EXHIBIT 10.1
REVOLVING CREDIT LOAN AGREEMENT
GREENWOOD FINANCIAL, INC.,
A DELAWARE CORPORATION,
AND CERTAIN AFFILIATES
Borrowers
ORLEANS HOMEBUILDERS, INC.,
A DELAWARE CORPORATION
Guarantor
WACHOVIA BANK, NATIONAL ASSOCIATION
Administrative Agent
WACHOVIA CAPITAL MARKETS, LLC
Lead Arranger
BANK OF AMERICA, N.A.
Syndication Agent
SOVEREIGN BANK
Documentation Agent
MANUFACTURERS AND TRADERS TRUST COMPANY
Documentation Agent
NATIONAL CITY BANK
Documentation Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
FIRSTRUST BANK
GUARANTY BANK
US BANK NATIONAL ASSOCIATION
CITIZENS BANK OF PENNSYLVANIA
COMMERCE BANK, NATIONAL ASSOCIATION
SUNTRUST BANK
AMSOUTH BANK
FRANKLIN BANK, SSB
COMERICA BANK
COMPASS BANK, an Alabama Banking Corporation
Lenders
$500,000,000
Senior Secured Revolving Credit and Letter of Credit Facility
Dated: As of December 22, 2004
TABLE OF CONTENTS
PAGE
REVOLVING CREDIT LOAN AGREEMENT................................................1
BACKGROUND ....................................................................1
ARTICLE I. DEFINITIONS.........................................................1
1.1 Definitions.......................................................1
1.2 Construction of Terms............................................14
1.3 Accounting Reports and Principles................................14
1.4 Business Day; Time...............................................14
1.5 Charging Accounts................................................14
1.6 Lenders' Costs...................................................15
ARTICLE II. AMOUNT AND TERMS OF THE FACILITY; SECURITY FOR THE FACILITY.......15
2.1 The Facility.....................................................15
2.2 Term of Facility.................................................18
2.3 Repayment Terms..................................................18
2.4 Interest Rate....................................................20
2.5 Interest after Maturity..........................................21
2.6 Fees Payable by Borrowers........................................21
2.7 Prepayments......................................................22
2.8 No Setoff or Deduction...........................................23
2.9 Illegality.......................................................23
2.10 Notes............................................................23
2.11 Security.........................................................23
2.12 General Provisions...............................................24
2.13 Postponement of Maturity Date....................................27
2.14 Swap Contracts...................................................28
ARTICLE III. NOTICE OF BORROWING; BORROWING BASE; BORROWING BASE
AVAILABILITY.....................................................28
3.1 Notice of Borrowing..............................................28
3.2 Admission of Projects to Borrowing Base..........................29
3.3 Borrowing Base Availability......................................29
3.4 Submission of Borrowing Base Certificate.........................31
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3.5 Inspection of Projects...........................................32
ARTICLE IV. CONDITIONS OF LENDING.............................................32
4.1 Agreement to Make Available the Facility.........................32
4.2 Availability of Letters of Credit and Tri-Party Agreements.......35
4.3 Conditions Precedent to Swing Line Loans.........................36
ARTICLE V. REPRESENTATIONS AND WARRANTIES.....................................36
5.1 Use of Proceeds..................................................36
5.2 Incorporation, Good Standing, and Due Qualification..............36
5.3 Power and Authority..............................................37
5.4 Legally Enforceable Agreement....................................37
5.5 Financial Statements; Accuracy of Information....................37
5.6 Conflicts........................................................38
5.7 Consents.........................................................38
5.8 Litigation.......................................................38
5.9 Other Agreements.................................................38
5.10 No Defaults and Outstanding Judgments or Orders..................38
5.11 Taxes............................................................38
5.12 Debt.............................................................39
5.13 Ownership and Liens..............................................39
5.14 ERISA............................................................39
5.15 Representations and Warranties as to Real Estate.................39
5.16 No Violation.....................................................40
5.17 Accurate and Complete Disclosure.................................40
5.18 Compliance with Covenants........................................40
ARTICLE VI. AFFIRMATIVE COVENANTS.............................................40
6.1 Reporting Requirements...........................................40
6.2 Payment of Taxes.................................................42
6.3 Access to Properties, Books and Records..........................42
6.4 Maintenance of Records...........................................42
6.5 Maintenance of Existence.........................................42
6.6 Insurance........................................................42
6.7 ERISA............................................................44
6.8 Accounts.........................................................44
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6.9 Compliance with Laws.............................................44
6.10 Payment of Debt..................................................44
6.11 Consequential Damages............................................45
6.12 Further Assurances...............................................45
ARTICLE VII. NEGATIVE COVENANTS...............................................45
7.1 Creation of Debt.................................................45
7.2 Grant of Liens...................................................45
7.3 Mergers and Acquisitions.........................................45
7.4 Transaction With Affiliates......................................46
7.5 Use of Proceeds..................................................46
ARTICLE VIII. FINANCIAL COVENANTS.............................................46
8.1 Adjusted EBITDA..................................................46
8.2 Consolidated Adjusted Tangible Net Worth.........................46
8.3 Leverage.........................................................46
8.4 Investments in Joint Ventures....................................47
8.5 Ownership of Land................................................47
8.6 Units in Inventory...............................................47
8.7 Reports Regarding Financial Covenants............................47
ARTICLE IX. EVENTS OF DEFAULT.................................................48
ARTICLE X. REMEDIES...........................................................49
10.1 Remedies of Lenders..............................................49
10.2 Effect of Delay..................................................50
10.3 Acceptance of Partial Payment....................................50
10.4 Other Available Remedies.........................................50
10.5 Waiver of Marshalling of Assets..................................50
10.6 Waiver of Counterclaim...........................................50
ARTICLE XI. THE AGENT.........................................................51
11.1 Appointment......................................................51
11.2 Delegation of Duties.............................................51
11.3 Exculpatory Provisions...........................................51
11.4 Reliance by Agent................................................51
11.5 Non-Reliance on Agent and Other Lenders..........................52
11.6 Indemnification..................................................52
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11.7 Consequential Damages............................................53
11.8 Agent in Its Individual Capacity.................................53
11.9 Resignation or Removal of Agent as Administrative Agent..........53
11.10 Amendments, Waivers and Consents.................................54
11.11 Authority........................................................54
11.12 Borrower Default.................................................55
11.13 Lender Default...................................................55
11.14 Ratable Sharing..................................................56
11.15 Documentation....................................................57
ARTICLE XII. PARTICIPATION BY LENDERS IN SWING LINE LOANS.....................57
12.1 Purchase and Sale of Participation...............................57
12.2 Sharing of Interest and Expenses.................................57
12.3 Assignment of Participation Interests............................58
12.4 Administration of Swing Line Loans...............................58
ARTICLE XIII. MISCELLANEOUS...................................................58
13.1 Modifications....................................................58
13.2 Binding Nature...................................................58
13.3 Governing Law....................................................58
13.4 Time of Performance..............................................58
13.5 Severability.....................................................58
13.6 Captions.........................................................58
13.7 Computations.....................................................59
13.8 Continuing Obligation............................................59
13.9 Assignment and Participation.....................................59
13.10 Notices..........................................................61
13.11 Cumulative Remedies..............................................66
13.12 Third Party Beneficiaries........................................66
13.13 Prior Understandings.............................................67
13.14 Counterparts.....................................................67
13.15 Indemnification..................................................67
13.16 Relationship of Parties..........................................68
13.17 Joint and Several Liability......................................68
13.18 Publicity........................................................68
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13.19 No Implied Waiver................................................69
13.20 Taxes............................................................69
13.21 Conflict; Construction of Documents; Reliance....................69
13.22 Jurisdiction.....................................................69
13.23 Waiver of Jury Trial.............................................70
13.24 Counterparts.....................................................70
13.25 Entire Agreement.................................................70
Schedules and Exhibits
1.1A - Schedule of Borrowers
1.1B - Schedule of Commitments
1.1C - Form of Joinder
1.1D - Schedule of Outstanding Letters of Credit and Tri-Party Agreements
1.1E - Form of Line of Credit Note
1.1F - Notice of Borrowing of a Loan
2.1.4.1 - Form of Application and Agreement for Irrevocable Standby Letter of
Credit
3.4 - Form of Borrowing Base Certificate
5.8 - Schedule of Litigation
8.7 - Form of Covenant Compliance Certificate
13.9 - Form of Assignment and Acceptance
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REVOLVING CREDIT LOAN AGREEMENT
This Revolving Credit Loan Agreement ("this Agreement"), made as of the
22nd day of December, 2004, by and among GREENWOOD FINANCIAL, INC., a Delaware
corporation ("MASTER BORROWER"), each of the other entities identified on
Schedule 1.1A that is attached hereto as Borrowers, the Lenders who are or may
become a party hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent for the
Lenders ("AGENT").
BACKGROUND
Master Borrower is a corporation principally formed to engage in
financing transactions with and on behalf of the Guarantor and the other
Borrowers. Each of the other Borrowers is a corporation, limited partnership or
limited liability company formed to acquire land in one or more of the States of
Pennsylvania, New Jersey, New York, Maryland, Illinois, Delaware, Virginia,
North Carolina, South Carolina and Florida, to improve such land with
residential dwellings, and to sell such dwellings, or to invest in Eligible
Affiliates formed for such purposes (the "BUSINESS"). Borrowers desire to
establish a credit facility with Lenders for the benefit of Borrowers to finance
Borrowers' acquisition of residential real estate and construction activities.
Lenders have agreed to extend such credit facility to Borrowers, subject to the
terms and conditions hereinafter more particularly set forth.
NOW, THEREFORE, in consideration of their mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE I. DEFINITIONS
1.1 Definitions. In addition to other words and terms defined
elsewhere in this Agreement, as used in this Agreement, the following words and
terms shall have the following meanings, respectively, unless the context hereof
otherwise clearly requires:
"Adjusted EBITDA" means, with respect to a Relevant Accounting Period,
(i) GAAP net income, plus (to the extent deducted to determine GAAP net income)
(ii) state and federal income taxes, plus (iii) depreciation and amortization,
plus (iv) interest expensed in the cost of goods sold, plus (v) interest
expensed from operations.
"Advance" means the cash which Lenders advance to a Borrower under the
Facility, all subject to and in accordance with the provisions of Article II
hereof.
"Affiliate" means and refers to, as applied to any Person, any other
Person directly or indirectly controlling, or through one or more Persons is
controlled by, controlling or in common control with that Person. "Control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and/or policies of that Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Agent" means Wachovia Bank, National Association, in its capacity as
agent for Lenders, and any successor thereto appointed pursuant to Section 11.9.
"Agreement" means this Revolving Credit Loan Agreement, and any
schedules, exhibits, riders, extensions, supplements, amendments, or
modifications to this Revolving Credit Loan Agreement.
"Applicable Spread" means the rate per annum determined from time to
time in accordance with the following:
(i) If the relevant Leverage Ratio is: the Applicable Spread shall be:
Not greater than 1.50:1 1.75% (175 "basis points")
Greater than 1.50:1 and not greater than 2.25:1 2.00% (200 "basis points")
Greater than 2.25:1 and not greater than 2.50:1 2.125% (212.5 "basis points")
Greater than 2.50:1 2.375% (237.5 "basis points")
(ii) If, based on the Covenant Compliance Certificate most recently
delivered by Borrowers, the ratio of (x) the book value of all land owned by
Borrowers, Guarantor or any subsidiary of a Borrower or of Guarantor which is
not subject to a Qualifying Agreement of Sale and on which no Unit is
constructed or under construction to (y) Consolidated Tangible Net Worth exceeds
1.50:1, the Applicable Spread that is determined pursuant to the foregoing
clause (i) shall be increased by one-eighth of one percent (0.125%) per annum
(that is, by 12.5 "basis points").
(iii) The Applicable Spread shall be adjusted quarterly as provided
in Section 2.4.2.
"Appraisal" means an appraisal or re-appraisal of a Project that (i) is
directed to Agent and, if the Project is not admitted to the Borrowing Base as
of the date hereof, is dated not earlier than six (6) months before the date the
Project is admitted to the Borrowing Base, (ii) contains terms and conditions
satisfactory to Agent and (iii) conforms in all respects to Title X of the
Federal Financial and Institutional Reform, Recovery and Enforcement Act of 1989
(FIRREA). The Borrowers shall be responsible for the cost of each Appraisal as
Lenders' Costs.
"Appraised Value" means, with respect to the Real Estate, Units and
Improvements in any Project, the value thereof as determined pursuant to
Section 3.3.2.6. The "Appraised Value" of Improved Land and Units shall be
determined on an "as completed" basis.
"Approved Jurisdiction" means the States or Commonwealths of
Pennsylvania, New Jersey, New York, Maryland, Illinois, Delaware, Virginia,
North Carolina, South Carolina and Florida, and also such other State or
Commonwealth as may from time to time be approved by Requisite Lenders.
"Approved Land" means land that has received all Governmental Approvals
necessary for immediate development as for-sale residential housing, other than
building permits; provided that land that has received all such Governmental
Approvals except for state- and federally-issued permits (but not local
subdivision and land development approvals, [which may, however, be conditioned
upon the receipt of state- and federally-issued permits]) that the owning
Borrower in good faith believes will be issued within 120 days may be included
in the Borrowing Base as "Approved Land" for a period of 120 days, provided
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further that if all such state- and federally-issued permits are not issued
within such 120 day period, such land shall no longer be deemed to be "Approved
Land" until all such state- and federally-issued permits are actually obtained.
"Assigned Security Instruments" means the mortgages and deeds of trust
that were heretofore granted by certain Borrowers as security for construction
loans made by various financial institutions, which mortgages and deeds of trust
(and the promissory notes and loan agreements they secure) have been, or are
about to be, assigned to Agent to facilitate the transactions contemplated by
this Agreement.
"Authorized Signer" means any of the Persons listed on the certificate
to be delivered to Agent at Closing in accordance with Section 4.1.5 or on any
replacement certificate with respect thereto subsequently delivered to Agent at
any time.
"Bankruptcy Code" means Title 11 of the United States Code as now or
hereafter in effect, or any successor statute.
"Borrower" means, individually and at any time, Master Borrower, each
Person identified on Schedule 1.1A and each Eligible Affiliate which has
theretofore qualified as a "Borrower" pursuant to Section 2.1.1.3.
"Borrowing Base" means at any time the Real Estate, Improvements and
Units (excluding (i) dwelling units in any mid-rise or high-rise structure
containing more than three (3) stories of space for residential occupancy and
(ii) any asset classified as "Inventory not Owned" (FASB 46) on Guarantor's or
any Borrower's balance sheet) that are part of Projects, subject to the
limitations contained in this Agreement. The Borrowing Base shall change from
time to time as provided herein. The Borrowing Base may not include any Real
Estate, Improvements or Units (i) owned by a Borrower that is not a wholly-owned
Affiliate of Guarantor or (ii) prior to the Collateral Release Date, that is not
encumbered by a Mortgage.
"Borrowing Base Availability" means, at any time, (i) the amount
determined pursuant to Section 3.3, based on the most recently delivered
Borrowing Base Certificate, minus (ii) the aggregate amount of liability of
Agent under then-outstanding Financial Letters of Credit, minus (iii) the
aggregate outstanding amount of all Swing Line Loans, minus (iv) the aggregate
principal amount of all Permitted Subordinated Debt that by its terms matures
within one (1) year.
"Borrowing Base Certificate" means a certificate in the form as shown
on Exhibit 3.4, attached hereto, the purpose of which is to state, on a per Lot
and per Unit basis, the amount of the Borrowing Base Availability as of the date
thereof.
"Business Day" means any day other than a Saturday, a Sunday, a public
holiday under the laws of the Commonwealth of Pennsylvania or of the State of
North Carolina or another day on which banking institutions in such
jurisdictions are authorized or obligated to close.
"Capital Lease" means all leases that have been or should be
capitalized on the books of the lessee in accordance with GAAP.
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"Closing" and "Closing Date" mean to date on which each of the Loan
Documents has been executed and delivered by all of the parties thereto and
Borrowers have satisfied all of the conditions contained in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations and published interpretations thereof.
"Collateral" means, at any time, all real, personal or other property
that is encumbered by a Mortgage or is otherwise subject to a Lien as security
for the Indebtedness and Obligations.
"Collateral Release Date" has the meaning defined in Section 2.11.2.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to Borrowers hereunder and to honor drawings and demands under
Letters of Credit and Tri-Party Agreements issued or executed hereunder, in an
aggregate principal or face amount at any time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule 1.1B hereto, as the
same may be reduced or modified at any time or from time to time pursuant to the
terms hereof.
"Consolidated Adjusted Tangible Net Worth" means, as of any date, the
sum of (i) Guarantor's Consolidated Tangible Net Worth plus (ii) the lesser of
(x) one-half (1/2) of the outstanding principal amount of all Permitted
Subordinated Debt of Guarantor that matures no sooner than twelve (12) months
after such date or (y) thirty percent (30%) of Guarantor's Consolidated Tangible
Net Worth.
"Consolidated Tangible Net Worth" means, as of any date, (i)
Guarantor's GAAP net worth minus (ii) goodwill, patents, trademarks, tradenames,
organization expense, unamortized debt discount and expense, deferred marketing
expenses and other intangibles as shown in the Financial Statements as of the
last day of the Last Reported Fiscal Quarter.
"Consolidated Total Assets" means, as of any date, all assets of
Guarantor, as shown on Guarantor's most recent Financial Statements.
"Consolidated Total Indebtedness" and "Debt" mean, for any Person as of
any date, without duplication, all (i) indebtedness or liability for borrowed
money; (ii) obligations, whether or not for money borrowed (a) represented by
notes payable, or drafts accepted, in each case representing extensions of
credit, (b) evidenced by bonds, debentures, notes or similar instruments, or (c)
constituting purchase money indebtedness, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property or services
rendered; (iii) master lease obligations and obligations that are treated as
capitalized leases under GAAP; (iv) reimbursement obligations under surety
bonds, letters of credit and/or tri-party agreements issued with respect to
Improvements (whether or not the same have been presented for payment); (v)
reimbursement obligations under Financial Letters of Credit and surety bonds
(regardless of whether the same have been presented for payment); (vi)
obligations, contingent or otherwise, under any synthetic lease, tax retention
operating lease, off balance sheet loan or similar off balance sheet financing
arrangement if the transaction giving rise to such obligation (a) is considered
indebtedness for borrowed money for tax purposes but is classified as an
operating lease under GAAP and (b) does not (and is not required pursuant to
4
GAAP to) appear as a liability on the balance sheet of a Person; (vii)
liabilities arising under any "swap agreement" (as that term is defined in 11
U.S.C. Section 101, as heretofore or hereafter amended); and (viii) without
duplication, all liabilities of third parties of the type described in
(i)-(vii), inclusive, that are guaranteed by or otherwise recourse to a Person,
whether or not the obligations have been assumed. "Adjusted Consolidated Total
Indebtedness" means Consolidated Total Indebtedness minus reimbursement
obligations described in the preceding clause (iv).
