent of funding such amount as
notified by the Administrative Agent to such Bank. In furtherance of the
foregoing, Borrower hereby authorizes the Administrative Agent, through Bank of
America, to automatically debit the Designated Deposit Account (or, upon notice
to Borrower, any other deposit account maintained by Borrower with Bank of
America) for payments as and when due hereunder.
3.18 Survivability. All of Borrower's obligations under this Article 3
shall survive for six months following the date on which all Loans hereunder
were fully paid.
3.19 Bank Calculation Certificate. Any request for compensation
pursuant to Section 3.7 or 3.8 shall be accompanied by a statement of an officer
of the Bank requesting such compensation and describing the methodology used by
such Bank in calculating the amount of such compensation, which methodology (i)
may consist of any reasonable averaging and attribution methods and (ii) in the
case of Section 3.7 hereof shall be consistent with the methodology used by such
Bank in making similar calculations in respect of loans or commitments to other
borrowers.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Banks that:
4.1 Existence and Qualification; Power; Compliance with Law. Borrower
is a corporation duly organized, validly existing and in good standing under the
Laws of Delaware, and its certificate of incorporation does not provide for the
termination of its existence. Borrower is duly qualified or registered to
transact business as a foreign corporation in the State of California, and in
each other jurisdiction in which the conduct of its business or the ownership of
its properties makes such qualification or registration necessary, except
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where the failure so to qualify or register would not constitute a Material
Adverse Effect. Borrower has all requisite corporate power and authority to
conduct its business, to own and lease its Properties and to execute, deliver
and perform all of its obligations under the Loan Documents. All outstanding
shares of capital stock of Borrower are duly authorized, validly issued, fully
paid, non-assessable, and were issued in compliance with all applicable state
and federal securities Laws, except where the failure to so comply would not
constitute a Material Adverse Effect. Borrower is in substantial compliance with
all Laws and other legal requirements applicable to its business, has obtained
all authorizations, consents, approvals, orders, licenses and permits
(collectively, "Authorizations") from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to obtain Authorizations, comply,
file, register, qualify or obtain exemptions does not constitute a Material
Adverse Effect.
4.2 Authority; Compliance with Other Instruments and Government
Regulations. The execution, delivery, and performance by Borrower, and by each
Guarantor Subsidiary of Borrower, of the Loan Documents to which it is a Party,
and by the Mortgage Company of the Override Agreement, have been duly authorized
by all necessary corporate action, and do not:
(a) require any consent or approval not heretofore obtained of
any stockholder, partner, security holder, or creditor of such Party;
(b) violate or conflict with any provision of such Party's
charter, certificate or articles of incorporation or bylaws;
(c) result in or require the creation or imposition of any
Lien or Right of Others upon or with respect to any Property now owned
or leased or hereafter acquired by such Party;
(d) constitute a "transfer of an interest" or an "obligation
incurred" that is avoidable by a trustee under Section 548 of the
Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
transfer" or "fraudulent obligation" within the meaning of the Uniform
Fraudulent Transfer Act as enacted in any jurisdiction or any analogous
Law;
(e) violate any Requirement of Law applicable to such Party;
or
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(f) result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual
Obligation to which such Party or any of its Property is bound or
affected;
and neither Borrower nor any Subsidiary of Borrower is in violation of, or
default under, any Requirement of Law or Contractual Obligation, or any
indenture, loan or credit agreement described in Section 4.2(f) in any respect
that would constitute a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except such as have heretofore
been obtained, no authorization, consent, approval, order, license or permit
from, or filing, registration, or qualification with, or exemption from any of
the foregoing from, any Governmental Agency is or will be required to authorize
or permit the execution, delivery and performance by Borrower or any Significant
Subsidiary of Borrower of the Loan Documents to which it is a Party.
4.4 Subsidiaries.
(a) Schedule 4.4 correctly sets forth the names, the form of
legal entity and jurisdictions of organization of all Subsidiaries of
Borrower as of the Amendment Effective Date and identifies each such
Subsidiary that is a Consolidated Subsidiary, a Significant Subsidiary,
a Guarantor Subsidiary, a Foreign Subsidiary and a Financial
Subsidiary. As of the Amendment Effective Date, unless otherwise
indicated in Schedule 4.4, all of the outstanding shares of capital
stock, or all of the units of equity interest, as the case may be, of
each Subsidiary indicated thereon are owned of record and beneficially
by Borrower, and all such shares or equity interests so owned were
issued in compliance with all state and federal securities Laws and are
duly authorized, validly issued, fully paid and non-assessable (other
than with respect to required capital contributions to any joint
venture in accordance with customary terms and provisions of the
related joint venture agreement), except where the failure to so comply
would not constitute a Material Adverse Effect, and are free and clear
of all Liens and Rights of Others, except for Permitted Encumbrances
and Permitted Rights of Others.
(b) Each Significant Subsidiary is as of the date of this
Agreement, and will be as of the Amendment Effective Date, a legal
entity of the form described for that Subsidiary in Schedule 4.4, and
is duly organized, validly existing and in good standing under the Laws
of its jurisdiction of organization, is duly qualified to do business
as a foreign organization and is in good standing
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as such in each jurisdiction in which the conduct of its business or
the ownership or leasing of its Properties makes such qualification
necessary (except where the failure to be so duly qualified and in good
standing does not constitute a Material Adverse Effect) and has all
requisite power and authority to conduct its business, to own and lease
its Properties and to execute, deliver and perform the Loan Documents
to which it is a Party.
(c) Each Significant Subsidiary is in substantial compliance
with all Laws and other requirements applicable to its business and has
obtained all Authorizations from, and each such Significant Subsidiary
has accomplished all filings, registrations, and qualifications with,
or obtained exemptions from any of the foregoing from, any Governmental
Agency that are necessary for the transaction of its business, except
where the failure so to obtain Authorizations, comply, file, register,
qualify or obtain exemptions does not constitute a Material Adverse
Effect.
4.5 Financial Statements. Borrower has furnished to each
Bank the following financial statements:
(a) the audited consolidated financial statements of Borrower
and its Consolidated Subsidiaries as at November 30, 1995 and for the
Fiscal Year then ended;
(b) the unaudited consolidating financial statements of
Borrower and its Consolidated Subsidiaries as at November 30, 1995 for
the Fiscal Quarter then ended and for the portion of the Fiscal Year
ended with such Fiscal Quarter; and
(c) the unaudited combined financial statements of the
Financial Subsidiaries as at November 30, 1995 for the Fiscal Quarter
then ended and for the portion of the Fiscal Year ended with such
Fiscal Quarter.
The audited financial statements described in clause (a) are in accordance with
the books and records of Borrower and its Consolidated Subsidiaries, were
prepared in accordance with Generally Accepted Accounting Principles and fairly
present in accordance with Generally Accepted Accounting Principles consistently
applied the consolidated financial condition and results of operations of
Borrower and its Consolidated Subsidiaries as at the date and for the period
covered thereby. The unaudited financial statements described in clause (b),
are in accordance with the books and records of Borrower and its Consolidated
Subsidiaries, were prepared in accordance with Generally Accepted Accounting
Principles and fairly present in accordance with Generally Accepted Accounting
Principles consistently applied the consolidating financial condition
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and results of operation of Borrower and its Consolidated Subsidiaries as at
the date and for the period covered thereby. The unaudited financial
statements described in clause (c) are in accordance with the books and
records of the respective Subsidiaries of Borrower named, were prepared in
accordance with Generally Accepted Accounting Principles and fairly present in
accordance with Generally Accepted Accounting Principles consistently applied
the financial condition and results of operation of such Subsidiaries of
Borrower as at the date and for the period covered thereby.
4.6 No Other Liabilities; No Material Adverse Effect. Borrower and its
Consolidated Subsidiaries do not have any material liability or material
contingent liability not reflected or disclosed in the financial statements or
in the notes to the financial statements described in Section 4.5, other than
liabilities and contingent liabilities arising in the ordinary course of
business subsequent to November 30, 1995. Since November 30, 1995, no event or
circumstance has occurred that constitutes a Material Adverse Effect with
respect to Borrower and its Subsidiaries.
4.7 Title to Assets. As of the Amendment Effective Date, Borrower and
its Consolidated Subsidiaries have good and valid title to all of the assets
reflected in the financial statements described in Section 4.5 owned by them or
any of them (other than assets disposed of in the ordinary course of business)
and all other assets owned on the date of this Agreement, free and clear of all
Liens and Rights of Others other than (a) those reflected or disclosed in the
notes to the financial statements described in Section 4.5, (b) immaterial Liens
or Rights of Others not required under Generally Accepted Accounting Principles
to be so reflected or disclosed, (c) Liens permitted pursuant to Section 6.7,
(d) Permitted Rights of Others, and (e) such existing Liens or Rights of Others
as are described on Schedule 4.7 hereto.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or possess
the unrestricted right to use, all trademarks, trade names, copyrights, patents,
patent rights, licenses and other intangible assets that are necessary in the
conduct of their businesses as now operated, and no such intangible asset, to
the best knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict would constitute a Material Adverse Effect.
4.9 Existing Indebtedness and Contingent Guaranty Obligations. As of
the Amendment Effective Date, except as set forth in Schedule 4.9, neither
Borrower nor any of its Subsidiaries has (a) any Indebtedness owed to any Person
or (b) outstanding any Contingent Guaranty Obligation with respect
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to obligations of another Person that is not a Subsidiary of Borrower.
4.10 Governmental Regulation. Neither Borrower nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940.
4.11 Litigation. There are no actions, suits, or proceedings pending
or, to the best knowledge of Borrower, threatened against or affecting Borrower
or any of its Subsidiaries or any Property of any of them before any
Governmental Agency which would constitute a Material Adverse Effect.
4.12 Binding Obligations. Each of the Loan Documents to which Borrower
or any Guarantor Subsidiary of Borrower is a Party will, when executed and
delivered by Borrower or the Guarantor Subsidiary, as the case may be,
constitute the legal, valid and binding obligation of Borrower or the Guarantor
Subsidiary, as the case may be, enforceable against Borrower or the Guarantor
Subsidiary, as the case may be, in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or by equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
4.13 No Default. No event has occurred and is continuing
that is a Default or an Event of Default.
4.14 Pension Plans. As of the Amendment Effective Date, all
contributions required to be made under any Pension Plan maintained by Borrower
or any of its ERISA Affiliates (or to which Borrower or any ERISA Affiliate
contributes or is required to contribute) have been made or accrued in the
balance sheet of Borrower and its Consolidated Subsidiaries as at November 30,
1995. There is no "accumulated funding deficiency" within the meaning of Section
302 of ERISA or any liability to the PBGC (other than for premiums) with respect
to any such Pension Plan other than a Multiemployer Plan.
4.15 Tax Liability. Borrower and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes which have become due pursuant to said returns or pursuant
to any assessment received by Borrower or any Subsidiary, except (a) such taxes,
if any, as are being contested in good faith by appropriate proceedings (and
with respect to which Borrower or its Subsidiary has established adequate
reserves for the payment of the same), and (b) such taxes the failure of which
to pay will not constitute a Material Adverse Effect.
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4.16 Regulation U. Neither Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the meanings of Regulation U of the Board of Governors of the
Federal Reserve System, and no Loan hereunder will be used to purchase or carry
any such margin stock in violation of Regulation U.
4.17 Environmental Matters. To the best knowledge of Borrower, Borrower
and its Subsidiaries are in substantial compliance with all applicable Laws
relating to environmental protection where the failure to comply would
constitute a Material Adverse Effect. To Borrower's best knowledge, neither
Borrower nor any of its Subsidiaries has received any notice from any
Governmental Agency respecting the alleged violation by Borrower or any
Subsidiary of such Laws which would constitute a Material Adverse Effect and
which has not been or is not being corrected.
4.18 Disclosure. The information provided by Borrower to the Banks in
connection with this Agreement or any Loan, taken as a whole, has not contained
any untrue statement of a material fact and has not omitted a material fact
necessary to make the statements contained therein not misleading under the
totality of the circumstances existing at the date such information was provided
and in the context in which it was provided.
4.19 Projections. As of the Amendment Effective Date, the assumptions
upon which the Projections are based are reasonable and consistent with each
other assumption and with all facts known to Borrower and the Projections are
reasonably based on those assumptions. Nothing in this Section 4.19 shall be
construed as a representation or warranty as of any date other than the
Amendment Effective Date or that the Projections will in fact be achieved by
Borrower.
ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
As long as any Loan remains unpaid, or any other Obligation remains
unpaid, or any portion of the Commitment remains outstanding, Borrower shall,
and shall cause each of its Subsidiaries to, unless the Administrative Agent
(with the approval of the Line A Majority Banks with respect to the Line A
Provisions or with the approval of the Line B/C Majority Banks with respect to
the Line B/C Provisions) otherwise consents in writing:
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5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
promptly, all taxes, assessments, and governmental charges or levies imposed
upon Borrower or any of its Subsidiaries, upon their respective Property or any
part thereof, upon their respective income or profits or any part thereof,
except any tax, assessment, charge, or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings, as long as Borrower or
its Subsidiary has established and maintains adequate reserves for the payment
of the same and by reason of such nonpayment no material Property of Borrower or
its Subsidiaries is subject to a risk of loss or forfeiture.
5.2 Preservation of Existence. Preserve and maintain their respective
existence, licenses, rights, franchises, and privileges in the jurisdiction of
their formation and all authorizations, consents, approvals, orders, licenses,
permits, or exemptions from, or registrations with, any Governmental Agency that
are necessary for the transaction of their respective business, and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties; provided that (a) the failure to
preserve and maintain any particular right, franchise, privilege, authorization,
consent, approval, order, license, permit, exemption, or registration, or to
qualify or remain qualified in any jurisdiction, that does not constitute a
Material Adverse Effect will not constitute a violation of this covenant, and
(b) nothing in this Section 5.2 shall prevent any consolidation or merger or
disposition of assets permitted by Sections 6.2 or 6.3 or shall prevent the
termination of the business or existence (corporate or otherwise) of any
Subsidiary of Borrower which in the reasonable judgment of the management of
Borrower is no longer necessary or desirable.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business and damage caused by the natural
elements, and not permit any waste of their respective Properties, except that
the failure to so maintain, preserve or protect any particular Property, or the
permitting of waste on any particular Property, where such failure or waste with
respect to all Properties of Borrower and its Subsidiaries, in the aggregate,
would not constitute a Material Adverse Effect will not constitute a violation
of this covenant.
5.4 Maintenance of Insurance. Maintain insurance with responsible
insurance companies in such amounts (subject to customary deductibles and
retentions) and against such risks as is usually carried by responsible
companies of similar size
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engaged in similar businesses and owning similar assets in the general areas in
which Borrower and its Subsidiaries operate.
5.5 Compliance with Laws. Comply with all Requirements of Laws
noncompliance with which would constitute a Material Adverse Effect, except that
Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate procedures, so long
as such contest (or a bond or surety posted in connection therewith) operates as
a stay of enforcement of any penalty that would otherwise apply as a result of
such failure to comply.
5.6 Inspection Rights. At any time during regular business hours and as
often as requested, permit any Bank or any employee, agent or representative
thereof at the expense of such Bank to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of Borrower and its Subsidiaries, and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with any of their
officers or employees; provided that none of the foregoing unreasonably
interferes with the normal business operations of Borrower or any of its
Subsidiaries.
5.7 Keeping of Records and Books of Account. Keep adequate records and
books of account fairly reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles applied on a consistent basis (except
for changes concurred with by Borrower's independent certified public
accountants) and all applicable requirements of any Governmental Agency having
jurisdiction over Borrower or any of its Subsidiaries.
5.8 Use of Proceeds. Use the proceeds of (a) all Line A
Loans solely for working capital and other general corporate
purposes of Borrower and its Subsidiaries, (b) all Line B Loans solely to fund
the purchase price for the Rayco Acquisition and to retire certain Indebtedness
of Rayco, Ltd. and (c) the Line C Loans solely for working capital and other
general corporate purposes of Borrower and its Subsidiaries at such times as
there is no unused availability under the Line A Commitment.
5.9 Subsidiary Guaranty. Cause each of its Guarantor Subsidiaries
hereafter formed, acquired or qualifying as a Guarantor Subsidiary, to execute
and deliver a joinder of the Subsidiary Guaranty promptly following such
formation, acquisition or qualification.
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ARTICLE 6
NEGATIVE COVENANTS
As long as any Loan remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains outstanding, Borrower
shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the approval of the Line A Majority Banks with
respect to the Line A Provisions or with the approval of the Line B/C Majority
Banks with respect to the Line B/C Provisions) otherwise consents in writing:
6.1 Payment or Prepayment of Subordinated Obligations. Make an optional
or unscheduled payment or prepayment of any principal (including an optional or
unscheduled sinking fund payment), interest or any other amount with respect to
any Subordinated Obligation, or make a purchase or redemption of any
Subordinated Obligation, or make any payment with respect to any Subordinated
Obligation in violation of the subordination provisions in the instruments
governing such Subordinated Obligation; provided that: (a) Borrower may prepay
and refinance Subordinated Obligations of Borrower if through the issuance of
new Subordinated Obligations (i) such new Subordinated Obligations satisfy all
of the criteria set forth in the definition of "Subordinated Obligations," and
(ii) the incurrence of such new Subordinated Obligations is permitted under
Section 6.8 hereof; (b) Borrower may purchase or redeem any Subordinated
Obligation solely in exchange for shares of capital stock of Borrower which are
not subject to mandatory redemption provisions; and (c) Borrower may purchase or
redeem any Subordinated Obligation to the extent obligated to do so upon the
occurrence of a "Change in Control", as defined in the indenture governing such
Subordinated Obligation, if (i) Borrower has provided to the Administrative
Agent pro-forma calculations showing that, giving effect to such repurchase
(both as to source and application of funds), Borrower would be in compliance
with the covenants set forth herein on a pro-forma basis as of the end of the
Fiscal Quarter then most recently ended, and (ii) there has not then occurred
and is not then continuing any Default or Event of Default, provided that the
requirements of clauses (i) and (ii) above need not be satisfied if concurrently
with such repurchase Borrower prepays the Obligations in accordance with Section
3.1(f) and terminates the Commitment pursuant to Section 2.6.
6.2 Dispositions. Make any Disposition, except (a) a Disposition to
Borrower or to a wholly-owned Subsidiary of Borrower and (b) a Disposition of a
Foreign Subsidiary that does not hold a majority of its assets in the Republic
of France.
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6.3 Mergers and Sale of Assets. Merge or consolidate
with or into any Person, or sell all or substantially all of
its assets to any Person, except;
(a) a merger of Borrower into a wholly-owned Subsidiary of
Borrower that has nominal assets and liabilities, the primary purpose
of which is to effect the reincorporation of Borrower in another state;
(b) mergers or consolidations of a Subsidiary of Borrower into
Borrower (with Borrower as the surviving corporation) or into any other
wholly-owned Subsidiary of Borrower;
(c) liquidations of any Subsidiary of Borrower into Borrower
or into a wholly-owned Subsidiary of Borrower;
(d) a merger of Borrower or one of its Subsidiaries with
another Person if (i) Borrower or such Subsidiary is the corporation
surviving such merger and (ii) immediately after giving effect to such
merger, no Default or Event of Default shall have occurred and be
continuing; or
(e) Dispositions permitted under Section 6.2.
6.4 Investments and Acquisitions. Make any Acquisition,
or enter into an agreement to make any Acquisition, or make or
suffer to exist any Investment, other than:
(a) Investments consisting of Cash or Cash Equivalents;
(b) advances to employees of Borrower or its Subsidiaries for
travel, housing expenses, stock option plans, or otherwise in
connection with their employment or the business of Borrower or any of
its Subsidiaries;
(c) Investments of Borrower in any of its wholly- owned
Subsidiaries and Investments of any Subsidiary of Borrower in Borrower
or any of Borrower's wholly-owned Subsidiaries;
(d) the Rayco Acquisition;
(e) Acquisitions of or Investments in Persons engaged in the
residential housing construction business and/or the residential land
development business in the United States of America, Canada, Mexico
and Europe, provided that (i) to the extent that any such Acquisition
or Investment is made by a Foreign Subsidiary, after giving effect
thereto Borrower shall be in compliance with Section 6.19, (ii) after
giving effect to such Acquisition
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or Investment on a proforma basis, no Default or Event of Default then
exists or would result therefrom and (iii) nothing in this clause (e)
shall limit Investments permitted by clause (c) above;
(f) Acquisitions or Investments in Persons engaged in the
commercial construction business in the United States of America or
Europe; provided that (i) to the extent that any such Acquisition or
Investment is made by a Foreign Subsidiary, after giving effect thereto
Borrower shall be in compliance with Section 6.19, (ii) the aggregate
cost of such Acquisitions of or Investments in such Persons engaged in
the commercial construction business in countries in Europe (other than
France) made after the Amendment Effective Date, shall not exceed at
any time $25,000,000, (iii) the aggregate cost of such Acquisitions of
and Investments in such Persons engaged in the commercial construction
business within the United States of America, when added to the
aggregate cost of investments in such inventory within the United
States of America made after the Amendment Effective Date, shall not
exceed $15,000,000 in the aggregate and (iv) nothing in this clause (f)
shall limit Investments permitted by clause (c) above;
(g) Investments by KBMHG in a Person owning one or more
multi-unit affordable housing projects, provided that such Investment
is made as a limited partner, or otherwise on a basis that will not
result in liability or contingent liability to Borrower or any of its
Subsidiaries for the obligations of such Person;
(h) Investments by the Mortgage Company that are permitted
under the Mortgage Warehousing Agreement;
(i) Investments in existence on the Amendment Effective Date
disclosed on Schedule 6.4;
(j) Acquisitions of or Investments in Persons engaged
primarily in businesses in addition to those permitted by Sections
6.4(e) through (g), provided that the aggregate cost of all such
Acquisitions and Investments made after the Amendment Effective Date
does not exceed at $5,000,000 in the aggregate.
6.5 ERISA Compliance. Permit any Pension Plan maintained by Borrower or
any of its ERISA Affiliates (or to which Borrower or any ERISA Affiliate
contributes or is required to contribute), other than a Multiemployer Plan, to
incur any material "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA, unless waived, or permit any Pension Plan maintained by
any of them to suffer a Termination
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Event or incur withdrawal liability under any Multiemployer Plan if any of such
events would result in a liability of Borrower or any ERISA affiliate exceeding
in the aggregate $5,000,000.
6.6 Change in Business. Engage in any business other than the
businesses as now conducted by Borrower or any of its Subsidiaries.
6.7 Liens and Negative Pledges. Create, incur, assume, or suffer to
exist, or cause or permit any Joint Venture to create, incur, assume or suffer
to exist, any Lien of any nature upon or with respect to any of their respective
Properties, whether now owned or hereafter acquired, or enter or suffer to exist
any Contractual Obligation wherein Borrower, any of its Subsidiaries or any
Joint Venture agrees not to grant any Lien on any of their Properties, except:
(a) Liens and Contractual Obligations existing on the date
hereof and described in Schedule 4.7, provided that the obligations
secured by such Liens are not increased and that no such Lien extends
to any Property of Borrower or any Subsidiary other than the Property
subject to such Lien on the Amendment Effective Date;
(b) Liens on Property of any Financial Subsidiary or Foreign
Subsidiary securing Indebtedness of that Financial Subsidiary or
Foreign Subsidiary;
(c) Liens on real Property securing Non-Recourse Indebtedness;
provided that any such Non-Recourse Indebtedness complies with the
terms of Section 6.8 ;
(d) Liens consisting of a Capital Lease covering personal
Property;
(e) Permitted Encumbrances;
(f) attachment, judgment and other similar Liens arising in
connection with court proceedings; provided that the execution or
enforcement of such Lien is effectively stayed and the claims secured
thereby do not in the aggregate exceed $5,000,000 and are being
contested in good faith by appropriate proceedings timely commenced and
diligently prosecuted;
(g) Liens existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation
of such event;
(h) Liens on any asset of any corporation existing at the time
such corporation is merged or consolidated
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with or into Borrower or any of its Subsidiaries and not created in
contemplation of such event;
(i) Liens existing on any asset prior to the acquisition
thereof by Borrower or any of its Subsidiaries and not created in
contemplation of such acquisition;
(j) Liens arising out of the refinancing, extension, renewal
or refunding of any Indebtedness secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that such
Indebtedness is not increased and is not secured by additional assets;
(k) Liens arising in the ordinary course of business which (i)
do not secure Indebtedness, (ii) do not secure any obligation in an
amount exceeding $200,000 individually, or $500,000 in the aggregate,
and (iii) do not in the aggregate materially detract from the value of
the assets covered by such Liens or materially impair the use thereof
in the operation of Borrower's business;
(l) Liens not otherwise permitted by the foregoing clauses of
this Section which secure Indebtedness not exceeding $500,000 in the
aggregate;
(m) Liens securing Indebtedness permitted by Section 6.9(e)
incurred in connection with the acquisition of Property;
(n) Liens referred to in the last sentence of the definition
of "Bond Facility" encumbering (i) real property owned by Borrower or
one of its Subsidiaries on September 1, 1994 or (ii) other real
property of Borrower or one of its Subsidiaries provided that the
aggregate obligations secured by such Liens does not exceed
$10,000,000;
(o) a Contractual Obligation wherein Borrower or any of its
Subsidiaries agrees not to a grant any Lien on any of their Properties,
if such Contractual Obligation does not, by its terms, prohibit the
grant of a Lien in favor of the Administrative Agent and the Banks with
respect to the Obligations (and Borrower shall, as soon as reasonably
possible, provide to the Banks a copy of such Contractual Obligation);
(p) Liens on property of a Joint Venture referred to in
Section 6.9(h) securing Indebtedness permitted by such Section;
provided, however, in no event may Borrower or any of its Subsidiaries create,
incur, assume or suffer to exist any Lien
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84
of any nature upon or with respect to any of their Investments in any Joint
Venture, or enter or suffer to exist any Contractual Obligation wherein Borrower
or any of its Subsidiaries agrees not to grant any Lien on any of their
Investments in any Joint Venture, except in connection with customary joint
venture agreements entered into in the ordinary course of business that restrict
a joint venture partner from granting a Lien on or Contractual Obligation with
respect to its ability to convey its interest in a Joint Venture and except that
any such Joint Venture may, to secure Indebtedness permitted under this
Agreement, xxxxx x Xxxx on its Property which includes a provision that such
Indebtedness will be accelerated and due in its entirety upon the sale or other
transfer of such Property.