"Covenant Compliance Certificate" means a certificate in the form
attached hereto as Exhibit 8.7.
"Cost Incurred" means, at any time with respect to Lots and Units, the
then-current book value thereof, determined in accordance with GAAP.
"Debt Service" means, with respect to a Relevant Accounting Period, (i)
interest paid (whether expensed or capitalized) as reported on Guarantor's
Financial Statements, plus (ii) required principal payments on any Debt
(excluding (a) with respect to any permitted purchase money mortgage debt,
release prices paid upon the conveyance of any Unit and (b) principal payments
of Loans, Swing Line Loans and Letter of Credit Advances) plus (iii) mandatory
preferred stock dividends.
"Default Rate" means a rate of interest that is equal to the applicable
Interest Rate otherwise payable with respect to Loans plus four percent (4%) per
annum.
"Deposit Account" means a demand, time, savings, passbook or like
account with a federally insured bank or savings and loan association, other
than an account evidenced by a negotiable certificate of deposit.
"Designated Officer" means Xxxxx Xxxxxxx-Xxxxx or any other person
designated in writing by Agent as its representative for the purpose of
receiving notice hereunder.
"Development Land" means Approved Land on which the construction of
Improvements has been commenced and is in process.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Eligible Affiliate" means an entity that, directly or indirectly, is
100% owned by Guarantor.
"Eligible Investor" means a commercial bank, savings bank, savings and
loan association or other similar financial institution, insurance company and
mutual fund having total assets of $1,000,000,000 or more, generally engaged in
lending of the type of the Facility and in full compliance with all FDIC Control
Act requirements or other regulatory requirements.
"Environmental Condition" means any condition affecting (i) the work
place where business operations take place, or (ii) any natural resource,
including without limitation the air, soil, surface and groundwater, which must
be reported to a Governmental Authority or which must be remediated under any of
the Environmental Laws.
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"Environmental Law" means any presently existing or hereafter enacted
or decided federal, state or local statutory or common law relating to pollution
or protection of the environment, including without limitation, any common law
of nuisance or trespass, and any law or regulation relating to emissions,
discharges, releases or threatened release of pollutants, contaminants or
chemicals or industrial, toxic or hazardous substances or wastes into the
environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or chemicals, or industrial,
toxic or hazardous substances or wastes.
"Environmental Report" means a Phase I (and, if recommended by a Phase
I, a Phase II) environmental site assessment that is (i) prepared with respect
to Real Estate in accordance with Agent's then-current protocol for
environmental studies of land for residential development by a qualified
environmental engineer acceptable to Agent in its reasonable business judgment,
(ii) if the Real Estate is not part of a Project that is admitted to the
Borrowing Base as of the date hereof, dated not earlier than twelve (12) months
prior to the Project's admission to the Borrowing Base and (iii) if not
addressed to Agent, as agent for the Lenders, accompanied by a reliance letter
(in form acceptable to Agent in good faith) addressed to Agent as agent for the
Lenders. Borrowers shall be responsible for the cost of each such Environmental
Assessment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereof.
"ERISA Affiliate" means any trade or business (whether or not
incorporated), which together with any Borrower or Guarantor (or some or all of
them) would be treated as a single employer under Section 4001 of ERISA.
"Event of Default" or "Default" means any of the events specified in
Article IX, and elsewhere in this Agreement, upon the occurrence of which the
Lenders may exercise their rights and remedies hereunder and/or under the other
Loan Documents.
"Facility" means the credit facility under which (i) Loans may be
borrowed, repaid and reborrowed, in the maximum outstanding amount of the
Revolving Sublimit, (ii) Letters of Credit and Tri-Party Agreements (including
those presently existing) may be issued or executed by an Issuer on behalf of
Lenders in the aggregate maximum undrawn amount not exceeding, at any time, the
Letter of Credit Sublimit, and (iii) Swing Line Loans may be borrowed, repaid
and reborrowed in the maximum outstanding amount of the Swing Line Limit, all as
more fully described in Article II.
"Facility Amount" means $500,000,000, which includes the $100,000,000
Letter of Credit Sublimit and the $25,000,000 Swing Line Limit, and shall be
subject to increase in accordance with the provisions of Section 2.1.1.2.
"Financial Letters of Credit" has the meaning defined in Section 2.1.2.
"Financial Statements" mean the reports of financial condition required
to be delivered pursuant to Sections 6.1.1 and 6.1.2.
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"Fiscal Quarter" means each of the three (3) month periods that ends on
the last day of the third (3rd), sixth (6th), ninth (9th) and twelfth (12th)
months of a Fiscal Year.
"Fiscal Year" means the period of twelve (12) consecutive calendar
months on the basis of which Guarantor reports its income for GAAP purposes,
which twelve (12) month period currently ends on each June 30.
"Funding Date" means the Business Day on which a Loan is advanced.
"GAAP" means generally accepted accounting principles as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board as in effect on the
date hereof or in such other statements by such other Person as may be approved
by a significant segment of the accounting profession, which are applicable to
the circumstances as of the date of determination and which are applied on a
consistent basis.
"Governmental Approvals" means all authorizations, consents, approvals,
permits, licenses and exemptions of, registrations and filings with, and reports
to, all Governmental Authorities.
"Governmental Authority" means any federal, state, local or foreign
government and any agency, commission, or other entity thereof.
"Guarantor" means Orleans Homebuilders, Inc., a Delaware corporation.
"Guaranty" means the guaranty and suretyship agreement executed by the
Guarantor pursuant to Section 2.11.1.1.
"Improved Land" means Approved Land that is fully developed with
Improvements that have been completed (other than the finish paving of streets).
"Improvements" means the site improvements required for the
development, improvement and sale of a Project, including, but not limited to,
roads, curbs, sidewalks, storm water drainage lines and facilities and water and
sewer lines and facilities.
"Indebtedness" means all amounts due from Borrowers to Lenders (or any
of them) or Agent in respect of Loans, Letter of Credit Advances, Swing Line
Loans and otherwise arising out of in connection with this Agreement or any
other Loan Document.
"Interest Rate" means, on any day, the sum (expressed as a per annum
rate of interest) of (i) the LIBOR Market Index Rate as of such day plus (ii)
the Applicable Spread in effect on such day.
"Issuer" means (i) each Lender that has heretofore issued a Letter of
Credit or executed a Tri-Party Agreement and (ii) Agent.
"Joinder" means a joinder and assumption agreement, in the form
attached hereto as Exhibit 1.1C, to be executed by each Eligible Affiliate that
hereafter becomes a Borrower and to be attached to each Note, whereby such
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Eligible Affiliate shall assume and agree to pay, jointly and severally with all
other Borrowers, the Indebtedness.
"Joint Venture" means an entity that is engaged principally in the
business of for-sale residential real estate and in which Guarantor, directly or
indirectly, owns at least a 30% interest.
"Last Reported Fiscal Quarter" means, on any date, the later of (i) the
Fiscal Quarter most recently concluded that ended at least 50 days before such
date or (ii) the most recent Fiscal Quarter with respect to which Borrower has
delivered to Agent a report as required by Section 6.1.2.
"Lender" means each Person executing this Agreement as a Lender, as set
forth on the signature pages hereto, and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.9.
"Lenders' Costs" means all costs and expenses of any kind paid or
incurred by Agent or Lenders in connection with the preparation, execution,
delivery, amendment, modification or termination of this Agreement or any other
Loan Document, any amendments thereto, any transaction contemplated herein or
any existing or future related agreements and the preservation, enforcement,
defense and protection of Lenders' rights, remedies, obligations and liabilities
in any manner concerning this Agreement or any other Loan Document, any
transaction contemplated herein or any existing or future related agreements,
including, but not limited to: (a) reasonable attorneys' fees and other expenses
paid or incurred by Agent in enforcing, obtaining legal advice in preparing,
reviewing, consummating, amending, restructuring, extending, terminating,
defending, or preserving or protecting Lenders' rights, remedies, obligations or
liabilities in any manner concerning, this Agreement, any other Loan Document or
any amendments thereto, any transaction contemplated herein or any existing or
future related agreements; (b) wire transfer charges in such amounts as Agent
may from time to time establish for such service; and (c) all recording,
appraisal, environmental, title insurance, property and liability insurance,
flood certification and Project inspection fees, costs and premiums associated
with each Project that is admitted to the Borrowing Base. "Lenders' Costs" shall
not, however, include any fees or expenses paid or incurred by any individual
Lender other than costs of enforcement incurred while an Event of Default
exists.
"Letter of Credit" means (a) each letter of credit identified on
Schedule 1.1D which has heretofore been issued with respect to a Project or to
developments previously completed by a Borrower, (b) each letter of credit
issued by Agent on behalf of the Lenders for the benefit of Borrower, such
letters of credit that are to be issued by Agent to be for the purpose of
providing security for (i) the construction by a Borrower of Improvements and
other municipal and public facilities related to Projects deemed to be financed
under the Revolving Sublimit by their inclusion in the Borrowing Base, (ii)
maintenance by a Borrower of Improvements and other municipal and public
facilities related to the Projects financed under the Revolving Sublimit, (iii)
deposits under purchase contracts for residential land to which a Borrower is a
party and (iv) general corporate purposes that are necessary for the operation
of the Business of any Borrower, including for maintenance by a Borrower or by
an Eligible Affiliate of public improvements with respect to a residential
development that is not, and has not been, a Project and (c) any letter of
credit issued by Agent in favor of any bank that is not a Lender to secure any
Borrower's reimbursement obligations on account of letters of credit and
tri-party agreements issued by such bank of the type described in clause (b) (i)
or (b) (ii) of this definition or in the definition of "Tri-Party Agreement
contained herein, as identified on Schedule 1.1.D.
8
"Letter of Credit Advance" has the meaning defined in Section 2.1.4.4.
"Letter of Credit Sublimit" means $100,000,000.
"Leverage Ratio" means, at any time, the ratio of Guarantor's
Consolidated Total Indebtedness to Guarantor's Consolidated Adjusted Tangible
Net Worth.
"LIBOR Market Index Rate" means, for any day, the rate of one (1) month
U.S. Dollar deposits as reported on Telerate page 3750 as of 11 a.m., London
time, on such day, or if such day is not a London business day, then the
immediately preceding London business day (or, if not so reported, then as
determined by Agent from another recognized source or interbank quotation).
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge, or encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction to evidence any of the
foregoing).
"Line of Credit" means the commitment of Lenders to make Loans to
Borrowers from time to time in the maximum aggregate amount equal to the lesser
of (i) the Revolving Sublimit or (ii) the amount of then-current Borrowing Base
Availability.
"Line of Credit Note" means each of the promissory notes made by Master
Borrower and each Eligible Affiliate that is party to this Agreement as of the
date hereof, payable to the order of each Lender and substantially in the form
of Exhibit 1.1E hereto, evidencing the Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.
"Loan" or "Loan(s)" means, individually or collectively, the Line of
Credit and any advances thereunder.
"Loan Document(s)" means this Agreement, the Notes, the Mortgages, the
Guaranty Letters of Credit and all documents executed in connection with the
Loans evidenced by this Agreement and the Notes, and may include, without
limitation, all certificates issued with respect to any of the foregoing and any
renewals or modifications thereof.
"Loan Fees" means the various fees payable by Borrowers from time to
time pursuant to Section 2.6.
"Lot" or "Lots" shall mean the portions of Real Estate that have been
approved for construction thereon of a single family Unit.
"Master Borrower" means Greenwood Financial, Inc., a Delaware
corporation.
9
"Material Adverse Effect" means, with respect to any Person, a material
and adverse effect upon the business, assets, financial condition or results of
operations of such Person and its subsidiaries taken as a whole, and, with
respect to Borrowers and Guarantor, their ability to perform their respective
obligations under the Loan Documents in accordance with their respective terms.
"Maturity Date" means December 22, 2007, subject to Section 2.13.
"Mortgage" or "Mortgages" means the mortgages or deeds of trust (as
appropriate for the jurisdiction in which the Project subject thereto is
located) granted to Agent (for the ratable benefit of the Lenders) or to a
wholly-owned subsidiary of Agent as trustee for Agent (including master
consolidations and restatements of the Assigned Security Instruments) (for the
ratable benefit of the Lenders), which shall be security for the repayment of
the Indebtedness, and shall constitute first lien(s) upon the Project(s). The
Mortgages shall be in a form prepared by and acceptable to Agent.
"Multiemployer Plan" means a Plan described in Section 4001(a)(3) of
ERISA that covers employees of either of a Borrower or any ERISA Affiliate.
"New York Mortgage" means each Mortgage that encumbers a Project
located in the State of New York.
"Notes" means the Line of Credit Notes and the Swing Line Note; "Note"
means any of such Notes.
"Notice of Borrowing" means a written notice from a Borrower to Agent,
in the appropriate form that is attached hereto as Exhibit 1.1G, requesting that
a Loan or a Swing Line Loan in a specified amount be advanced to such Borrower
on a specified Funding Date.
"Obligations" means all Indebtedness owing to the Lenders, or any of
them, under this Agreement, the Line of Credit Notes and the Swing Line Note
(including, but not limited to, the repayment of the Loans, Letter of Credit
Advances, Swing Line Loans and all interest and other charges due thereon and
hereunder), and all other Loan Documents, including any past, present or future
advances, renewals, extensions, modifications, interest, late charges, costs and
fees of any type.
"Organizational Documents" means, with respect to any entity, its
articles of incorporation, by-laws, partnership agreement, certificate of
limited partnership, limited liability company organization or formation
agreement, limited liability company certificate or articles of formation and
trust indenture, as appropriate to the entity.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Debt" means:
(i) the Indebtedness;
10
(ii) normal operating liabilities such as trade accounts payable,
taxes payable, lease obligations and customer deposits and unsecured notes given
as deposits under agreements of sale for the purchase of land;
(iii) reimbursement obligations under surety bonds, Letters of
Credit or Tri-Party Agreements (whether or not the same have been presented for
payment);
(iv) purchase money mortgage loans borrowed from sellers in
connection with the acquisition of land, the outstanding principal amount of
which, in the aggregate at any time, is not greater than $20,000,000, except to
the extent that a higher aggregate principal amount of purchase money loans have
been approved by Requisite Lenders (Lenders hereby acknowledging that if, after
the Closing Date, Master Borrower requests approval of an approximately
$47,000,000 purchase money mortgage that would encumber the land known as the
"Grawton Tract" and Requisite Lenders approve such request, such purchase money
mortgage loan shall not be considered to be outstanding for purposes of the
aforesaid $20,000,000 aggregate limit), provided, in any event, that all
covenants of Borrower, if any, contained in any purchase money loan document are
less restrictive than the covenants contained in Articles VI, VII and VIII
hereof;
(v) Permitted Subordinated Debt; and
(vi) obligations constituting deposits under agreements of sale for
Units.
"Permitted Liens" shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in
the ordinary course of business and which are not yet due and payable;
(ii) Encumbrances consisting of zoning restrictions, easements or
other restrictions on the use of real property, none of which materially impairs
the use of such property by Borrower in for construction thereon and of Units,
and none of which is violated in any material respect by existing or proposed
structures or land use;
(iii) Liens, security interests or mortgages in favor of Agent for
the benefit of the Lenders;
(iv) Liens on Real Estate that secure purchase money loans made by
the sellers of such Real Estate that are Permitted Debt and which, if
encumbering any Project, are subordinate, in lien, priority and, during the
pendency of an Event of Default, payment of the Mortgage that encumbers such
Project; and
(v) Liens shown on title insurance policies accepted by Agent.
"Permitted Subordinated Debt" means unsecured Debt for borrowed money,
the repayment of which by its terms is subordinated to the Indebtedness, and is
on terms acceptable to Agent but that must include the following:
(i) The Debt matures at least 179 days after the then-current
Maturity Date at the time such Debt is incurred;
11
(ii) The creditor agrees that, for a period of at least 179 days
after the creditor receives notice of the occurrence of an Event of Default
(unless Agent has delivered written notice to the holder of the Debt that (a)
such Event of Default has been waived by Lenders or otherwise no longer exists,
which notice Agent shall deliver (if appropriate) promptly following written
request by Master Borrower or (b) the Facility has been terminated and all
Indebtedness has been paid), the creditor shall not initiate or maintain any
action to collect on its Debt and shall not accept any payments on account of
such Debt; and
(iii) All covenants pertaining to such Debt are less restrictive
than the covenants contained in Articles VI, VII and VIII hereof;
provided, however, that at no time may the aggregate outstanding principal
amount of Permitted Subordinated Debt exceed $200,000,000.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority, or other entity of whatever nature.
"Plan" means any plan established, maintained, or to which
contributions have been made by either of the Borrower or any ERISA Affiliate.
"Prescribed Laws" means, collectively, (a) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT ACT), (b)
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001,
and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism, (c) the International
Emergency Economic Power Act, 50 U.S.C. Section 1701 et. seq. and (d) all other
statutes and laws relating to money laundering or terrorism.
"Prohibited Transaction" means any transaction set forth in Section
4006 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended
from time to time.
"Project" means, at any time, a tract of Real Estate in an Approved
Jurisdiction, including all Units and/or Improvements constructed or to be
constructed thereon and that is then included in the Borrowing Base Certificate
most recently delivered to Agent and otherwise has satisfied the conditions of
this Agreement for admission to the Borrowing Base.
"Pro Rata Share" means, as to any Lender at any time, the ratio of (i)
the amount of the Commitment of such Lender to (ii) the aggregate Commitment of
all of the Lenders. The Pro Rata Share of each Lender as of the date of this
Agreement is shown on Schedule 1.1B.
"Qualifying Agreement of Sale" means a valid, bona-fide agreement of
sale for a Unit with an unrelated third-party purchaser who is not an Affiliate
of Guarantor or of any Borrower, for fair market value, subject to the following
conditions and limitations:
(i) provides for a cash deposit of at least 5% of the
purchase price, except that the cash deposit with respect to agreements of sale
for Units in the Richmond, Virginia, MSA may be $1,000 in lieu of 5% of the
purchase price; and
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(ii) contains no contingency other than for a mortgage
commitment which does not exceed 95% (97% if the required mortgage is to be
FHA-insured) of the gross sales price of the Unit and which is not contingent
upon the sale or lease of any other real estate (and which contingency provision
(unless the subject Unit is in the Richmond, Virginia, MSA) specifically
provides that if the financing commitment does include such a sale or lease
contingency, such contingency will not affect the purchaser's obligation to
close under the agreement of sale).
"Real Estate" means all Approved Land, Development Land and Improved
Land located in an Approved Jurisdiction, fee simple title to which is now or
hereafter owned by a Borrower and upon which it intends to construct (or has
constructed) Improvements and Units.
"Relevant Accounting Period" means, at any time, the period of four (4)
consecutive Fiscal Quarters, the last of which is the Last Reported Fiscal
Quarter.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Requisite Lenders" means, at any date, any combination of Lenders
whose Pro Rata Shares aggregate at least sixty-six and two-thirds percent
(66-2/3%).
"Revolving Sublimit" means $500,000,000.
"RICO" means the Racketeer Influenced and Corrupt Organization Act, as
amended by the Comprehensive Crime Control Act of 1984, 18 USC Sections 1961-68,
as amended from time to time.
"Swing Line Lender" means Wachovia Bank, National Association.
"Swing Line Limit" means $25,000,000.
"Swing Line Loan" means a loan made by Swing Line Lender to a Borrower
pursuant to Section 2.1.3.
"Swing Line Note" means the $25,000,000 promissory note dated the date
hereof, executed by Borrowers in favor of Swing Line Lender to evidence Swing
Line Loans, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extensions thereof, in
whole or in part.
"Tri-Party Agreement" means (a) an agreement executed by Agent pursuant
to this Agreement, pursuant to which Agent assures to a Governmental Authority
the availability of funds (up to a stated amount) to a Borrower or to such
Governmental Authority for the purpose of completing construction of
Improvements on a Project and (b) each agreement executed by an Issuer for the
foregoing purposes and currently in effect, as identified on Schedule 1.1D
attached hereto.
"Unit" or "Units" means an attached or detached for-sale single-family
residential housing facility or an individual condominium dwelling.
"Unused Fee" means the fee payable by Borrowers pursuant to Section
2.6.3.
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1.2 Construction of Terms. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole and "or" has the inclusive meaning
represented by the phrase "and/or." References in this Agreement to
"determination" by Agent or Lenders include good faith estimates by Agent or
Lenders (in the case of quantitative determinations) and good faith beliefs by
the Agent or Lenders (in the case of qualitative determinations). The words
"hereof," "herein," "hereunder" and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
The section and other headings contained in this Agreement preceding this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
Reference to any Article, Section, Schedule and Exhibit are to this Agreement,
unless otherwise specified. All definitions of, and references to, any Loan
Document mean the Loan Document that is identified herein, as the same may from
time to time be amended in accordance with the provisions of this Agreement and
the subject Loan Document.
1.3 Accounting Reports and Principles. The character or amount of
any asset, liability, account or reserve and of any item of income or expense to
be determined, and any consolidation or other accounting computation to be made,
and the construction of any definition containing a financial term, pursuant to
this Agreement or any other Loan Document, shall be construed, determined or
made, as the case may be, in accordance with GAAP, consistently applied, unless
such principles are inconsistent with any express provision of this Agreement.
For purposes of all calculations made for purposes of determining compliance
with the financial covenants contained in Article VIII and the interpretation of
any defined terms used therein, assets and liabilities associated with option or
land bank arrangements of any Borrower or Affiliate of Guarantor that are
required to be included in the balance sheet of Guarantor, solely due to
Interpretation Number 46, as issued by the Financial Accounting Standards Board
in January 2003 (as revised), shall not be included within the calculation of
Leverage Ratio, Consolidated Tangible Net Worth, Consolidated Total Assets and
Consolidated Total Indebtedness. Compliance with the covenants contained in
Article VIII shall, as appropriate, be determined on the combined Financial
Statements of Guarantor (which shall include all Borrowers, Guarantor and all
consolidated subsidiaries of any Borrower or Guarantor).
1.4 Business Day; Time. Whenever any payment or other obligation
hereunder, whether under a Note or under another Loan Document, is due on a day
other than a Business Day, such shall be paid or performed on the Business Day
next following the prescribed due date, except as otherwise specifically
provided for herein to the contrary, and such extension of time shall be
included in the computation of interest and charges. Any reference made herein
or in any other Loan Document to an hour of day shall refer to the then
prevailing Eastern time, unless specifically provided herein to the contrary.
1.5 Charging Accounts. Whenever Borrowers are obligated, pursuant
to Article II hereof, or pursuant to the Notes or any other Loan Document, to
make payments of any nature to Agent or Lenders, Agent shall be entitled, and
each Borrower, by its execution of the Notes or a Joinder thereto, authorizes
Agent, to draw against any Deposit Account owned by such Borrower at Agent on
account of such fees and expenses or payments due. Agent shall deliver to the
subject Borrower a notice setting forth, in reasonable detail, the amount of the
fees, expenses and/or payments to be satisfied by such draw, and the name or
number of the account or accounts from which the draw was made. Any such charge
14
shall be subject to the provisions of Section 11.14 hereof relating to the
sharing of recoveries among Lenders.
1.6 Lenders' Costs.
Borrowers shall, upon the request of Agent, pay Agent the amount of all
unpaid Lenders' Costs within fifteen (15) days after such notice. If not so
paid, all past due Lenders' Costs shall be deemed to be part of the principal
balance of the Loans and bear interest at the then applicable Interest Rate.
ARTICLE II. AMOUNT AND TERMS OF THE FACILITY;
SECURITY FOR THE FACILITY
2.1 The Facility.
2.1.1 Amount and Availability of Line of Credit.
2.1.1.1 Provided that no Event of Default has
occurred and is continuing, and subject to the terms and conditions set forth
herein, commencing on the Closing Date and expiring on the Business Day
immediately preceding the Maturity Date, Lenders severally, in accordance with
their respective Pro Rata Shares, shall extend to Borrowers the Line of Credit,
pursuant to which each Lender severally shall make advances of Loans to
Borrowers in accordance with such Lender's Pro Rata Share up to an aggregate for
all Lenders of the Revolving Sublimit, provided that at no time shall Lenders be
obligated to make any Loan if, as a result thereof, the aggregate outstanding
principal balance of all Loans would exceed the then-current Borrowing Base
Availability. Borrowers may request Loans for the purpose of financing the
acquisition, development and improvement of Real Estate and the construction
thereon of Units and Improvements, for investment in Joint Ventures (subject to
the limitation in Section 8.4) and for working capital, and for such other
appropriate purposes to which the Requisite Lenders consent (which consent shall
not be unreasonably withheld or delayed). Borrowers may borrow, repay and
re-borrow Loans at any time and from time to time prior to the Maturity Date.
2.1.1.2 Master Borrower may, from time to time
by written notice to Agent provided no Event of Default then exists, elect to
increase the Facility Amount and the Revolving Sublimit, by integral multiples
of $10,000,000, to an amount not greater than $650,000,000. Agent shall give
Lenders prompt written notice of each such request made by Master Borrower and
each Lender shall be afforded the opportunity, in its sole discretion, to agree
to increase its Commitment by its then-current Pro-Rata Share of the subject
increase in the Facility Amount by written notice to Agent not later than the
date specified in Agent's Notice. If any Lender does not so elect to increase
its Commitment, the amount of the unallocated increase in the Facility Amount
may be allocated, as Agent, Master Borrower and any other Lender agree, to or
among any other Lenders or, if Master Borrower so desires, to any Eligible
Investor acceptable to Agent in good faith, in which event such Eligible
Investor shall agree in writing to be bound to the terms of this Agreement as a
"Lender" as if such Eligible Investor had been a signatory hereto. Any such
increase in the Facility Amount shall be effected by the then-current Borrowers'
execution of replacement Line of Credit Notes in the aggregate principal amount
of the increased Facility Amount and the modification, if appropriate, of the
15
Mortgages then in effect, if any. No increase in the Facility Amount shall
result in any increase in the Letter of Credit Sublimit or in the Swing Line
Limit unless specifically agreed in writing by all of the Lenders. No Lender is
obligated by this Section 2.1.1.2 to increase its Commitment.
2.1.1.3 Upon (i) the execution by Master
Borrower and by an Eligible Affiliate that is not then a Borrower of a Joinder
for each Lender, (ii) delivery to Agent of such Joinders and of each of the
items referred to in Sections 4.1.4, 4.1.5, 4.1.6 and 4.1.7 that pertains to
such Eligible Affiliate, (iii) execution of each such Joinder by Agent and the
appropriate Lender and (iv) delivery to such Eligible Affiliate of a fully
executed Joinder by Agent and by each Lender, such Eligible Affiliate shall
become, and thereafter be for purposes of this Agreement, a Borrower.
2.1.1.4 Master Borrower shall have the right, at
any time after the Closing Date, to terminate, upon not less than thirty (30)
days' prior written notice to Agent, or to reduce, upon not less than three (3)
Business Days' prior written notice to Agent, the Commitments of Lenders
regarding the Facility, provided that the Facility Amount may not be so reduced
by Master Borrower to an amount that is less than the lesser of (i) the sum of
the aggregate principal balance of all Loans and Swing Line Loans then
outstanding plus the aggregate amount of liabilities under all outstanding
Letters of Credit and Tri-Party Agreements or (ii) $150,000,000. Any voluntary
termination or reduction in the Facility Amount shall permanently reduce the
Facility Amount. No such reduction in Facility Amount shall be in an amount less
than $20,000,000. If Borrowers desire to reduce the Facility Amount as
aforesaid, Borrowers shall execute and deliver to Agent such documents and
instruments as Agent shall reasonably require. Each such reduction of the
Facility Amount shall result in a reduction of the Revolving Sublimit in the
same amount and in a proportionate reduction of the Letter of Credit Sublimit.
2.1.2 Amount and Availability of Letters of Credit and
Tri-Party Agreements.
Provided that no Event of Default has occurred and is
continuing, and subject to the terms and conditions set forth herein, Borrowers
may request, and Agent, pursuant to this Section 2.1.2 shall issue or execute on
behalf of the Lenders, (i) Letters of Credit or Tri-Party Agreements to assure
Governmental Authorities of the completion of Improvements that are to be
constructed in Projects and financed with the proceeds of Loans, but only if in
each instance Agent's liability under such Letter of Credit or Tri-Party
Agreement is subject to periodic reduction by the beneficiary thereof as
construction of the subject Improvements is completed, (ii) Letters of Credit to
assure Governmental Authorities that Borrowers will perform their maintenance
obligations with respect to Improvements financed with the proceeds of Loans,
(iii) Letters of Credit that are in lieu of cash deposits under agreements of
sale for the purchase of Real Estate by Borrowers and (iv) Letters of Credit for
general corporate purposes of Borrowers that are necessary to the operation of
their Business. Letters of Credit of the types described in clauses (iii) and
(iv) are sometimes referred to in this Agreement as "FINANCIAL LETTERS OF
CREDIT." Each Letter of Credit identified on Schedule 1.1D also shall be deemed
to have been issued on behalf of the Lenders. No Letter of Credit or Tri-Party
Agreement shall be issued or executed by Agent if, as a result thereof, (x) the
aggregate liability of Agent and all other Issuers under all Letters of Credit
and Tri-Party Agreements then outstanding or in effect would exceed the Letter
of Credit Sublimit, (y) the aggregate liability of Agent under all outstanding
Letters of Credit issued pursuant to clause (iii) of this Section 2.1.2 would
exceed $20,000,000 or (z) the aggregate liability of Agent under all outstanding
Letters of Credit issued pursuant to clause (iv) of this Section 2.1.2 would
exceed $20,000,000.
16
2.1.3 Amount and Availability of Swing Line Loans.
Provided that no Event of Default has occurred and is
continuing, and subject to the terms and conditions set forth herein, commencing
on the Closing Date and expiring on the Business Day immediately preceding the
Maturity Date, Swing Line Lender shall extend to Borrowers' Swing Line Loans up
to, in the aggregate at any time, the Swing Line Limit, provided that at no time
shall Swing Line Lender be obligated to make any Swing Line Loan if, as a result
thereof, the sum of (i) Swing Line Lender's Pro Rata Share of the aggregate
outstanding principal balance of all Loans plus (ii) the outstanding principal
amount of all Swing Line Loans that are not subject to participation with the
other Lenders pursuant to Article XII plus (iii) Swing Line Lender's Pro Rata
Share of all outstanding Letters of Credit and Tri-Party Agreements plus (iv)
Swing Line Lender's Pro Rata Share of the outstanding principal balance of all
Swing Line Loans in which the other Lenders hold a participation interest
pursuant to Article XII would exceed the then-current amount of Swing Line
Lender's Commitment. The Borrowers may request Swing Line Loans for the purpose
of the acquisition of Real Estate and the construction thereon of Units and
Improvements and for working capital. Borrowers may borrow, repay and re-borrow
Swing Line Loans at any time and from time to time prior to the Maturity Date.
If a Swing Line Loan is requested at a time when any Lender is a Defaulting
Lender (as defined in Section 11.13 hereof), the amount of the available Swing
Line Loan shall be reduced by such Defaulting Lender's Pro-Rata Share thereof.
2.1.4 Letters of Credit and Tri-Party Agreements Generally.
2.1.4.1 The terms of all Letters of Credit and
Tri-Party Agreements, and all documents ancillary thereto, shall be subject to
Agent's prior approval.
2.1.4.2 At least five (5) Business Days prior to
the date any Borrower desires Agent to issue a Letter of Credit, such Borrower
shall deliver to Agent a completed and executed Application and Agreement for
Irrevocable Standby Letter of Credit (each a "LETTER OF CREDIT APPLICATION") in
the form attached hereto as Exhibit 2.1.4.2.
2.1.4.3 No Letter of Credit shall be issued or
Tri-Party Agreement executed or maintained for a term that extends beyond the
Maturity Date (as the same may be postponed pursuant to the terms of this
Agreement), except if all Lenders so agree in their sole discretion.
2.1.4.4 Any payment made by any Issuer pursuant
to a Letter of Credit or Tri-Party Agreement shall be deemed to be a Loan (or,
as provided in this Section 2.1.4.4 a Letter of Credit Advance) that was
requested by Borrowers pursuant to Section 2.1.1, notwithstanding that Borrowers
did not provide Agent with a Notice of Borrowing. If the making of a Loan as the
result of a drawing under a Letter of Credit or a demand for payment under a
Tri-Party Agreement would cause the aggregate amount of all outstanding Loans to
exceed the then-current Revolving Sublimit, the amount of such excess shall be
deemed to be a "LETTER OF CREDIT ADVANCE."
17
2.2 Term of Facility.
2.2.1 Line of Credit.
2.2.1.1 The Line of Credit shall terminate on
the Maturity Date, unless renewed or extended by Lenders in writing upon such
terms as are then satisfactory to all Lenders.
2.2.1.2 Termination of the Line of Credit shall
not in any way affect or diminish the obligations of the Borrowers to repay any
or all of the Loans or to otherwise comply with all of the terms of this
Agreement and all other Loan Documents.
2.2.2 Letters of Credit and Tri-Party Agreements.
The Letter of Credit Sublimit shall terminate on the Maturity
Date. Such termination shall end any obligation of Agent and the Lenders under
this Agreement in regard to the issuance of any new Letters of Credit or
execution of new Tri-Party Agreements, but such termination shall not in any way
affect or diminish the obligations of the Borrowers to repay any or all Advances
and Letter of Credit Advances made on account of a Letter of Credit or Tri-Party
Agreement or to otherwise comply with all of the terms of this Agreement and all
other Loan Documents.
2.2.3 Swing Line.
The Swing Line shall terminate on the Maturity Date, unless
renewed or extended by Lenders in writing upon such terms as are then
satisfactory to all Lenders. Termination of the Swing Line shall not in any way
affect or diminish the obligations of the Borrower to repay any or all of the
Swing Line Loans or to otherwise comply with all of the terms of this Agreement
and all other Loan Documents.
2.3 Repayment Terms.
2.3.1 Loans.
2.3.1.1 The entire outstanding principal balance
of all Loans, together with all accrued interest thereon and other amounts
payable by Borrowers pursuant to this Agreement, shall be due and payable
without notice or demand on the Maturity Date.
2.3.1.2 Commencing on January 15, 2005, and
continuing on the 15th day of each succeeding month thereafter until to and
including the month in which the Maturity Date occurs, the Borrowers shall pay
to the Agent interest at the applicable Interest Rate, in arrears through (and
including) the last day of the immediately preceding calendar month, on the
aggregate outstanding principal balance of the Loans.
2.3.1.3 At any time that the unpaid principal balance
of outstanding Loans shall exceed the Borrowing Base Availability as shown on
the most recently delivered Borrowing Base Certificate, Borrowers (without
notice from Agent or any Lender) shall, within fifteen (15) days after the date
the Borrowing Base Certificate was delivered, either (i) make a principal
payment on account of the Loans in an amount that reduces the outstanding
principal balance of all Loans to such Borrowing Base Availability or (ii)
deliver to Agent a new Borrowing Base Certificate that demonstrates that the
then outstanding principal balance of all Loans does not exceed the Borrowing
Base Availability shown on such new Borrower Base Certificate. The grace period
provided in this Section 2.3.1.3 is in lieu of any other notice and grace
periods contained in this Agreement or any other Loan Documents. No new Loans
will be advanced at any time that the aggregate outstanding principal balance of
Loans exceeds the then-current Borrowing Base Availability.
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2.3.2 Letter of Credit Advances.
2.3.2.1 Each Letter of Credit Advance must be
repaid on the first to occur of (i) 90 days after the Letter of Credit Advance
was made, (ii) the Maturity Date or (iii) the date when the Borrowing Base
Availability next exceeds the aggregate outstanding principal balance of all
Loans (whether as a result of an increase in Borrowing Base Availability or
repayment of a prior Loan), in which event the outstanding Letter of Credit
Advances shall be repaid with the proceeds of a Loan to the extent then
available under the Line of Credit, such Loan to be applied to outstanding
Letter of Credit Advances in the order in which they were made. Each such Loan,
to the extent a new Loan may then be borrowed pursuant to Section 2.1.1, shall
be made automatically by the Lenders, without receipt of a Notice of Borrowing
from Borrowers.
2.3.2.2 Letter of Credit Advances shall bear
interest at the applicable Interest Rate and Borrowers shall pay to Lenders, on
the 15th day of each calendar month, accrued interest on all outstanding Letter
of Credit Advances.
2.3.3 Swing Line Loans.
2.3.3.1 The entire outstanding principal balance
of each Swing Line Loan, together with all accrued interest thereon, shall be
due and payable without notice or demand on the third (3rd) Business Day after
the Business Day on which such Swing Line Loan was advanced. If a Swing Line
Loan is not paid in full when due and on such due date the Borrowing Base
Availability exceeds the aggregate outstanding principal amount of all Loans,
Lenders shall make a Loan to Borrowers under the Line of Credit (to the extent
available under Section 2.1.1 on the date the Swing Line Loan is due, the
proceeds of which shall be used to repay the Swing Line Loan. Each Loan required
to be made pursuant to this Section 2.3.3.1 to repay a Swing Line Loan shall be
made automatically by Lenders, without a Notice of Borrowing from Borrowers for
such Loan. If, however, the Borrowing Base Availability is not sufficient to
permit a Loan to be made in an amount sufficient to pay the Swing Line Loan in
full, each Lender shall be deemed, automatically and without further action by
any Lender, to have purchased a participation interest in the Swing Line Loan
(or the unpaid portion thereof) as of the due date thereof, as provided (and on
the terms and conditions contained in) Article XII.