6.8 Non-Recourse Indebtedness. Create, incur, assume or suffer to
exist, directly or indirectly, any Non-Recourse Indebtedness of Borrower, its
Domestic Subsidiaries and Joint Ventures except Non-Recourse Indebtedness that
(a) is incurred only in the connection with the purchase and improvement of
Property, (b) constitutes Indebtedness owed to the seller of such Property for
the purchase or improvement thereof, (c) as of the date of the incurrence,
represents not less than 50% of the purchase price for such property and (d)
when aggregated with (x) the amount of all other Non-Recourse Indebtedness of
Borrower and its Domestic Subsidiaries plus (y) an amount equal to the aggregate
with respect to each Joint Venture of the amount of all Non-Recourse
Indebtedness of such Joint Venture times the percentage ownership interest of
Borrower and its Subsidiaries in such Joint Venture, does not exceed
$100,000,000.
6.9 Subsidiary Indebtedness and Contingent Guaranty Obligations. Permit
any Domestic Subsidiary to create, incur, assume or suffer to exist any
Indebtedness, or any Contingent Guaranty Obligation except:
(a) the Subsidiary Guaranty;
(b) Indebtedness of a Financial Subsidiary;
(c) Indebtedness owed to Borrower or to a wholly-owned
Subsidiary of Borrower;
(d) Contingent Guaranty Obligations of Indebtedness
owed to Borrower or to a wholly-owned Subsidiary of Borrower;
(e) Indebtedness other than Non-Recourse
Indebtedness, provided that the aggregate principal amount
outstanding at any time does not exceed $5,000,000;
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(f) Indebtedness (including Indebtedness referred to in
subsections (e) above and (h) below) the aggregate outstanding
principal amount of which, when added to Indebtedness referred to in
Section 6.8, does not exceed $100,000,000 at any time;
(g) Indebtedness and Contingent Guaranty Obligations under any
Bond Facility; and
(h) Indebtedness incurred by an "Unimproved Land Joint
Venture" (as defined in the following sentence), provided that the
aggregate principal amount of all such Indebtedness outstanding at any
time does not exceed $35,000,000. As used herein, "Unimproved Land
Joint Venture" means a Joint Venture formed by a Subsidiary which does
not qualify as a Significant Subsidiary, and to which such Subsidiary
has contributed Domestic Unimproved Land.
6.10 Money Market Indebtedness. Create, incur or suffer to exist any
short term Indebtedness under domestic money market credit lines available to
Borrower and/or its Subsidiaries, if at any time (a) the sum of the aggregate
outstanding principal amount of the Line A Loans and the Line C Loans plus the
Line A Letter of Credit Usage plus the Line C Letter of Credit Usage plus the
aggregate principal amount of short term Indebtedness of Borrower and its
Subsidiaries under domestic money market lines then outstanding would exceed the
sum of the Line A Commitment plus the Line C Commitment or (b) the aggregate
principal amount of short term Indebtedness of Borrower and its Subsidiaries
under domestic money market credit lines extended by any Bank then outstanding
plus the aggregate principal amount of Indebtedness of Borrower and its
Subsidiaries under revolving lines of credit provided by that Bank would exceed
that Bank's Pro-Rata Share of the Commitments (unless the applicable Bank
otherwise elects). For purposes of this Section 6.10, "short term Indebtedness
under domestic money market credit lines" shall be deemed to be Indebtedness
that matures within one year of the date it is incurred.
6.11 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower other than (a) a transaction that results in
Subordinated Obligations, or (b) a transaction between or among Borrower and its
wholly-owned Subsidiaries, or (c) a transaction that has been approved by a
resolution adopted by the board of directors of Borrower with the favorable vote
of a majority of the directors who have no financial or other interest in the
transaction or by the vote of a majority of the outstanding shares of capital
stock of Borrower, or (d) an arm's length transaction entered into on terms and
under conditions not less favorable to Borrower or
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any of its Subsidiaries than could be obtained from a Person that is not an
Affiliate of Borrower.
6.12 Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth to be, at the end of each Fiscal Quarter, less than an amount equal to (a)
$355,000,000, plus (b) an amount equal to 60% of the positive sum of (i) the
consolidated net income (or consolidated net loss) of Borrower and its
Subsidiaries for the fiscal period commencing on December 1, 1995 and ending on
November 30, 1996 plus (ii) the after tax effect of the Contemplated Charge
minus (iii) an amount equal to 100% of the Recapture Gain arising in the period
commencing on December 1, 1995 and ending on November 30, 1996 (provided that
there shall be no reduction hereunder in the event that such sum is a negative
number), plus (c) an amount equal to 60% of consolidated net income of Borrower
and its Subsidiaries for the fiscal period commencing on December 1, 1996 and
then ending, but excluding from such consolidated net income any Recapture Gain
during such period (provided that there shall be no reduction hereunder in the
event of a consolidated net loss), plus (d) an amount equal to 100% of the
Recapture Gain arising in the period commencing on December 1, 1995 and then
ending, plus (e) an amount equal to 60% of the net proceeds received by Borrower
from the issuance of capital stock since the Amendment Effective Date and minus
(f) to the extent of an amount equal to 60% of any net proceeds received by
Borrower from the issuance of capital stock since the Amendment Effective Date,
an amount equal to the cost to Borrower of the repurchase of any capital stock
since the Amendment Effective Date.
6.13 Domestic Leverage Ratio. Permit the Domestic
Leverage Ratio to be, at the end of each Fiscal Quarter,
greater than the ratio set forth below opposite that Fiscal
Quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
February 29, 1996 3.00 to 1.00
May 31, 1996 2.80 to 1.00
August 31, 1996 2.50 to 1.00
November 30, 1996 2.10 to 1.00
February 28, 1997 2.40 to 1.00
May 31, 1997 2.20 to 1.00
August 31, 1997 2.10 to 1.00
November 30, 1997 1.80 to 1.00
and thereafter
6.14 Domestic Interest Coverage Ratio. Permit the
Domestic Interest Coverage Ratio to be, at the end of each
Fiscal Quarter, less than the ratio set forth below opposite
that Fiscal Quarter:
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Fiscal Quarter Ending Ratio
--------------------- -----
February 29, 1996 1.50 to 1.00
May 31, 1996 1.65 to 1.00
August 31, 1996 1.75 to 1.00
November 30, 1996 2.00 to 1.00;
and thereafter
provided, however, that no Default shall exist under this Section by reason of a
failure to comply with the foregoing as of the last day of any Fiscal Quarter
(the "Test Date") if (a) the Domestic Interest Coverage Ratio as of the Test
Date was at least 1.10 to 1.00, (b) the Domestic Interest Coverage Ratio as of
the last day of the Fiscal Quarter immediately following the Test Date (the
"Second Test Date") is equal to or higher than that which was required under the
table set forth above on the Test Date and (c) the Domestic Interest Coverage
Ratio as of the last day of the Fiscal Quarter immediately following the Second
Test Date (the "Third Test Date") is in compliance with the table set forth
above. If this proviso becomes applicable and Borrower fails to satisfy the
requirement set forth in clause (b) hereof, then a Default shall exist under
this Section as of the Second Test Date and if Borrower fails to satisfy the
requirements set forth in clause (c) hereof, then a Default shall exist under
this Section as of the Third Test Date.
6.15 Distributions. Make any Distribution if an Event of
Default then exists or if an Event of Default or Default would
result therefrom.
6.16 Amendments. Amend, waive or terminate any provision in any
instrument or agreement governing Subordinated Obligations unless such
amendment, waiver or termination would not be materially adverse to the
interests of the Banks under this Agreement.
6.17 Hostile Tender Offers. Make any offer to the shareholders of a
publicly held corporation or business entity to purchase or acquire, or
consummate such a purchase or acquisition of, more than 5% of the shares of
capital stock or analogous ownership interests in such a corporation or business
entity if the board of directors or analogous body of such corporation or
business entity has notified Borrower that it opposes such offer or purchase,
except for consideration which consists solely of shares of capital stock or
other equity securities of Borrower or any of its Subsidiaries.
6.18 Inventory.
(a) Permit the book value (adjusted upward, for this purpose,
by the amount of any reduction in the book value
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thereof attributable to the Contemplated Charge to the extent that an
asset was reflected on the financial statements of the Borrower and its
Consolidated Subsidiaries as of the date the Contemplated Charge was
taken and continues to be reflected on such statements) of Domestic
Unimproved Land to exceed an amount equal to 100% of Domestic Adjusted
Tangible Net Worth as of the end of any two (2) consecutive Fiscal
Quarters.
(b) Permit the book value (adjusted upward, for this purpose,
by the amount of any reduction in the book value thereof attributable
to the Contemplated Charge to the extent that an asset was reflected on
the financial statements of the Borrower and its Consolidated
Subsidiaries as of the date the Contemplated Charge was taken and
continues to be reflected on such statements) of Domestic Unimproved
Unmapped Land to exceed an amount equal to 50% of Domestic Adjusted
Tangible Net Worth as of the end of any two (2) consecutive Fiscal
Quarters.
(c) Purchase or acquire (i) any additional Domestic Unimproved
Land or Domestic Unimproved Unmapped Land if Borrower fails to comply
with the ratio set forth in clause (a) above (even for a single Fiscal
Quarter) or (ii) any additional Domestic Unimproved Unmapped Land if
Borrower fails to comply with the ratio set forth in clause (b) above
(even for a single Fiscal Quarter), until in either case Borrower is in
compliance with such ratio for at least one Fiscal Quarter.
6.19 Domestic Standing Inventory. As of any date in any Fiscal Quarter,
permit Domestic Standing Inventory to exceed an amount equal to 15% of Net
Orders received during that Fiscal Quarter and the three immediately preceding
Fiscal Quarters.
6.20 Investments in Certain Subsidiaries. Make any
Investment:
(a) in any Foreign Subsidiary after the Amendment Effective
Date if, after giving effect thereto, the aggregate amount of all such
Investments made after the Amendment Effective Date exceeds the sum of
(i) $30,000,000 plus (ii) the aggregate amount of Distributions
declared and paid by all Foreign Subsidiaries to Borrower after the
Amendment Effective Date plus (iii) the aggregate amount of capital of
Foreign Subsidiaries returned to Borrower after the Amendment Effective
Date.
(b) in any Financial Subsidiary after the Amendment Effective
Date if, after giving effect thereto, the aggregate amount of all such
Investments made after the
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Amendment Effective Date exceeds the sum of (i) $40,000,000 plus (ii) the
aggregate amount of Distributions declared and paid by all Financial
Subsidiaries to Borrower after the Amendment Effective Date plus (iii) the
aggregate amount of capital of Financial Subsidiaries returned to Borrower
after the Amendment Effective Date. In calculating compliance with this
Section 6.20(b), the amount of Borrower's Contingent Guaranty Obligations
under the Mortgage Warehousing Guaranty shall be excluded from Investments;
(c) in the Land Fund Joint Venture in excess of $6,000,000
plus the amount of Distributions to Borrower or any of its
Subsidiaries paid by the Land Fund Joint Venture since the Amendment
Effective Date; and
(d) in KBMHG after the Amendment Effective Date if, giving effect
thereto, the aggregate amount of all such Investments made after the
Amendment Effective Date exceeds the sum of (i) $22,500,000 plus (ii) the
aggregate amount of Distributions declared and paid by KBMHG to Borrower
after the Amendment Effective Date plus (iii) the aggregate amount of capital
of KBMHG returned to Borrower after the Amendment Effective Date.
6.21 Land Fund Joint Venture. Make or permit to be made any material
amendment to the organization documents with respect to the Land Fund Joint
Venture without the prior written consent of the Majority Banks.
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information of Borrower and Its
Subsidiaries. As long as any Loan remains unpaid or any other Obligation
remains unpaid, or any portion of the Commitment remains outstanding, Borrower
shall, unless the Administrative Agent (with the approval of the Line A Majority
Banks with respect to the Line A Provisions or with the approval of the Line B/C
Majority Banks with respect to the Line B/C Provisions) otherwise consents in
writing, deliver to the Administrative Agent and each of the Banks (except as
otherwise provided below) at its own expense:
(a) As soon as reasonably possible, and in any event within 60 days
after the close of each Fiscal Quarter of Borrower (other than the fourth
Fiscal Quarter), (i) the consolidated and consolidating balance sheet of
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter, setting forth in comparative form the corresponding figures for the
corresponding Fiscal Quarter of
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the preceding Fiscal Year, if available, and (ii) the consolidated and
consolidating statements of profit and loss and the consolidated statements
of cash flows of Borrower and its Consolidated Subsidiaries for such Fiscal
Quarter and for the portion of the Fiscal Year ended with such Fiscal
Quarter, setting forth in comparative form the corresponding periods of the
preceding Fiscal Year. Such consolidated and consolidating balance sheets and
statements shall be prepared in reasonable detail in accordance with
Generally Accepted Accounting Principles (other than those which require
footnote disclosure of certain matters) consistently applied, and shall be
certified by the principal financial officer of Borrower, subject to normal
year-end accruals and audit adjustments;
(b) As soon as reasonably possible, and in any event within 90 days
after the close of each Fiscal Year of Borrower, (i) the consolidated and
consolidating balance sheets of Borrower and its Consolidated Subsidiaries as
at the end of such Fiscal Year, setting forth in comparative form the
corresponding figures at the end of the preceding Fiscal Year and (ii) the
consolidated and consolidating statements of profit and loss and the
consolidated statements of cash flows of Borrower and its Consolidated
Subsidiaries for such Fiscal Year, setting forth in comparative form the
corresponding figures for the previous Fiscal Year. Such consolidated and
consolidating balance sheet and statements shall be prepared in reasonable
detail in accordance with Generally Accepted Accounting Principles
consistently applied. Such consolidated balance sheet and statements shall be
accompanied by a report and opinion of Ernst & Young or other independent
certified public accountants of recognized standing selected by Borrower (to
which either the Line A Majority Banks or the Line B/C Majority Banks have
not reasonably objected), which report and opinion shall state that the
examination of such consolidated financial statements by such accountants was
made in accordance with generally accepted auditing standards and that such
consolidated financial statements fairly present the financial condition,
results of operations and of cash flows of Borrower and its Subsidiaries
subject to no exceptions as to scope of audit and subject to no other
exceptions or qualifications (other than changes in accounting principles in
which the auditors concur) not approved by Both Majority Banks in their
reasonable discretion. Such accountants' report and opinion shall be
accompanied by a certificate stating that, in conducting the audit
examination of books and records necessary for the certification of such
financial statements, such accountants have obtained no knowledge of any
Default or Event of Default hereunder or, if in the opinion of such
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accountants, any such Default or Event of Default shall exist, stating the
nature and status of such event, and setting forth the applicable
calculations under Sections 6.4(f) and (j), 6.8, 6.9(e) and (f), 6.12, 6.13,
6.14, 6.18 (a) and (b), 6.19 (without requiring any physical count of
inventory) and 6.20, as of the date of the balance sheet. Such consolidating
balance sheet and statements shall be certified by the principal financial
officer of Borrower;
(c) Promptly after the receipt thereof by Borrower, copies of any
audit or management reports submitted to it by independent accountants in
connection with any audit or interim audit submitted to the board of
directors of Borrower or any of its Subsidiaries;
(d) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
its stockholders, and copies of all annual, regular, periodic and special
reports and registration statements which Borrower may file or be required to
file with the Commission or any similar or corresponding Governmental Agency
or with any securities exchange;
(e) Promptly upon a Senior Officer of Borrower becoming aware, and
in any event within ten Banking Days after becoming aware, of the occurrence
of any (i) "reportable event" (as such term is defined in Section 4043 of
ERISA) other than any such event as to which the PBGC has by regulation
waived the requirement of 30 days' notice or (ii) "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
in connection with any Pension Plan, other than a Multiemployer Plan, or any
trust created thereunder, a written notice specifying the nature thereof,
what action Borrower and any of its Subsidiaries is taking or proposes to
take with respect thereto, and, when known, any action taken by the Internal
Revenue Service with respect thereto;
(f) Promptly upon a Senior Officer of Borrower becoming aware, and
in any event within five Banking Days after becoming aware, of the existence
of a Default or an Event of Default, a written notice specifying the nature
and period of existence thereof and what action Borrower is taking or
proposes to take with respect thereto;
(g) Promptly upon a Senior Officer of Borrower becoming aware, and
in any event within five Banking Days after becoming aware, that the holder
of any evidence of Indebtedness for borrowed money or Security of Borrower or
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92
any of its Subsidiaries has given notice or taken any other action with
respect to a default or event of default, a written notice specifying the
notice given or action taken by such holder and the nature of such default or
event of default and what action Borrower or its Subsidiary is taking or
proposes to take with respect thereto;
(h) Promptly upon a Senior Officer of Borrower becoming aware, and
in any event within five Banking Days after becoming aware, of the existence
of any pending or threatened litigation or any investigation by any
Governmental Agency that would constitute a Material Adverse Effect
(provided, that no failure of a Senior Officer to provide notice of
any such event shall be the sole basis for any Default or Event of Default
hereunder);
(i) As soon as reasonably possible, and in any event within 60 days
after the close of each Fiscal Quarter (except 90 days after the close of the
Fiscal Year) of the Land Fund Joint Venture and each other Joint Venture, a
report certified by a Senior Officer of Borrower setting forth (i) a complete
list of all real Property held by the Land Fund Joint Venture and each other
Joint Venture as of the end of such fiscal quarter, (ii) the aggregate
outstanding principal amount of Non-Recourse Indebtedness of the Land Fund
Joint Venture and each other Joint Venture as of the end of such fiscal
quarter and (iii) the aggregate amount of Borrower's Investment in the Land
Fund Joint Venture and each other Joint Venture as of the end of such fiscal
quarter;
(j) As soon as possible, and in any event within 60 days after the
close of each Fiscal Quarter of Borrower (except 90 days after the close of
the Fiscal Year of Borrower), (i) a sales report by geographical region,
certified by a Senior Officer of Borrower, setting forth the number of homes
or other units sold and delivered during such period and in backlog at the
end of such period, (ii) an inventory report for such Fiscal Quarter
summarizing such inventory by type and geographical region and otherwise in
form and substance satisfactory to Both Majority Banks, (iii) a quarterly
report in form and substance satisfactory to Both Majority Banks detailing
intercompany borrowings and repayments between Borrower and its Domestic
Subsidiaries during such Fiscal Quarter, (iv) a report of any change, as of
the last day of such Fiscal Quarter, in the listing of Financial Subsidiaries
and Foreign Subsidiaries set forth in Schedule 4.4 (as the same may
have been revised by previous reports under this clause
(j)(iv)) and (v) a written report in form satisfactory to
Both Majority Banks describing the Asset
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Sales that occurred during such Fiscal Quarter and any Asset Sales that
Borrower then contemplates may occur during the next Fiscal Quarter (provided
that this report shall only be required for Fiscal Quarters ending on or
before the Line B/C Maturity Date);
(k) As soon as reasonably possible, and in any event prior to the
date that is sixty (60) days after the commencement of each Fiscal Year,
deliver to the Administrative Agent the business plan of Borrower and its
Subsidiaries for that Fiscal Year, together with projections (in
substantially the same format as the Projections) covering the next two (2)
Fiscal Years;
(l) Promptly following obtaining knowledge thereof by a Senior
Officer of Borrower, written notice of any change in the Credit Rating Level;
(m) Promptly following Borrower's public announcement of the
Contemplated Charge, a written summary thereof setting forth, for each
operating division of Borrower, the categories of assets against which the
Contemplated Charge will be made, the number of lots and/or acres involved in
each such asset category and the aggregate book values thereof before and
after the Contemplated Charge, together with an express invitation to each
Bank to review at a reasonable time and location Borrower's detailed records
of the Contemplated Charge and to make reasonable copies and extracts
therefrom;
(n) As soon as available, and in any event not later than April 15,
1996, a copy of Borrower's "Debt Reduction Program," which shall include a
description of the contemplated role of Asset Sales as part of such Program,
in form reasonably satisfactory to the Administrative Agent; and
(o) Such other data and information as from time to time may be
reasonably requested by any of the Banks.
7.2 Compliance Certificate. Not later than 60 days after the close of each
Fiscal Quarter and 90 days after the close of each Fiscal Year, a Compliance
Certificate dated as of the last day of the Fiscal Quarter or Fiscal Year, as
the case may be, (a) setting forth computations showing, in detail reasonably
satisfactory to the Administrative Agent, whether Borrower and its Subsidiaries
were in compliance with their obligations to the Banks pursuant to Sections
6.4(f) and (j), 6.8, 6.9(e) and (f), 6.12, 6.13, 6.14, 6.18(a) and (b), 6.19 and
6.20; (b) either (i) stating that to the best knowledge of the certifying
officer as of the date of such certificate there is no Default or Event of
Default, or (ii) if there is a Default
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or Event of Default as of the date of such certificate, specifying all such
Defaults or Events of Default and their nature and status and (c) stating, to
the best knowledge of the certifying officer, whether any event or circumstance
constituting a Material Adverse Effect (other than a Material Adverse Effect
which is not particular to the Borrower and which is generally known) has
occurred since the date of the most recent Compliance Certificate delivered
under this Section and, if so, describing such Material Adverse Effect in
reasonable detail. No failure of the certifying officer to describe the
existence of an event or circumstance constituting a Material Adverse Effect
shall be the sole basis for any Default or Event of Default hereunder.
ARTICLE 8
CONDITIONS
8.1 Initial Advances. The effectiveness of this Agreement, and
obligations of the Banks to make the initial Advances and of the Issuing Bank to
issue the initial Letter of Credit are subject to the following conditions, each
of which shall be satisfied prior to or concurrently with the making of the
initial Advances:
(a) The Administrative Agent shall have received all of the
following, each dated as of the Amendment Effective Date (unless otherwise
specified or unless the Administrative Agent otherwise agrees) and all in
form and substance satisfactory to the Administrative Agent and legal counsel
for the Administrative Agent:
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Banks and Borrower;
(2) the Line A Notes executed by Borrower in favor
of each Line A Bank, each in a principal amount equal to that Bank's
Pro Rata Share of the Line A Commitment;
(3) the Line B Notes executed by Borrower in favor
of each Line B/C Bank, each in a principal amount equal to that
Bank's Pro Rata Share of the Line B Commitment;
(4) the Line C Notes executed in favor of each Line
B/C Bank, each in a principal amount equal to that Bank's Pro Rata
Share of the Line C Commitment;
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(5) the Subsidiary Guaranty executed by each
Subsidiary which is a Guarantor Subsidiary as of the Amendment
Effective Date;
(6) with respect to Borrower and each Subsidiary
which is a Guarantor Subsidiary as of the Amendment Effective Date,
such documentation as the Administrative Agent may reasonably
require to establish the due organization, valid existence and good
standing of Borrower and each such Subsidiary, its qualification to
engage in business in each jurisdiction in which it is required to
be so qualified, its authority to execute, deliver and perform any
Loan Documents to which it is a Party, and the identity, authority
and capacity of each Responsible Official thereof authorized to act
on its behalf, including, without limitation, certified
copies of articles of incorporation and amendments thereto, bylaws
and amendments thereto, certificates of good standing and/or
qualification to engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency certificates, and
the like;
(7) the Opinions of Counsel;
(8) a copy of the Rayco Acquisition Agreement,
together with all schedules and material ancillary agreements and
documents, certified by a Senior Officer to be a true copy;
(9) an Officer's Certificate of Borrower affirming,
to the best knowledge of the certifying Senior Officer, that the
conditions set forth in Sections 8.1(b), 8.1(c) and
8.1(d) have been satisfied; and
(10) such other assurances, certificates,
documents, consents or opinions relevant hereto as the
Administrative Agent may reasonably require.