2.3.3.2 If a Swing Line Loan is not paid in full
when initially due pursuant to Section 2.3.3.1, such Swing Line Loan shall
thereafter be due on the first to occur of (i) the Maturity Date or (ii) the
date on which Borrowing Base Availability next exceeds the aggregate outstanding
principal amount of all Loans, in which event such Swing Line Loan shall be
repaid with a loan to the extent then available under the Line of Credit. Each
Loan required to be made pursuant to this Section 2.3.3.2 to repay a Swing line
Loan shall be made automatically by Lenders, without a Notice of Borrowing from
Borrowers.
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2.3.3.3 If at a time when there are outstanding
both Letter of Credit Advances and Swing Line Loans and Borrower may, pursuant
to Section 2.1.1., obtain a Loan under the Line of Credit, the proceeds of such
new Loan shall be applied first as provided in this Section 2.3.3. and then as
provided in Section 2.3.2.
2.3.3.4 Swing Line Loans shall bear interest at
the applicable Interest Rate and Borrowers shall pay to Swing Line Lender, on
the 15th day of each calendar month, accrued interest on all outstanding Swing
Line Loans.
2.4 Interest Rate.
2.4.1 Each Loan, Letter of Credit Advance and Swing Line
Loan shall bear interest at the applicable Interest Rate then in effect. The
Interest Rate shall change (i) automatically from time to time effective as of
the effective date of each change in the LIBOR Market Index Rate or the
Applicable Spread, and (ii) to the extent allowed by law, on the effective date
of any change in the highest lawful rate.
2.4.2 During the period beginning on the Closing Date until
the first Compliance Certificate is delivered, the Applicable Spread shall be
2.375% per annum (that is, 2.375 "basis points"). The Applicable Spread will be
adjusted as of the first Business Day immediately following the date a
Compliance Certificate is delivered to Agent. If a Compliance Certificate is not
delivered when due, then the Applicable Spread (i) shall be adjusted, on the
Business Day on which the Compliance Certificate was due, to 2.50% per annum
(that is, 250 "basis points") and (ii) shall continue in effect at that rate
until Borrowers deliver to Agent the delinquent Compliance Certificate,
whereupon the Applicable Spread shall be adjusted, if required, as of the date
such Compliance Certificate is delivered, based on such Compliance Certificate.
2.4.3 In the event that Agent shall have determined (which
determination shall, absent manifest error, be final, conclusive and binding):
2.4.3.1 That adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for in
the definition of the LIBOR Market Index Rate; or
2.4.3.2 Requisite Lenders have certified to
Agent that such Lenders shall incur increased costs or reductions in the amounts
received or receivable hereunder in respect of any Loan, in any such case
because of (i) any change in any applicable law or governmental rule,
regulation, guideline or order or any interpretation thereof and including the
introduction of any new law or governmental rule, regulation guideline or order
(such as, for example, but not limited to, a change in official reserve
requirements) and/or (ii) other circumstances which materially and adversely
affect such Lenders, the London Interbank Offering Rate market, or the position
of such Lenders in such market; or
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2.4.3.3 That the making or continuance by
Lenders of Loans based on the LIBOR Market Index Rate has become unlawful by its
compliance in good faith with any law, governmental rule, regulation, guideline
or order (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful), or has become impracticable as a result of
a contingency occurring which materially and adversely affects Requisite
Lenders, the London Interbank Offering Rate market, or the position of Lenders
in such market; then, and in any such event, Agent shall, promptly after making
such determination, give written notice to Borrowers and each Lender.
Thereafter, the LIBOR Market Index Rate as the basis for
determining accrued interest on the Indebtedness shall be suspended until such
time as Agent notifies Borrowers and each Lender that the circumstances
described in such clause no longer exist, and until such time interest on the
Notes shall, subject to the other provisions of this Section 2.4, accrue and be
payable at a rate equivalent to a comparable, independently established interest
rate index selected by Agent in good faith, plus the Applicable Spread.
2.4.4 Interest payable under the Notes shall be calculated
on the basis of a 360 day year but charged for each year or portion thereof that
any Loan, Letter of Credit Advance or Swing Line Loan outstanding.
2.5 Interest after Maturity. Any principal amount not paid when
due (at the Maturity Date, by acceleration or otherwise) shall bear interest
thereafter until paid in full (before or after judgment), payable on demand, at
the Default Rate.
2.6 Fees Payable by Borrowers. Borrowers agree to pay to the
Agent, for the account of Lenders, as consideration for the agreement of the
Lenders to make available the Facility, the following Loan Fees:
2.6.1 Up-Front Fee. On the date of this Agreement, the
Borrowers shall pay an up-front fee in accordance with the Fee Letter dated July
21, 2004 from Wachovia Securities, Inc., and Agent to Guarantor. Such up-front
fee shall be allocated among Agent and the Lenders as provided in such Fee
Letter.
2.6.2 Extension Fees. If Master Borrower requests, pursuant
to the terms of this Agreement, that the Maturity Date be postponed and such
request is approved by the Lenders as provided in Section 2.13, Borrowers shall
pay, with respect to each such extension of the term of the Facility, an
extension fee in an amount that is agreed upon by Master Borrower and Agent
prior to October 1st of the year in which the subject extension is requested.
Each such extension fee shall be allocated to the Lenders (subject to the
provisions of Section 2.13) in accordance with their Pro Rata Shares at the time
the postponement of the Maturity Date is granted and shall be payable by
Borrowers within ten (10) Business Days after the day Master Borrower receives
written notice of Lenders' approval of each such postponement.
2.6.3 Unused Fee.
2.6.3.1 Borrowers shall pay, quarterly in
arrears at the time each Compliance Certificate is due and on the Maturity Date,
an Unused Fee at the rate of 0.25% per annum (that is, 25 "basis points") the
average daily unused portion of the Revolving Sublimit during the Fiscal Quarter
most recently ended.
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2.6.3.2 The Unused Fee shall be calculated on
the basis of a 365 day year. Unused Fees shall be allocated to the Lenders in
accordance with their respective Pro Rata Shares at the time payment of each
Unused Fee is due.
2.6.4 Letters of Credit and Tri-Party Agreement Fee.
Borrowers shall pay quarterly, in arrears on the first (1st) day of each Fiscal
Quarter during such time that any Letter of Credit or Tri-Party Agreement
remains outstanding, a fee based (the "LETTER OF CREDIT FEE") on the amount
available to be drawn under such Letter of Credit or Tri-Party Agreement during
the preceding Fiscal Quarter. Such fee shall be calculated on the basis of a 360
day year (i) at the per annum rate equal to the Applicable Spread in effect from
time to time during the subject Fiscal Quarter with respect to Financial Letters
of Credit and (ii) at the per annum rate that is 0.25% per annum (that is, 25
"basis points") less than the Applicable Spread in effect from time to time
during the subject Fiscal Quarter with respect to (a) Letters of Credit that are
not Financial Letters of Credit and (b) Tri-Party Agreements. Each Issuer shall
receive, out of all fees payable by Borrowers under this Section 2.6.4, a Letter
of Credit and Tri-Party Agreement issuance fee calculated at the rate of 0.125%
per annum (that is, 12.5 "basis points") of the amount of such Issuer's
liability under the Letters of Credit and Tri-Party agreements executed by such
Issuer, and the balance of all such fees paid by Borrowers shall be allocated to
the Lenders in accordance with their respective Pro Rate Shares at the time
payment of such fees is due. The provisions of this Section 2.6.4 shall
supersede all agreements heretofore made with regard to fees pertaining to
Letters of Credit and Tri-Party Agreements identified on Schedule 1.1.D between
any Borrower and the Issuers thereof. Borrowers shall also pay to each Issuer,
for its own account, such Issuer's letter of credit issuance, renewal,
amendment, delivery and billing fees that are such Issuer's standard at the time
a Letter of Credit is issued, renewed or amended.
2.6.5 Additional Loan Fee. If the Facility Amount is at any
time increased pursuant to Section 2.1.1.2, Borrowers shall pay, concurrently
with such increase being effected, an additional fee for the Facility, such fee
to be equal to (a) the up-front fee referred to in the Fee Letter referred to in
Section 2.6.1, calculated as if the up-front fee specified therein had been
based on the newly increased Facility Amount minus (b) the up-front fee paid by
Borrowers pursuant to section 2.6.1 minus (c) the sum of all additional loan
fees theretofore paid by Borrower pursuant to this Section 2.6.5. Such
additional fee shall be allocated among Agent and those Lenders that increase
their respective Commitments in connection with the subject increase of the
Facility Amount, in the proportion that the amount of each Lender's Commitment
increase bears to the amount of the increase of all Commitments.
2.6.6 Loan Fees Generally. Lenders may, if Borrowers fail
to pay the same when due, disburse to themselves any Loan Fees then due, in
whole or in part, as Loans under the Line of Credit, either on the dates as
provided above or at any time or times thereafter, without the consent of
Borrowers and without receiving a Notice of Borrowing. If any such Loan Fee is
so advanced to themselves by the Lenders from the Line of Credit, interest at
the Interest Rate as provided herein shall begin to accrue upon each portion of
the Loan Fees as so advanced.
2.7 Prepayments.
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2.7.1 Borrowers may make no more than two (2) payments of
principal of the Indebtedness during any calendar month (provided that payments
of the principal of Letter of Credit Advances and of Swing Line Loans and
payments made by Borrowers pursuant to Section 2.7.2 during any month shall not
be subject to such limit). The acceptance by Lenders of any prepayment when
there is an Event of Default in existence shall not constitute a waiver, release
or accord and satisfaction thereof or of any rights in respect thereto by the
Lenders.
2.7.2 If a Loan or Swing Line Loan is made or a drawing is
made under any Letter of Credit or Tri-Party Agreement and any Lender fails to
deliver to Agent, as required by the terms of this Agreement, such Lender's Pro
Rata Share of the Loan, Swing Line Loan or Letter of Credit Advance that results
from such drawing and no other Lender or Lenders elect to fund the defaulting
Lender's share, Borrowers shall, within one (1) Business Day after notice from
Agent, pay to Agent the amount of such defaulting Lender's Pro-Rata Share of the
Loan, Swing Line Loan or drawing, which amount, if related to a Letter of Credit
Advance, Agent shall pay over to the issuer of the subject Letter of Credit or
Tri-Party Agreement. No such payment by Borrowers shall be deemed to constitute
a cure of the default by the non-funding Lender of its obligations under this
Agreement.
2.8 No Setoff or Deduction. All payments of principal and interest
on the Loans, Letter of Credit Advances, Swing Loans and other amounts payable
by the Borrowers hereunder shall be made by the Borrowers without setoff or
counterclaim, and free and clear of, and without deduction or withholding for,
or on account of, any present or future taxes or assessments imposed by any
governmental authority, or by any department agency or other political
subdivision or taxing authority.
2.9 Illegality. Notwithstanding any other provision in this
Agreement, if Agent determines that any applicable law, rule, or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by the
Lenders with any request or directive (whether or not having the force of law)
of any such authority, central bank, or comparable agency shall make it unlawful
or impossible for the Lenders to maintain the Facility, then upon notice to the
Borrowers by the Agent the Facility shall terminate and Borrowers shall
immediately repay all Indebtedness.
2.10 Notes.
2.10.1 The obligation of Borrowers to repay all Loans and
all Letter of Credit Advances, and all interest and other charges thereon, shall
be evidenced by the Line of Credit Notes. Borrowers shall execute and deliver to
each Lender one Line of Credit Note in the principal amount of such Lender's
Commitment.
2.10.2 The obligation of Borrowers to repay all Swing Line
Loans, and all interest thereon, shall be evidenced by the Swing Line Note.
Borrowers shall execute and deliver to Swing Line Lender the Swing Line Note.
2.11 Security.
2.11.1 Borrowers shall deliver to Agent, as security for the
Obligations:
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2.11.1.1 An unlimited suretyship agreement of
Guarantor, which shall guaranty payment and not merely collection, of the
Indebtedness now or hereafter owing by Borrowers to the Lenders as provided
herein and the prompt performance of all obligations under the Loan Documents.
2.11.1.2 A first priority Mortgage lien on all
Projects that, subject to the provisions of Section 2.11.2, are at any time
included in the Borrowing Base.
2.11.2 If (i) the Leverage Ratio is less than 2.00:1 as
shown on the Financial Statements provided with respect to two (2) consecutive
Fiscal Quarters, (ii) Master Borrower delivers to Agent, prior to the expiration
of the Fiscal Quarter that next follows the second of such two (2) Fiscal
Quarters, written notice requesting the release by Agent of all Collateral (but
not including the Guaranty) and (iii) at the time Agent receives such request
(the "COLLATERAL RELEASE DATE") there exists no Event of Default or any fact or
circumstance that, but for delivery of notice or passage of time (or both) would
constitute an Event of Default, Agent shall promptly deliver to Master Borrower
such release of liens, satisfaction pieces or other instruments that are
appropriate to cause all Mortgages then held by Agent to be satisfied of record.
The cost of preparation of such instruments shall be Lenders' Costs and
Borrowers shall be responsible to affect the proper recording of such
instruments.
2.11.3 Prior to the Collateral Release Date, individual Lots
and the Units thereon shall be released by Agent from the lien of the applicable
Mortgage, without payment on account of the principal of the Indebtedness,
promptly after receipt of written request therefore, provided (i) that (a) each
such release is in connection with the conveyance of such Lot and Unit in the
ordinary course of the Borrower's Business or (b) if a requested release
involves Lots and Units that have an Appraised Value or Cost Incurred of
$5,000,000 or more, such request must be accompanied by a new, current Borrowing
Base Certificate evidencing that immediately after such release Borrowers would
be in compliance with the terms of this Agreement (and, if not, by a payment of
principal in an amount sufficient to cause Borrowers to be in compliance) and,
(ii) in connection with any requested release, there then exists no continuing
Event of Default. To facilitate the conveyance of Units in the ordinary course
of any Borrower's Business, the title insurer involved in such transaction may,
by an e-mail addressed to xxxx_xxxxxxx@xxxxxxxx.xxx, request confirmation that
the subject Lot and Unit will be so released by Agent and, if such is the case,
Agent shall promptly respond to such inquiry by e-mail.
2.12 General Provisions.
2.12.1 Advances. Advances of Loans and Letter of Credit
Advances shall be made by Lenders simultaneously and proportionately to their
Pro Rata Shares, it being understood that the obligations of Lenders to advance
funds to Borrowers hereunder are several and independent and that no Lender
shall be responsible for any default by any other Lender in that other Lender's
obligation to make any such advance, nor shall the Commitment of any other
Lender be increased or decreased as a result of the default of any other Lender
in that other Lender's obligation to make advances hereunder. Borrowers may
request no more than two (2) Advances of Loans under the Line of Credit during
any calendar month (which shall be in addition to Letter of Credit Advances and
Swing Line Loans and shall exclude Loans made automatically as aforesaid to
repay Letter of Credit Advances and Swing Line Loans).
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2.12.2 Notice of Borrowing. Subject to the provisions of
this Article II, whenever a Borrower desires to borrow a Loan under this
Agreement, such Borrower shall deliver by telecopy to Agent a properly completed
Notice of Borrowing, executed by an Authorized Signer, no later than 11:00 A.M.
at least two (2) Business Days in advance of the proposed Funding Date. The
Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be
a Business Day) and (ii) the amount of the proposed Loan. Loans shall be in
integral multiples of $500,000 but may not be in an amount less than $500,000.
Each Notice of Borrowing shall be delivered to Agent at 000 X. Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxx, XX 00000-0000, Attention: Syndication Agency Services,
facsimile 000-000-0000, with a copy to Agent at 000 X. Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx-Xxxxx, facsimile
000-000-0000 (or to such other addresses or facsimile numbers as Agent may from
time-to-time advise Borrowers by written notice).
2.12.3 Funding of Loans.
2.12.3.1 By 3:00 P.M. on the day Agent (i)
receives a Notice of Borrowing pursuant to Section 2.12.2 or (ii) has actual
knowledge that a drawing or a demand for payment has been or will be made under
a Letter of Credit or Tri-Party Agreement, Agent shall notify each Lender by
facsimile or electronic (e-mail) transmission of the proposed borrowing, drawing
or demand. Except as provided in Section 2.12.3.2, not later than noon on the
Funding Date specified in the Notice of Borrowing (or the anticipated date of
the honoring of any such drawing or demand, as specified in Agent's notice to
the Lenders), each Lender shall wire transfer to such account of Agent as Agent
shall designate an amount in immediately available funds equal to the amount of
each Lender's Pro Rata Share of the Loan or Letter of Credit Advance to be made
to or for the account of Borrowers on such Funding Date. Agent shall cause such
Loans to be made available to the requesting Borrower on the Funding Date
pertaining thereto by depositing the amount thereof in the designated account of
such Borrower with Agent.
2.12.3.2 Each Lender shall make the amount of its
Pro Rata Share of the Loan or Letter of Credit Advance available to Agent, in
same day funds, not later than noon on the Funding Date, by wire transfer to
Syndication Agency Services, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
ABA #053 000 219, Account #5000000061196, Ref. Orleans Homebuilders, Inc. (or to
such other account as Agent may from time to time advise the Lenders by written
notice). Unless Agent shall have been notified by any Lender prior to any
Funding Date in respect of any requested Loan that such Lender does not intend
to make available to Agent such Lender's Pro Rata Share of the requested Loan on
such Funding Date, Agent may assume that such Lender has made such amount
available to the requesting Borrower on such Funding Date and Agent in its sole
discretion may, but shall not be obligated to, make available to the requesting
Borrower a corresponding amount on such Funding Date by depositing the proceeds
thereof in the designated Deposit Account of the requesting Borrower with Agent.
If any Lender's Pro Rata Share of any Loan is not in fact made available (either
by a wire transfer to Agent or otherwise) to Agent by such Lender, Agent shall
not be required to advance to the requesting Borrower on the Funding Date any
amount not made available to Agent by a Lender; provided, that if Agent (or any
other Lender(s)) advances to or for the account of such Borrower on the Funding
Date, or honors a drawing or demand made under a Letter of Credit or Tri-Party
Agreement, any amount not made available to Agent by a Lender, Agent (or such
Lender) shall notify Borrowers that Agent (or such Lender) has advanced more
25
than its Pro Rata Share of such Loan or Letter of Credit Advance and that such
Loan or Letter of Credit Advance is subject to reclamation in accordance with
the provisions of this Section. Any amount so advanced shall be deemed to be a
Loan or Letter of Credit Advance which Borrowers are obligated to repay as set
forth under this Agreement and Agent shall be entitled to recover such
corresponding amount on demand from such Lender, in accordance with the
provisions of Section 11.13. If such Lender does not pay such corresponding
amount forthwith upon the Agent's demand therefor, Agent shall promptly notify
Borrowers and Borrowers shall immediately pay such corresponding amount to the
Agent, together with interest at the Interest Rate.