(b) With respect to availability under the Line B Commitment and the
Line C Commitment, the Rayco Acquisition shall be in a position to close
within the next two (2) Banking Days.
(c) The representations and warranties of Borrower contained in
Article 4 shall be true and correct in all material respects on and
as of the Amendment Effective Date.
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(d) Borrower and its Subsidiaries and any other Parties shall be in
compliance with all the terms and provisions of the Loan Documents.
(e) The Banks shall have received the written legal opinion of
Messrs. Sheppard, Mullin, Xxxxxxx & Xxxxxxx, legal counsel to the
Administrative Agent, to the effect that the Opinions of Counsel are
acceptable and such other matters relating to the Loan Documents as the
Administrative Agent may request.
8.2 Any Advance. The obligations of the Banks to make any Advance are
subject to the following conditions precedent:
(a) the Administrative Agent shall have received a Request for Loan;
(b) the representations and warranties contained in Article 4 (other
than the representations and warranties contained in Sections 4.4(a), 4.5,
4.6, 4.7, 4.9, 4.12, 4.14, 4.18 and 4.19) shall be true and correct in all
material respects on and as of the date of the Loan as though made on and as
of that date and no event or circumstance that constitutes a Material Adverse
Effect shall have occurred since the Amendment Effective Date;
(c) no Material KBMC Default or Material KBMC Event of Default then
exists under the Mortgage Warehousing Agreement; provided that this
condition precedent shall not apply in respect of a Curable KBMC Default so
long as the proceeds of any Loan made in reliance on this proviso are
actually used to cure such Curable KBMC Default; and
(d) the Administrative Agent shall have received such other
information relating to any matters which are the subject of Section
8.2(b) or the compliance by Borrower with this Agreement as may
reasonably be requested by the Administrative Agent on behalf of a Bank.
8.3 Any Letter of Credit. The obligation of any Issuing Bank to issue
any Letter of Credit, and the obligation of the other Banks to participate
therein, are subject to the conditions precedent that (a) the conditions set
forth in Section 8.2 have been satisfied and (b) Borrower shall have
certified that, giving effect to the issuance of the requested Letter of Credit,
the Letter of Credit Usage shall not exceed any limitations set forth in this
Agreement.
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ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENTS OF DEFAULT
9.1 Events of Default. There will be a default hereunder if any one
or more of the following events ("Events of Default") occurs and is continuing,
whatever the reason therefor:
(a) failure to pay any installment of principal on any of the Notes
on the date, or any payment in respect of a Letter of Credit pursuant to
Section 2.5(e), when due; or
(b) failure to pay any installment of interest on any of the Notes,
or to pay any fee or other amounts due the Administrative Agent or any Bank
hereunder, within five Banking Days after the date when due; or
(c) any failure to comply with Sections 5.8, 5.9, 6.1, 6.2, 6.3,
6.4, 6.7, 6.8, 6.9, 6.12, 6.13, 6.14, 6.18, 6.19, 6.20 or 7.1(f); or
(d) any failure to comply with Section 6.11 which shall remain
unremedied for a period of three Banking Days after notice by the
Administrative Agent of such Default; or
(e) Borrower or any other Party fails to perform or observe any
other term, covenant, or agreement contained in any Loan Document on its part
to be performed or observed within thirty (30) calendar days after notice by
the Administrative Agent of such Default; or
(f) any representation or warranty in any Loan Document or in any
certificate, agreement, instrument, or other document made or delivered, on
or after the Amendment Effective Date, pursuant to or in connection with any
Loan Document proves to have been incorrect when made in any respect material
to the ability of the Borrower to duly and punctually perform all of the
Obligations; or
(g) Any failure to pay any principal when due (including upon
acceleration thereof) under the Mortgage Warehousing Agreement; or
(h) Borrower or any of its Significant Subsidiaries (i) fails to pay
the principal, or any principal installment, of any present or future
Indebtedness (other than Non-Recourse Indebtedness, and in the case
of the Mortgage Company, arising under the Mortgage Warehousing Agreement),
or any guaranty of present or future Indebtedness
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(other than Non-Recourse Indebtedness) on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise in excess of
$10,000,000 individually or $25,000,000 in the aggregate or (ii) fails to
perform or observe any other material term, covenant, or agreement on its
part to be performed or observed, or suffers to exist any condition, in
connection with any present or future Indebtedness (other than Non-Recourse
Indebtedness, and in the case of the Mortgage Company, arising under the
Mortgage Warehousing Agreement) or any guaranty of present or future
Indebtedness (other than Non-Recourse Indebtedness), in excess of $10,000,000
individually or $25,000,000 in the aggregate, if as a result of such failure
or such condition any holder or holders thereof (or an agent or trustee on
its or their behalf) has the right to declare it due before the date on which
it otherwise would become due; or
(i) any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of all the Banks or satisfaction
in full of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid,
or unenforceable in any respect which is, in the reasonable opinion of the
Majority Banks, materially adverse to the interest of the Banks;
(j) a final judgment (or judgments) against Borrower or any of its
Significant Subsidiaries is entered for the payment of money in excess of
$10,000,000 individually or $25,000,000 in the aggregate, and remains
unsatisfied without procurement of a stay of execution within thirty (30)
calendar days after the issuance of any writ of execution or similar legal
process or the date of entry of judgment, whichever is earlier, or in any
event at least five (5) calendar days prior to the sale of any assets
pursuant to such legal process; or
(k) Borrower or any Significant Subsidiary of Borrower institutes or
consents to any proceeding under a Debtor Relief Law relating to it or to all
or any part of its Property, or fails generally to pay its debts as they
mature, or makes a general assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer for it
or for all or any part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or
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any proceeding under any Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of that
Person, and continues undismissed or unstayed for sixty (60) calendar days;
or
(l) the occurrence of a Termination Event with respect to any
Pension Plan if the aggregate liability of Borrower and its ERISA Affiliates
under ERISA as a result thereof exceeds $10,000,000; or the complete or
partial withdrawal by Borrower or any of its ERISA Affiliates from any
Multiemployer Plan if the aggregate liability of Borrower and its ERISA
Affiliates as a result thereof exceeds $10,000,000; or
(m) any determination is made by a court of competent jurisdiction
that payment of principal or interest or both is due to the holder of any
Subordinated Obligations which would not be permitted by Section 6.1
or that any Subordinated Obligation is not subordinated in accordance with
its terms to the Obligations.
9.2 Remedies Upon Event of Default. Without limiting any other rights
or remedies of the Administrative Agent or the Banks provided for elsewhere in
this Agreement or the Loan Documents, or by applicable Law or in equity, or
otherwise:
(a) Upon the occurrence of any Event of Default, and so long as any
such Event of Default shall be continuing (other than an
Event of Default described in Section 9.1(k) with respect to Borrower
or a Guarantor Subsidiary):
(i) all commitments to make Advances or issue Letters of
Credit, and all other obligations of the Administrative Agent, the
Issuing Bank or the Banks shall be suspended without notice to or
demand upon Borrower, which are expressly waived by Borrower, except
that the Line A Majority Banks may waive the Event of Default or,
without waiving, determine, upon terms and conditions satisfactory
to the Line A Majority Banks, to reinstate the Line A Commitment and
make further Advances or issue Letters of Credit, which waiver or
determination shall apply equally to, and shall be binding upon, all
the Line A Banks and except that the Line B/C Majority Banks may
waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to the Line B/C Majority Banks, to
reinstate the Line B Commitment and the Line C Commitment and make
further Advances or issue Letters of Credit, which waiver or
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determination shall apply equally to, and shall be binding upon, all
the Line B/C Banks;
(ii) the Line A Majority Banks may request the Administrative
Agent to, and the Administrative Agent thereupon shall, declare the
unpaid principal of all Line A Obligations due to the Line A Banks
hereunder and under the Line A Notes, an amount equal to the Line A
Letter of Credit Usage, all interest accrued and unpaid thereon, and
all other amounts payable to the Line A Banks under the Loan
Documents to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand, or further notice of any
kind, all of which are expressly waived by Borrower; provided that
the Administrative Agent shall notify Borrower (by telecopy and, if
practicable, by telephone) substantially concurrently with any such
acceleration (but the failure of Borrower to receive such notice
shall not affect such acceleration) and the Line B/C Majority Banks
may request the Administrative Agent to, and the Administrative
Agent thereupon shall, declare the unpaid principal of all Line B/C
Obligations due to the Line B/C Banks hereunder and under the Line B
Notes and the Line C Notes, an amount equal to the Line C Letter of
Credit Usage, all interest accrued and unpaid thereon, and all other
amounts payable to the Line B/C Banks under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice of
dishonor, demand, or further notice of any kind, all of which are
expressly waived by Borrower; provided that the Administrative Agent
shall notify Borrower (by telecopy and, if practicable, by
telephone) substantially concurrently with any such acceleration
(but the failure of Borrower to receive such notice shall not affect
such acceleration).
(b) Upon the occurrence of any Event of Default described in
Section 9.1(k) with respect to Borrower or a Guarantor Subsidiary:
(i) all commitments to make Advances or issue Letters of
Credit, and all other obligations of the Administrative Agent, the
Issuing Bank(s) or the Banks under the Loan Documents shall
terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all the Line A
Banks may waive the Event of Default or, without waiving, determine,
upon terms and conditions
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satisfactory to all the Line A Banks, to reinstate the Line A
Commitment and make further Advances and except that all the Line
B/C Banks may waive the Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to all the Line
B/C Banks, to reinstate the Line B Commitment and the Line C
Commitment and make further Advances;
(ii) the unpaid principal of all Obligations due to the Banks
hereunder and under the Notes, an amount equal to the Letter of
Credit Usage and all interest accrued and unpaid on such
Obligations, and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment,
notice of dishonor, demand, or further notice of any kind, all of
which are expressly waived by Borrower.
(c) So long as any Letter of Credit shall remain outstanding, any
amounts received by the Administrative Agent in respect of the Letter of
Credit Usage pursuant to Section 9.2.(a)(ii) or 9.2(b)(ii)
may be held as cash collateral for the obligation of Borrower to reimburse
the Issuing Bank in event of any drawing under any Letter of Credit (and
Borrower hereby grants to the Administrative Agent a security interest in
such cash collateral). In the event any Letter of Credit in respect of which
Borrower has deposited cash collateral with the Administrative Agent is
cancelled or expires, the cash collateral shall be applied first to
the reimbursement of the Issuing Bank (or all of the Banks, as the case may
be) for any drawings thereunder, and second to the payment of any
outstanding Obligations of Borrower hereunder or under any other Loan
Document.
(d) Upon the occurrence of an Event of Default, the Banks and the
Administrative Agent, or any of them, may proceed to protect, exercise, and
enforce their rights and remedies under the Loan Documents against Borrower
or any other Party and such other rights and remedies as are provided by Law
or equity, without notice to or demand upon Borrower (which are expressly
waived by Borrower) except to the extent required by applicable Laws.
The order and manner in which the rights and remedies of the Banks under the
Loan Documents and otherwise are exercised shall be determined by the
Majority Banks.
(e) All payments received by the Administrative Agent and the Banks,
or any of them, after the acceleration of the maturity of the Loans shall be
applied first to the costs and expenses (including attorneys' fees and
disbursements) of the Administrative Agent, acting as
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Administrative Agent, and of the Banks and thereafter paid pro rata to the
Banks in the same proportion that the aggregate of the unpaid principal
amount owing on the Obligations of Borrower to each Bank, plus accrued and
unpaid interest thereon, bears to the aggregate of the unpaid principal
amount owing on all the Obligations, plus accrued and unpaid interest
thereon. Regardless of how each Bank may treat the payments for the purpose
of its own accounting, for the purpose of computing Borrower's Obligations,
the payments shall be applied first, to the costs and expenses of the
Administrative Agent, acting as Administrative Agent, and the Banks as set
forth above, second, to the payment of accrued and unpaid fees hereunder and
interest on all Obligations to the Banks, to and including the date of such
application (ratably according to the accrued and unpaid interest on the
Loans), third, to the ratable payment of the unpaid principal of all
Obligations to the Banks, and fourth, to the payment of all other amounts
then owing to the Administrative Agent or the Banks under the Loan Documents.
No application of the payments will cure any Event of Default or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents or prevent the exercise, or continued exercise, of rights or
remedies of the Banks hereunder or under applicable Law unless all amounts
then due (whether by acceleration or otherwise) have been paid in full.
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.7, each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Administrative Agent by the terms thereof or are reasonably
incidental, as determined by the Administrative Agent, thereto. This appointment
and authorization does not constitute appointment of the Administrative Agent as
trustee for any Bank and, except as specifically set forth herein to the
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America (and each
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Bank and may exercise the same as though it were not the
Administrative Agent; and the term "Bank" or "Banks" includes Bank of America in
its individual capacity. Bank of America (and each successor Administrative
Agent) and its respective
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Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with Borrower and any Affiliate of
Borrower, as if it were not the Administrative Agent and without any duty to
account therefor to the Banks. Bank of America (and each successor
Administrative Agent) need not account to any other Bank for any monies received
by it for reimbursement of its costs and expenses as Administrative Agent
hereunder, or for any monies received by it in its capacity as a Bank hereunder,
except as otherwise provided herein.
10.3 Banks' Credit Decisions. Each Bank agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Bank, or the directors, officers, agents, or employees of the Administrative
Agent or of any other Bank, and instead in reliance upon information supplied to
it by or on behalf of Borrower and its Subsidiaries and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Bank also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Bank, or the directors, officers, agents, or employees of the
Administrative Agent or of any other Bank, continue to make its own independent
credit analyses and decisions in acting or not acting under the Loan Documents.
10.4 Action by Administrative Agent.
(a) The Administrative Agent may assume that no Default or Event of
Default has occurred and is continuing, unless the Administrative Agent has
actual knowledge of the Default or Event of Default, has received notice from
Borrower stating the nature of the Default or Event of Default, or has received
notice from a Bank stating the nature of the Default or Event of Default and
that Bank considers the Default or Event of Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents that are expressly set forth therein. Without limitation on the
foregoing, the Administrative Agent shall have no duty to inspect any property
of Borrower or any of its Subsidiaries, although the Administrative Agent may in
its discretion periodically inspect any property from time to time.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, except
that the Administrative Agent shall be required to act or not act upon the
instructions of the Line A Majority Banks (or of all the
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Line A Banks, to the extent required by Section 11.2) with respect to the Line A
Obligations or the instructions of the Line B/C Majority Banks (or of all the
Line B/C Banks, to the extent required by Section 11.2) with respect to the Line
B/C Obligations and those instructions shall be binding upon the Administrative
Agent and all the Line A Banks or Line B/C Banks, as the case may be, provided
that the Administrative Agent shall not be required to act or not act if to do
so would, in the reasonable judgment of the Administrative Agent, expose the
Administrative Agent to significant liability or would be contrary to any Loan
Document or to applicable law.
(d) If the Administrative Agent has received a notice specified in
clause (a), the Administrative Agent shall give notice thereof to the
Banks and shall act or not act upon the instructions of the Line A Majority
Banks (or of all the Line A Banks, to the extent required by Section
11.2) with respect to the Line A Obligations or the instructions of the
Line B/C Majority Banks (or of all the Line B/C Banks to the extent required by
Section 11.2) with respect to the Line A Obligations or the instructions of the
Line B/C Majority Banks (or of all the Line B/C Banks, to the extent required by
Section 11.2) with respect to the Line A Obligations or the instructions of the
Line B/C Banks to the extent required by Section 11.2) with respect to the Line
B/C Obligations fail, for three (3) Banking Days after the receipt of notice
from the Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it deems
advisable for the protection of the interests of the Banks.
(e) The Administrative Agent shall have no liability to any Bank for
acting, or not acting, as instructed by the Line A Majority Banks (or all the
Line A Banks, if required under Section 11.2) with respect to the Line A
Obligations or the instructions of the Line B/C Majority Banks (or of all the
Line B/C Banks to the extent required by Section 11.2) with respect to the Line
B/C Obligations, notwithstanding any other provision hereof.
10.5 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its respective directors, officers, agents, or employees shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful
misconduct. Without limitation on the foregoing, the Administrative Agent and
its respective directors, officers, agents, and employees:
(a) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof in
form satisfactory to the
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Administrative Agent, signed by the payee and may treat each Bank as the owner
of that Bank's interest in the obligations due to Banks for all purposes of this
Agreement until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent, signed by
that Bank;
(b) may consult with legal counsel, in-house legal counsel,
independent public accountants, in-house accountants and other professionals, or
other experts selected by it, or with legal counsel, independent public
accountants, or other experts for Borrower, and shall not be liable for any
action taken or not taken by it or them in good faith in accordance with the
advice of such legal counsel, independent public accountants, or experts;
(c) will not be responsible to any Bank for any statement, warranty,
or representation made in any of the Loan Documents or in any notice,
certificate, report, request, or other statement (written or oral) in connection
with any of the Loan Documents;
(d) except to the extent expressly set forth in the Loan Documents,
will have no duty to ascertain or inquire as to the performance or observance by
Borrower or any other Person of any of the terms, conditions, or covenants of
any of the Loan Documents or to inspect the property, books, or records of
Borrower or any of its Subsidiaries or other Person;
(e) will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency, or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith;
(f) will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, or other
instrument or writing believed by it or them to be genuine and signed or sent by
the proper party or parties; and
(g) will not incur any liability for any arithmetical error in
computing any amount payable to or receivable from any Bank hereunder, including
without limitation payment of principal and interest on the Notes, payment of
commitment fees, Loans, and other amounts; provided that promptly upon
discovery of such an error in computation, the Administrative Agent, the Banks,
and (to the extent applicable) Borrower shall make such adjustments as are
necessary to correct such error and to restore the parties to the position that
they would have occupied had the error not occurred.
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10.6 Indemnification. Each Line A Bank shall, ratably in accordance
with the respective principal amount of its Line A Commitment, indemnify and
hold the Administrative Agent and its directors, officers, agents, and employees
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any
kind or nature whatsoever (including, without limitation, attorney's fees and
disbursements) that may be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of the Line A Provisions (other than
losses incurred by reason of the failure by Borrower to pay the obligations due
to the Line A Banks hereunder or under the Line A Notes) or any action taken or
not taken by it as Administrative Agent thereunder, except for the
Administrative Agent's gross negligence or willful misconduct. Each Line B/C
Bank shall likewise so indemnify the Administrative Agent and its directors,
officers, agents and employees in accordance with the preceding sentence except
that references to the Line A Commitment, Line A Note, Line A Provisions and
Line A Banks shall instead be references to the Line X Xxxxxxxxxx, Xxxx X
Xxxxxxxxxx, Xxxx X Notes, Line C Notes, Line B/C Provisions and Line B/C Banks.
Without limitation on the foregoing, each Bank shall reimburse the
Administrative Agent upon demand for that Bank's ratable share of any cost or
expense incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, administration, amendment, waiver,
refinancing, restructuring, reorganization (including a bankruptcy
reorganization), or enforcement of the Loan Documents, to the extent that
Borrower is required by Section 11.3 to pay that cost or expense but
fails to do so upon demand. Any such reimbursement shall not relieve Borrower of
its obligations under Section 11.3.
10.7 Successor Administrative Agent. The Administrative Agent may
resign as such at any time by written notice to Borrower and the Banks, to be
effective upon a successor's acceptance of appointment as Administrative Agent.
Both Majority Banks may at any time remove the Administrative Agent by written
notice to that effect to be effective on such date as Both Majority Banks
designate. In either event, Both Majority Banks shall appoint a successor
Administrative Agent or Agents, who must be from among the Banks;
provided, that the Administrative Agent shall be entitled to appoint a
successor Administrative Agent from among the Banks, subject to acceptance of
appointment by that successor Administrative Agent, if Both Majority Banks have
not appointed a successor Administrative Agent within thirty (30) days after the
date the Administrative Agent gave notice of resignation or was removed. Upon a
successor's acceptance of appointment as Administrative Agent, the successor
will thereupon succeed to and become vested with all the rights, powers,
privileges, and duties of the Administrative Agent under the Loan Documents, and
the
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resigning or removed Administrative Agent will thereupon be discharged from
its duties and obligations thereafter arising under the Loan Documents. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article 10 and Sections
11.3 and 11.10 shall inure to its benefit as to any action taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
10.8 No Obligations of Borrower. Nothing contained in this
Article 10 shall be deemed to impose upon Borrower any obligation in
respect of the due and punctual performance by the Administrative Agent of its
obligations to the Banks under any provision of this Agreement, and Borrower
shall have no liability to the Administrative Agent or any of the Banks in
respect of any failure by the Administrative Agent or any Bank to perform any of
its obligations to the Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Banks, Borrower's obligations to the
Banks in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, and remedies
of the Administrative Agent or any Bank provided herein or in any Note or other
Loan Document are cumulative and not exclusive of any right, power, or remedy
provided by law or equity. No failure or delay on the part of the Administrative
Agent or any Bank in exercising any right, power, or remedy may be, or may be
deemed to be, a waiver thereof; nor may any single or partial exercise of any
right, power, or remedy preclude any other or further exercise of any other
right, power, or remedy. The terms and conditions of Sections 8.1,
8.2, 8.3 and 8.4 hereof are inserted for the sole benefit of the Banks and the
Administrative Agent may (with the approval of the Line A Majority Banks with
respect to their application to the Line A Obligations and with the approval
of the Line B/C Majority Banks with respect to their application to the Line
B/C Obligations) waive them in whole or in part with or without terms or
conditions in respect of any Loan, without prejudicing the Banks' rights to
assert them in whole or in part in respect of any other Loans.
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11.2 Amendments; Consents. No amendment, modification, supplement,
termination, or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by Borrower or any other Party
therefrom, may in any event be effective unless in writing signed by the
Administrative Agent with the approval of the Line A Majority Banks (if with
respect to any Line A Provision) or the approval of the Line B/C Majority Banks
(if with respect to any Line B/C Provision) and Borrower, and then only in the
specific instance and for the specific purpose given; and without the approval
in writing of all the Line A Banks (or in the case of Section 11.2(d),
Banks holding at least 66 2/3% of the Line A Commitment), no amendment,
modification, supplement, termination, waiver, or consent may be effective:
(a) to amend or modify the principal of, or the amount of principal
or principal prepayments, payable on any Line A Obligation or the amount of
the Line A Commitment or to decrease the rate of any interest or fee payable
to any Bank;
(b) to postpone any date fixed for any payment of principal of,
prepayment of principal of, or any installment of interest on, any Line A
Obligation or any installment of any fee or to extend the term of the
Commitment;
(c) to amend or modify the provisions of the definitions in Section
1.1 of "Majority Banks" or of Sections 11.2, 11.9, 11.10, or 11.11;
(d) release any Guarantor Subsidiary from liability under any
Subsidiary Guaranty with respect to the Line A Obligations; or
(e) to amend or modify any provision of this Agreement or the Loan
Documents that expressly requires the consent or approval of all the Banks.
Without the approval in writing of all of the Line B/C Banks, no
amendment, modification, supplement, termination, waiver, or consent may be
effective with respect to any of the matters set forth in clauses (a)
and (b) above insofar as the same apply to the Line B/C Obligations or in
clauses (c) or (e) above. Without the approval in writing of Banks holding at
least 66 2/3% of the Line B Commitment and Line C Commitment, no amendment,
modification, supplement, termination, waiver, or consent may be effective
with respect to the matter referred to in clause (d) above with respect to the
Line B/C Obligations. Any amendment, modification, supplement, termination,
waiver, or consent pursuant to this
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109
Section 11.2 shall apply equally to, and shall be binding upon, all the Banks
and the Agents.