2.12.4 Swing Line Loans. Borrowers may request a Swing Line
Loan by delivering to Agent an appropriate Notice of Borrowing not later than
2:00 P.M. on any Business Day. Swing Line Loans must be in an integral multiple
of $100,000, but in no event less than $500,000. Swing Line Lender will fund
Swing Line Loans on the Business Day on which a Notice of Borrowing with respect
thereto is received by depositing the amount thereof into the designated account
of the requesting Borrower with Agent.
2.12.5 Manner and Time of Payment. All payments of
principal, interest and fees hereunder and under the Notes shall be made by
Borrowers without notice, set-off or counterclaim and in immediately available
same day funds and delivered to Agent not later than 1:00 P.M., on the date due
for the account of Lenders; funds received by Agent after that time shall be
deemed to have been paid by Borrowers on the next succeeding Business Day. All
such payments shall be made by wire transfer to the account identified in
Section 2.12.3.2, or to such other account as Agent may from time to time
specify by written notice to Borrowers.
2.12.6 Apportionment of Payments. Aggregate principal and
interest payments made by Borrowers in respect of Loans and Letter of Credit
Advances (but not of Swing Line Loans, which shall be the subject of Article
XII) shall be apportioned proportionately to each Lender's respective Pro Rata
Share. Agent shall, within one (1) Business Day, distribute to each Lender its
share of all payments received by Agent for the benefit of Lenders, and if any
such payment is not so distributed, Agent shall pay to the intended recipient
thereof interest on the unpaid amount thereof at the Federal Funds rate until
paid. Prior to the participation of Lenders in a Swing Line Loan pursuant to
Article XII, all payments on account of such Swing Line Loan shall be
distributed only to Swing Line Lender.
2.12.7 Conditional Payment. Borrowers agree that checks and
other instruments received by Agent on behalf of Lenders or by any Lender in
payment or on account of the Indebtedness constitute only conditional payment
until such items are actually paid to Agent or such Lender.
2.12.8 Advances Attributable to New York Projects. Following
the recording of a Mortgage that encumbers a Project in the State of New York
(each a "NEW YORK MORTGAGE") the amount of each Advance thereafter made (but
only until the aggregate amount of such Advances equals the "SECURED AMOUNT" (as
defined in such Mortgage) shall be deemed to have been advanced under, and
secured by, such New York Mortgage. The portion of the Indebtedness secured by
such New York Mortgage shall be reduced only by the last and final sums that
Borrowers repay with respect to the Indebtedness (as provided in this Section
2.12.8) and, from and after that date on which the aggregate amount of such
Advances equals the Secured Amount, the portion of the Indebtedness secured by
26
such New York Mortgage shall not be reduced by any intervening repayments of the
Indebtedness by Borrowers. So long as the outstanding balance of the
Indebtedness exceeds the Secured Amount of a New York Mortgage, any payments and
repayments of the Indebtedness shall not be deemed applied against, or to
reduce, the portion of the Indebtedness secured by such New York Mortgage and
such payments shall be deemed to reduce only such portions of the Indebtedness
as are secured by Mortgages encumbering real property located outside of the
State of New York, except as provided in the next sentence of this Section
2.12.8. If at any time when more than one New York Mortgage is in effect a
payment of the Indebtedness is made such that the outstanding principal amount
of the Indebtedness would be less than the Secured Amount of any New York
Mortgage, the amount of such payment shall be deemed applied in reduction of the
Secured Amount of such New York Mortgage as shall be specified by Agent by
written notice to Master Borrower.
2.13 Postponement of Maturity Date.
2.13.1 Master Borrower may, by written notice to Agent not
earlier than August 1st of any year nor later than October 1st of such year,
request that Lenders postpone the Maturity Date for one (1) year (each an
"EXTENSION REQUEST"). Agent shall promptly notify Lenders of each such request.
Agent shall advise Master Borrower in writing, not later than January 15th of
the year following the year in which such postponement request was received,
whether Lenders have agreed, in accordance with Section 11.10, so to postpone
the Maturity Date, but if Master Borrower fails to receive written notice from
Agent acknowledging the postponement of the Maturity Date, the Extension Request
shall be deemed to have been denied.
2.13.2 If Agent receives the written approval of the
Extension Request by Lenders whose Pro Rata Shares equal or exceed 66-2/3% in
the aggregate, but not by all Lenders, and provided no default or Event of
Default exists on the Maturity Date, the Maturity Date, if Master Borrower so
agrees by giving written notice to Agent within five (5) Business Days after
receipt of Agent's notice, shall be extended as specified in the Extension
Request but only with respect to Lenders that have given their written approval
thereof. If the Maturity Date is so extended, Borrowers shall pay to the Lenders
approving the extension an extension fee as provided in Section 2.6.2. Except to
the extent that a Lender that did not give its written approval to such
Extension Request ("REJECTING LENDER") is replaced as provided in Section 13.9.6
hereof, the Loans and all interest thereon, fees and other Obligations owed to
such Rejecting Lender shall be paid in full on the Maturity Date as determined
prior to such Extension Request (the "REJECTING LENDER'S FACILITY TERMINATION
DATE").
2.13.3 If Lenders whose Pro Rata Shares equal or exceed
66-2/3% in the aggregate approve the Extension Request, Borrowers, upon notice
to Agent and any Rejecting Lender, may terminate the Commitment of such
Rejecting Lender (or such portion of such Commitment that is not assigned to a
Replacement Lender in accordance with Section 13.9.6 hereof) by written notice
to Agent and the Rejecting Lender, which termination shall occur as of a date
set forth in Master Borrower's notice but in no event fewer than ten (10) nor
more than thirty (30) days following such notice. The termination of a Lender's
Commitment shall be effected in accordance with Section 2.13.4 hereof.
2.13.4 If Master Borrower elects to terminate the Commitment
of a Rejecting Lender as provided in Section 2.13.3, Borrowers shall pay to the
Rejecting Lender all Obligations due and owing to it hereunder or under any
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other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Rejecting Lender, together with
accrued interest thereon through the effective date of such termination, and the
Unused Fee and Letter of Credit Fee payable to such Rejecting Lender through the
effective date of such termination. Upon request by Master Borrower or Agent,
the Rejecting Lender will deliver to Master Borrower and Agent a letter setting
forth the amounts payable to such Rejecting Lender as set forth above. Upon the
termination of such Rejecting Lender's Commitment and payment of the amounts
provided for in the immediately preceding sentence, Borrowers shall have no
further obligations to such Rejecting Lender under this Agreement and such
Rejecting Lender shall cease to be a Lender, provided, however, that such
Rejecting Lender shall continue to be entitled to the benefits of Sections
13.15, 13.22 and 13.23 hereof. Upon the effective date of the termination of the
Rejecting Lender's Commitment, the Facility Amount and the Revolving Sublimit
shall be reduced by the amount of the terminated Commitment of the Rejecting
Lender and the Letter of Credit Sublimit shall be reduced proportionately.
Notwithstanding the foregoing, if, upon the termination of the Commitment of
such Rejecting Lender, the sum of the outstanding principal balance of the
Loans, Swing Line Loans, Letters of Credit and Tri-Party Agreements would exceed
the Facility Amount (as so reduced), Master Borrower may not terminate such
Rejecting Lender's Commitment unless Borrowers, on or prior to the effective
date of such termination, prepay, in accordance with the provisions of this
Agreement, outstanding Loans or cause to be canceled, released and returned to
Agent outstanding Letters of Credit or deposit cash with Agent in sufficient
amounts in the aggregate such that, on the effective date of such termination,
the sum of the outstanding Loans, Swing Line Loans, Letters of Credit and
Tri-Party Agreement less the amount of any such cash deposit does not exceed the
Facility Amount or Letter of Credit Sublimit, as the case may be (as reduced).
In the event that Borrowers make such cash deposit with Agent, such deposit
shall be applied by Agent to pay all Letter of Credit Advances that are not
reimbursed by Borrowers and, provided no default or Event of Default has
occurred that is continuing, shall be returned to Borrowers when the sum of the
outstanding Loans, Swing Line Loans, Letters of Credit and Tri-Party Agreement
equals or is less than the Facility Amount and Letter of Credit Sublimit, as
applicable.
2.14 Swap Contracts. In the event that any Borrower enters into,
with any individual Lender, any "swap agreement" (as that term is defined in 11
U.S.C. Section 101, as heretofore or hereafter amended) for the purpose of
hedging Borrowers' interest rate risk with respect to some or all of the Loans
(each a "SWAP CONTRACT"), Borrowers may, by written notice to Agent, elect that
such Swap Contract shall be secured by the Mortgages. In such event, all amounts
owed by Borrowers under such Swap Contracts (including, without limitation, all
termination payments, if any) shall be secured by, and paid out of, the
Collateral "pari passu" with the Indebtedness.
ARTICLE III. NOTICE OF BORROWING; BORROWING BASE;
BORROWING BASE AVAILABILITY
3.1 Notice of Borrowing.
3.1.1 Request for Advances under Line of Credit and Swing
Line. Borrowers shall give Agent written notice (effective upon receipt) of a
Borrower's request for advances under the Line of Credit or Swing Line by
delivering to Agent a fully completed Notice of Borrowing as provided in
Section 2.12.2 or Section 2.12.4, as appropriate.
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3.1.2 Request for Letters of Credit and Tri-Party
Agreements. Borrowers shall give Agent written notice (effective upon receipt)
of a Borrower's request for issuance of a Letter of Credit or execution of a
Tri-Party Agreement hereunder, specifying the purpose of the Letter of Credit or
Tri-Party Agreement, the amount thereof and the date such Borrower desires it be
issued or executed. Each such request shall be delivered to Agent only at
Agent's Philadelphia, Pennsylvania office, as identified in Section 13.10 (or to
such other address as Agent may from time-to-time advise Master Borrower by
written notice), accompanied by a draft of the proposed Letter of Credit or
Tri-Party Agreement (which must be acceptable to Agent in good faith) and the
other documents required pursuant to Section 4.2.3 and shall be delivered to
Agent at least five (5) Business Days in advance of the date Borrower desires
the Letter of Credit or Tri-Party Agreement to be issued or executed, but Agent
shall endeavor to cause Letters of Credit and Tri-Party Agreements to be issued
within three (3) Business Days after receipt of a Borrower's request therefor.
Each Letter of Credit or Tri-Party Agreement shall be subject to the limitations
as provided in this Agreement.
3.2 Admission of Projects to Borrowing Base.
3.2.1 The Projects identified on the Borrowing Base
Certificate delivered to Agent concurrently with the execution of this Agreement
shall constitute the Projects that comprise the Borrowing Base as of the date
hereof.
3.2.2 Projects shall from time to time be admitted to the
Borrowing Base, provided that the fee owner of such Project, at the time the
Project is so admitted, either is an existing Borrower or concurrently therewith
becomes a Borrower. Prior to the Collateral Release Date, Master Borrower shall
give Agent written notice that Master Borrower desires that a Project be added
to the Borrowing Base, such notice to be delivered to Agent sixty (60) days
prior to the desired admission date. Prior to the Collateral Release Date,
Borrowers shall, also, before any Project is deemed admitted to the Borrowing
Base, deliver to Agent with respect to such Project the documents set forth in
Section 4.1.10. The items referred to in Sections 4.1.10.5, 4.1.10.7, 4.1.10.9,
4.1.10.10 and 4.1.10.11 and a commitment for a policy of title insurance with
respect to the subject Project to be delivered to Agent at least 20 calendar
days before the date that Borrowers desire such Project be admitted to the
Borrowing Base.
3.3 Borrowing Base Availability.
3.3.1 The aggregate amount of Loans that may be outstanding
at any time shall not exceed the lesser of (i) the then-current Borrowing Base
Availability or (ii) the Revolving Sublimit. Borrowing Base Availability shall
be determined at any time on the basis of the Borrowing Base Certificate most
recently delivered to Agent, by applying to each of the following classes of
assets of Borrowers the applicable "Advance Rate," determined in accordance with
Section 3.3.2:
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LTV LTC
Advance Advance
Asset Class Rate(1) Rate
---------------------------------------------------------- ------- -------
(i) Units subject to a Qualifying Agreement of Sale 85% 90%
(ii) Units not subject to a Qualifying Agreement of Sale 80% 80%
(iii) Lots part of Improved Land and not subject to a Qualifying 75% 75%
Agreement of Sale
(iv) Lots part of Development Land 65% 65%
(v) Lots part of Approved Land 50% 50%
(1) The LTV Advance Rate shall not be applicable after the
release of all Collateral in accordance with Section 2.11.2.
3.3.2 The maximum aggregate amount of Borrowing Base
Availability attributable to each of the asset classes identified in
Section 3.3.1 on any Borrowing Base Certificate (each an "ASSET CLASS") shall be
determined as follows:
3.3.2.1 For Asset Classes (i) and (ii), the
least of (a) the applicable LTV Advance Rate multiplied by the most recently
determined Appraised Value of the subject Unit, (b) the applicable LTV Advance
Rate multiplied by the price set forth in the Qualifying Agreement of Sale, if
any, to which the Unit is subject and (c) the applicable LTC Advance Rate
multiplied by the Cost Incurred with respect to such Unit.
3.3.2.2 For Asset Classes (iii) and (iv), the
lesser of (a) the applicable LTV Advance Rate multiplied by the most recently
determined Appraised Value of the subject Lot and (b) the applicable LTC Advance
Rate multiplied by the Cost Incurred with respect to such Lot.
3.3.2.3 For Asset Class (v), the lesser of (a)
the applicable LTV Advance Rate multiplied by the most recently determined
Appraised Value of the subject Lot and (b) the applicable LTC Advance Rate
multiplied by the Cost Incurred with respect to such Lot.
3.3.2.4 On any Borrowing Base Certificate, (a)
the maximum aggregate Borrowing Base Availability attributable to Asset Classes
(iii), (iv) and (v) shall not exceed (I) if submitted prior to June 30, 2006,
50% of the total Borrowing Base Availability as shown thereon or (II) if
submitted on or after June 30, 2006 but prior to the Collateral Release Date,
45% of the total Borrowing Base Availability shown thereon, or (III) if
submitted on or after the Collateral Release Date, 40% of the total Borrowing
Base Availability shown thereon, (b) the maximum Borrowing Base Availability
attributable to Asset Class (v) shall not exceed 10% of the total Borrowing Base
Availability as shown thereon, and (c) the maximum Borrowing Base Availability
attributable to Asset Class (ii) (including models) shall not exceed 30% of the
aggregate Borrowing Base Availability attributable to Asset Classes (i) and (ii)
as shown thereon.
3.3.2.5 Once a Lot is the subject of a
Qualifying Agreement of Sale, the land value of such Lot shall be transferred to
Asset Class (i) and once vertical construction of a Unit is commenced on any
Lot, the land value of such Lot shall (if not theretofore pursuant to this
Section 3.3.2.5) be transferred from Asset Class (iii) or (iv) to Asset Class
(i) or (ii), as appropriate.
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3.3.2.6 Borrowers acknowledge that the Agent may
make changes or adjustments to the values set forth in any Appraisal as may be
required by the Agent's appraisal department in the exercise of its good faith
business judgment, and that the Agent is not bound by the value set forth in any
Appraisal performed pursuant to this Agreement and does not make any
representations or warranties with respect to any Appraisal. Borrowers further
agree that Lenders shall have no liability as a result of or in connection with
any such Appraisal for statements contained in such Appraisal, including without
limitation, the accuracy and completeness of information, estimates, conclusions
and opinions contained in such Appraisal, or variance of such Appraisal from the
fair value.
3.3.2.7 Re-Appraisals. Agent, at its discretion,
shall have the right to obtain new Appraisals of all or any portion of the
Projects (a) whenever an Event of Default has occurred and is continuing, (b) as
required by the then current regulatory requirements generally applicable to
real estate loans of the categories made under this Agreement, as reasonably
interpreted by the Agent, (c) at any time following a condemnation of more than
an immaterial portion of a Project, as determined in good faith by the Agent and
(d) upon any material adverse change with respect to a Project, as determined in
good faith by the Agent.
3.3.2.8 Specific Jurisdictions.
(i) Generally. The amount of Borrowing
Base Availability attributable to Projects in any Approved Jurisdiction in which
the liens of Mortgages are limited to a stated amount that is less than the
Facility Amount shall at no time exceed such stated amount (which shall not be
an aggregate amount) contained in each of the then-outstanding Mortgages in such
Approved Jurisdiction (that is, for example, if there are five (5) Mortgages
encumbering Projects in Florida, each with a stated principal amount of
$50,000,000, the maximum Borrowing Base Availability, at any time, on account of
Florida Projects would be $50,000,000).
(ii) New York. The amount of Borrowing
Base Availability attributable to any Project in the State of New York shall at
no time exceed the stated amount of the Mortgage that encumbers such Project.
3.3.2.9 Purchase Money Mortgages. The aggregate
amount of Borrowing Base Availability shall at all times be reduced by the
then-outstanding aggregate principal balance of all purchase money mortgages
encumbering Projects that are Permitted Liens and that do not secure the
Indebtedness.
3.4 Submission of Borrowing Base Certificate. In addition to any
other requirement to do so as provided in this Agreement, Borrowers shall submit
to Agent a current Borrowing Base Certificate by the fifteenth (15th) day of
each month, along with such additional supporting information as may be
reasonably requested by Agent. Any such Borrowing Base Certificate delivered to
Agent shall be deemed certified by Borrowers as to its completeness and its
accuracy (including, prior to the Collateral Release Date, that each Lot and
Unit identified thereon are encumbered by a Mortgage). If approved by Agent,
such Borrowing Base Certificate shall be determinative of the then-current
Borrowing Base Availability.
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3.5 Inspection of Projects. Borrowers shall permit Agent, by its
employees and independent contractors, to enter upon and inspect, at any time
and from time to time, all Projects that are then in the Borrowing Base, such
inspections shall be made at a pace such that approximately 25% of all Projects
in the Borrowing Base are so inspected during each Fiscal Quarter. The costs of
such inspections, as reasonably agreed upon by Master Borrower and Agent at the
time a Project is admitted to the Borrowing Base, shall be Lender's Costs.
ARTICLE IV. CONDITIONS OF LENDING
4.1 Agreement to Make Available the Facility. The agreement of
Agent and Lenders to enter into this Agreement is subject to the conditions
precedent that Agent and Lenders shall have received (or, at Requisite Lenders'
sole discretion with respect to any of the Section 4.1.10 requirements as they
pertain to a Project or Projects, waived) on or before the date hereof all of
the following collateral documents, each in form and substance satisfactory to
the Agent:
4.1.1 The Line of Credit Notes, duly executed by the Master
Borrower and by each other Borrower.
4.1.2 The Guaranty, duly executed by Guarantor in favor of
Agent for the ratable benefit of the Lenders.
4.1.3 The Swing Line Note, duly executed by the Master
Borrower and by each other Borrower.
4.1.4 Certified copies of all corporate, limited
partnership and limited liability company action (as appropriate) taken by
Borrowers and Guarantor, including resolutions of their respective Boards of
Directors, authorizing the execution, delivery and performance of the Loan
Documents to which each is a party.