11.3 Costs, Expenses and Taxes. Borrower shall pay within 15 days
after demand the reasonable actual out-of-pocket costs and expenses of the
Managing Agents and the Administrative Agent in connection with (a) the
negotiation, preparation, execution, delivery, arrangement, syndication and
closing of the Loan Documents, provided that such costs and expenses do
not exceed the amounts referred to in a letter agreement between Borrower and
the Managing Agents, (b) administration of the Loan Documents, provided
that such costs and expenses do not exceed the amounts set forth in a letter
agreement between Borrower and the Administrative Agent and (c) any amendment,
waiver or modification of the Loan Documents. Borrower shall pay within 15 days
after demand the reasonable out-of-pocket costs and expenses of the
Administrative Agent and each of the Banks in connection with the enforcement of
any Loan Documents, including in connection with any refinancing, restructuring,
reorganization (including a bankruptcy reorganization, if such payment is
approved by the bankruptcy court or any similar proceeding). The costs and
expenses referred to in the first sentence above (in the case of the Managing
Agents and Administrative Agent only) and the second sentence above (in the case
of the Administrative Agent and the Banks) shall include filing fees, recording
fees, title insurance fees, appraisal fees, search fees, and other out-of-pocket
expenses and the reasonable fees and out-of-pocket expenses of any legal counsel
retained by the Managing Agents and Administrative Agent or any of the Banks
(including the allocated costs of in-house counsel), as the case may be, or
independent public accountants and other outside experts retained by the
Managing Agents and Administrative Agent (provided that Borrower shall
not be liable under this Section 11.3 for fees and expenses of more than
one firm of independent public accountants, or more than one expert with respect
to a specific subject matter, at any one time). Nothing herein shall obligate
Borrower to pay any costs and expenses in connection with an assignment of or
participation in a Bank's Pro-Rata Share of the Commitment. Borrower shall pay
any and all documentary and transfer taxes, assessments or charges made by any
Governmental Agency and all costs, expenses, fees, and charges payable or
determined to be payable in connection with the execution, delivery, filing or
recording of this Agreement, any other Loan Document, or any other instrument or
writing to be delivered hereunder or thereunder, and shall reimburse, hold
harmless, and indemnify the Administrative Agent and each Bank from and against
any and all loss, liability, or legal or other expense with respect to or
resulting from any delay in paying or failure to pay any such tax, cost,
expense, fee, or charge or that any of them may suffer or incur by reason of the
failure of Borrower to perform
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110
any of its Obligations. Any amount payable to the Administrative Agent or any
Bank under this Section shall bear interest from the date of receipt of demand
for payment at the rate then in effect for Alternate Base Rate Loans.
11.4 Nature of Banks' Obligations. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent or the Banks or any of them pursuant hereto or thereto may, or may be
deemed to, make the Banks a partnership, an association, a joint venture, or
other entity, either among themselves or with Borrower. Each Bank's obligation
to make any Advance pursuant hereto is several and not joint or joint and
several, and is not conditioned upon the performance by any other Bank of its
obligation to make Advances. A default by any Bank will not increase the
Commitment of any other Bank. Any Bank not in default may, if it desires, assume
in such proportion as the nondefaulting Banks agree the obligations of any Bank
in default, but is not obligated to do so.
11.5 Representations and Warranties. All representations and warranties of
Borrower and any other Party contained herein or in any other Loan Document
(including, for this purpose, all representations and warranties contained in
any certificate or other writing required to be delivered by or on behalf of
Borrower or such Party pursuant to any Loan Document) will survive the making of
the loans hereunder and the execution and delivery of the Notes, and, in the
absence of actual knowledge by the Administrative Agent or a Bank of the untruth
of any representation or warranty, have been or will be relied upon by the
Administrative Agent and that Bank, notwithstanding any investigation made by
the Administrative Agent or that Bank or on their behalf.
11.6 Notices. Except as otherwise provided in any Loan Document, all
notices, requests, demands, directions, and other communications provided for
hereunder and under any other Loan Document must be in writing and must be
mailed (provided that communications related to any Default or Event of
Default or proposed action under Section 11.2 shall not be sent solely
by mail), telegraphed, delivered, or sent by telex, telecopier or cable to the
appropriate party at the address set forth on the signature pages of this
Agreement or, as to any Party, at any other address as may be designated by it
in the applicable Loan Document or in a written notice sent to the
Administrative Agent and Borrower in accordance with this Section. Except as
otherwise provided in any Loan Document if any notice, request, demand,
direction, or other communication is given by mail it will be effective on the
earlier of actual receipt or the third Banking Day after deposited in the United
States mails with first class or airmail postage prepaid; if given by telegraph
or cable, when delivered to the telegraph company with charges
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prepaid; if given by telecopier, when sent; if given by telex, when confirmed by
answerback; or if given by personal delivery, when delivered.
11.7 Execution in Counterparts. This Agreement and any other Loan
Document to which Borrower is a Party may be executed in any number of
counterparts and any party hereto or thereto may execute any counterpart, each
of which when executed and delivered will be deemed to be an original and all of
which counterparts of this Agreement or any other Loan Document, as the case may
be, taken together will be deemed to be but one and the same instrument. Such
counterparts may be sent by telecopy, with the original counterparts to follow
by mail or courier. The execution of this Agreement or any other Loan Document
by any party hereto or thereto will not become effective until executed
counterparts hereof or thereof (or other evidence of execution satisfactory to
the Administrative Agent and Borrower) have been delivered to the Administrative
Agent and Borrower.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrower is
a Party will be binding upon and inure to the benefit of Borrower, the
Agents, each of the Banks, and their respective successors and assigns,
except that except as permitted in Section 6.3, Borrower may
not assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the Banks.
(b) From time to time subsequent to the Amendment Effective Date,
each Line A Bank may assign or grant a participation in a portion of its Pro
Rata Share of the Line A Commitment, its Advances under the Line A Commitment
and its participation in Line A Letters of Credit, subject to all of the
terms and conditions set forth in Sections 5.1 and 5.2 of the
Override Agreement.
(c) From time to time subsequent to the Amendment Effective Date,
each Line B/C Bank may assign or grant a participation in a portion of its
Pro Rata Share of the Line B Commitment and Line C Commitment, its Advances
under the Line B Commitment and the Line C Commitment and its participation
in Line C Letters of Credit pursuant to a Line B/C Commitment Assignment and
Acceptance Agreement and subject to all of the terms and conditions set forth
in Sections 5.1 and 5.2 of the Override Agreement except that (i) all
references therein to "Overall Commitment" or the "Override Agreement"
shall instead be deemed to be references to the "Line B Commitment and the
Line C Commitment" and "this Agreement"; (ii) the Applicable
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112
Minimum Hold Requirement hereunder shall be, for each Bank,
$5,000,000 and (iii) the minimum amount of any assignment hereunder or
participation herein shall be $5,000,000.
11.9 Sharing of Setoffs. Each Line A Bank severally agrees that if
it, through the exercise of the right of setoff, banker's lien, or counterclaim
against Borrower or otherwise, receives payment of the Line A Obligations due it
hereunder and under the Line A Notes that is ratably more than any other Line A
Bank, through any means, receives in payment of the Line A Obligations held by
that Line A Bank, then: (a) the Line A Bank exercising the right of setoff,
banker's lien, or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the other
Line A Bank a participation in the Line A Obligations held by the other Line A
Bank and shall pay to the other Line A Bank a purchase price in an amount so
that the share of the Line A Obligations held by each Line A Bank after the
exercise of the right of setoff, banker's lien, or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien, or counterclaim or receipt of payment, and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Line A Banks share
any payment obtained in respect of the Line A Obligations ratably in accordance
with each Line A Bank's share of the Line A Obligations immediately
prior to, and without taking into account, the payment, provided that,
if all or any portion of a disproportionate payment obtained as a result of the
exercise of the right of setoff, banker's lien, counterclaim or otherwise is
thereafter recovered from the purchasing Line A Bank by Borrower or any Person
claiming through or succeeding to the rights of Borrower, the purchase of a
participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Line A Bank
that purchases a participation in the Line A Obligations pursuant to this
Section shall from and after the purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement with
respect to the portion of the Line A Obligations purchased to the same extent as
though the purchasing Bank were the original owner of the Line A Obligations
purchased. Each Line B/C Bank severally agrees to the same provisions as are set
forth in the preceding two sentences, with all references to Line A Banks
changed to Line B/C Banks and all references to Line A Obligations and the Line
A Notes changed to Line B/C Obligations and the Line B Notes and Line C Notes.
Borrower expressly consents to the foregoing arrangements and agrees that, to
the extent permitted by Law, any Bank holding a participation in an Obligation
so purchased may exercise any and all rights of setoff, banker's
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113
lien or counterclaim with respect to the participation as fully as if the Bank
were the original owner of the Obligation purchased.
11.10 Indemnity by Borrower. Borrower agrees to indemnify, save, and
hold harmless the Agents and each Bank and their directors, officers, agents,
attorneys, and employees (collectively, the "indemnitees") from and against: (i)
any and all claims, demands, actions or causes of action that are asserted
against any indemnitee (other than by Borrower or by any other indemnitee) if
the claim, demand, action or cause of action arises out of or relates to the
Commitment, the use of proceeds of any Loans, any transaction contemplated
pursuant to this Agreement, or any relationship or alleged relationship of any
indemnitee to Borrower related to this Agreement; (ii) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clause (i)
above; and (iii) any and all liabilities, losses, costs, or expenses (including
reasonable attorneys' fees and disbursements (including the allocated cost of
in-house counsel)) that any indemnitee suffers or incurs as a result of any of
the foregoing; provided, that Borrower shall have no obligation under
this Section to any indemnitee with respect to any of the foregoing arising out
of the gross negligence or willful misconduct of that indemnitee or the breach
by the indemnitee of this Agreement or from the transfer or disposition of any
Note by any Bank. If any claim, demand, action or cause of action is
asserted against any indemnitee, such indemnitee shall promptly notify Borrower,
but the failure to so promptly notify Borrower shall not affect Borrower's
obligations under this Section unless such failure materially prejudices
Borrower's right to participate in the contest of such claim, demand, action or
cause of action, as hereinafter provided. If requested by Borrower in writing
and so long as no Default or Event of Default shall have occurred and be
continuing, such indemnitee shall in good faith contest the validity,
applicability and amount of such claim, demand, action or cause of action, shall
permit Borrower to participate in such contest and shall cooperate with Borrower
to the extent their interests are aligned. Any indemnitee that proposes to
settle or compromise any claim or proceeding for which Borrower may be liable
for payment of indemnity hereunder shall give Borrower written notice of the
terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall not so settle or
compromise without Borrower's written approval thereof, which approval may be
withheld in Borrower's sole discretion. Any voluntary settlement by an
indemnitee of such a claim or proceeding without Borrower's written approval
shall relieve Borrower of its obligation to indemnify that indemnitee with
respect to such claim or proceeding. In any legal action involving more than
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114
one indemnitee, all indemnitees shall be represented by a single legal counsel
unless such legal counsel determines that a defense or counterclaim is available
to an indemnitee that is not available to all indemnitees and that to assert
such a defense or counterclaim would create a conflict of interest, or a
potential conflict of interest, in which case such indemnitee shall be entitled
to separate legal counsel. Any obligation or liability of Borrower to any
indemnitee under this Section shall survive the expiration or termination of
this Agreement and the repayment of all Loans and all other Obligations owed to
the Banks.
11.11 Nonliability of Banks. The relationship between Borrower and
the Banks is, and shall at all times remain, solely that of borrower and
lenders, and the Banks and the Agents neither undertake nor assume any
responsibility or duty to Borrower to review, inspect, supervise, pass judgment
upon, or inform Borrower of any matter in connection with any phase of
Borrower's business, operations, or condition, financial or otherwise. Borrower
shall rely entirely upon its own judgment with respect to such matters, and any
review, inspection, supervision, exercise of judgment, or information supplied
to Borrower by any Bank or the Agents in connection with any such matter is for
the protection of the Banks and the Agents, and neither Borrower nor any third
party is entitled to rely thereon.
11.12 Confidentiality. Each Bank agrees to use any confidential
information that it may receive, directly or indirectly, from Borrower pursuant
to this Agreement only for the purposes of this Agreement and to hold such
confidential information in confidence, except for disclosure: (a) To
Affiliates of the Bank; (b) To other Banks; (c) To legal counsel, accountants
and other professional advisors to that Bank; (d) To regulatory officials having
jurisdiction over that Bank; (e) As required by Law or legal process
(provided that the Bank shall, to the extent possible give sufficient
notice to Borrower of such legal process to enable Borrower to oppose such legal
process, and in any event, give written notice to Borrower of such legal process
as soon as practicable) or in connection with any legal proceeding to which that
Bank and Borrower are adverse parties; and (f) To another financial institution
in connection with a disposition or proposed disposition to that financial
institution of all or part of that Bank's interests hereunder or a participation
interest in its Note, provided that such disclosure is made subject to an
appropriate confidentiality agreement by such institution on terms substantially
similar to this Section. For purposes of the foregoing, "confidential
information" shall mean any information respecting Borrower or its Subsidiaries
reasonably considered by Borrower to be confidential, other than (i)
information previously filed with any Governmental Agency and
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115
available to the public, (ii) information previously published in any public
medium from a source other than, directly or indirectly, the Agents or any Bank,
and (iii) information previously disclosed by Borrower to any Person not
associated with Borrower without any reasonable expectation of confidentiality.
Nothing in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Agents or the Banks to Borrower.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Agents and the Banks in connection with the Commitment, and is
made for the sole benefit of Borrower, the Agents and the Banks, and the Agents'
and the Banks' successors and assigns. Except as provided in Sections
11.8 and 11.10, no other Person shall have any rights of any
nature hereunder or by reason hereof.
11.14 Other Dealings. Any Bank may, without liability to account to
the other Banks, accept deposits from, lend money or provide credit facilities
to and generally engage in any kind of banking or other business with Borrower
and its Subsidiaries.
11.15 Right of Setoff - Deposit Accounts. Upon the occurrence of an Event of
Default and the acceleration of maturity of the principal indebtedness under any
of the Notes pursuant to Section 9.2, Borrower hereby specifically authorizes
each Bank in which Borrower maintains a deposit account (whether a general or
special deposit account, other than trust accounts) or a certificate of deposit
to setoff any Obligations owed to the Banks against such deposit account or
certificate of deposit without prior notice to Borrower (which notice is hereby
waived) whether or not such deposit account or certificate of deposit has then
matured. Nothing in this Section shall limit or restrict the exercise by a Bank
of any right to setoff or banker's lien under applicable Law, subject to the
approval of Both Majority Banks.
11.16 Further Assurances. Borrower shall, at its expense and without
expense to the Banks or the Agents, do, execute, and deliver such further acts
and documents as any Bank or the Agents from time to time reasonably requires
for the assuring and confirming unto the Banks or the Agents the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document;
provided that this Section 11.16 is not intended to create any
affirmative obligation on the part of Borrower to provide collateral security,
additional guarantors or other credit enhancement with respect to the
Obligations.
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11.17 Integration. This Agreement, together with the other Loan
Documents and the Mortgage Warehousing Agreement, comprises the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof except as
expressly provided herein to the contrary; provided that the foregoing is
subject to Section 4.18 hereof. The Loan Documents were drafted with the
joint participation of Borrower and the Banks and shall be construed neither
against nor in favor of either, but rather in accordance with the fair meaning
thereof.
11.18 Governing Law. The Loan Documents shall be governed by, and
construed and enforced in accordance with, the Laws of California.
11.19 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.
11.20 Headings. Article and section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
11.21 Conflict in Loan Documents. To the extent there is any actual
irreconcilable conflict between the provisions of this Agreement and any other
Loan Document (other than the Override Agreement), the provisions of
this Agreement shall prevail. To the extent there is any actual irreconcilable
conflict between the provisions of this Agreement and the Override Agreement,
the provisions of the Override Agreement shall prevail.
11.22 Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, THE NOTES, ANY OTHER LOAN
DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING OR
OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY
OTHER LOAN DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
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11.23 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES THAT
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR
THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN
WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT WILL
NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN
STATEMENTS BY ANY REPRESENTATIVE OF ANY AGENT OR ANY BANK THAT DOES NOT COMPLY
WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THE AGREEMENT OR THE OTHER LOAN DOCUMENTS.
11.24 Hazardous Materials Indemnity. Without limiting any other
indemnity provided for in the Loan Documents, Borrower agrees to indemnify the
Agents and each Bank and their directors, officers, agents, attorneys, and
employees (collectively, the "indemnities") from any claim, liability, loss,
cost or expense (including reasonable attorneys' fees (including
the allocated cost of in-house counsel)) directly or indirectly arising out of
the use, generation, manufacture, production, storage, release, threatened
release, discharge, disposal or presence of any Hazardous Materials if such
Hazardous Materials are on, under, about or relate to Borrower's Property or
operations, so long as such claim, liability, loss, cost or expense arises out
of or relates to the Commitment, the use of proceeds of any Loans, any
transaction contemplated pursuant to this Agreement, or any
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relationship or alleged relationship of any indemnitee to Borrower related to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
XXXXXXX AND BROAD HOME CORPORATION
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Vice President and Treasurer
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx Xxxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent, Co-Syndication Agent and a
Managing Agent
By /s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Vice President
Agency Management Services #5596
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
- 000 -
000
XXXX XX XXXXXXX NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Line A Bank
and a Line B/C Bank
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
Vice President
Domestic Lending Office
Bank of America NT&SA
CRESG - National Accounts #1357
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
LIBOR Lending Office
Bank of America NT&SA
CRESG National Accounts #1357
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxxxx Xxxxxxxxxxx or
Xxxx Xxxxxx
Phone: (000) 000-0000 (Xxxxxxxxxxx)
(000) 000-0000 (Xxxxxx)
Fax: (000) 000-0000
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120
THE FIRST NATIONAL BANK OF CHICAGO, as
Documentation Agent, Co-Syndication
Agent, a Managing Agent, as a Line A
Bank and Line B/C Bank
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
Vice President
Domestic and LIBOR Lending Office
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxxx
Assistant Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
CREDIT LYONNAIS LOS ANGELES BRANCH, as
a Managing Agent, a Line A Bank and
Line B/C Bank
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
- 115 -
121
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Managing Agent, a Line A Bank and
Line B/C Bank
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Authorized Signatory
Domestic Lending Office
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
LIBOR Lending Office
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
- 116 -
000
XXXXXXXXXXX XX XXXXX, N.A., as a
Managing Agent, a Line A Bank and a
Line B/C Bank
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx
Senior Vice President
Domestic and LIBOR Lending Office
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx
XX0-000-00-00
Xxxxxx, Xxxxx 00000
Attn.: Xxx Xxxxx
Administrative Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
Los Angeles Agency, as a Line A Bank
By /s/ Xxxxxxxxx Xxxxx
-----------------------------------
Xxxxxxxxx Xxxxx
Senior Vice President
Domestic and LIBOR Lending Office
The Industrial Bank of Japan, Ltd.,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx Xxxx Schnadig
Assistant Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
- 117 -
123
SOCIETE GENERALE, as a Line A Bank
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
Vice President
Domestic and LIBOR Lending Office
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx Xxxxx
Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
SUNTRUST BANK, ATLANTA, as a Line A
Bank
By /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxxx
Assistant Vice President
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Vice President
Domestic and LIBOR Lending Office
Suntrust Bank, Atlanta
25 Park Place
24th Floor, Mail Code 124
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx Xxxxxxx
Corporate Banking Assistant
Phone: (000) 000-0000
Fax: (000) 000-0000
- 118 -
124
BANK ONE ARIZONA, NA, as a Line A Bank
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
Assistant Vice President
Domestic and LIBOR Lending Office
Bank One Arizona, NA
000 Xxxxx Xxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx
Assistant Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF BOSTON, as
a Line A Bank
By /s/ Xxxx X. XxXxxx
-----------------------------------
Xxxx X. XxXxxx
Vice President
Domestic and LIBOR Lending Office
Bank of Boston
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxxxxxxxx
Administrative Assistant
Phone: (000) 000-0000
(000) 000-0000
Fax: (000) 000-0000
- 119 -
125
BANQUE INDOSUEZ, as a Line A Bank
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
First Vice President
By /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Assistant Treasurer
Domestic and LIBOR Lending Office
Banque Indosuez
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn.: Xxxxx Xxxxx
Assistant Treasurer
Phone: (000) 000-0000
Fax: (000) 000-0000
CHEMICAL BANK, as a Line A Bank
By /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx
Vice President
Domestic and LIBOR Lending Office
Chemical Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxxxxxx
Loan Administrator
Phone: (000) 000-0000
Fax: (000) 000-0000
- 120 -
126
THE FUJI BANK, LIMITED, Los Angeles
Agency, as a Line A Bank
By /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxx
Joint General Manager
Domestic and LIBOR Lending Office
The Fuji Bank, Limited, Los Angeles
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxx
Vice President - Manager
Phone: (000) 000-0000
Fax: (000) 000-0000
- 121 -
127
SCEDHULE 1
PRO RATA SHARES
Line B
Line B Pro Rata Share
Bank Commitment Percentage
---- ---------- ----------
Bank of America National
Trust and Savings Association $ 27,500,000 25.0000%
The First National Bank
of Chicago $ 27,500,000 25.0000%
Credit Lyonnais 27,500,000 25.0000%
NationsBank of Texas, N.A. 27,500,000 25.0000%
------------
Total $110,000,000 100.0000%
PRO RATA SHARES
Line C
Line C Pro Rata Share
Bank Commitment Percentage
---- ---------- ----------
Bank of America National
Trust and Savings Association $ 5,000,000 25.0000%
The First National Bank
of Chicago $ 5,000,000 25.0000%
Credit Lyonnais 5,000,000 25.0000%
NationsBank of Texas, N.A. 5,000,000 25.0000%
------------
Total $ 20,000,000 100.0000%
[Schedule 1]
128
EXHIBIT A
---------
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
--------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
FIGURES FOR THE REPORTING PERIOD ENDING:
6.4 (f)(i) INVESTMENTS AND ACQUISITIONS:
COVENANT -
Limitation on investments in or acquisitions of Persons engaged in
businesses which are considered "different" from Borrower's current
operations.
--------------------------------------------------------------------------------
LIMITATION ON INVESTMENT IN OR ACQUISITION OF THE FOLLOWING:
(f)(ii) Persons engaged in commercial construction business in
European Countries other than France
--------------------------------------------------------------------------------
AMOUNT PERMITTED EQUALS THE FOLLOWING FIXED AMOUNT = $25,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AGGREGATE AMOUNT OF SUCH INVESTMENTS AND ACQUISITIONS = $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $25,000,000
(f)(iii) Persons engaged in commercial construction the United States.
--------------------------------------------------------------------------------
AMOUNT PERMITTED EQUALS THE FOLLOWING FIXED AMOUNT = $15,000,000
--------------------------------------------------------------------------------
AGGREGATE COST OF INVESTMENTS IN SUCH PERSONS $0
AGGREGATE COST OF INVESTMENTS IN SUCH INVENTORY $0
--------------------------------------------------------------------------------
AGGREGATE AMOUNT OF SUCH INVESTMENTS AND ACQUISITIONS = $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $15,000,000
(j) The amount of investments made in businesses other than
those provided for by this covenant.
--------------------------------------------------------------------------------
AMOUNT PERMITTED EQUALS THE FOLLOWING FIXED AMOUNT = $5,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AGGREGATE AMOUNT OF SUCH INVESTMENTS AND ACQUISITIONS = $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $5,000,000
--------------------------------------------------------------------------------
129
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
FIGURES FOR THE REPORTING PERIOD ENDING:
6.8 NON-RECOURSE INDEBTEDNESS
COVENANT
Limitation on non-recourse debt of Joint Ventures and Domestic
Subsidiaries.
--------------------------------------------------------------------------------
Amount of non-recourse debt permitted $100,000,000
--------------------------------------------------------------------------------
Aggregate amount of domestic subsidiary secured debt $0
--------------------------------------------------------------------------------
LESS: Indebtedness associate with properties in which such
Indebtedness is supported by an LC $0
Plus: Borrower's share of Non-Recourse Indebtedness associated
with Joint Ventures = $0
--------------------------------------------------------------------------------
Aggregate amount of non-recourse debt $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $100,000,000
--------------------------------------------------------------------------------
6.9 SUBSIDIARY INDEBTEDNESS AND CONTINGENT GUARANTY OBLIGATIONS
COVENANT -
Limitation on total Indebtedness and Contingent Guaranty
Obligations of Domestic Subsidiaries.