4.1.5 An incumbency and signature certificate (dated as the
date of this Agreement) of the Secretaries, general partners or members (as
appropriate) of each Borrower and Guarantor, certifying the names and true
signatures of the officers or other authorized Persons of Borrower and Guarantor
authorized to sign the Loan Documents to which it is a party.
4.1.6 A copy of the Organizational Documents of each
Borrower and Guarantor, certified as true and correct by its respective
Secretary, general partner or members.
4.1.7 A Subsistence Certificate for each Borrower and
Guarantor, issued within thirty (30) days prior to the date hereof, from the
state of such entity's formation and all jurisdictions in which such Borrower or
Guarantor is required to register as a foreign corporation, limited partnership
or limited liability company.
4.1.8 An Opinion directed to Agent and the Lenders and
issued by the counsel to the Borrowers and Guarantor (who must be an independent
attorney-at-law licensed to practice in Pennsylvania) that (i) Borrowers and
Guarantor are duly organized, validly existing, and in good standing in the
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state of such entity's formation and the Borrowers are authorized to do business
in all jurisdictions where such authorization is required, (ii) each Borrower
and Guarantor has the power to enter into the transactions contemplated by this
Agreement and by the Loan Documents; (iii) the transactions contemplated by this
Agreement and the Loan Documents do not violate any provision of any
Organizational Document, or any other document known to such counsel, affecting
any Borrower or Guarantor; (iv) the Loan Documents have been executed and
delivered by, and constitute the valid and binding obligations of, Borrowers and
Guarantor (to the extent executed thereby), enforceable in accordance with their
terms, except as limited by applicable bankruptcy or other laws affecting
creditor's rights generally; (v) the Facility and the repayment of the
Indebtedness in accordance with the terms of this Agreement, the Line of Credit
Notes and the Swing Line Note shall not violate any applicable usury laws; and
(vi) such other matters relating to the transactions contemplated herein as
Agent or Agent's counsel may reasonably request.
4.1.9 The most recent Financial Statements of Guarantor.
4.1.10 With respect to each Project that is included in the
Borrowing Base; Borrowers shall deliver to Agent (or, if required by any
applicable rule or regulation by which Lenders are governed, Agent shall obtain)
each of the following:
4.1.10.1 A Mortgage, for the ratable benefit of
the Lenders, for such Project, executed and acknowledged by the Borrower that is
the owner thereof, which shall be a first lien (subject only to Permitted Liens)
on the Project in the Facility Amount, plus any interest and other charges due
thereon; except that if the Project is located in Florida, New York, Virginia or
another Approved Jurisdiction that imposes taxes upon the recording of, or
requires documentary stamps to be affixed to, Mortgages, the amount of the
Mortgages in such Approval Jurisdictions may be limited in amount as from time
to time designated by Master Borrower and approved by Agent, and such Mortgages
may be effected by the subject Borrower and Agent executing a mortgage
modification, spreader and reaffirmation agreement, in form acceptable to Agent,
whereby the lien of an existing Mortgage is spread to encumber such Project.
4.1.10.2 A collateral assignment to Agent, for
the ratable benefit of the Lenders, of all Governmental Approvals (to the extent
assignable), contracts and agreements to which the Project is subject, in form
acceptable to Agent in good faith, executed by the Borrower that is the owner of
such Project.
4.1.10.3 Evidence as required by applicable
banking regulations that no part of the Project on which any Unit is to be
constructed is located in a flood plain or, if such evidence is not provided, a
policy and certificate of flood insurance covering the Project, naming the Agent
as insured.
4.1.10.4 A marked-up title commitment of First
American Title Insurance Company or another title insurance company satisfactory
to the Agent, representing the title insurance company's commitment to issue in
favor of the Agent, for the ratable benefit of the Lenders, but at the
Borrower's expense, a standard form of mortgagee title insurance policy,
insuring the Mortgage on the Project, in an amount determined by Borrowers and
Agent in good faith, as a first lien on the Real Estate included in the Project,
free and clear of all prior Liens and encumbrances (other than Liens and
encumbrances in favor of the Agent), subject only to such title conditions and
33
Permitted Liens as may have been approved by the Agent. The title commitment
shall also provide that the policy of title insurance such include such
endorsements or additional coverage as determined by Agent to be necessary
(which may include (if available) Pennsylvania Endorsements 100, 300, 710, 1010
and 1110 or their equivalents from other jurisdictions).
4.1.10.5 If requested by Agent, copies of any
subdivision or land development plans applicable to such Project, evidence of
the final approval of such plans and, if the recording of such plan has not been
demonstrated to Agent, evidence reasonably acceptable to Agent that such plans
will be recorded promptly upon the delivery of any required Letter of Credit or
Tri-Party Agreement, and in any event not later than 60 days after the later of
(i) admission of the Project into the Borrowing Base or (ii) the Borrower's,
with respect to Projects admitted to the Borrowing Base after the Closing Date,
receipt of all state- or federally-issued Governmental Approvals that are
prerequisite to the recording of the plans, but in the latter event no more than
155 days after the date the Project is admitted into the Borrowing Base.
4.1.10.6 Evidence that the Borrower has procured
insurance policies as required by the terms of this Agreement. The evidence of
insurance shall contain the agreement of the insurer to give not less than
thirty (30) days' (ten (10) days' for non-payment of premium) notice to the
Agent prior to cancellation of such policies or material change in the coverage
thereof and shall be on a form XXXXX 27 (with respect to property insurance),
XXXXX 25 (with respect to liability insurance), or such similar form as is
acceptable to Agent.
4.1.10.7 If requested by Agent, a survey or other
plan reasonably acceptable to Agent of the Real Estate included in the Project,
showing any encroachments by or on the Real Estate and the location of all
easements and rights-of-way affecting such Real Estate, all present and proposed
utility lines, encroachments and building set-back lines.
4.1.10.8 An environmental indemnity agreement
with respect to the Project, executed by the Borrower and Guarantor, in form
reasonably acceptable to Agent.
4.1.10.9 An Appraisal of the Project.
4.1.10.10 An Environmental Report for such
Project, indicating that the Real Estate is not subject to any Environmental
Conditions and is in compliance with all applicable Environmental Laws, that no
Regulated Substances have been disposed of in, on or under the Real Estate for
which remediation has not been completed or is not contemplated as part of the
development of the Project, and that there are no underground storage tanks in
the Real Estate.
4.1.10.11 If requested by Agent, copies of all
Governmental Approvals theretofore issued with respect to the Project, permits,
use registrations and approvals required under any law (including, without
limitation thereto, planning, zoning, subdivision and building laws) for
construction of the Units and Improvements and use thereof by the Borrower or by
the purchasers thereof, and such other evidence as the Lender may require that
the Units and use thereof contemplated by the Borrower, are permitted by and
comply with all applicable laws including, without limitation thereto, zoning
ordinances.
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4.1.10.12 Such other information and documents
that the Agent may reasonably request. It is understood that the failure of the
Agent to demand a certain type of information or document in regard to a Project
will not constitute a waiver by the Agent of its right to demand that type of
information or document in the future.
4.1.11 One or more recordable assignments of the Assigned
Security Instruments, executed by the holder of each of the Assigned Security
Instruments.
4.1.12 Such other and further documents as may be required
reasonably by the Agent or Lenders in order to consummate the transactions
contemplated hereunder.
4.2 Availability of Letters of Credit and Tri-Party Agreements.
The agreement of the Lenders to cause Agent to issue any Letter of Credit or
Tri-Party Agreement is subject to the following conditions precedent, any of
which may be waived by the Agent, at its sole discretion:
4.2.1 All of the conditions in this Agreement (including,
but not limited to those in Section 4.1) remain satisfied, and all instruments
and agreements referred to in Section 4.1 remain in full force and effect.
4.2.2 No Event of Default specified herein or in any other
Loan Document shall have occurred and be continuing; the representations,
covenants and warranties of the Borrowers herein or in any of the Loan Documents
shall be true on and as of the date of the issuance of such Letter of Credit or
Tri-Party Agreement with the same force and effect as if made on and as of such
date, except for those that relate to a specific date or those which cannot be
made due to changes in circumstances of which Borrowers have given notice to
Agent and which would not, but for delivery of notice or passage of time, or
both, constitute an Event of Default, and the Borrowers shall so certify to
Agent.
4.2.3 The requesting Borrower shall have delivered to Agent
executed (and, if necessary, notarized) copies of the following (all of which
shall be in a form and contain such terms as shall be acceptable to the Lender,
in its sole discretion):
4.2.3.1 A Letter of Credit Application, if
required.
4.2.3.2 Copies of all financial security
agreements, development agreements or similar documents, under which the
obligations of the requesting Borrower are to be secured by the requested Letter
of Credit or Tri-Party Agreement. Such documents must be in a form satisfactory
to the Agent.
4.2.3.3 Such other information and documents
that Agent may reasonably request. It is understood that the failure of Agent to
demand a certain type of information or document in regard to the issuance of a
Letter of Credit or Tri-Party Agreement will not constitute a waiver by Agent of
its right to demand that type of information or document in the future.
4.2.4 The Project for which the Letter of
Credit or Tri-Party Agreement has been requested is in an Approved Jurisdiction.
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4.3 Conditions Precedent to Swing Line Loans
4.3.1 The obligation of Swing Line Lender to
make any Swing Line Loan shall be subject to the further conditions precedent
that, on the date of such the advance of a Swing Line Loan; no Event of Default
has occurred and is continuing, or would result from the requested Swing Line
Loan.
4.3.1.1 No litigation (including, without
limitation, derivative actions), arbitration proceedings or governmental
proceedings not disclosed in writing by Borrowers to the Agent shall be pending
or known to be threatened against any Borrower or Guarantor, and no material
development not so disclosed shall have occurred in any litigation (including,
without limitation, derivative actions), arbitration proceedings or governmental
proceedings so disclosed, which in any of the foregoing cases is likely to have
a Materially Adversely Effect on Borrowers or Guarantor or impair the ability of
Borrowers or Guarantor to perform their obligations under the Loan Documents to
which they are a party.
4.3.1.2 Agent shall have received such other
approvals, opinions, or documents as the Agent may in good faith request.
4.3.2 The delivery to Agent of each Notice of Borrowing and
request for the issuance of a Letter of Credit or Tri-Party Agreement shall
constitute the representation and warranty of Borrowers that the conditions
contained in Sections 4.1 and 4.2 are satisfied as of such date, except for
those that relate to a specific date or those which cannot be made due to
changes in circumstances of which Borrowers have given notice to Agent and which
would not, but for delivery of notice or passage of time, or both, constitute an
Event of Default, each of the representations and warranties contained in
Article V is true and correct as if made on such date.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties contained in any
other Loan Documents, Borrowers hereby make the following representations and
warranties to Agent and the Lenders which, to the knowledge of Borrowers, are
true and correct on the date hereof:
5.1 Use of Proceeds. The proceeds of the Facility shall be used by
Borrowers only for Business purposes.
5.2 Incorporation, Good Standing, and Due Qualification.
5.2.1 Master Borrower and Guarantor are each a corporation
duly incorporated, validly existing, and in good standing under the laws of the
state of its incorporation, has the corporate power and authority to own its
assets and to transact the business in which it is now engaged or proposed to be
engaged in; and is duly qualified as a foreign corporation and in good standing
under the laws of each other jurisdiction in which such qualification is
required, except where the failure to be so qualified will not have a material
and adverse effect on the business and operations of the subject corporation.
5.2.2 Each Borrower is either a corporation, limited
partnership or limited liability company, duly incorporated or organized,
validly existing, and in good standing under the laws of the state of its
formation, has the power and authority to own its assets and to transact
36
the business in which it is now engaged or proposed to be engaged in; and is
duly qualified as a foreign corporation, limited partnership or limited
liability company and in good standing under the laws of each other jurisdiction
in which such qualification is required.
5.3 Power and Authority. The execution, delivery, and performance
by Borrowers and Guarantor of the Loan Documents to which they are parties have
been duly authorized by all necessary corporate, partnership or limited
liability company action, as appropriate, and do not and will not (i) require
any consent or approval of the shareholders, partners or members of any such
entity; (ii) contravene such entity's Organizational Documents; (iii) violate
any provision of or cause or result in a breach of or constitute a default under
any law, rule, regulation (including, without limitation, Regulation U of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to such entity; (iv) cause or result in a breach of or constitute
a default under any indenture or loan or credit agreement or any other
agreement, lease, or instrument to which such entity is a party or by which it
or its properties may be bound or affected or; (v) cause or result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties now owned or hereafter acquired by such Guarantor or Borrower except
as contemplated by this Agreement.
5.4 Legally Enforceable Agreement. This Agreement is, and each of
the other Loan Documents executed by Borrowers or Guarantor when delivered under
this Agreement will be, legal, valid, and binding obligations of Borrowers or
Guarantor, enforceable against it or them in accordance with the respective
terms thereof, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally.
5.5 Financial Statements; Accuracy of Information.
5.5.1 The Financial Statements of Borrowers and Guarantor
for the period ending September 30, 2004 delivered to Agent and Lenders are true
and correct and represent fairly their financial positions as of the date
thereof and the results of their operations or affairs for the period indicated,
and show (including the footnotes) all known liabilities, direct or contingent,
of Borrowers or Guarantor as of the date thereof, all in accordance with GAAP
consistently applied. Since the date of such Financial Statements, there has
been no material adverse change in condition, financial or otherwise, of
Borrowers or Guarantor or in its or their business and properties and, since
such date, neither Borrowers nor Guarantor has incurred, other than in the
ordinary course of business, any indebtedness, liabilities, obligations or
commitments, contingent or otherwise. No information, exhibit, or report
furnished by Borrowers or Guarantor to Agent or the Lenders in connection with
the negotiation of this Agreement contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statement
contained therein not materially misleading. All projections delivered by
Borrowers to Agent were made on a reasonable basis and in good faith. Except as
disclosed to Agent in writing, neither any Borrower nor Guarantor has any
material contingent liabilities (including liabilities for taxes), unusual
forward or long-term commitments or unrealized or anticipated losses from
unfavorable commitments.
5.5.2 All information, financial statements, exhibits, and
reports furnished by Borrowers or Guarantor to Agent or the Lenders in
connection with this Agreement and the borrowings contemplated hereby are, and
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all such information, financial statements, exhibits and reports hereafter
furnished by Borrowers or Guarantor to Agent or the Lenders will be, true and
correct in every material respect on the date so furnished for the periods
covered thereby, and no such information, financial statements, exhibit or
report contains or will contain any material misstatement of fact or omits or
will omit to state a material fact or any fact necessary to make the statement
contained therein not materially misleading.
5.6 Conflicts. The execution, delivery and performance of this
Agreement and the Loan Documents will not violate any provision of any
indenture, agreement, or other instrument to which any Borrower, Guarantor, or
any of their respective properties or assets are bound, and will not be in
conflict with, result in a breach of, or constitute (with due notice and/or
lapse of time) a default under any such indenture, agreement, or other
instrument, or result in the creation or imposition of any lien, charge, or
encumbrance of any nature whatsoever upon any of said properties or assets.
5.7 Consents. No authorization, consent, approval, license or
exemption of, and no registration, qualification, designation, declaration or a
filing with any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign is necessary to the valid
execution and delivery by Borrowers or Guarantor of this Agreement and the other
Loan Documents to which each is a party.
5.8 Litigation. Except as disclosed on Schedule 5.8, there is no
pending or threatened action or proceeding against or affecting any Borrower or
Guarantor before any court, governmental agency, or arbitrator which may, in any
one case or in the aggregate, a Materially Adverse Effect on the financial
condition, operations, properties or business of Borrowers or the Guarantor or
the ability of Borrowers or the Guarantor to perform their obligations under any
Loan Documents to which it or they are a party.
5.9 Other Agreements. Neither any Borrower nor Guarantor is a
party to any indenture, loan, or credit agreement, or to any lease or other
agreement or instrument, or subject to any charter or corporate restriction
which could have a Material Adverse Effect on the business, properties, assets,
operations, or conditions, financial or otherwise, of Borrowers or Guarantor, or
the ability of Borrowers or Guarantor to carry out their obligations under the
Loan Documents to which it or they are a party. Neither any Borrower nor
Guarantor is in default in any respect in the performance, observance, or
fulfillment of any of the obligations, covenants, or conditions contained in any
agreement or instrument material to its business to which it is a party and
which default would have a material and adverse effect on the business and
operations of Borrowers and Guarantor, taken as a whole.
5.10 No Defaults and Outstanding Judgments or Orders. Each Borrower
and Guarantor have satisfied, and none is in default with respect to, any final,
unappealed and unstayed judgment, writ, injunction or decree of any court or
arbitrator, and none of them is in default of any rule or regulation (if such
default would have a Material Adverse Effect on Borrowers or Guarantor) of any
federal, state, municipal, or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign by which it is bound.
5.11 Taxes. Borrowers and Guarantor (i) have filed all tax returns
(federal, state, and local) required to be filed and (ii) have paid all taxes,
assessments, and governmental charges and levies due thereon, including interest
and penalties, except such as are being contested in good faith and with respect
to which non-payment will not have a Material Adverse Effect upon Borrowers or
Guarantor.
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5.12 Debt. Neither any Borrower nor Guarantor has any Debt, except
Permitted Debt that is disclosed in their Financial Statements.
5.13 Ownership and Liens. Borrowers, Guarantor and each subsidiary
of Guarantor has title to in all of its properties and assets, real and
personal, free and clear of all liens other than Permitted Liens.
5.14 ERISA. Borrowers, Guarantor and each Subsidiary of Guarantor
is in compliance in all material respects with all applicable provisions of
ERISA. Neither a Reportable Event nor a Prohibited Transaction has occurred and
is continuing with respect to any Plan; no notice of intent to terminate a Plan
has been filed nor has any Plan been terminated; to the best of Borrower's
knowledge after due inquiry, no circumstances exist which constitute grounds
under Section 4042 of ERISA entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, a Plan, nor has the PBGC
instituted any such proceedings; neither of the any Borrower nor Guarantor nor
any ERISA Affiliate has completely or partially withdrawn under Sections 4201 or
4204 of ERISA from a Multiemployer Plan; Borrowers, Guarantor and each ERISA
Affiliate have met their minimum funding requirements under ERISA with respect
to all of their Plans and the present fair market value of all Plan assets
exceeds the present value of all vested benefits under each Plan, as determined
on the most recent valuation date of the Plan and in accordance with the
provisions of ERISA and the regulations thereunder for calculating the potential
liability of the Borrower or any ERISA Affiliate to the PBGC or the Plan under
Title IV of ERISA; and neither any Borrower nor Guarantor nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA.
5.15 Representations and Warranties as to Real Estate. As to Real
Estate included within the Borrowing Base:
5.15.1 No Violations Relating to the Real Estate. Borrowers
have no knowledge of any violation, nor is there any notice or other record of
violation of any zoning, subdivision, environmental, building or other statute,
ordinance, regulation, restrictive covenant or other restriction applicable to
the Real Estate, except for violations, if any, which Borrowers have disclosed
in writing to Agent and are proceeding in good faith to remove or correct or
which is subject to contest by applicable proceedings timely commenced and
diligently pursued to conclusion and which non-compliance will not have a
Material Adverse Effect on Borrowers.