6.9(e). RECOURSE INDEBTEDNESS
--------------------------------------------------------------------------------
AMOUNT OF SUBSIDIARY INDEBTEDNESS WHICH MAY BE RECOURSE $5,000,000
--------------------------------------------------------------------------------
AMOUNT OF SUBSIDIARY INDEBTEDNESS WHICH IS RECOURSE $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $5,000,000
--------------------------------------------------------------------------------
6.9(f). TOTAL INDEBTEDNESS
--------------------------------------------------------------------------------
AMOUNT OF TOTAL SUBSIDIARY INDEBTEDNESS PERMITTED IS
FIXED AT= $100,000,000
--------------------------------------------------------------------------------
AGGREGATE AMOUNT OF DOMESTIC SUBSIDIARY SECURED INDEBTEDNESS= $0
PLUS: Recourse Indebtedness $0
PLUS: Borrower's share of Non-Recourse Indebtedness associated
with Joint Ventures= $0
PLUS: Borrower's share of Recourse Indebtedness associated with
Unimproved Land IV= $0
--------------------------------------------------------------------------------
AGGREGATE AMOUNT OF NON-RECOURSE INDEBTEDNESS
LIMITED BY SECTION 6.10(f) $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $100,000,000
--------------------------------------------------------------------------------
6.9(h). INDEBTEDNESS INCURRED BY UnIMPROVED LAND JOINT VENTURES*
--------------------------------------------------------------------------------
AMOUNT OF PERMITTED INDEBTEDNESS INCURRED BY UNIMPROVED LAND
JVS* IS FIXED AT= $35,000,000
--------------------------------------------------------------------------------
Amount of Indebtedness incurred by Unimproved Land JVs* is $0
--------------------------------------------------------------------------------
AMOUNT OF INDEBTEDNESS INCURRED BY UNIMPROVED LAND
JVs* IS $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $35,000,000
* Unimproved Land Joint Ventures are JVs formed by a subsidiary which does not
qualify as a Significant Subsidiary and to which such Subsidiary has
contributed Domestic Unimproved Land.
--------------------------------------------------------------------------------
130
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
-------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
-------------------------------------------------------------------------------
FIGURES FOR THE REPORTING PERIOD ENDING:
6.10 MONEY MARKET INDEBTEDNESS
COVENANT -
Limitation such that the aggregate amount of money market Indebtedness
(less than 1 year) and revolving credit outstanding balances do not
exceed the total commitment under the Loan Agreement
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
AGGREGATE AMOUNT PERMITTED EQUALS THE LINE A AND LINE C COMMITMENTS $630,000
UNDER THE LOAN AGREEMENT
-------------------------------------------------------------------------------
Total Line A outstandings at period end = $0
Total Line C outstandings at period end = $0
Total Line A Letter of Credit Usage = $0
Total Line C Letter of Credit Usage = $0
Money Market outstandings at period end = $0
-------------------------------------------------------------------------------
AGGREGATE AMOUNT OUTSTANDING UNDER SHORT TERM MONEY MARKET LINES $0
AND REVOLVER =
-------------------------------------------------------------------------------
CUSHION (VIOLATION) $630,000
-------------------------------------------------------------------------------
131
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
-------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
-------------------------------------------------------------------------------
6.12 MINIMUM CONSOLIDATED TANGIBLE NET WORTH
COVENANT --
Requirement that the Borrower maintain a minimum level of Tangible Net
Worth on a consolidated basis
-------------------------------------------------------------------------------
THE MINIMUM LEVEL OF TANGIBLE NET WORTH IS BASED ON THE FOLLOWING
FORMULA:
6.12(a) Base Amount= $355,000,000
PLUS: 6.12(b)(i) Cum. amount of Consolidated Adjusted Net Income
earned from Dec. 1, 1995 to Nov. 10, 1996
3 months ending: 29-Feb-96 $0
3 months ending: 30-May-96 $0
3 months ending: 31-Aug-96 $0
3 months ending: 30-Nov-96 $0
-------
0
-------
6.12(b)(ii) The after tax effect of the Contemplated Charge for the
fiscal year ending Nov. 30, 1996
3 months ending: 29-Feb-96 0
3 months ending: 30-May-96 0
3 months ending: 31-Aug-96 0
3 months ending: 30-Nov-96 0
-------
0
-------
Sum of 6.12(b)(i) and 6.12(b)(ii) 0
Multiplied by: 60%
(provided that there shall be no reduction hereunder in the event that
the sum of items 6.12(b)(i) and 6.12(b)(ii) above is a negative)
PLUS: 6.12(c) Amount of Consolidated Adjusted Net Income earned (if positive)
from Dec. 1 1996 to Expiration of Loan including any recapture gain (but
excluding recapture loss).
3 months ending: 28-Feb-97 0
3 months ending: 30-May-97 0
3 months ending: 31-Aug-97 0
-------
0
-------
Multiplied by: 60%
PLUS: 6.12(d) Recapture gain (but including recapture loss) Dec. 1, 1996 to
Expiration of Loan
3 months ending: 28-Feb-97 0
3 months ending: 30-May-97 0
3 months ending: 31-Aug-97 0
-------
0
-------
Multiplied by: 100%
(provided that there shall be no reduction hereunder in the event that the
items in 6.12(c) and (d) are negative)
-------------------------------------------------------------------------------
132
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
FIGURES FOR THE REPORTING PERIOD ENDING:
-------------------------------------------------------------------------------
6.12 MINIMUM CONSOLIDATED TANGIBLE NET WORTH (CONTINUED)
PLUS: 6.12(e) Cumulative amount of cash proceeds from
the issuance of shares (net of proceeds used
to repurchase outstanding capital stock),
conversion of debt or options and the aggregate
value of capital stock issued in connection with
Acquisitions (net of any intangible assets created)
occurring subsequent to the Amendment Effective Date
3 months ending: 29-Feb-96 $0
3 months ending: 30-May-96 $0
3 months ending: 31-Aug-96 $0
3 months ending: 30-Nov-96 $0
------
0
Multiplied by: 60% $0
LESS: 6.12(f) Cash proceeds from stock issuances since the
Amendment Effective Date used to repurchase
stock:
3 months ending: 29-Feb-96 $0
3 months ending: 30-May-97 $0
3 months ending: 31-Aug-96 $0
3 months ending: 30-Nov-96 $0
------
0
Multiplied by: 100% $0
-------------------------------------------------------------------------------
CONSOLIDATED TANGIBLE NET WORTH MUST BE AT LEAST $355,000,000
-------------------------------------------------------------------------------
CONSOLIDATED TANGIBLE NET WORTH AT THE END OF THE
REPORTING PERIOD = $0
Cumulative Changes in Foreign Currency Adjustment:
Balance as of November 30, 1994 $2,243,000
LESS: Balance at the end of the reporting period 2,243,000
----------
ADJUSTED FOR CUM. CHANGES IN FOREIGN CURRENCY
ADJUSTMENT SINCE THE AMENDMENT DATE $0
-------------------------------------------------------------------------------
CONSOLIDATED TANGIBLE NET WORTH ADJUSTED FOR CUM.
FOREIGN CURRENCY ADJUSTMENT $0
-------------------------------------------------------------------------------
CUSHION (VIOLATION) ($355,000,000)
-------------------------------------------------------------------------------
133
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
--------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
--------------------------------------------------------------------------------
FIGURES FOR THE REPORTING PERIOD ENDING:
6.13 DOMESTIC LEVERAGE RATIO
COVENANT -
Limitation on Domestic Indebtedness to Domestic Adjusted Tangible
Net Worth
--------------------------------------------------------------------------------
OUTSTANDING DOMESTIC INDEBTEDNESS
Domestic secured debt $0
Less: Domestic secured debt backed by Financial Letters
of Credit $0
Domestic secured debt, net of debt supported by Financial
Letters of Credit $0
Plus: Financial Letters of Credit outstanding (inc. Letters of Credit
backing secured debt) $0
Plus: Domestic senior notes outstanding $0
Plus: Domestic outstandings under the Loan Agreement $0
Plus: Domestic outstandings under money market lines $0
Plus: Outstandings under Senior Subordinated Notes $0
--------------------------------------------------------------------------------
TOTAL DOMESTIC INDEBTEDNESS $0
--------------------------------------------------------------------------------
The calculation for determining permitted Indebtedness requires the
calculation of Domestic Adjusted Tangible Net Worth:
a) Consolidated Tangible Net Worth $0
Less: b) Tangible Net Worth of Foreign Subsidiaries $0
-----
c) Consolidated TNW Net of Foreign TNW (a+b) $0
Less: d) Amount by which Investments in Domestic Joint Ventures
exceeds 10% of (c) above $0
Less: e) Amount of intercompany receivables owed to Borrower
by Foreign Subsidiaries $0
Plus: f) Lesser of the tax-effect of the Contemplated Charge
or $70,000,000 $0
-----
DOMESTIC ADJUSTED TANGIBLE NET WORTH = $0
The Domestic Leverage Ratio shall not be greater than:
3.00 to 1.00 at Fiscal Quarter Ending February 29, 1996
2.80 to 1.00 at Fiscal Quarter Ending May 31, 1996
2.50 to 1.00 at Fiscal Quarter Ending August 31, 1996
2.10 to 1.00 at Fiscal Quarter Ending November 30, 1996
2.40 to 1.00 at Fiscal Quarter Ending February 28, 1997
2.20 to 1.00 at Fiscal Quarter Ending May 31, 1997
2.10 to 1.00 at Fiscal Quarter Ending August 31, 1997
1.80 to 1.00 at Fiscal Quarter Ending November 30, 1997
and thereafer
---
Times 3.0
---
--------------------------------------------------------------------------------
PERMITTED DOMESTIC INDEBTEDNESS ($0)
--------------------------------------------------------------------------------
Cushion (Violation) ($0)
--------------------------------------------------------------------------------
134
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
-------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
FIGURES FOR THE REPORTING PERIOD ENDING:
6.18 DOMESTIC INVENTORY
COVENANT -
Limitation of the Borrower and Domestic Subsidiaries to hold land
in various categories.
-------------------------------------------------------------------------------
6.18(a) LIMITATION ON LAND IN PRODUCTION
Land in which less than 50% of the costs have been incurred
in order to bring parcel to finished lot status.
-------------------------------------------------------------------------------
AGGREGATE AMOUNT PERMITTED EQUALS DOMESTIC ADJUSTED ($0)
TANGIBLE NET WORTH =
-------------------------------------------------------------------------------
Book value of Domestic Land in Production $0
Real property owned by Land Fund for more than 4 years $0
PLUS: Any reduction in the book value attributable to the $0
Contemplated Charge
-------------------------------------------------------------------------------
BOOK VALUE OF TOTAL DOMESTIC LAND IN PRODUCTION $0
-------------------------------------------------------------------------------
CUSHION (VIOLATION) ($0)
6.18(b) LIMITATION ON LAND IN PRODUCTION NOT COVERED BY A MAP OR
OTHERWISE EQUIVALENTLY ENTITLED
-------------------------------------------------------------------------------
AGGREGATE AMOUNT PERMITTED EQUALS 50% OF DOMESTIC ADJUSTED ($0)
TANGIBLE NET WORTH =
-------------------------------------------------------------------------------
Book value of Domestic Land in Production not covered by $0
a Map or otherwise entitled
Real property owned by Land Fund for more than 4 years $0
PLUS: Any reduction in the book value attributable to the $0
Contemplated Charge
-------------------------------------------------------------------------------
BOOK VALUE OF DOMESTIC LAND IN PRODUCTION NOT COVERED BY A $0
MAP OR OTHERWISE ENTITLED
-------------------------------------------------------------------------------
CUSHION (VIOLATION) ($0)
SO LONG AS BORROWER IS IN VIOLATION OF EITHER
SECTIONS 6.17(a) OR (b),
-----------------------------------------------------------------------
If a violation of Section 6.17(a) exists, then the Borrower and its
subsidiaries will not be permitted to acquire any additional Domestic
Land in Production. Similarly, if a violation of Section 6.17(b)
exists, then the Borrower and its subsidiaries will not be permitted
to acquire any additional Domestic Land Not Covered by Tentative or
Final Maps. If either violation persists for two consecutive quarters,
then an event of default will have occurred.
-----------------------------------------------------------------------
-------------------------------------------------------------------------------
6.19 DOMESTIC STANDING INVENTORY
COVENANT -
Limitation on unsold units in which 90% or greater of construction costs
have been incurred or 10 months has elapsed from the time when slab
was poured.
-------------------------------------------------------------------------------
THE AMOUNT PERMITTED IS EQUAL TO:
The number of domestic Net Orders received during 7,575
the preceding 12 months -------
Multiplied by: 15.00% 0
-------------------------------------------------------------------------------
TOTAL PERMITTED NUMBER OF UNITS IN DOMESTIC STANDING INVENTORY = 0
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
NUMBER OF UNITS IN DOMESTIC STANDING INVENTORY = 0
-------------------------------------------------------------------------------
CUSHION (VIOLATION) 0
-------------------------------------------------------------------------------
135
COMPLIANCE CERTIFICATE AS REQUIRED BY ARTICLE 7, SECTION 2
--------------------------------------------------------------------------------
COMPUTATIONS OF SELECTED NEGATIVE COVENANTS UNDER ARTICLE 6
FIGURES FOR THE REPORTING PERIOD ENDING:
6.20 INVESTMENTS IN CERTAIN SUBSIDIARIES
COVENANT -
Limitation on Borrower's ability to invest money in certain
Subsidiaries.
6.20(a), FOREIGN SUBSIDIARIES
--------------------------------------------------------------------------------
THE AMOUNT PERMITTED FOR FOREIGN SUBSIDIARIES IS BASED
ON THE FOLLOWING FORMULA:
Base Amount $30,000,000
PLUS: Aggregate amount of Distributions paid by Foreign
Subsidiaries since Amendment Date $0
PLUS: Aggregate amount of capital of Foreign Subsidiaries returned
to Borrower since Amendment Date $0
--------------------------------------------------------------------------------
TOTAL PERMITTED INCREMENTAL INVESTMENTS IN FOREIGN
SUBIDIARIES SINCE AMENDMENT DATE $30,000,000
--------------------------------------------------------------------------------
AGGREGATE INCREMENTAL INVESTMENTS IN FOREIGN SUBSIDIARIES
SINCE THE AMENDMENT DATE $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $30,000,000
--------------------------------------------------------------------------------
6.20(b), FINANCIAL SUBSIDIARIES
--------------------------------------------------------------------------------
THE AMOUNT PERMITTED FOR FINANCIAL SUBSIDIARIES IS BASED
ON THE FOLLOWING FORMULA:
Base Amount $40,000,000
PLUS: Aggregate amount of Distributions paid by Financial
Subsidiaries since Amendment Date $0
PLUS: Aggregate amount of capital of Financial Subsidiaries returned
to Borrower since Amendment Date $0
--------------------------------------------------------------------------------
TOTAL PERMITTED INCREMENTAL INVESTMENTS IN FINANCIAL
SUBIDIARIES SINCE AMENDMENT DATE $40,000,000
--------------------------------------------------------------------------------
AGGREGATE INCREMENTAL INVESTMENTS IN FINANCIAL SUBSIDIARIES
SINCE THE AMENDMENT DATE $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $40,000,000
--------------------------------------------------------------------------------
*In calculating compliance with this section, the amount of the
Borrower's Contingent Guaranty Obligations under the Mortgage Warehouse
Guaranty shall be excluded from Investments.
--------------------------------------------------------------------------------
6.20(c), LAND FUND JOINT VENTURE
--------------------------------------------------------------------------------
THE AMOUNT PERMITTED IS BASED ON THE FOLLOWING FORMULA:
Base Amount $6,000,000
PLUS: Aggregate amount of Distributions paid by the Land Fund
Joint Venture since the Amendment Date $0
--------------------------------------------------------------------------------
TOTAL PERMITTED INCREMENTAL INVESTMENTS IN LAND FUND JOINT
VENTURE SINCE AMENDMENT DATE $6,000,000
--------------------------------------------------------------------------------
AGGREGATE INCREMENTAL INVESTMENTS IN LAND FUND JOINT VENTURE
SINCE THE AMENDMENT DATE $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $6,000,000
--------------------------------------------------------------------------------
6.20(d), MULTI HOUSING GROUP
--------------------------------------------------------------------------------
THE AMOUNT PERMITTED IS BASED ON THE FOLLOWING FORMULA:
Base Amount $22,500,000
PLUS: Aggregate amount of Distributions paid by the Multi Housing
Group since the Amendment Date $0
PLUS: Aggregate amount of capital of the Multi Housing Group
returned to Borrower since Amendment Date $0
--------------------------------------------------------------------------------
TOTAL PERMITTED INCREMENTAL INVESTMENTS IN THE MULTI HOUSING
GROUP SINCE AMENDMENT DATE $22,500,000
--------------------------------------------------------------------------------
AGGREGATE INCREMENTAL INVESTMENTS IN THE MULTI HOUSING GROUP
SINCE THE AMENDMENT DATE $0
--------------------------------------------------------------------------------
CUSHION (VIOLATION) $22,500,000
--------------------------------------------------------------------------------
136
EXHIBIT B
LINE A NOTE
$80,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("the Bank") the principal
amount of EIGHTY MILLION AND NO/100 DOLLARS ($80,000,000), or such lesser
aggregate amount of Line A Loans as may be made pursuant to the Bank's Pro Rata
Share of the Line A Commitment under the Fourth Amended and Restated Loan
Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Line A
Loan made hereunder and remaining unpaid from time to time from the date of
each such Line A Loan until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
137
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
-------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
-------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
138
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
139
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
140
LINE A NOTE
$132,500,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
FIRST NATIONAL BANK OF CHICAGO ("the Bank") the principal amount of ONE HUNDRED
THIRTY-TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($132,500,000), or
such lesser aggregate amount of Line A Loans as may be made pursuant to the
Bank's Pro Rata Share of the Line A Commitment under the Fourth Amended and
Restated Loan Agreement hereinafter described, payable as hereinafter set
forth. The undersigned promises to pay interest on the principal amount of
each Line A Loan made hereunder and remaining unpaid from time to time from the
date of each such Line A Loan until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
141
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
142
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
143
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
144
EXHIBIT B
LINE A NOTE
$65,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of CREDIT
LYONNAIS LOS ANGELES AND CAYMAN ISLAND BRANCHES ("the Bank") the principal
amount of SIXTY-FIVE MILLION AND NO/100 DOLLARS ($65,000,000), or such lesser
aggregate amount of Line A Loans as may be made pursuant to the Bank's Pro Rata
Share of the Line A Commitment under the Fourth Amended and Restated Loan
Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Line A
Loan made hereunder and remaining unpaid from time to time from the date of
each such Line A Loan until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
145
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
146
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
147
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
148
LINE A NOTE
$40,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. ("the Bank") the principal amount of FORTY MILLION
AND NO/100 DOLLARS ($40,000,000), or such lesser aggregate amount of Line A
Loans as may be made pursuant to the Bank's Pro Rata Share of the Line A
Commitment under the Fourth Amended and Restated Loan Agreement hereinafter
described, payable as hereinafter set forth. The undersigned promises to pay
interest on the principal amount of each Line A Loan made hereunder and
remaining unpaid from time to time from the date of each such Line A Loan until
the date of payment in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
149
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
150
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
151
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
152
LINE A NOTE
$32,500,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES AGENCY ("the Bank") the
principal amount of THIRTY-TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($32,500,000), or such lesser aggregate amount of Line A Loans as may be made
pursuant to the Bank's Pro Rata Share of the Line A Commitment under the Fourth
Amended and Restated Loan Agreement hereinafter described, payable as
hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line A Loan made hereunder and remaining unpaid from
time to time from the date of each such Line A Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
153
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
154
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
155
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
156
LINE A NOTE
$32,500,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
SOCIETE GENERALE ("the Bank") the principal amount of THIRTY-TWO MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($32,500,000), or such lesser aggregate
amount of Line A Loans as may be made pursuant to the Bank's Pro Rata Share of
the Line A Commitment under the Fourth Amended and Restated Loan Agreement
hereinafter described, payable as hereinafter set forth. The undersigned
promises to pay interest on the principal amount of each Line A Loan made
hereunder and remaining unpaid from time to time from the date of each such
Line A Loan until the date of payment in full, payable as hereinafter set
forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
157
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on over
due interest to bear interest at the rate set forth in Section 3.9 of the Loan
Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
158
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
159
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
160
LINE A NOTE
$32,500,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
SUNTRUST BANK, ATLANTA (formerly known as TRUST COMPANY BANK) ("the Bank") the
principal amount of THIRTY-TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($32,500,000), or such lesser aggregate amount of Line A Loans as may be made
pursuant to the Bank's Pro Rata Share of the Line A Commitment under the Fourth
Amended and Restated Loan Agreement hereinafter described, payable as
hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line A Loan made hereunder and remaining unpaid from
time to time from the date of each such Line A Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
161
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
162
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
163
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 4 -
164
LINE A NOTE
$20,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of BANK
ONE ARIZONA, NA ("the Bank") the principal amount of TWENTY MILLION AND NO/100
DOLLARS ($20,000,000), or such lesser aggregate amount of Line A Loans as may
be made pursuant to the Bank's Pro Rata Share of the Line A Commitment under
the Fourth Amended and Restated Loan Agreement hereinafter described, payable
as hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line A Loan made hereunder and remaining unpaid from
time to time from the date of each such Line A Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
Agreement to the fullest extent permitted by applicable Law,
- 1 -
165
both before and after default and before and after maturity and judgment, with
interest on overdue interest to bear interest at the rate set forth in Section
3.9 of the Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
' By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
166
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 3 -
167
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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168
LINE A NOTE
$20,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
FIRST NATIONAL BANK OF BOSTON ("the Bank") the principal amount of TWENTY
MILLION AND NO/100 DOLLARS ($20,000,000), or such lesser aggregate amount of
Line A Loans as may be made pursuant to the Bank's Pro Rata Share of the Line
A Commitment under the Fourth Amended and Restated Loan Agreement hereinafter
described, payable as hereinafter set forth. The undersigned promises to pay
interest on the principal amount of each Line A Loan made hereunder and
remaining unpaid from time to time from the date of each such Line A Loan
until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement
dated as of February 28, 1996, among the undersigned, as Borrower, the Banks
that are parties thereto, Bank of America National Trust and Savings
Association, as Administrative Agent for the Banks, First National Bank of
Chicago, as Documentation Agent, Bank of America National Trust and Savings
Association and The First National Bank of Chicago, as Co-Syndication Agents,
and Bank of America National Trust and Savings Association, The First National
Bank of Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas,
N.A., as Managing Agents (as further amended from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings defined for those terms in the Loan
Agreement. This is one of the Notes referred to in the Loan Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified, amended, renewed, extended or
supplanted. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Line A Loan hereunder from the date thereof until payment in
full and shall accrue and be payable at the rates and on the dates set forth
in the Loan
- 1 -
169
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
170
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 3 -
171
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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-------------------------------------------------------------------------------
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- 4 -
172
LINE A NOTE
$15,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of BANQUE
INDOSUEZ ("the Bank") the principal amount of FIFTEEN MILLION AND NO/100
DOLLARS ($15,000,000), or such lesser aggregate amount of Line A Loans as may
be made pursuant to the Bank's Pro Rata Share of the Line A Commitment under
the Fourth Amended and Restated Loan Agreement hereinafter described, payable
as hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line A Loan made hereunder and remaining unpaid from
time to time from the date of each such Line A Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
Agreement to the fullest extent permitted by applicable Law,
- 1 -
173
both before and after default and before and after maturity and judgment, with
interest on overdue interest to bear interest at the rate set forth in Section
3.9 of the Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest, extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
174
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 3 -
175
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
176
LINE A NOTE
$15,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
CHEMICAL BANK ("the Bank") the principal amount of FIFTEEN MILLION AND NO/100
DOLLARS ($15,000,000), or such lesser aggregate amount of Line A Loans as may
be made pursuant to the Bank's Pro Rata Share of the Line A Commitment under
the Fourth Amended and Restated Loan Agreement hereinafter described, payable
as hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line A Loan made hereunder and remaining unpaid from
time to time from the date of each such Line A Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that
are parties thereto, Bank of America National Trust and Savings Association,
as Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association
and The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A.,
as Managing Agents (as further amended from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings defined for those terms in the Loan
Agreement. This is one of the Notes referred to in the Loan Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified, amended, renewed, extended or
supplanted. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Line A Loan hereunder from the date thereof until payment in
full and shall accrue and be payable at the rates and on the dates set forth
in the Loan Agreement to the fullest extent permitted by applicable Law,
- 1 -
177
both before and after default and before and after maturity and judgment, with
interest on overdue interest to bear interest at the rate set forth in Section
3.9 of the Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
178
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 3 -
179
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
180
LINE A NOTE
$15,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
FUJI BANK, LIMITED, LOS ANGELES AGENCY ("the Bank") the principal amount of
FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000), or such lesser aggregate
amount of Line A Loans as may be made pursuant to the Bank's Pro Rata Share of
the Line A Commitment under the Fourth Amended and Restated Loan Agreement
hereinafter described, payable as hereinafter set forth. The undersigned
promises to pay interest on the principal amount of each Line A Loan made
hereunder and remaining unpaid from time to time from the date of each such
Line A Loan until the date of payment in full, payable as hereinafter set
forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line A Note shall be payable
as provided in the Loan Agreement and in any event on the Line A Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line A Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
181
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line A Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line A Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
182
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
183
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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- 4 -
184
EXHIBIT C
LINE B NOTE
$27,500,000 February 28, 1996
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("the Bank") the principal
amount of TWENTY-SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($27,500,000), or such lesser aggregate amount of Line B Loans as may be made
pursuant to the Bank's Pro Rata Share of the Line B Commitment under the Fourth
Amended and Restated Loan Agreement hereinafter described, payable as
hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Line B Loan made hereunder and remaining unpaid from
time to time from the date of each such Line B Loan until the date of payment
in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line B Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line B Loan hereunder from the date thereof until payment in full and
shall accrue and be
- 1 -
185
payable at the rates and on the dates set forth in the Loan Agreement to the
fullest extent permitted by applicable Law, both before and after default and
before and after maturity and judgment, with interest on overdue interest to
bear interest at the rate set forth in Section 3.9 of the Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line B Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line B Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line B Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed
- 2 -
186
by, and construed and enforced in accordance with, the local
Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 3 -
187
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
188
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 5 -
000
XXXX X NOTE
$27,500,000 February 28, 1996
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
FIRST NATIONAL BANK OF CHICAGO ("the Bank") the principal amount of
TWENTY-SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($27,500,000), or
such lesser aggregate amount of Line B Loans as may be made pursuant to the
Bank's Pro Rata Share of the Line B Commitment under the Fourth Amended and
Restated Loan Agreement hereinafter described, payable as hereinafter set
forth. The undersigned promises to pay interest on the principal amount of
each Line B Loan made hereunder and remaining unpaid from time to time from the
date of each such Line B Loan until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof
is entitled to all of the rights, remedies, benefits and privileges provided
for in the Loan Agreement as originally executed or as it may from time to time
be supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line B Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line B Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
190
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line B Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line B Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line B Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
191
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
192
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
000
XXXX X NOTE
$27,500,000 February 28, 1996
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of CREDIT
LYONNAIS LOS ANGELES BRANCH ("the Bank") the principal amount of TWENTY-SEVEN
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($27,500,000), or such lesser
aggregate amount of Line B Loans as may be made pursuant to the Bank's Pro Rata
Share of the Line B Commitment under the Fourth Amended and Restated Loan
Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Line B
Loan made hereunder and remaining unpaid from time to time from the date of
each such Line B Loan until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line B Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line B Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
194
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line B Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line B Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line B Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
195
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
196
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
000
XXXX X NOTE
$27,500,000 February 28, 1996
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. ("the Bank") the principal amount of TWENTY-SEVEN
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($27,500,000), or such lesser
aggregate amount of Line B Loans as may be made pursuant to the Bank's Pro Rata
Share of the Line B Commitment under the Fourth Amended and Restated Loan
Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Line B
Loan made hereunder and remaining unpaid from time to time from the date of
each such Line B Loan until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line B Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line B Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
198
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line B Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line B Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line B Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
199
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
200
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
201
EXHIBIT D
LINE C NOTE
$5,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("the Bank") the principal
amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000), or such lesser
aggregate amount of Line C Loans as may be made pursuant to the Bank's Pro Rata
Share of the Line C Commitment under the Fourth Amended and Restated Loan
Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Line C
Loan made hereunder and remaining unpaid from time to time from the date of
each such Line C Loan until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line C Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line C Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
202
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line C Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line C Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line C Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
203
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
204
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
205
LINE C NOTE
$5,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of THE
FIRST NATIONAL BANK OF CHICAGO ("the Bank") the principal amount of FIVE
MILLION AND NO/100 DOLLARS ($5,000,000), or such lesser aggregate amount of
Line C Loans as may be made pursuant to the Bank's Pro Rata Share of the Line C
Commitment under the Fourth Amended and Restated Loan Agreement hereinafter
described, payable as hereinafter set forth. The undersigned promises to pay
interest on the principal amount of each Line C Loan made hereunder and
remaining unpaid from time to time from the date of each such Line C Loan until
the date of payment in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line C Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line C Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
- 1 -
206
Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line C Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line C Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line C Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
- 2 -
207
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 3 -
208
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
- 4 -
209
LINE C NOTE
$5,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of CREDIT
LYONNAIS LOS ANGELES BRANCH ("the Bank") the principal amount of FIVE MILLION
AND NO/100 DOLLARS($5,000,000), or such lesser aggregate amount of Line C
Loans as may be made pursuant to the Bank's Pro Rata Share of the Line C
Commitment under the Fourth Amended and Restated Loan Agreement hereinafter
described, payable as hereinafter set forth. The undersigned promises to pay
interest on the principal amount of each Line C Loan made hereunder and
remaining unpaid from time to time from the date of each such Line C Loan
until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line C Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line C Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
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Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line C Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line C Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line C Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
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ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
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Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
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ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
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LINE C NOTE
$5,000,000 February 28, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. ("the Bank") the principal amount of FIVE MILLION
AND NO/100 DOLLARS ($5,000,000), or such lesser aggregate amount of Line C
Loans as may be made pursuant to the Bank's Pro Rata Share of the Line C
Commitment under the Fourth Amended and Restated Loan Agreement hereinafter
described, payable as hereinafter set forth. The undersigned promises to pay
interest on the principal amount of each Line C Loan made hereunder and
remaining unpaid from time to time from the date of each such Line C Loan until
the date of payment in full, payable as hereinafter set forth.
Reference is made to the Fourth Amended and Restated Loan Agreement dated
as of February 28, 1996, among the undersigned, as Borrower, the Banks that are
parties thereto, Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks, First National Bank of Chicago, as
Documentation Agent, Bank of America National Trust and Savings Association and
The First National Bank of Chicago, as Co-Syndication Agents, and Bank of
America National Trust and Savings Association, The First National Bank of
Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as
Managing Agents (as further amended from time to time, the "Loan Agreement").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein with the meanings defined for those terms in the Loan Agreement. This
is one of the Notes referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges provided for
in the Loan Agreement as originally executed or as it may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this Line C Note shall be payable
as provided in the Loan Agreement and in any event on the Line B/C Maturity
Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Line C Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
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Agreement to the fullest extent permitted by applicable Law, both before and
after default and before and after maturity and judgment, with interest on
overdue interest to bear interest at the rate set forth in Section 3.9 of the
Loan Agreement.
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office, for the account of the Bank, in
lawful money of the United States of America and in immediately available funds
on the day of payment (which must be a Banking Day). All payments of principal
received after 10:00 a.m., San Francisco time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day for purposes of calculating
interest thereon. The Bank shall use its best efforts to keep a record of
Loans made by it and payments of principal with respect to this Line C Note,
and such record shall be presumptive evidence of the principal amount owing
under this Line C Note.
The undersigned hereby promises to pay, within fifteen (15) days after
demand, the reasonable costs and expenses of any holder hereof incurred in
collecting the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of any holder's rights hereunder, including
attorneys' fees and disbursements, whether or not an action is filed in
connection therewith, in accordance with Section 11.3 of the Loan Agreement.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line C Note shall be delivered to and accepted by the Bank in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By /s/ XXXXXXX X. XXXX
------------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President
and Chief Financial Officer
By /s/ XXXXXX XXXX
------------------------------------------
Xxxxxx Xxxx
Senior Vice President
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ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
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ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Loans)
-------------------------------------------------------------------------------
Amount of
Amount of Principal
Loan or of Paid or
Redesigna- Redesig-
tion from nated into
another another Unpaid
type of type of Principal Notation
Date Loan Loan Balance Made By
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EXHIBIT E
LINE B/C COMMITMENT ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS COMMITMENT ASSIGNMENT AND ACCEPTANCE AGREEMENT ("Agreement")
dated as of _______, 199_ is made with reference to that certain Fourth Amended
and Restated Loan Agreement dated as of February __, 1996 among Xxxxxxx and
Broad Home Corporation, Bank of America NT&SA, as Administrative Agent, and the
Banks party thereto (the "KBHC Loan Agreement"), and is entered into between the
"Assignor" described below, in its capacity as a Bank under the Loan Agreement,
and the "Assignee" described below. Assignor and Assignee hereby represent,
warrant and agree as follows:
1. Definitions. Capitalized terms defined in the KBHC Loan Agreement
are used herein with the meanings set forth for such terms in the KBHC Loan
Agreement. As used in this Agreement, the following capitalized terms shall
have the meanings set forth below:
"Agent" means the KBHC Agent.
"Assignee" means __________________________________.
"Assigned Pro-Rata Share" means _______% of the Line B
Commitment and the Line C Commitment of the Line B/C Banks under the KBHC Loan
Agreement, being equal to the following dollar amount: $____________________.
"Assignor" means __________________________________.
"Borrower" means KBHC.
"Effective Date" means ___________ 199_, the effective date
of this Agreement determined in accordance with the KBHC Loan Agreement.
"KBHC" means Xxxxxxx and Broad Home Corporation, a Delaware
corporation, and its successors.
"KBHC Agent" means Bank of America National Trust and
Savings Association, in its capacity as Administrative Agent under the KBHC Loan
Agreement, and any successor agent thereunder.
"KBHC Loan Agreement" means that certain Fourth Amended and
Restated Loan Agreement dated as of February 28, 1996 among KBHC, the KBHC
Agent, and the Banks party thereto, as the same may be amended from time to
time.
"Line B/C Banks" means the Banks designated as Line B/C Banks on the
signature pages of the KBHC Loan
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218
Agreement, together with any other Bank that may become a Line B/C Bank pursuant
to the KBHC Loan Agreement.
"Line B Commitment" shall have the meaning given such term
in the KBHC Loan Agreement.
"Line C Commitment" shall have the meaning given such term
in the KBHC Loan Agreement.
"Loan Documents" means, collectively, the "Loan Documents"
under the KBHC Loan Agreement.
"Managing Agents" means, collectively, Bank of America
National Trust and Savings Association, The First National Bank of Chicago,
Credit Lyonnais Los Angeles Branch and NationsBank of Texas, N.A.
"Notes" means promissory notes evidencing Line B Loans and
Line C Loans made in favor of any Assignor or Assignee by KBHC under the KBHC
Loan Agreement.
2. Representations and Warranties of the Assignor. The Assignor
represents and warrants as follows:
(a) As of the date hereof, the Line B/C Pro-Rata Share of the
Assignor is _____% of the Line B Commitment and the Line C Commitment (without
giving effect to assignments thereof which have not yet become effective). The
Assignor is the legal and beneficial owner of the Assigned Pro-Rata Share and
the Assigned Pro-Rata Share is free and clear of any adverse claim.
(b) The outstanding principal balance of Advances made by Assignor
under Section 2.1(b) of the KBHC Loan Agreement is $______________. The
outstanding principal balance of Advances made by Assignor under Section
2.1(c) of the KBHC Loan Agreement is $___________, and the Assignor's
Pro Rata Share of all Line C Letters of Credit issued under Section
2.5(b) of the KBHC Loan Agreement is $_______________.
(c) The Assignor has full power and authority, and has taken all
action necessary to execute and deliver this Agreement and any and all other
documents required or permitted to be executed or delivered by it in connection
with this Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement, and no governmental authorizations
or other authorizations are required in connection therewith.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Assignor.
Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of KBHC
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219
or the performance by KBHC of its obligations under the Override Agreement and
the KBHC Loan Agreement, and assumes no responsibility with respect to any
statements, warranties or representations made or in connection with the
Override Agreement and the KBHC Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the KBHC Loan
Agreement or any Loan Document other than as expressly set forth above.
3. Representations and Warranties of the Assignee. The Assignee hereby
represents and warrants to the Assignor as follows:
(a) The Assignee is an Eligible Assignee;
(b) The Assignee has full power and authority, and has taken all
action necessary to execute and deliver this Agreement, and any and all other
documents required or permitted to be executed or delivered by it in connection
with this Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement, and no governmental authorizations
or other authorizations are required in connection therewith;
(c) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(d) The Assignee has independently and without reliance upon the
Assignor and based on such information as the Assignee has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Assignee
will, independently and without reliance upon the Agents or any Bank, and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the KBHC Loan Agreement;
(e) The Assignee has received copies of the KBHC Loan Agreement and
such of the Loan Documents as it has requested, together with copies of the most
recent financial statements delivered pursuant to the KBHC Loan Agreement; and
(f) If Assignee is organized under the Laws of a jurisdiction
outside the United States of America, attached hereto are the forms prescribed
by the Code and the KBHC Loan Agreement certifying Assignee's exemption from
United States withholding taxes with respect to all payments to be made to
Assignee under the KBHC Loan Agreement.
4. Assignment. On the terms set forth herein, Assignor, as of Effective
Date, hereby irrevocably sells, assigns and transfers to the Assignee all of
the rights and obligations of the Assignor as a Line B/C Bank under the KBHC
Loan Agreement and the other Loan Documents, in each case to the extent of the
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220
Assigned Pro-Rata Share, and the Assignee irrevocably accepts such assignment of
rights and assumes such obligations from the Assignor on such terms and as of
the Effective Date. As of the Effective Date, Assignee shall have the rights and
obligations of a "Bank" and a "Line B/C Bank" under the Loan Documents, except
to the extent of any arrangements with respect to payments referred to in
Section 5 hereof. Assignee hereby appoints and authorizes the Managing
Agents and the KBHC Agent to take such action and to exercise such powers as are
delegated to the Managing Agents and the KBHC Agent by this Agreement and the
KBHC Loan Agreement, respectively.
5. Payment. On the Effective Date, Assignee shall pay to the
Assignor, in immediately available funds, an amount equal to the purchase price,
as agreed between the Assignor and the Assignee, of the Assigned Pro-Rata Share.
The Assignor and the Assignee have entered into a letter agreement, of even date
herewith, which sets forth their agreement with respect to the amount of
interest, fees, and other payments with respect to the Assigned Pro-Rata Share
which are to be retained by the Assignor.
The Assignor and the Assignee hereby agree that if either receives
any payment of interest, principal, fees or any other amount under the KBHC Loan
Agreement, their respective Notes and other Loan Documents which is for the
account of the other, it shall hold the same in trust for such party to the
extent of such party's interest therein and shall promptly pay the same to such
party.
6. Principal, Interest, Fees, etc.. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to the
KBHC Loan Agreement and the Notes shall be payable to or for the account of the
Assignor and the Assignee, in accordance with their respective interests as
adjusted pursuant to this Agreement.
7. Notes. The Assignor and Assignee shall make appropriate
arrangements with the Borrower concurrently with the execution and delivery
hereof so that replacement Notes are issued to the Assignor and new Notes are
issued to the Assignee in principal amounts reflecting their Line B/C Pro Rata
Share of the Line B Commitment and the Line C Commitment or their outstanding
Advances (as adjusted pursuant to this Agreement) thereunder.
8. Further Assurances. Concurrently with the execution of this
Agreement, Assignor shall execute four counterpart original Requests for
Registration, in the form of Exhibit A to this Agreement, to be forwarded to the
Agent. The Assignor and the Assignee further agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions con-
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221
templated by this Agreement, and Assignor specifically agrees to cause the
delivery of (i) four original counterparts of this Agreement and (ii) the
Requests for Registration, to the Agent for the purpose of registration of
Assignee as a "Bank" and a "Line B/C Bank" pursuant to the KBHC Loan Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
10. Notices. All communications among the parties or notices in
connection herewith shall be in writing, hand delivered or sent by registered
airmail, postage prepaid, or by telex, telegram or cable, addressed to the
appropriate party at its address set forth on the signature pages hereof. All
such communications and notices shall be effective upon receipt.
11. Binding Effect. This Agreement shall become effective upon the
execution of the Request for Registration in the form of Exhibit A to this
Agreement by KBHC and the execution of the Consent in the form of Exhibit B to
this Agreement by the Agent, and shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns; provided, however,
that Assignee shall not assign its rights or obligations without the prior
written consent of the Assignor and any purported assignment, absent such
consent, shall be void.
12. Interpretation. The headings of the various sections hereof are for
convenience of reference only and shall not affect the meaning or construction
of any provision hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
"Assignor"
________________________________________
By:_____________________________________
Title:__________________________________
Address: ____________________________
____________________________
____________________________
Attn: _____________________
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222
"Assignee"
______________________________________
By: __________________________________
Title:________________________________
Address: ____________________________
____________________________
Attn: ______________________
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223
Exhibit A to Commitment Assignment and Acceptance
REQUEST FOR REGISTRATION
TO: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as KBHC Agent.
THIS REQUEST FOR REGISTRATION OF ASSIGNEE is made as of the date of
the enclosed Commitment Assignment and Acceptance Agreement with reference to
that certain Amended and Restated Loan Agreement dated as of February 28, 1996
among KBHC and the Banks who are parties thereto.
Assignor and Assignee hereby request that the Agent approve of
Assignee as a Bank and as a Line B/C Bank, and that the Agent register Assignee
as a Bank and as a Line B/C Bank pursuant to the KBHC Loan Agreement effective
as of the Effective Date described in the enclosed Commitment Assignment and
Acceptance and, in connection with this request certify to the Agent that the
enclosed Commitment Assignment and Acceptance Agreement sets forth the correct
Line B Commitment and Line C Commitment and the Assigned Pro-Rata Share of the
Assignee.
Enclosed with this Request are four counterpart originals of the
Commitment Assignment and Acceptance as well as the original Line B Note and
Line C Note issued to Assignor.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Request for
Registration by their duly authorized officers as of this _____________________,
199_.
"Assignor"
____________________________________
By:_________________________________
_________________________________
(Printed/Typed Name of Officer)
-7-
224
"Assignee"
______________________________________
By:___________________________________
___________________________________
(Printed/Typed Name of Officer)
THE UNDERSIGNED HEREBY CONSENTS
TO THE ABOVE ASSIGNMENT:
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By: ___________________________
Its: ___________________________
Printed Name and Title
-8-
225
Exhibit B to Commitment Assignment and Acceptance
CONSENT
TO:The Assignor and Assignee referred to in the above Request for Registration
When countersigned by the Managing Agents below, this document shall certify
that:
1. The Agent has consented, pursuant to the terms of the Loan Documents, to
the assignment by Assignor to Assignee of the Assigned Pro-Rata Share.
2. The Agent has registered Assignee as a Bank and as a Line B/C Bank under
the KBHC Loan Agreement, effective as of the Effective Date described above,
with a Pro-Rata Share of the Line B Commitment and the Line C Commitment
corresponding to the Assigned Pro-Rata Share and has adjusted the registered
Pro-Rata Share of the Line B Commitment and the Line C Commitment of Assignor to
reflect the assignment of the Assigned Pro-Rata Share.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:___________________________________
___________________________________
(Printed/Typed Name of Officer)
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226
EXHIBIT F-1
[XXXXX XXXX & XXXXXXXX LETTERHEAD]
February 28, 0000
Xxxx xx Xxxxxxx National Trust
and Savings Association,
The First National Bank of Chicago,
Credit Lyonnais Los Angeles Branch and
NationsBank of Texas, N.A.,
as Managing Agents
c/o Bank of America National Trust
and Savings Association
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We have acted as special counsel for Xxxxxxx and Broad Home
Corporation, a Delaware corporation ("KBHC"), and Xxxxxxx and Broad Home
Mortgage Corporation, an Illinois corporation ("KBMC" and, together with KBHC,
the "Borrowers"), in connection with (i) the Fourth Amended and Restated Loan
Agreement dated as of February 28, 1996 (the "Loan Agreement") among KBHC, the
banks listed on the signature pages thereof (the "Banks"), Bank of America
National Trust and Savings Association, as Administrative Agent, The First
National Bank of Chicago, as Documentation Agent, Bank of America National
Trust and Savings Association and The First National Bank of Chicago, as
Co-Syndication Agents, and Bank of America National Trust and Savings
Association, The First National Bank of Chicago, Credit Lyonnais Los Angeles
Branch and NationsBank of Texas, N.A., as Managing Agents, and (ii) the Amended
and Restated Override Agreement dated as of February 28, 1996 (the "Override
Agreement") among the Borrowers, Bank of America National Trust and Savings
Association, as the KBHC Agent, Credit Lyonnais Los Angeles Branch, as the KBMC
Agent, The First National Bank of Chicago, as Documentation Agent, Bank of
America National Trust and Savings Association and The First National Bank of
Chicago, as Override Agents, Bank of America National Trust and Savings
Association, First National Bank of Chicago, Credit Lyonnais Los Angeles Branch
000
Xxxx xx Xxxxxxx National 2 February 28, 1996
Trust and Savings Association
and NationsBank of Texas, N.A., as the Managing Agents, and the banks listed on
the signature pages thereof. Terms defined in the Loan Agreement are used
herein as therein defined unless otherwise defined herein. The Loan Agreement,
the Override Agreement and the Notes are collectively referred to herein as the
"KBHC Documents"; the Third Amendment dated as of February 28, 1996 to the
Mortgage Warehousing Agreement and the Third Amendment dated as of February 28,
1996 to the Collateral Agency Agreement (as defined in the Mortgage Warehousing
Agreement) are collectively referred to herein as the "KBMC Documents"; and the
KBMC Documents, together with the KBHC Documents and the Amended and Restated
Continuing Guaranty dated as of February 28, 1996 (the "Guaranty") executed by
each Guarantor Subsidiary on the date hereof, are collectively referred to
herein as the "Loan Documents".
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. For purposes of this opinion we have assumed (i)
that each of KBMC and the Guarantor Subsidiaries is a corporation validly
existing and in good standing under the laws of the state of its incorporation
and has all requisite corporate power and authority to execute, deliver and
perform all of its obligations under each of the Loan Documents to which it is
a party, (ii) that the execution, delivery and performance by each of KBMC and
the Guarantor Subsidiaries of the Loan Documents to which it is a party have
been duly authorized by all necessary corporate action, and (iii) that each of
the Borrowers and the Guarantor Subsidiaries has executed and delivered each of
the Loan Documents to which it is a party.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
1. KBHC is a corporation validly existing and in good standing
under the General Corporation Law of the State of Delaware, and its certificate
of incorporation does not limit the term of its existence.
000
Xxxx xx Xxxxxxx National 3 February 28, 1996
Trust and Savings Association
2. KBHC has all requisite corporate power and authority to
execute, deliver and perform all of its obligations under the KBHC Documents.
3. The execution, delivery and performance by KBHC of the KBHC
Documents have been duly authorized by all necessary corporate action.
4. The execution, delivery and performance by each of the
Borrowers and the Guarantor Subsidiaries of the Loan Documents to which it is a
party do not violate, contravene or constitute a default under (i) the
Indenture between KBHC and the First National Bank of Boston, as trustee, dated
as of May 1, 1993, relating to the issuance of $175,000,000 of 9 3/8% Senior
Subordinated Notes due 2003, (ii) the Indenture between KBHC and NBD Bank,
N.A., as trustee, dated as of September 1, 1992, and the Officers' Certificate
pursuant thereto dated as of August 31, 1992, relating to the issuance of
$100,000,000 of 10 3/8% Senior Notes due 1999, or (iii) any United States
federal or New York State law or regulation that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Loan Documents.
5. No authorization, consent, approval, order, license or permit
from, or filing, registration, or qualification with, or exemption from any of
the foregoing from, any New York State or United States governmental agency or
body is required to authorize or permit the execution, delivery and performance
by any Borrower or Guarantor Subsidiary of the Loan Documents to which it is a
party.
6. Each of the KBMC Documents will, and, if the Loan Documents
other than the KBMC Documents were stated to be governed by and construed in
accordance with the laws of the State of New York (without regard to principles
of conflicts of laws), each of such Loan Documents would, when executed and
delivered by each of the Borrowers and the Guarantor Subsidiaries party
thereto, constitute the valid and binding obligation of such Borrower or such
Guarantor Subsidiary, as the case may be, enforceable against such Borrower or
such Guarantor Subsidiary, as the case may be, in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency or similar laws
affecting
229
Bank of America National 4 February 28, 1996
Trust and Savings Association
creditors' rights generally and equitable principles of general applicability.
The foregoing opinion is subject to the following qualifications:
(a) We express no opinion as to the effect (if any) of
any law of any jurisdiction (except the State of New York) in which
any Bank is located which may limit the rate of interest that such
Bank may charge or collect.