5.15.2 Liens. There exist no liens, encumbrances or other
charges against the Real Estate, or any portion thereof, or any property
relating thereto, including statutory and other liens of mechanics, workmen,
contractors, subcontractors, suppliers, taxing authorities and others, except
for Permitted Liens.
5.15.3 Operation of Real Estate. The Real Estate and any
Units and Improvements thereon are being and, to the best of Borrowers'
knowledge and belief, have been operated in all material respects, in compliance
with applicable federal and state laws and regulations (including but not
limited to environmental laws and regulations) and with local ordinances, and
all permits required thereunder have been obtained and complied with in all
material respects.
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5.15.4 Environment. Borrowers have duly complied with, and
their businesses, operations, assets, equipment, property, leaseholds, or other
facilities (including, but not limited to, the Real Estate) are in material
compliance with, the provisions of all federal, state, and local Environmental
Laws, and all health, and safety laws, codes and ordinances, and all rules and
regulations applicable to Projects promulgated thereunder. Except as set forth
in the Environmental Reports heretofore delivered to Agent, no Borrower has
received notice of, or knows of, or suspects the existence of any Environmental
Condition which might constitute a violation of, any Environmental Law or any
other federal, state, or local health or safety laws, codes or ordinances, and
any rules or regulations promulgated thereunder with respect to its businesses,
operations, assets, equipment, property, leaseholds, or other facilities
(including, but not limited to, the Real Estate) with which it has not complied
(subject to the prosecution of a good faith contest of any such notice that has
not heretofore been determined adversely to such Borrower).
5.16 No Violation. Neither any Borrower nor Guarantor has engaged
in any conduct or taken or omitted any act in violation of RICO or of any
Prescribed Law.
5.17 Accurate and Complete Disclosure. No representation or
warranty made by Borrowers under this Agreement or any other Loan Document is
false or misleading in any material respect (including by omission of material
information necessary to make such representation, warranty of statement not
misleading). Borrowers or the Guarantor have disclosed to Agent in writing every
fact which would have a Material Adverse Effect, or which so far as Borrowers
can now foresee is reasonably possible in the future and would have a Material
Adverse Effect, on the business, operations or financial condition of Borrowers
or the Guarantor or the ability of Borrowers or the Guarantor to perform their
respective obligations under this Agreement or any other Loan Document.
5.18 Compliance with Covenants. As of the date this representation
is made or deemed made, Borrowers are in compliance with applicable convenants
contained in Article VIII hereof.
ARTICLE VI. AFFIRMATIVE COVENANTS
In addition to the covenants contained in the Loan Documents, Borrowers
hereby covenant and agree that, so long as Lenders have any obligation to make
Loans or issue Letters of Credit or Tri-Party Agreements hereunder, or any Loan,
Letter of Credit Advance or Swing Line Loan is outstanding, except as the Agent
may otherwise advise Master Borrower in writing with the consent of Lenders in
accordance with Section 11.10:
6.1 Reporting Requirements. Borrowers shall furnish, or cause to
be furnished, to Agent and either Agent or Master Borrower shall furnish to
Lenders:
6.1.1 As soon as available, and in any event within one
hundred twenty (120) days after the end of each Fiscal Year, audited Financial
Statements of Guarantor (which shall include a consolidated balance sheet and a
consolidated statement of operations) through the end of such Fiscal Year, and a
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consolidated statement of cash flow for such Fiscal Year, all in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and all prepared in
accordance with GAAP consistently applied and accompanied by an unqualified
opinion thereon, on a basis acceptable to Agent, by PricewaterhouseCoopers LLP
or by another national firm of independent certified public accountants selected
by Guarantor and acceptable to Agent in good faith.
6.1.2 As soon as available, and in any event within fifty
(50) days after the close of each Fiscal Quarter, unaudited management-prepared
quarterly Financial Statements of Guarantor (which shall include a Consolidated
Balance Sheet and a Consolidated Statement of Operations) as of the end of each
Fiscal Quarter, all in reasonable detail and prepared in conformity with GAAP,
applied on a basis consistent with that of the preceding Fiscal Year. Such
statements shall be certified as to their correctness by the chief financial
officer of Guarantor.
6.1.3 Within sixty (60) days after the end of each Fiscal
Year, a management-prepared business plan and budget of Guarantor, Borrowers,
and Guarantor's other subsidiaries for the then-current Fiscal Year.
6.1.4 Within forty-five (45) days after the end of each
Fiscal Quarter, a comparison of the Borrowers' and Guarantor's actual results
during the preceding Fiscal Quarter and Fiscal Year to date with the budgeted
results for such period.
6.1.5 Within ten (10) days of the end of each month, a
detailed sales activity report prepared by Borrowers for each Project.
6.1.6 Within fifteen (15) days after the end month, an
aging report of all Units and Lots owned by any Borrower.
6.1.7 Prompt notification of (i) the institution of any
material litigation or the commencement of any material administrative
proceedings against a Borrower or Guarantor, (ii) the entry of any judgment
against any Borrower or Guarantor in an amount in excess of $250,000 or (iii)
the happening of any other event which would have a Material Adverse Effect upon
Borrowers or Guarantor.
6.1.8 Upon the occurrence of an Event of Default, a written
notice setting forth the details of such Event of Default and the action which
is proposed to be taken by Borrowers with respect thereto.
6.1.9 As soon as possible and in any event within five (5)
days after any Borrower or Guarantor knows or has reason to know that any
Reportable Event or Prohibited Transaction has occurred with respect to any Plan
or that the PBGC, any Borrower or Guarantor has instituted or will institute
proceedings under Title IV of ERISA to terminate any Plan, Borrowers will
deliver to Agent a certificate of the chief financial officer of Guarantor
setting forth details as to such Reportable Event or Prohibited Transaction or
Plan termination and the action such Borrower or Guarantor proposes to take with
respect thereto.
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6.1.10 Such other information respecting the condition or
operations, financial or otherwise, of Borrowers or Guarantor as the Agent (or
any Lender acting through Agent) may from time to time reasonably request.
6.2 Payment of Taxes. Borrowers and Guarantor shall each duly pay
and discharge all taxes, assessments and governmental charges levied upon or
assessed against it, its properties, or its income prior to the date on which
penalties are attached thereto and, within thirty (30) days after any request
therefor by Agent (if Agent reasonably believes any such taxes, etc., have not
been paid when due), deliver to Agent a receipt from the applicable governmental
authority evidencing said payment, unless and except to the extent only that
such taxes, assessments and charges shall be contested in good faith by
appropriate proceedings diligently conducted by Borrowers (unless and until
foreclosure, distraint, sale or other similar proceedings shall have been
commenced) or the Guarantor and provided that such reserves as shall be required
by GAAP shall have been made and maintained therefor.
6.3 Access to Properties, Books and Records. Borrowers shall, and
shall cause Guarantor to, (i) permit any of the officers, employees or
representatives of Agent or (if accompanied by an officer, employee or
representative of Agent) of any Lender to visit and inspect any of the Real
Estate of Borrowers and (ii) permit any officers, employees or representatives
of Agent to examine Borrowers' and Guarantor's books and records and make
extracts therefrom and discuss the affairs, finances, and accounts of Borrowers
and Guarantor with representatives thereof, during normal business hours, and as
often as Agent may reasonably request upon prior telephone notice.
6.4 Maintenance of Records. Borrowers shall, and shall cause
Guarantor to, keep adequate records and books of account, in which complete
entries were made in accordance with generally accepted accounting principals
consistently applied, reflecting all financial transactions of Borrowers and
Guarantor.
6.5 Maintenance of Existence. Each Borrower shall, and shall cause
Guarantor to, preserve and maintain its existence and good standing in the
jurisdiction of its formation, and qualify and remain qualified as a foreign
entity in each jurisdiction in which such qualification is required.
6.6 Insurance. Borrowers shall (and with respect to the insurance
described in Section 6.6.7 shall cause Guarantor to) take out, maintain and keep
in force, throughout the term of the Facility, policies of insurance on the
following terms:
6.6.1 Insurance against loss to each Project on a "Special
Perils" policy form, covering insurance risks no less broad than those covered
under a Standard Multi Peril (SMP) policy form, which contains the most recent
Commercial ISO "Causes of Loss-Special Form," in commercially reasonable amounts
and with endorsements as heretofore customarily maintained by subsidiaries of
Guarantor, issued by insurers licensed in the jurisdiction in which each Project
is located and that satisfy Agent's then-current standards for property insurers
and complying with the requirements of the Mortgages.
6.6.2 Commercial general liability insurance against death,
bodily injury and property damage arising on, about or in connection with each
Project, with limits not less than those heretofore maintained by subsidiaries
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of Guarantor and written on the most recent Standard "ISO" occurrence basis form
or equivalent form, excess umbrella liability coverage with limits not less than
those heretofore maintained by subsidiaries of Guarantor and completed
operations coverage for a period of one year after construction of Units, issued
by insurers licensed in the jurisdiction in which each Project is located and
that satisfy Agent's then-current standards for liability insurers.
6.6.3 Worker's compensation insurance in an amount not less
than those that are statutorily required in each jurisdiction in which Borrowers
operate.
6.6.4 During the making of any alterations or improvements
to any Project, insurance covering claims based on the owner's or employer's
contingent liability not covered by the insurance provided in Section 6.6.2
above
6.6.5 Insurance against loss or damage by flood or mud
slide in compliance with the Flood Disaster Protection Act of 1973, as amended
from time to time, covering each Project that is now, or at any time while the
Indebtedness remains outstanding shall be, situated in any area which an
appropriate governmental authority designates as a special flood hazard area, in
amounts equal to the full replacement value of all above grade structures
located or to be constructed in such special flood hazard area;
6.6.6 Such other insurance relating to the Projects and the
uses and operation thereof as Agent may, from time to time, reasonably require,
including, but not limited to products liability and workers' compensation
insurance;
6.6.7 Directors' and officers' liability insurance in the
forms, and in amounts not less than that which is now carried by Borrowers and
Guarantor;
6.6.8 All insurance shall: (i) be carried in companies with
a Rating of A- or better and a Financial Size Category of Class IX or higher, as
set forth in the most recently published Best's Key Rating Guide, or otherwise
acceptable to Agent; (ii) in form and content acceptable to Agent; and (iii)
provide thirty (30) days' (ten (10) days' for non-payment of any premium)
advance written notice to Agent before any cancellation, material modification
or notice of non-renewal. All physical damage policies and renewals shall
contain a mortgage clause acceptable to Agent, naming Agent as mortgagee, which
clause shall expressly state that any breach of any condition or warranty by any
Borrower shall not prejudice the rights of Agent under such insurance, and a
loss payable clause in favor of Agent for personal property, contents,
inventory, equipment, loss of rents and business interruption. All liability
policies and renewals shall name Agent and each Lender as an additional insured.
No additional parties shall appear in the mortgage or loss payable clause
without Agent's prior written consent. All deductibles shall be in amounts
acceptable to Agent. In the event of the foreclosure of any Mortgage or any
other transfer of title to any Borrower in full or partial satisfaction of the
Indebtedness, all right, title and interest of each Borrower in and to all
insurance policies and renewals thereof then in force shall pass to such
purchaser or grantee. If the insurance, or any part thereof, shall expire, or be
withdrawn, or become void or unsafe by reason of any Borrower's breach of any
condition thereof, or become void or unsafe by reason of the value or impairment
of the capital of any company in which the insurance may then be carried, or if
for any reason whatever the insurance shall be unsatisfactory to Agent,
Borrowers shall place new insurance that satisfies the requirements of this
Section 6.6;
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6.6.9 Any notice pertaining to insurance and required
pursuant to this Section 6.6 shall be given in the manner provided in this
Agreement at the address from time to time directed by Agent by notice to Master
Borrower. The insurance shall be evidenced by the original policy or a true and
certified copy of the original policy, or in the case of liability insurance, a
Certificate of Liability Insurance. Borrowers shall use their best efforts to
deliver originals of all policies and renewals (or certificates evidencing the
same), marked "paid," to Agent at least thirty (30) days before the expiration
of existing policies and, in any event, Borrowers shall deliver originals of
such policies or certificates to Agent at least fifteen (15) days before the
expiration of existing policies. If Agent has not received satisfactory evidence
of such renewal or substitute insurance in the time frame specified herein,
Agent shall have the right, but not the obligation, to purchase such insurance
for Lender's interest only. Any amounts so disbursed pursuant to this
Section 6.6.9 shall be Lenders' Costs. Nothing contained in this Section 6.6
shall require Agent or any Lender to incur any expense or take any action
hereunder, and inaction by Agent and Lenders shall never be considered a waiver
of any right accruing to Mortgagee on account of this Section 6.6;
6.6.10 Prior to the Collateral Release Date, no Borrower
shall carry any separate insurance on any Project concurrent in kind or form
with any insurance required hereunder or contributing in the event of loss
without Agent's prior written consent and any such policy shall have attached a
standard non-contributing mortgagee clause, with loss payable to Agent, and
shall meet all other requirements set forth herein.
6.7 ERISA. Borrowers shall, and shall cause Guarantor to, comply
in all material respects with the requirements of ERISA applicable to any
employee pension benefit plan (within the meaning of Section 3(2) of ERISA),
sponsored by any Borrower or Guarantor.
6.8 Accounts. Borrowers shall maintain one or more demand deposit
accounts with Agent into which the proceeds of each Loan and Swing Line Loan
shall be deposited.
6.9 Compliance with Laws. Borrowers shall, and shall cause
Guarantor to, comply with all applicable laws (including but not limited to any
applicable tax law, product safety law, occupational safety or health law,
environmental protection or pollution control law, hazardous waste or toxic
substances management, handling or disposal law and Prescribed Laws) in all
respects, provided that Borrowers shall not be deemed to be in violation of this
Section as a result of any failures to comply which would not result in fines,
penalties, injunctive relief or other civil or criminal liabilities which, in
the aggregate, would have a Material Adverse Effect on the business, operations
or financial condition of Borrowers or Guarantor or the ability of Borrowers and
Guarantor to perform obligations under this Agreement or any other Loan
Document.
6.10 Payment of Debt. Borrowers shall, and shall cause Guarantor
to, promptly pay and discharge (i) all of its Debt in accordance with the terms
thereof; (ii) all taxes, assessments, and governmental charges or levies imposed
upon it or upon its income and profits, upon any of its property, real, personal
or mixed, or upon any part thereof, before the same shall become in default;
(iii) all lawful claims for labor, materials and supplies or otherwise, which,
if unpaid, might become a lien or charge upon any Real Estate or, if the same
44
would have a Material Adverse Effect on Borrowers or Guarantor, against any
other property or any part thereof; provided, however, that so long as Borrowers
notify Agent in writing of their intention to do so, Borrowers and Guarantor
shall not be required to pay and discharge any such Debt, tax, assessment,
charge, levy or claim so long as the failure to so pay or discharge does not
constitute or result in an Event of Default and so long as the validity thereof
shall be contested in good faith by appropriate proceedings diligently pursued
and it shall have set aside on its books adequate reserves with respect thereto.
6.11 Consequential Damages. Neither Agent nor any Lender shall be
responsible or liable for any damages, consequential or otherwise, that may be
incurred or alleged by any Borrower or by any other Person as a result of any of
the Loan Documents or the exercise of right, remedy or discretion by Agent or
any Lender thereunder or the collection by or on behalf of Lenders the sums due
thereunder, unless such damages are incurred as a result of the gross negligence
or willful default hereunder or willful misconduct of Agent or such Lender.
6.12 Further Assurances. Borrowers agree to do such further acts
and things and to execute and deliver to Agent such additional assignments,
agreements, powers and instruments, as Agent may reasonably require or
reasonably deem advisable to carry into effect the purposes of this Agreement or
to better assure and confirm unto Agent and the Lenders their respective rights,
powers and remedies hereunder.
ARTICLE VII. NEGATIVE COVENANTS
In addition to the covenants contained in the Loan Documents, Borrowers
hereby covenant and agree that, so long as the Lenders have any obligation to
make Loans or issue Letters of Credit hereunder, or any Loan, Letter of Credit
Advance or Swing Line Loan is outstanding, Borrowers shall not, except as Agent
may otherwise advise Master Borrower in writing with the consent of Lenders in
accordance with Section 11.10.
7.1 Creation of Debt. Create, incur, assume or suffer to exist, or
permit Guarantor to create, incur, assume or suffer to exist, any Debt except
Permitted Debt.
7.2 Grant of Liens. Grant, or permit to exist, any lien on any
Project or on any other asset (whether real or personal) of a Borrower or
Guarantor, other than Permitted Liens.
7.3 Mergers and Acquisitions.
7.3.1 Merge or consolidate with, or acquire all or
substantially all of the assets or the business of, any Person (or permit
Guarantor so to merge, consolidate or acquire), unless (i), if such merger or
consolidation is a stock acquisition, those Persons who are shareholders of
Guarantor immediately prior to such transaction directly or indirectly have,
immediately after the consummation of the transaction, at least 51% of the
voting control of the surviving entity, (ii) Borrowers remain in compliance with
all covenants in this Agreement upon such merger, consolidation or acquisition,
(iii) unless otherwise agreed by Requisite Lenders, the Leverage Ratio of
Guarantor (after giving effect to such merger, consolidation or acquisition of
assets) is not greater than 1.50:1., and (iv) Master Borrower delivers to Agent,
at least ten (10) days before the consummation of the proposed transaction, a
certificate signed by Guarantor's chief financial officer certifying such
45
continued compliance; provided, however, that the foregoing clause (iii) shall
not apply to the purchase of all or substantially all of the assets of a natural
person or of a single-purpose entity established for the sole purpose of
developing a single residential development, unless Agent determines, in good
faith, that such purchase is one of a series of related transactions with one
Person or group of affiliated Persons.
7.3.2 Sell, assign, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to any Person or permit
Guarantor to do any of the foregoing.
7.4 Transaction With Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate which is not a Borrower,
Guarantor, or a subsidiary of either, including, without limitation, the
purchase, sale, or exchange of property or the rendering of any service, except
(a) in the ordinary course of or pursuant to the reasonable requirements of
Borrowers' Business, and (b) after giving effect to such transaction, Borrowers
remain in compliance with all covenants in this Agreement.
7.5 Use of Proceeds. Directly or indirectly, use any part of such
proceeds for the purpose of purchasing or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
or to extend credit to any person for the purpose of purchasing or carrying any
such margin stock, or for any purpose which violates, or is inconsistent with,
Regulation X of the Board of Governors of the Federal Reserve System.