(b) We express no opinion as to provisions in the Loan
Documents which purport to indemnify any person for its own gross
negligence or willful misconduct.
(c) We express no opinion as to the enforceability of the
last sentence of Section 11.22 of the Loan Agreement.
(d) Certain waivers contained in the Guaranty may not be
enforceable in accordance with their terms.
(e) We express no opinion as to the enforceability of (i)
the provision in Section 4 of the Guaranty purporting to provide that
the obligations of the Guarantor Subsidiaries are independent of the
obligations of KBHC or (ii) Section 5 of the Guaranty (insofar as
changes in the terms of the underlying obligations may create new
obligations for purposes of the guaranty and certain actions in
respect of collateral may affect a related guaranty).
(f) We express no opinion as to the effect, if any, of
the application of Section 548 of the federal Bankruptcy Code and
similar provisions of state law to the Loan Documents or the
transactions contemplated thereby.
We are members of the bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
230
Bank of America National 5 February 28, 1996
Trust and Savings Association
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent, except that
any person that becomes a Bank in accordance with the provisions of the Loan
Documents may rely upon this opinion as if it were specifically addressed and
delivered to such person on the date hereof.
Very truly yours,
XXXXX XXXX & XXXXXXXX
231
EXHIBIT F-2
[XXXXXXX & BROAD LETTERHEAD]
February 28, 1996
To: Bank of America National Trust and
Savings Association, The First National
Bank of Chicago, NationsBank of Texas, N.A.,
and Credit Lyonnais - Los Angeles Branch,
as Managing Agents
c/o Bank of America National Trust and
Savings Association
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
I am the General Counsel of Xxxxxxx and Broad Home Corporation, a
Delaware corporation ("KBHC") and, in that capacity, I also have oversight
responsibility for the legal affairs of Xxxxxxx and Broad Mortgage Company, an
Illinois corporation ("KBMC") (KBHC, together with KBMC, shall be referred to
herein as the "Borrowers") and have acted as such in connection with (i) the
Fourth Amended and Restated Credit Agreement (the "Amended KBHC Loan
Agreement") dated as of February 28, 1996, by and among KBHC, the Banks which
are parties thereto, the Administrative Agent, the Documentation Agent, the
co-Syndication Agents and the Managing Agents and (ii) the Amended and Restated
Override Agreement (the "Amended Override Agreement") dated as of February 28,
1996, by and among the Borrowers, the Banks which are the parties thereto, the
Managing Agents, the KBHC Agent, the KBMC Agent, and the Documentation Agent
named therein.
This opinion is furnished to you pursuant to Section 8.1(a)(7) of the
Fourth Amended Loan Agreement and Section 3.1(a)(3) of the Amended Override
Agreement. Terms not otherwise defined herein shall have the meanings defined
for such terms in the Amended Override Agreement or the Amended KBHC Loan
Agreement, as the case may be. The term "Loan Documents", as used herein,
means those Loan Documents (as defined in the Amended Override Agreement) in
existence as of the Closing Date, including without limitation those referenced
in paragraphs (a) through (g) below. The term "KBHC Loan Documents" is
sometimes used herein to describe the documents referenced in paragraphs (b)
through (d)
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 2
below. The term "KBMC Loan Documents" is sometimes used herein to describe the
agreements referred to in (e) through (g) below.
This opinion is rendered to you as a supplement to the legal opinion
of Xxxxx Xxxx & Xxxxxxxx of even date herewith in connection with the Amended
Override Agreement but expressly does not incorporate the terms of said Xxxxx
Xxxx & Xxxxxxxx opinion.
For purposes of this opinion, I have examined originals, or copies
identified to my satisfaction as being true copies, of the following documents:
a. the Amended Override Agreement;
b. the Amended KBHC Loan Agreement;
c. the Notes under the Amended KBHC Loan Agreement;
d. the Subsidiary Guaranty;
e. the Amended KBMC Loan Agreement, including the Third Amendment
dated as of February 28, 1996;
f. the Third Amendment dated as of February 28, 1996 to the
Collateral Agency Agreement under the Amended KBMC Loan
Agreement; and
g. the Notes under Amended KBMC Loan Agreement.
I have also made such investigations of fact and law; obtained such
certificates of Responsible Officials of Borrowers and their Subsidiaries, and
of public officials; reviewed incorporation documentation, resolutions,
secretary certificates, good standing certificates and other documents as
appropriate of and for the Borrowers and the Guarantor Subsidiaries as
applicable; and done such other things as I have deemed necessary for the
purpose of this opinion.
I have assumed (a) all natural persons have legal capacity, (b) the
genuineness of all signatures of all parties other than Borrowers and the
"Guarantor Subsidiaries" listed in Schedule 4.4 to the Amended KBHC Loan
Agreement, (c) the conformity to authentic original documents of all documents
submitted to me as copies and the authenticity of all documents submitted to me
as originals, (d) as to all parties other than Borrowers and the Guarantor
Subsidiaries, the due authorization,
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 3
execution and delivery of all documents and the validity and enforceability
thereof against all parties thereto other than Borrower and the Guarantor
Subsidiaries, (e) that each Person (other than Borrower and the Guarantor
Subsidiaries) which is a party to the Loan Documents has full power, authority
and legal right, under its charter and other governing documents and laws
applicable to it to perform its respective obligations thereunder, (f) all
parties to any Loan Documents have filed all required franchise tax returns, if
any, and paid all required taxes, if any, under the California Revenue &
Taxation Code and under the laws of the States of Delaware, Illinois and the
states of incorporation of the Guarantor Subsidiaries and (g) that the Loan
Documents have not been modified, amended, terminated or revoked in any
respect, and remain in full force and effect as of the date hereof.
With respect to those opinions expressed below to be to "knowledge" or
"to the knowledge of the undersigned," or similar such wording, I am referring
solely to my individual, actual knowledge. Except as expressly set forth
herein, I did not undertake a review or examination of the activities or
business records of Borrower specifically for the purpose of rendering this
opinion or to determine the existence or absence of such facts. As General
Counsel to KBHC and in my oversight capacity with respect to the legal affairs
of KBMC, however, material information respecting the matters covered by such
opinions is brought to my attention on a regular basis as a matter of internal
policy and I intend the phrase "to the knowledge of the undersigned" to mean
that, in reviewing such information, nothing has come to my attention which
caused or should have caused me not to render such opinions.
Based upon the foregoing and in reliance thereon, I am of the opinion
that:
1. KBHC is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware,
and its certificate of incorporation does not provide for the
termination of its existence. KBHC is duly qualified or registered to
transact business and is in good standing as a foreign corporation in
the State of California, and each other jurisdiction in which the
conduct of its business or the ownership of its Properties makes such
qualifications or registration necessary, except where the failure so
to qualify or register and to be in good standing would not constitute
a Material Adverse Effect.
2. KBMC is a corporation duly organized, validly
234
Bank of America National Trust and Savings
Association
February 28, 1996
Page 4
existing and in good standing under the Laws of the State of Illinois,
and its certificate of incorporation does not provide for the
termination of its existence. KBMC is duly qualified or registered to
transact business and is in good standing as a foreign corporation in
the State of California, and each other jurisdiction in which the
conduct of its business or the ownership of its Properties makes such
qualifications or registration necessary, except where the failure so
to qualify or register and to be in good standing would not constitute
a Material Adverse Effect.
3. Each Borrower has all requisite corporate power and
authority to conduct its business, to own and lease its Properties and
to execute, deliver and perform all of its obligations under the Loan
Documents to which it is a Party.
4. To the knowledge of the undersigned, each Borrower is
in substantial compliance with all Laws and other legal requirements
applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions
from any of the foregoing from, any Government Agency that are
necessary for the transaction of its business, except where the
failure so to comply, file, register, qualify or obtain exemptions
would not constitute a Material Adverse Effect.
5. The execution, delivery and performance by each
Borrower and by each Guarantor Subsidiary of KBHC, of each of the Loan
Documents to which it is a Party have been duly authorized by all
necessary corporate action, and do not:
a. require under the charter documents of such
Borrower or Guarantor Subsidiary any consent or approval not
heretofore obtained of any partner, director, stockholder,
security holder or creditor of such Party;
b. violate or conflict with such Party's
charter, certificate or articles of incorporation or bylaws;
c. to the knowledge of the undersigned, result
in or require the creation or imposition of any Lien or Right
of Others (other than as provided under the Loan Documents)
upon or with respect to any Property
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 5
now owned or leased by such Party;
d. violate any Requirement of Law known to the
undersigned applicable to such Party; or
e. result in a breach of or constitute a default
under, or cause or permit the acceleration of any obligation
owed under, any indenture or loan or credit agreement known to
the undersigned or any other Contractual Obligation known to
the undersigned to which such Party is a party or by which
such Party or any of its Property is bound or affected;
and, to the knowledge of the undersigned, neither Borrower nor any
Subsidiary of either Borrower is in violation of, or default under,
any Requirement of Law, or contractual obligation, or any indenture,
loan or credit agreement described in subparagraph (e) above in any
respect that would constitute a Material Adverse Effect.
6. Each of the Loan Documents to which either Borrower
or any Guarantor Subsidiary is a party will, when executed and
delivered by such Borrower or such Guarantor Subsidiary, as the case
may be, constitute the legal, valid and binding obligation of such
Borrower or such Guarantor Subsidiary, as the case may be, enforceable
against such Borrower or such Guarantor Subsidiary, as the case may
be, in accordance with its terms.
7. Except as have heretofore been obtained, no
authorization, consent, approval, order, license or permit from, or
filing, registration or qualification with, or exemption from any of
the foregoing from, any Governmental Agency under any Requirement of
Law imposed on either Borrower or any Guarantor Subsidiary by the laws
of the United States of America, the State of California or the State
of New York, in each case as the same exists on the date hereof, is or
will be required to authorize or permit the execution, delivery and
performance by either Borrower or any Significant Subsidiary of KBHC
of the Loan Documents to which it is a Party.
8. Each Significant Subsidiary which is a Domestic
Subsidiary is a legal entity of the form described for that Subsidiary
in Schedule 4.4 to the Amended KBHC Agreement, duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
formation, is duly qualified or registered to do business as a foreign
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 6
organization and is in good standing as such in each jurisdiction in
which the conduct of its business or the ownership or leasing of its
Properties makes such qualifications or registration necessary (except
where the failure to be so qualified or registered and in good
standing does not constitute a Material Adverse Effect) and has all
requisite power and authority to conduct its business and to own and
lease its Properties and to execute, deliver and perform the
obligations under the Loan Documents to which it is a Party.
9. To the knowledge of the undersigned, each Significant
Subsidiary is in substantial compliance with all Laws and other
requirements applicable to its business has obtained all
authorizations, consents, approvals, orders, licenses and permits
from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing
from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, file,
register, qualify or obtain exemptions does not constitute a Material
Adverse Effect.
10. Neither Borrower nor any of their Subsidiaries is
subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940.
11. To the knowledge of the undersigned, there are no
actions, suits or proceedings pending or, to the knowledge of the
undersigned, threatened against or affecting either Borrower or any of
their Subsidiaries or any Property of any of them in any court of Law
or before any Governmental Agency in which there is a reasonable
probability of a decision which would constitute a Material Adverse
Effect.
12. Neither Borrower nor any of their Subsidiaries is
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" or "margin security" within the meanings
of Regulation U of the Board of Governors of the Federal Reserve
System and no Loan under the Agreement will be used to purchase or
carry any such margin stock in violation of Regulation U.
13. To the knowledge of the undersigned, Borrowers and
their Subsidiaries are in substantial compliance with all applicable
Laws relating to environmental protection where
237
Bank of America National Trust and Savings
Association
February 28, 1996
Page 7
the failure to comply would constitute a Material Adverse Effect, and
have not received any notice from any Governmental Agency respecting
the alleged violation by any Borrower or any Subsidiary of such Laws
which would constitute a Material Adverse Effect which has not been or
is not being corrected.
14. Texas is a state in which perfection of a security
interest in a note together with an unrecorded assignment of a related
mortgage is sufficient to obtain all rights as a secured party in such
mortgage superior as against third parties.
In addition to any assumptions, qualifications and other matters set
forth elsewhere herein, the opinions set forth above are subject to the
following:
(a) My opinion with respect to the legality, validity,
binding effect and enforceability of any Loan Document, agreement or
provision is subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer and equitable
subordination, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including (without limitation) concepts of materiality,
reasonableness, estoppel, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law). I express no
opinion as to the availability of equitable remedies. In applying
such equitable principles, a court, among other things, might not
allow a creditor to accelerate maturity of a debt upon the occurrence
of a default deemed immaterial or for non-credit reasons or might
decline to order a debtor to perform covenants. Such principles
applied by a court might also include a requirement that a creditor
act with reasonableness and in good faith.
(b) Certain remedial provisions of the Loan Documents may
be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Loan Documents taken as
a whole and, except as set forth in subparagraph (a) above, the Loan
Documents taken as a whole contain adequate provisions for enforcing
payment of the "Obligations" (as defined in the Amended KBHC
Agreement) and the "Obligations" (as defined in the Amended KBMC Loan
Agreement).
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 8
(c) I express no opinion as to whether a New York court
would enforce or otherwise give legal effect to the choice of
California law provisions contained in the Override agreement and the
KBHC Loan Documents, or the effect on the opinions given herein if a
court applied New York law to determine the rights of the parties
under the Amended Override Agreement and the KBHC Loan Documents. I
express no opinion to whether a California court would enforce or
otherwise give legal effect to the choice of New York law provisions
contained in the KBMC Loan Documents, or the effect on the opinion
given herein if a court applied California law to determine the rights
of the parties under the KBMC Loan Documents.
(d) I call your attention to the following matters as to
which I express no opinion:
(i) the Borrowers' agreements in the Loan
Documents to indemnify you against costs or expenses or
liability notwithstanding your acts of negligence or willful
misconduct;
(ii) the Borrowers' agreements in the Loan
Documents for payment or reimbursement of costs, fees and
expenses or indemnification for claims, losses or liabilities
to the extent any such provision may be determined by a court
or other tribunal to be in an unreasonable amount, to
constitute a penalty or to be contrary to public policy;
(iii) the Borrowers' agreements in the Loan
Documents to the jurisdiction or venue of a particular court,
to the waiver of the right to jury trial or to be served with
process by service upon a designated third party;
(iv) any of the waivers or remedies contained in
the Loan Documents, whether or not any Loan Document deems any
such waiver or remedy commercially reasonable, if such waivers
or remedies are determined (1) not to be commercially
reasonable under applicable law, (2) to conflict with
mandatory provisions of applicable law, (3) be taken in a
manner determined to be unreasonable or not performed in good
faith or with fair dealing or with honesty in fact or (4) to
be broadly or vaguely stated or not to describe the
000
Xxxx xx Xxxxxxx National Trust and Savings
Association
February 28, 1996
Page 9
right or duty purportedly waived with reasonable specificity;
(v) provisions in the Loan Documents which may be
construed as imposing penalties or forfeitures, late payment
charges or an increase in interest rate, upon delinquency in
payment or the occurrence of a default;
(vi) any power of attorney granted under the Loan
Documents;
(vii) provisions in the Loan Documents to the
effect that rights or remedies are not exclusive, that every
right or remedy is cumulative and may be exercised in addition
to any other right or remedy, that the election of some
particular remedy does not preclude recourse to one or more
others or that failure to exercise or delay in exercising
rights or remedies will not operate as a waiver of any such
right or remedy; or
(viii) provisions in the Loan Documents which
expressly or by implication waive or limit the benefits of
statutory, regulatory or constitutional rights, unless and to
the extent the statute, regulation or constitution explicitly
allow such waiver or other limitation.
My opinion expressed herein is limited to the laws of the State of
California, the General Corporation Law of the State of Delaware, the Illinois
Business Corporation Act and the federal laws of the United States, and I do
not express any opinion herein concerning any other law.
This opinion is being rendered to you in connection with the
transaction referred to above and may not be relied upon by any person (other
than the Bank Parties, an Eligible Assignee or holder of a participation
interest from any Bank or any successor in interest of any Bank) or by you or
the other Bank Parties in any other context. Copies hereof may be furnished
(a) to your independent auditors and attorneys, (b) to any governmental agency
or authority having regulatory jurisdiction of any governmental agency or
authority having regulatory jurisdiction over you, (c) pursuant to order of
legal process of any court or of any governmental agency or authority, or (d)
in connection with any
240
Bank of America National Trust and Savings
Association
February 28, 1996
Page 10
legal action to which you are a party arising out of the transaction referred
to above. This opinion is rendered as of the date hereof and I hereby disclaim
any obligation to advise any person entitled to rely hereon of any change in
the matters stated herein.
Respectfully submitted,
XXXXXX X. XXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President and
General Counsel of KBHC
241
EXHIBIT G
REQUEST FOR LETTER OF CREDIT
1. This Request for Letter of Credit is executed and delivered by a
Responsible Official of Xxxxxxx and Broad Home Corporation ("Borrower") to the
Issuing Bank named below, pursuant to that certain Fourth Amended and Restated
Loan Agreement (the "Agreement") dated as of February 28, 1996, entered into by
and among Borrower, the Banks that are parties thereto, the Administrative
Agent, Bank of America National Trust and Savings Association, The First
National Bank of Chicago, Credit Lyonnais Los Angeles Branch, and NationsBank of
Texas, N.A., as Managing Agents. Terms defined in the Agreement and not
otherwise defined herein are used herein as defined in the Agreement.
2. Borrower hereby requests that the Issuing Bank named below issue
a Letter of Credit for the account of Borrower pursuant to the Agreement, as
follows:
(a) Issuing Bank: ______________________________.
(b) Amount of Letter of Credit: $______________.
(c) Expiration Date: __________________, 19___.
(d) Purpose of Letter of Credit:
____________________________________________
(e) Type of Letter of Credit:
/ / Financial Letter of Credit
/ / Performance Letter of Credit
(f) Commitment Under Which Letter of Credit Will Be Issued:
/ / Line A Commitment
/ / Line C Commitment
Page 1 of 3
242
3. The requested Letter of Credit is (check one box only):
/ / a new Letter of Credit.
/ / a supplement, modification, amendment,
renewal, or extension to or of the following
outstanding Letter(s) of Credit: [Identify]
4. In connection with the issuance of the Letter of Credit requested
herein, Borrower hereby represents, warrants, and certifies to the Bank that as
of the date of the issuance of the Letter of Credit requested herein:
(a) Each representation and warranty made by Borrower in
Article 4 of the Agreement (other than the representations and warranties
contained in Sections 4.4(a), 4.5, 4.6, 4.7, 4.9, 4.12, 4.14, 4.18 and 4.19)
will be true and correct in all material respects, both immediately before
such Letter of Credit is issued and after giving effect to such Letter of
Credit, as though such representations and warranties were made on and as of
the date of the issuance of the Letter of Credit, and no event or
circumstance that constitutes a Material Adverse Effect shall have occurred
since the Amendment Effective Date;
(b) No Event of Default presently exists or will have
occurred and be continuing as a result of the Letter of Credit; and no
Material KMBC Default or Material KMBC Event of Default then exists under the
Mortgage Warehousing Agreement; provided that this condition shall not apply
in respect of a Curable KMBC Default so long as the proceeds of any Loan made
in reliance on this proviso are actually used to cure such Curable KMBC
Default.
(c) Giving effect to the issuance of the Letter of Credit
requested hereby, the aggregate outstanding principal of the Line A Loans and
the Line C Loans plus the Line A Letter of Credit Usage plus the Line C
Letter of Credit Usage plus the short term Indebtedness of Borrower and its
Subsidiaries under the domestic money market lines described in Section 6.10
of the Loan Agreement does not exceed the sum of the Line A Commitment plus
the Line C Commitment.
(If any of the foregoing statements is not true and correct, attach
a statement specifying in detail the circum-
Page 2 of 3
243
stances thereof and the actions Borrower is taking or proposes to take with
respect thereto.)
5. This Request for Letter of Credit is executed on __________,
19___, by a Responsible Official of Borrower, on behalf of Borrower. The
undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
BORROWER:
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By:___________________________________
Title:________________________________
Page 3 of 3
244
EXHIBIT H
REQUEST FOR LOAN
1. THIS REQUEST FOR LOAN IS EXECUTED AND DELIVERED BY XXXXXXX AND
BROAD HOME CORPORATION ("BORROWER") TO BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS ADMINISTRATIVE AGENT, PURSUANT TO THE FOURTH AMENDED AND
RESTATED LOAN AGREEMENT (THE "AGREEMENT") DATED AS OF FEBRUARY 28, 1996, ENTERED
INTO BY BORROWER, THE BANKS THAT ARE PARTIES THERETO, THE ADMINISTRATIVE AGENT,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE FIRST NATIONAL BANK
OF CHICAGO, CREDIT LYONNAIS LOS ANGELES BRANCH AND NATIONSBANK OF TEXAS, N.A.,
AS MANAGING AGENTS. ANY TERMS USED HEREIN AND NOT DEFINED HEREIN SHALL HAVE THE
MEANINGS DEFINED IN THE AGREEMENT.
2. BORROWER HEREBY REQUESTS THAT BANKS MAKE A LOAN FOR THE ACCOUNT
OF BORROWER PURSUANT TO THE AGREEMENT, AS FOLLOWS:
(A) AMOUNT OF LOAN: $____________________.
(B) DATE OF LOAN: ________________, 19___.
(C) TYPE OF LOAN (CHECK ONE BOX ONLY):
--
/ / ALTERNATE BASE RATE LOAN.
--
/ / LIBOR LOAN WITH A ___-WEEK/___-MONTH (SELECT ONE)
INTEREST PERIOD.
(D) APPLICABLE COMMITMENT (CHECK ONE BOX ONLY):
--
/ / LINE A COMMITMENT
--
/ / LINE B COMMITMENT
/ / LINE C COMMITMENT
3. IN CONNECTION WITH THE LOAN REQUESTED HEREIN, BORROWER HEREBY
REPRESENTS, WARRANTS AND CERTIFIES TO THE BANKS THAT, AS OF THE DATE OF THE LOAN
REQUESTED HEREIN:
(A) EACH REPRESENTATION AND WARRANTY MADE BY BORROWER IN
ARTICLE 4 OF THE AGREEMENT (OTHER THAN THE REPRESENTATIONS AND WARRANTIES
-1-
245
CONTAINED IN SECTIONS 4.4(A), 4.5, 4.6, 4.7, 4.9, 4.12, 4.14, 4.18 AND 4.19)
WILL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, BOTH IMMEDIATELY BEFORE
SUCH LOAN IS MADE AND AFTER GIVING EFFECT TO SUCH LOAN, AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES WERE MADE ON AND AS OF THE DATE OF SUCH LOAN,
AND NO EVENT OR CIRCUMSTANCE THAT CONSTITUTES A MATERIAL ADVERSE EFFECT SHALL
HAVE OCCURRED SINCE THE AMENDMENT EFFECTIVE DATE;
(B) THE AMOUNT OF SHORT TERM INDEBTEDNESS EXISTING UNDER THE
DOMESTIC MONEY MARKET CREDIT LINES DESCRIBED IN SECTION 6.10 OF THE LOAN
AGREEMENT IS $____________ (WHICH AMOUNT MAY OR MAY NOT BE APPLICABLE TO
DETERMINE COMPLIANCE WITH CLAUSE (E) BELOW).
(C) NO EVENT OF DEFAULT PRESENTLY EXISTS OR WILL HAVE
OCCURRED AND BE CONTINUING AS A RESULT OF THE LOAN, AND NO MATERIAL KMBC
DEFAULT OR MATERIAL KMBC EVENT OF DEFAULT THEN EXISTS UNDER THE MORTGAGE
WAREHOUSING AGREEMENT; PROVIDED THAT THIS CONDITION SHALL NOT APPLY IN
RESPECT OF A CURABLE KMBC DEFAULT SO LONG AS THE PROCEEDS OF ANY LOAN MADE IN
RELIANCE ON THIS PROVISO ARE ACTUALLY USED TO CURE SUCH CURABLE KMBC DEFAULT.
(D) GIVING EFFECT TO THE LOAN REQUESTED HEREBY, AND
APPLICATION OF THE PROCEEDS OF THE LOAN, THE AGGREGATE OUTSTANDING PRINCIPAL
OF THE LINE A LOANS AND THE LINE C LOANS PLUS THE LINE A LETTER OF
CREDIT USAGE PLUS THE LINE C LETTER OF CREDIT USAGE PLUS THE
SHORT TERM INDEBTEDNESS OF BORROWER AND ITS SUBSIDIARIES UNDER THE DOMESTIC
MONEY MARKET LINES DESCRIBED IN SECTION 6.10 OF THE LOAN AGREEMENT DOES NOT
EXCEED THE SUM OF THE LINE A COMMITMENT PLUS THE LINE C COMMITMENT.
(IF ANY OF THE FOREGOING STATEMENTS IS NOT TRUE AND CORRECT, ATTACH
A STATEMENT SPECIFYING IN DETAIL THE CIRCUMSTANCES THEREOF AND THE ACTIONS
BORROWER IS TAKING OR PROPOSES TO TAKE WITH RESPECT THERETO.)
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246
4. THIS REQUEST FOR LOAN IS EXECUTED ON __________, 19__, BY A
RESPONSIBLE OFFICIAL OF BORROWER, ON BEHALF OF BORROWER. THE UNDERSIGNED, IN
SUCH CAPACITY, HEREBY CERTIFIES EACH AND EVERY MATTER CONTAINED HEREIN TO BE
TRUE AND CORRECT.
BORROWER:
XXXXXXX AND BROAD HOME CORPORATION,
A DELAWARE CORPORATION
BY:___________________________________
TITLE:________________________________
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247
EXHIBIT I
REQUEST FOR REDESIGNATION OF LOANS
1. This Request For Redesignation of Loans is executed and delivered
by a Responsible Official of the undersigned Xxxxxxx and Broad Home Corporation
("Borrower") to Bank of America National Trust and Savings Association, as
Administrative Agent, pursuant to the Fourth Amended and Restated Loan Agreement
(the "Agreement") dated as of February 28, 1996, entered into by Borrower, the
Banks that are parties thereto, the Administrative Agent, Bank of America
National Trust and Savings Association, The First National Bank of Chicago,
Credit Lyonnais Los Angeles Branch, and NationsBank of Texas, N.A., as Managing
Agents. Any terms used herein and not defined herein shall have the meanings
defined in the Agreement.
2. Borrower requests that the applicable Banks redesignate certain
outstanding Loans heretofore made or redesignated for the account of Borrowers
pursuant to the Loan Agreement, as set forth below:
(a) Alternate Base Rate Loans to be redesignated as LIBOR Loans:
(i) Applicable Commitment:
/ / Line A Commitment
/ / Line B Commitment
/ / Line C Commitment
(ii) Total Amount of Loans to be redesignated:
$----------------.
(iii) Date of redesignation: _____________,
19__.
(iv) LIBOR Loan with a ______-week/month (select one)
Interest Period.
(b) LIBOR Loans to be redesignated as Alternate Base Rate Loans or
LIBOR Loans with a different Interest Period:
(i) Applicable Commitment:
248
/ / Line A Commitment
/ / Line B Commitment
/ / Line C Commitment
(ii) Total Amount of Loans to be redesignated:
$----------------.
(iii) Date of redesignation: _____________,
19__.
(iv) Type of Loan as so redesignated
(check one box only):
/ / Alternate Base Rate Loan.
/ / LIBOR Loan with a
______-week/month (select one)
Interest Period.
3. In connection with the redesignation of Loans requested herein,
Borrower represents, warrants and certifies to the Administrative Agent and the
Banks that, as of the date of the redesignation of Loans requested herein, each
representation and warranty made by Borrower in Article 4 of the Agreement
(other than the representations and warranties contained in Sections 4.4(a),
4.5, 4.6, 4.7, 4.9, 4.12, 4.14, 4.18 and 4.19) will be true and correct in all
material respects as though such representations and warranties were made on and
as of the date of such Loan, and no event or circumstance that constitutes a
Material Adverse Effect shall have occurred since the Amendment Effective Date.
4. This Request for Redesignation of Loans is executed on
_____________, 19__, by a Responsible Official of
-2-
249
Borrower. The undersigned, in such capacity, hereby certifies each and every
matter contained herein to be true and correct.
XXXXXXX AND BROAD HOME CORPORATION,
a Delaware corporation
By:___________________________________
___________________________________
Name and Title
-3-
250
EXHIBIT J
BORROWER: XXXXXXX AND BROAD
HOME CORPORATION,
a Delaware corporation
GUARANTORS: See Schedule 1
hereto
TO: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
for itself and as Administrative Agent
AMENDED AND RESTATED
CONTINUING GUARANTY
THIS AMENDED AND RESTATED CONTINUING GUARANTY ("Guaranty") dated as
of February 28, 1996, is made by each of the parties listed on Schedule
1 hereto, together with each other person who may become a party hereto
pursuant to Section 10 of this Guaranty (each, a Guarantor and
collectively, "Guarantors"), jointly and severally, in favor of Bank of America
National Trust and Savings Association, as Administrative Agent, Bank of America
National Trust and Savings Association and The First National Bank of Chicago,
Credit Lyonnais Los Angeles Branch and NationsBank of Texas, N.A., as Managing
Agents and the Banks (as that term is defined in the below-referenced Loan
Agreement), with reference to the following facts:
RECITALS
A. Pursuant to the Fourth Amended and Restated Loan Agreement of
even date herewith entered into by and among Xxxxxxx and Broad Home Corporation,
a Delaware corporation ("Borrower"), the Banks and Bank of America National
Trust and Savings Association, as Administrative Agent, Bank of America National
Trust and Savings Association, The First National Bank of Chicago, NationsBank
of Texas, N.A, and Credit Lyonnais Los Angeles Branch, as Managing Agents (as
the same may be amended from time to time, the "Loan Agreement"), the Banks are
making a credit facility available to Borrower.
B. As a condition of the availability of such credit facility,
Guarantors are required to enter into this Guaranty.
C. Guarantors expect to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facility, and as the
result of the execution of this Guaranty.
251
AGREEMENT
NOW, THEREFORE, in order to induce the Banks to extend the
aforementioned credit facility, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, each Guarantor hereby
represents, warrants, covenants, agrees and guaranties as follows:
(1) Terms used in this Guaranty but not defined herein shall have
the meanings defined for them in the Loan Agreement.
(2) Guarantors unconditionally guarantee and promise to pay to Bank
of America National Trust and Savings Association, as the Administrative Agent
for the Banks, on demand, in lawful money of the United States, any and all
Indebtedness of Borrower then due to the Banks. The word "Indebtedness" means
any and all advances, debts, obligations and liabilities of Borrower heretofore,
now, or hereafter made, incurred or created under the Loan Agreement and under
the Loan Documents, and whether Borrower may be liable individually or jointly
with others, or whether such Indebtedness may be or hereafter becomes otherwise
unenforceable; provided, however, the Indebtedness of Borrower guarantied
hereunder shall not include the obligations or indebtedness of Mortgage Company
under the Mortgage Warehousing Agreement.
(3) This Guaranty is irrevocable and continuing in nature, is a
guaranty of prompt and punctual payment and performance of all Indebtedness of
Borrower, and is not merely a guaranty of collection. The Indebtedness
guaranteed hereunder includes that arising under successive transactions which
shall either continue the Indebtedness or from time to time or renew it after it
has been satisfied. This Guaranty shall not apply to any Indebtedness created
after actual receipt by all Banks and the Agent of written notice of its
revocation as to future transactions. Anything in this Guaranty to the contrary
notwithstanding, the maximum liability of any Guarantor hereunder shall be
limited to the extent required for the obligation of such Guarantor to be valid,
binding and enforceable and not otherwise voidable or avoidable.
(4) The obligations hereunder are joint and several, and independent
of the obligations of Borrower and or any of its other Subsidiaries. Separate
action or actions may be brought and prosecuted against any Guarantor whether
action is brought against any Borrower or any of its other Subsidiaries,
including any other Guarantor, or whether Borrower or any of its other
Subsidiaries, including any other Guarantor, may be joined in any such action or
actions.
-2-
252
(5) Each Guarantor authorizes the Banks, without notice or demand
and without affecting its liability hereunder, from time to time to (a) renew,
compromise, extend, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Indebtedness or any part thereof, including
increase or decrease of the rate of interest thereon; (b) take and hold security
for the payment of this Guaranty or the Indebtedness guaranteed, and exchange,
enforce, waive and release any such security; (c) apply such security and direct
the order or manner of sale thereof as the Agent or any Bank in its discretion
may determine; and (d) release or substitute any one or more of the endorsers or
guarantors.
(6) Each Guarantor waives, to the fullest extent permitted by
applicable law, any right to require any Bank to (a) proceed against Borrower or
any of its other Subsidiaries, including any other Guarantor; (b) proceed
against or exhaust any security held from Borrower or any of its Subsidiaries;
or (c) pursue any other remedy in the Banks' power whatsoever. Each Guarantor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower, other than payment in full of the Indebtedness. Until all
Indebtedness of Borrower to the Banks shall have been paid in full, each
Guarantor waives any right to enforce any remedy which the Banks now have or may
hereafter have against Borrower or any of its other Subsidiaries, and waives any
benefit of, and any right to participate in, any security now or hereafter held
by the Banks. Guarantors waive all rights and defenses arising out of an
election of remedies by the creditor, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the Code
of Civil Procedure or otherwise. Guarantors expressly waive to the fullest
extent permitted by applicable Law all other suretyship defenses they otherwise
might or would have under any Law. Each Guarantor waives any right of
subrogation that it may have in respect to the obligations of Borrower to the
Banks. Each Guarantor waives all presentments, demands for performance, notices
of nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional Indebtedness.
(7) After demand upon the Guarantors for payment under the Guaranty
each Guarantor hereby specifically authorizes each Bank (subject to the approval
of Both Majority Banks) in which such Guarantor maintains a deposit account
(whether a general or special deposit account, other than trust accounts) or a
certificate of deposit to setoff any Obligations owed to
-3-
253
the Banks against such deposit account or certificate of deposit without prior
notice to any Guarantor (which notice is hereby waived) whether or not such
deposit account or certificate of deposit has then matured. Nothing in this
paragraph shall limit or restrict the exercise by a Bank of any right to setoff
or banker's lien under applicable Law, subject to the approval of Both Majority
Banks.
(8) Each Guarantor represents and warrants to the Banks that it has
established adequate means of obtaining from Borrower and its Subsidiaries, on a
consolidated basis, on a continuing basis, financial and other information
pertaining to the businesses, operations and condition (financial and otherwise)
of Borrower and its Subsidiaries, on a consolidated basis, and that Guarantor
now is and hereafter will be completely familiar with the businesses, operations
and condition (financial and otherwise) of Borrower and its Subsidiaries, on a
consolidated basis. Each Guarantor hereby expressly waives and relinquishes any
duty on the part of the Banks (should any such duty exist) to disclose to any
Guarantor any matter, fact or thing related to the businesses, operations or
condition (financial or otherwise) of Borrower or its Subsidiaries, whether now
known or hereafter known by the Banks during the life of this Guaranty.
(9) Guarantors agree to pay the reasonable out-of-pocket costs and
expenses of the Administrative Agent and each of the Banks in connection with
the enforcement of this Guaranty, including without limitation the reasonable
fees and out-of-pocket expenses of any legal counsel retained by the
Administrative Agent or any of the Banks.
(10) Any other Person may become a Guarantor under, and become bound
by the terms and conditions of, this Guaranty by executing and delivering to the
Administrative Agent an Instrument of Joinder substantially in the form attached
hereto as Exhibit A, accompanied by such documentation as the
Administrative Agent may require to establish the due organization, valid
existence and good standing of such Person, its qualification to engage in
business in each material jurisdiction in which it is required to be so
qualified, its authority to execute, deliver and perform this Guaranty, and the
identity, authority and capacity of each Responsible Official thereof authorized
to act on its behalf.
-4-
254
(11) This Guaranty shall be governed by and construed according to
the laws of the State of California, to the jurisdiction of which the parties
hereto submit.
"GUARANTORS"
XXXXXXX AND BROAD OF NORTHERN
CALIFORNIA, INC., a California
corporation
By /s/ Xxxxxx Xxxxxx
-------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD OF SAN DIEGO, INC.,
a California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD - SOUTH BAY, INC.,
a California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD OF SOUTHERN CALIFORNIA,
a California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
-5-
255
XXXXXXX AND BROAD - CENTRAL VALLEY, INC.,
a California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD COASTAL, INC., a
California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD OF NEVADA, INC., a
California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD OF ARIZONA, INC., a
California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXXXX AND BROAD OF COLORADO, INC., a
Colorado corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
-6-
256
XXXXXXX AND BROAD OF UTAH, INC., a
California corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
XXXXX XXXXXXX OF ALBUQUERQUE, INC., a New
Mexico corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
MESA VISTA HOMES, INC., a New Mexico
corporation
By /s/ Xxxxxx Xxxxxx
--------------------------------------
Its Vice President and Treasurer
-7-
257
Schedule 1
to
Continuing Guaranty
List of Guarantors
Xxxxxxx and Broad of Northern California, Inc.
Xxxxxxx and Broad of San Diego, Inc.
Xxxxxxx and Broad - South Bay, Inc.
Xxxxxxx and Broad of Southern California
Xxxxxxx and Broad - Central Valley, Inc.
Xxxxxxx and Broad Coastal, Inc.
Xxxxxxx and Broad of Nevada, Inc.
Xxxxxxx and Broad of Arizona, Inc.
Xxxxxxx and Broad of Colorado, Inc.
Xxxxxxx and Broad of Utah, Inc.
Xxxxx Xxxxxxx of Albuquerque, Inc.
Mesa Vista Homes, Inc.
-8-
258
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as of
________________, 19___, by ________________________________
_______________________________________, a ____________________ ("Joining
Party"), and delivered to the Administrative Agent pursuant to the Amended And
Restated Continuing Guaranty dated as of January 28, 1996 (the "Guaranty").
Terms used but not defined in this Joinder shall have the meanings defined for
those terms in the Guaranty.
RECITALS
A. The Guaranty was made by the Guarantors in favor of the Banks
that are parties to that certain Fourth Amended and Restated Loan Agreement
dated as of February 28, 1996 (the "Loan Agreement") among Xxxxxxx and Broad
Home Corporation, as Borrower, the Banks, Bank of America National Trust and
Savings Association, as Administrative Agent, Bank of America National Trust and
Savings Association, The First National Bank of Chicago, Credit Lyonnais Los
Angeles Branch and NationsBank of Texas, N.A., as Managing Agents.
B. Joining Party has become a Significant Subsidiary (as defined in
the Loan Agreement), and as such is required pursuant to Section 5.9 of the Loan
Agreement to become a Guarantor.
C. Joining Party expects to realize direct and indirect benefits as
a result of the availability to Borrower of a credit facility pursuant to the
Loan Agreement, and as a result of becoming a party to the Guaranty.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
1. By this Joinder, Joining Party becomes a "Guarantor" under and
pursuant to Section 10 of the Guaranty. Joining Party agrees that, upon
its execution hereof, it will become a Guarantor under the Guaranty with respect
to all Indebtedness of Borrower heretofore or hereafter incurred under the Loan
Agreement, and will be bound by all terms, conditions, and duties applicable to
a Guarantor under the Guaranty.
-1-
259
2. The effective date of this Joinder is _______________.
"Joining Party"
_________________________________
a _____________________________
By ___________________________________
Its _______________________________
ACKNOWLEDGED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By _______________________________
Its ___________________________
XXXXXXX AND BROAD HOME CORPORATION
By _______________________________
Its ___________________________
-2-
260
SCHEDULE 1.1
PRO RATA SHARES
Line B
Line B Pro Rata Share
Bank Commitment Percentage
---- ---------- ----------
Bank of America National
Trust and Savings Association $ 27,500,000 25.0000%
The First National Bank
of Chicago $ 27,500,000 25.0000%
Credit Lyonnais 27,500,000 25.0000%
NationsBank of Texas, N.A. 27,500,000 25.0000%
------------
Total $110,000,000 100.0000%
PRO RATA SHARES
Line C
Line C Pro Rata Share
Bank Commitment Percentage
---- ---------- ----------
Bank of America National
Trust and Savings Association $ 5,000,000 25.0000%
The First National Bank
of Chicago $ 5,000,000 25.0000%
Credit Lyonnais 5,000,000 25.0000%
NationsBank of Texas, N.A. 5,000,000 25.0000%
-----------
Total $ 20,000,000 100.0000%
(Schedule 1]
261
Schedule 4.4
Xxxxxxx and Broad Home Corporation and
Consolidated Subsidiaries
Key to "Types"
S = Significant Subsidiary
G = Guarantor Subsidiary
Fo = Foreign Subsidiary
Fi = Financial Subsidiary
(Note: All Guarantor Subsidiaries are also
Significant Subsidiaries)
Arizona Corporations % Type(s)
-------------------- - -------
Xxxxxxx and Broad of Arizona, Inc. 100 S/G
Xxxxxxx and Broad Home Sales of Arizona, Inc. 100
California Corporations
-----------------------
Affordable Multi-Family, Inc. 100
BKJ Construction Company, Inc. 100
Cable Associates, Inc. 100
Custom Decor, Inc. 100
First Northern Builders Servicing, Inc. 100
Fullerton Affordable Housing, Inc. 100
KBASW Mortgage Acceptance Corporation 100 Fi
KBI/Mortgage Acceptance Corporation 100 Fi
KBMH Property Management, Inc. 100
KBMH Capital, Inc. 100
KBRAC IV Mortgage Acceptance Corporation 100 Fi
K&B Multi-Housing Advisors, Inc. 100
KBMH Construction, Inc. 100
Xxxxxxx and Broad - Central Valley, Inc. 100 S/G
Xxxxxxx and Broad Coastal, Inc. 100 S/G
Xxxxxxx and Broad Communities, Inc. 100
Xxxxxxx and Broad Development Group 100
Xxxxxxx and Broad Embarcadero, Inc. 100
Xxxxxxx and Broad of Fresno, Inc. 100 S/G
Xxxxxxx and Broad Home Sales, Inc. 100
Xxxxxxx and Broad Insurance Agency, Inc.(1) 100
Xxxxxxx and Broad International, Inc. 100
Xxxxxxx and Broad Land Company 100
Xxxxxxx and Broad Land Development Venture, Inc. 100
----------------------
1 Formerly Pacific Sun Insurance Agency, Inc.
262
Xxxxxxx and Broad of Monterey Bay, Inc. 100 S/G
Xxxxxxx and Broad - Xxxxxx/Perris Valleys, Inc. 100
Xxxxxxx and Broad Multi-Family, Inc. 100
Xxxxxxx and Broad Multi-Housing Group, Inc. 000
Xxxxxxx xxx Xxxxx xx Xxxxxxxx Xxxxxxxxxx, Inc. 100 S/G
Xxxxxxx and Broad North Stockton, Inc. 100
Xxxxxxx and Broad Properties 100
Xxxxxxx and Broad of Sacramento, Inc. 100 S/G
Xxxxxxx and Broad of San Diego, Inc. 100 S/G
Xxxxxxx and Broad - South Bay, Inc. 100 S/G
Xxxxxxx and Broad of Southern California, Inc. 100 S/G
Xxxxxxx and Broad of Texas, Inc. 100
Xxxxxxx and Broad of Utah, Inc. 100
Kent Land Company 100
Kingsbay Escrow Company 100
Multi-Housing Investments, Inc. 100
COLORADO CORPORATION
--------------------
Xxxxxxx and Broad of Colorado, Inc. 100 S/G
DELAWARE CORPORATIONS
---------------------
International Mortgage Acceptance Corporation 100
Xxxxxxx and Broad Development Company 100
Xxxxxxx and Broad Limited 100
ILLINOIS CORPORATIONS
---------------------
Xxxxxxx and Broad of Illinois, Inc. 100
Xxxxxxx and Broad Mortgage Company 100 Fi
MASSACHUSETTS CORPORATION
-------------------------
Xxxxxxx and Broad Homes, Inc 100
MEXICAN CORPORATIONS
--------------------
Xxxxxxx y Broad de Mexico 100 Fo
Xxxxxxx y Broad Asesoria Administrativa 100 Fo
MICHIGAN CORPORATION
--------------------
Keywick, Inc. 100
MINNESOTA CORPORATION
---------------------
Xxxxxxx and Broad Custom Homes, Inc. 100
263
NEVADA CORPORATION
------------------
Xxxxxxx and Broad of Nevada, Inc. 100 S/G
NEW MEXICO
----------
Mesa Vista Homes, Inc. 100
Xxxxx Xxxxxxx of Albuquerque, Inc. 100 S/G
NEW YORK CORPORATION
--------------------
Xxxxxxx and Broad Homes of Long Island, Inc. 100
TEXAS CORPORATION
-----------------
Xxxxx-Xxxxxxx Development, Inc. 100
Xxxxx Xxxxxxx of El Paso, Inc. 100
CANADIAN CORPORATIONS
---------------------
806628 Ontario, Inc. 100 Fo
Barchester Investments Limited 50 Fo
Davisville Investment Co., Ltd. 100 Fo
Heatherwoods Development Corporation 100 Fo
Hillside Village Limited 100 Fo
Margreen Investments, Inc. 100 Fo
Meadowstream Development Limited 100 Fo
Mississauga Management Ltd. 100 Fo
Xxxxxxxx Xxxx Development Corporation (Xxxxxx), Inc. 100 Fo
Xxxxxxxx Xxxx Development Corporation (Ontario), Inc. 100 Fo/S
Xxxxxxxx Xxxx Development Corporation (Xxxxxxxxx), Inc. 100 Fo
Xxxxxxxx Xxxx Development Corporation (York), Inc. 100 Fo
Xxxxxxxx Xxxx Limited 100 Fo
FRENCH CORPORATIONS
-------------------
Bati Service Development S.A.R.L. 100 Fo
Bati Service Promotion S.A. 100 Fo
Xxxxxxx and Broad Developpement S.A. 99.4 Fo/S
Xxxxxxx & Broad France S.A. 100 Fo/S
Xxxxxxx and Broad Investissements S.A.R.L. 100 Fo
Xxxxxxx and Broad Maisons Individuelles S.A. 99.94 Fo/S
Xxxxxxx and Broad Rehabilitation S.A.R.L. 99.94 Fo
Xxxxxxx and Broad Renovation S.A. 99.4 Fo
Xxxxxxx and Broad Residences S.A.R.L. 100 Fo
GERMAN CORPORATIONS
-------------------
Xxxxxxx and Broad GmbH 100 Fo
264
SCHEDULE 4.7
Existing Liens and Rights of Others
As of November 30, 1995
NONE
265
SCHEDULE 4.9
Existing Indebtedness and Contingent Guaranty Obligations
As of November 30, 1995
AMOUNT TOTAL
------------ -----------
SECURED DEBT
DOMESTIC DEBT:
Coastal Valleys $0
Antelope Valley 7,191,000
Inland Empire 0
Pacific Inland 0
Xxxxx Xxxxx 00,000,000
Xxx Xxxxx 0
Xxxxx Xxx 0
Sacramento 0
Central Valley 0
Fresno 846,000
Xxxxx Xxx 0
Xxxxxxxx Xxx 727,000
Nevada 694,000
Arizona 0
New Mexico 2,000,000
Colorado 0
Utah 0
------------
TOTAL DOMESTIC SECURED $26,853,000
FRENCH DEBT 11,214,000
CANADIAN DEBT 870,000
MEXICAN DEBT 4,778,000
-----------
TOTAL SECURED DEBT $43,715,000
-----------
UNSECURED DEBT
DOMESTIC DEBT KBHC:
Revolver $250,000,000
Money Market 13,000,000
10 3/8% Senior Notes due 1999 100,000,000
9 3/8% Subordinated Notes due 2003 173,849,000
------------
TOTAL DOMESTIC DEBT KBHC 536,849,000
DOMESTIC DEBT KBMC:
Commercial Paper 111,000,000
Revolving Warehouse Facility 40,000,000
------------
TOTAL DOMESTIC DEBT KBMC 151,000,000
FINANCIAL SUBSIDIARIES OTHER THAN KBMC (COLLATERALIZED
MORTGAGE OBLIGATIONS) 84,764,000
FRENCH DEBT 59,011,000
------------
TOTAL UNSECURED DEBT $831,624,000
------------
TOTAL DEBT $875,339,000
============
CONTINGENT GUARANTY OBLIGATIONS
KBHC $6,120,000
KBMC 0
KBMHG 0
----------
TOTAL CONTINGENT GUARANTY OBLIGATIONS 6,120,000
Less: Financial Letters of Credit Supporting Secured Debt (956,000)
------------
TOTAL CONTINGENT GUARANTY OBLIGATIONS 5,164,000
TOTAL DEBT AND CONTINGENT GUARANTY OBLIGATIONS $880,503,000
============
266
SCHEDULE 6.4
Investments
As of November 30, 1995
INVESTMENT: AMOUNT
----------- ------
Computer Equipment Leveraged Leases $2,175,000
==========