ARTICLE VIII. FINANCIAL COVENANTS
So long as the Obligations shall remain unpaid or Lenders have any
obligation to make Loans or issue Letters of Credit hereunder, Borrowers shall
comply with the following covenants:
8.1 Adjusted EBITDA. As of the last day of each Fiscal Quarter,
the ratio of Guarantor's Adjusted EBITDA to Debt Service for the Relevant
Accounting Period then ended shall be not less than 2.25:1.
8.2 Consolidated Adjusted Tangible Net Worth. Guarantor shall
maintain a minimum Consolidated Adjusted Tangible Net Worth that at all times is
equal to an amount not less than the sum of (i) $140,000,000 plus (ii) an amount
equal to fifty percent (50%) of the net income of Guarantor earned during each
Fiscal Quarter that ends on or after the date of this Agreement plus (iii) all
of the net proceeds of equity securities issued by Guarantor or any of its
subsidiaries after the date hereof.
8.3 Leverage.
8.3.1 As of the last day of each Fiscal Quarter that ends
on or before June 30, 2006, Guarantor's Leverage Ratio shall not exceed 3.25:1.
8.3.2 As of the last day of each Fiscal Quarter that ends
after June 30, 2006, Guarantor's Leverage Ratio shall not exceed 3.00:1.
46
8.3.3 As of the last day of each Fiscal Quarter that ends
on or after the Collateral Release Date, Guarantor's Leverage Ratio shall not
exceed 2.25:1.
8.4 Investments in Joint Ventures. The aggregate value of
Guarantor's and Borrowers' investments in Joint Ventures or in any other entity
that is not directly or indirectly wholly-owned by Guarantor shall at no time
exceed fifteen (15%) percent of Guarantor's Consolidated Tangible Net Worth.
8.5 Ownership of Land.
8.5.1 At no time prior to June 30, 2006 shall either (i)
the aggregate book value of Approved Land owned by Borrowers, Guarantor or any
subsidiary of a Borrower or Guarantor exceed thirty percent (30%) of Guarantor's
Consolidated Tangible Net Worth or (ii) the ratio of (a) the book value of all
land owned by Borrowers, Guarantor or any subsidiary of a Borrower or Guarantor
which is not subject to a Qualifying Agreement of Sale and on which no Unit has
been constructed or is being constructed to (b) Guarantor's Consolidated
Tangible Net Worth exceed 1.75:1.
8.5.2 At no time on or after June 30, 2006 and prior to the
Collateral Release Date shall either (i) the aggregate book value of Approved
Land owned by Borrowers, Guarantor or any subsidiary of a Borrower or Guarantor
exceed thirty percent (30%) of Guarantor's Consolidated Tangible Net Worth or
(ii) the ratio of (a) the book value of all land owned by Borrowers, Guarantor
or any subsidiary of a Borrower or Guarantor which is not subject to a
Qualifying Agreement of Sale and on which no Unit has been constructed or is
being constructed to (b) Guarantor's Consolidated Tangible Net Worth exceed
1.50:1.
8.5.3 At no time on or after the Collateral Release Date
shall either (i) the aggregate book value of Approved Land owned by Borrowers,
Guarantor or any subsidiary of a Borrower or Guarantor exceed twenty-five
percent (25%) of Guarantor's Consolidated Tangible Net Worth or (ii) the ratio
of (a) the book value of all land owned by Borrowers, Guarantor or any
subsidiary of a Borrower or Guarantor which is not subject to a Qualifying
Agreement of Sale and on which no Unit has been constructed or is being
constructed to (b) Guarantor's Consolidated Tangible Net Worth exceed 1.25:1.
8.6 Units in Inventory. At no time shall the aggregate number of
Units (whether completed or under construction) owned by Borrowers, Guarantor or
any subsidiary of Guarantor and not subject to a Qualifying Agreement of Sale
exceed thirty percent (30%) of the total number of Units sold and settled by
Borrowers, Guarantor and all subsidiaries of Guarantor during the immediately
preceding four (4) Fiscal Quarters.
8.7 Reports Regarding Financial Covenants. Within fifty (50) days
following the end of each Fiscal Quarter, Borrowers shall submit to Agent a
Covenant Compliance Certificate, in the form attached hereto as Exhibit 8.7 and
executed by the chief financial officer of Guarantor, confirming that the
Borrower is in compliance with the financial covenants of this Article VIII as
of the dates provided herein for compliance.
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ARTICLE IX. EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an Event of
Default hereunder:
9.1 The failure of Agent to receive from Borrowers payment of any
sum as required pursuant to this Agreement or any other Loan Document within ten
(10) days after the same is payable, provided that the failure of Borrowers to
pay the entire Indebtedness to Agent on the Maturity Date shall be an immediate
Event of Default, without notice.
9.2 The failure of Borrowers to observe or perform any promise,
covenant, warranty, obligation, representation or agreement in this Agreement or
in any other Loan Document, or in any other document evidencing or securing any
of the Obligations or the repayment thereof (and not specifically addressed in
the other Sections of this Article IX), within twenty (20) days after written
notice from Agent; provided that the notice and cure period contained in this
Section 9.2 shall not apply to the breach of any covenant or obligation
contained in Sections 3.4, 6.5, 7.1, 7.2, or 7.3 or in Article VIII, or to any
other failure that, by its nature, is not susceptible to being cured by
Borrowers or Guarantor.
9.3 Any assignment for the benefit of the creditors of Borrower,
the filing of any other proceedings by Borrower or by any other person or entity
rendering Borrower or any of the Real Estate subject to a proceeding in
insolvency or in bankruptcy, either for liquidation or for reorganization (and
in the case of an involuntary proceeding under the Bankruptcy Code, the failure
to have same dismissed prior to the entry of an Order for Relief); or if
Borrower shall become insolvent or unable to pay debts as they mature.
9.4 The dissolution or reorganization of Borrower.
9.5 The (i) entry of a judgment or judgments against Borrower at
any time (a) in an aggregate amount that is at least $500,000 in excess of
insurance proceeds available to Borrower with respect to such judgment or
judgments, if such judgment or judgments are not dismissed or bonded within
thirty (30) days or (b) that prevents Borrower from conveying Lots and Units in
the ordinary course of business if such judgment or judgments are not dismissed
or bonded within thirty (30) days, or (ii) issuance of any writs of attachment,
execution or garnishment against Borrower.
9.6 The furnishing to Agent or any Lender, heretofore or
hereafter, by or on behalf of Borrower of materially false information, or the
refusal by Borrower to hereafter provide material information to Agent upon
request.
9.7 If any signature, certificate, opinion, financial statement or
other information heretofore or hereafter furnished or made by Borrower to Agent
or the Lenders shall prove to be false, incorrect, incomplete or misleading in
any material respect on or as of the date furnished, made or deemed made.
9.8 Any material adverse change in the financial condition of
Borrower which causes Requisite Lenders, in good faith, to believe that
performance of any of the Obligations herein is impaired or doubtful for any
reason whatsoever.
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9.9 Any warranty or representation by Borrower contained in this
Agreement or in any other Loan Document is now or hereafter materially false or
incorrect when made or deemed made.
9.10 Subject to any applicable grace or cure period therein
contained, the occurrence of any "Event of Default" as defined in or occurring
under any Loan Document.
9.11 The occurrence of any default under the terms of any note or
other instrument that evidences Permitted Subordinated Debt, which default
continues beyond any applicable cure period contained therein.
For purposes of this Article IX, the term "Borrower" shall include (i)
each Person that is then included in the definition of "Borrower" contained in
this Agreement and (ii) for purposes of Sections 9.3 through 9.8, inclusive,
also Guarantor.
ARTICLE X. REMEDIES
10.1 Remedies of Lenders. Upon the occurrence of an Event of
Default hereunder and the completion of any applicable grace or cure period, and
during continuance of such Event of Default, (i) with the consent of Requisite
Lenders Agent may and (ii) upon the request of Requisite Lenders Agent shall, by
notice to Master Borrower on behalf of the Lenders, and with respect to
Section 10.1.3 each individual Lender may, exercise all or any of the following
remedies, all of which rights and remedies shall be cumulative:
10.1.1 Demand immediate payment in full of all Indebtedness,
whereupon the same shall be immediately due and payable.
10.1.2 Immediately terminate Lenders' obligations to make
any Loans or to issue any Letters of Credit or Tri-Party Agreements hereunder
and Swing Line Lender's obligation to make Swing Line Loans.
10.1.3 Set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by any Lender to
or for the credit or the account of any Borrower, irrespective of whether Agent
or Lenders shall have made any demand under this Agreement, the Line of Credit
Notes, the Swing Line Note or any other Loan Document and although such
obligations may be unmatured (which rights of the Lenders are in addition to
other rights and remedies, including, without limitation, other rights of
setoff, which the Lenders may have). All net funds recovered under the rights
provided in this Section 10.1.3 shall be recovered by Lenders as agent for the
other Lenders and shall be distributed among Lenders according to their Pro Rata
Share. Each Lender shall be an agent of all other Lenders for purposes of rights
of set-off.
10.1.4 Exercise its rights or remedies granted herein, or
under applicable law, or which it may otherwise have under any other Loan
Document, against Borrowers or against Guarantor.
10.1.5 Notwithstanding anything to the contrary contained in
this Section 10.1, upon the occurrence with respect to Guarantor of any event
describe in Section 9.3, the entire Indebtedness shall be immediately due and
49
payable and Lenders' obligations to make Loans or to issue Letters of Credit or
Tri-Party Agreements and Swing Line Lender's obligation to make Swing Line
Loans, shall automatically and immediately terminate, without notice from Agent
or any Lender.
10.2 Effect of Delay. Neither failure nor delay on the part of
Agent or the Lenders to exercise any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
10.3 Acceptance of Partial Payment. The acceptance by the Lenders
of any partial payments of Loans, Letter of Credit Advances or Swing Line Loans
made by any Borrower after the occurrence of an Event of Default hereunder, or
the advance of any additional funds or the issuance of a Letter of Credit or
execution of a Tri-Party Agreement at any such time, shall not be deemed a
waiver by the Lenders of such Event of Default unless expressly agreed in
writing by the Agent.
10.4 Other Available Remedies. The enumeration of the rights and
remedies of the Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Agent and the Lenders of any
right or remedy shall not preclude the exercise of any other rights or remedies,
all of which shall be cumulative, and shall be in addition to any other right or
remedy given hereunder or under any other Loan Documents or that may now or
hereafter exist in law or in equity or by suit or otherwise.
10.5 Waiver of Marshalling of Assets. To the fullest extent
permitted by law, each Borrower, for itself and its successors and assigns,
waives all rights to a marshalling of the assets of Borrowers and others with
interests in any Borrower, and of the Projects, or to a sale in inverse order of
alienation in the event of foreclosure of all or any of the Mortgages, and
agrees not to assert any right under any laws pertaining to the marshalling of
assets, the sale in inverse order of alienation, homestead exemption, the
administration of estates of decedents, or any other matters whatsoever to
defeat, reduce or affect the right of Agent or Lenders under the Loan Documents
to a sale of the Projects for the collection of the Indebtedness without any
prior or different resort for collection or of the right of Lenders to the
payment of the Indebtedness out of the net proceeds of the Projects in
preference to every other claimant whatsoever. In addition (but subject to any
applicable statute or law governing deficiencies remaining after the sale of any
collateral), each Borrower, for itself and its successors and assigns, waives in
the event of foreclosure of any or all of the Mortgages, any equitable right
otherwise available to any Borrower which would require the separate sale of the
Projects or require Agent to exhaust its remedies against any individual or any
combination of the Projects before proceeding against any other Project or
combination of Projects; and further in the event of such foreclosure each
Borrower hereby expressly consents to and authorizes, at the option of Agent,
the foreclosure and sale either separately or together of any combination of the
Projects, to the extent permitted by any applicable statute or law.
10.6 Waiver of Counterclaim. Each Borrower hereby waives the right
to assert a counterclaim, other than a mandatory or compulsory counterclaim, in
any action or proceeding brought against it by Agent or Lenders.
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ARTICLE XI. THE AGENT
11.1 Appointment. Each of the Lenders hereby irrevocably designates
and appoints Agent as agent of such Lender under this Agreement and the other
Loan Documents for the term hereof and each such Lender irrevocably authorizes
Agent, as agent for such Lender, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Agreement and such other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement or such other Loan Documents, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Agent. Any reference to the Agent in this Article XI
shall be deemed to refer to the Agent solely in its capacity as Agent and not in
its capacity as a Lender.
11.2 Delegation of Duties. Agent may execute any of its respective
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely on advice of counsel concerning
all matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by Agent
with reasonable care.
11.3 Exculpatory Provisions. Neither Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, subsidiaries or affiliates
shall be (i) liable for any action taken or omitted to be taken by it or such
Person under or in connection with this Agreement or the other Loan Documents
(except for actions occasioned solely by its or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for (a) any recitals, statements, representations or warranties made
by Borrowers or any officer thereof contained in this Agreement or the other
Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by Agent under or in connection
with, this Agreement or the other Loan Documents or, (b) the satisfaction of any
condition specified herein, other than receipt of items required to be delivered
to Agent, or (c) for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents, or
(d) for any failure of Borrowers or Guarantor to perform their obligations
hereunder or thereunder. Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of Borrowers or Guarantor. Agent shall have no duty
to disclose to Lenders information that is not required to be furnished by
Borrowers or Guarantor to Agent at such time, but is voluntarily furnished by
any Borrower or Guarantor to Agent in its individual capacity.
11.4 Reliance by Agent. Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrowers), independent accountants and other
experts selected by Agent. Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless such Note shall have been transferred
51
in accordance with Section 13.9 hereof. Agent shall be fully justified in
failing or refusing to take any action under this Agreement and the other Loan
Documents unless it shall first receive such advice or concurrence of the
Requisite Lenders (or, when expressly required hereby or by the relevant other
Loan Document, all the Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action except for its own gross negligence or willful misconduct. Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the Notes in accordance with a request of the Requisite
Lenders (or, when expressly required hereby, all the Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
11.5 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact, subsidiaries or affiliates has made any
representations or warranties to it and that no act by Agent hereinafter taken,
including any review of the affairs of the Borrowers, Guarantor or any of their
respective Affiliates, shall be deemed to constitute any representation or
warranty by Agent to any Lender. Each Lender represents to Agent that it has,
independently and without reliance upon Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of Borrowers, Guarantor and
their respective Affiliates and made its own decision to make Loans and Line of
Credit Advances, to participate in Swing Line Loans and to enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of Borrowers, Guarantor and
their respective Affiliates. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by Agent hereunder or by the
other Loan Documents, Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrowers, Guarantor or any of their respective Affiliates which may come into
the possession of Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact, subsidiaries or affiliates.
11.6 Indemnification. Lenders agree to reimburse and indemnify
Agent (in its capacity as Agent but not as a Lender) ratably in proportion to
their respective Commitments (i) for any amounts (but excluding syndication
expenses) not reimbursed by Borrowers for which Agent is entitled to
reimbursement by Borrowers under the Loan Documents (and without limiting the
obligation of Borrowers to pay such reimbursement), including reasonable
out-of-pocket expenses in connection with the preparation, execution, delivery
of the Loan Documents, (ii) for any other reasonable out-of-pocket expenses
incurred by Agent, on behalf of Lenders, in connection with the administration
and enforcement of the Loan Documents and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes) be imposed on, incurred by or asserted against Agent in any way
52
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by Agent under or
in connection with any of the foregoing; provided that no Lender shall be liable
for any of the foregoing to the extent they arise from (a) the gross negligence
or willful misconduct of Agent or (b) a dispute which is solely between Agent
and one or more Lenders in which the other Lender prevails, or (c) an action
taken or not taken by Agent contrary to the express requirements contained
herein pertaining to the requisite number of Lenders required to approve or
direct certain actions or contrary to the instructions received from such
Lenders. The obligations of Lenders under this Section 11.6 shall survive
payment of the Indebtedness and termination of this Agreement. Each Lender
shall, within ten (10) Business Days after a written demand therefor accompanied
with a description of the amounts payable, contribute its respective Pro-Rata
Share of the out-of-pocket costs and expenses incurred by Agent in accordance
with the terms of this Agreement, including, but not limited to, fees of
receivers or trustees, court costs, title company charges, filing and recording
fees, appraisers' fees and reasonable fees and expenses of attorneys.
11.7 Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN OR IN ANY OF THE LOAN DOCUMENTS, NEITHER AGENT NOR ANY LENDER
SHALL BE RESPONSIBLE OR LIABLE TO ANY LENDER OR TO AGENT FOR ANY PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
11.8 Agent in Its Individual Capacity. Agent and its respective
subsidiaries and affiliates may make loans to, accept deposits from and
generally engage in any kind of business with Borrowers as though Agent were not
an Agent hereunder. With respect to any Loans, Letter of Credit Advances and
Swing Line Loans made or renewed by it and any Line of Credit Note or Swing Line
Note issued to it, the Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include Agent in its individual capacity.
11.9 Resignation or Removal of Agent as Administrative Agent.
Subject to the appointment and acceptance of a successor administrative agent as
provided below, (i) Agent may resign at any time by giving sixty (60) days'
written notice thereof to Lenders and Master Borrower, and (ii) Agent may be
removed at any time by Requisite Lenders with cause, if it is reasonably
determined by Requisite Lenders that Agent has failed, and continues to fail, in
the administration of the Facility in accordance with customary practices for
similar credit facilities. Upon any such resignation or removal, Requisite
Lenders shall have the right to appoint a successor Agent, subject to the
approval of Borrowers, which approval shall not be unreasonably withheld or
delayed; provided, however, that no such approval of Borrowers shall be required
if an Event of Default is in existence. If no successor administrative agent
shall have been so appointed by Requisite Lenders and shall have accepted such
appointment within sixty (60) days after the retiring Agent's notice of
resignation or the Requisite Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of Lenders, appoint a successor administrative
agent, subject to the approval of Borrowers, which approval shall not be
unreasonably withheld or delayed; provided, however, that no such approval of
53
Borrowers shall be required if an Event of Default is in existence. Any
successor administrative agent shall be a Lender which has a combined capital
and surplus of at least $250,000,000.00. Upon the acceptance of any appointment
as Agent hereunder by a successor administrative agent, such successor
administrative agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article XI shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent
hereunder.
11.10 Amendments, Waivers and Consents. Except as set forth below,
any term, covenant, agreement or condition of this Agreement or any of the other
Loan Documents may be amended or waived by the Lenders, and any consent given by
the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Requisite Lenders (or by Agent with the consent of the Requisite
Lenders) and delivered to Agent and, in the case of an amendment, signed by the
Borrowers; provided, that without the prior written consent of each Lender no
amendment, waiver or consent shall: (i) increase the Facility Amount, the
Revolving Sublimit or the Letter of Credit Sublimit, (ii) postpone the Maturity
Date or change the date on which any monthly payment of interest is due; (iii)
reduce the Interest Rate payable on any Loan or Letter of Credit Advance, or any
Loan Fee; (iv) amend the "Advance Rate" percentage set forth in the chart that
is part of Section 3.3; (v) permit any assignment (other than as specifically
permitted or contemplated in this Agreement) of any of the Borrowers' rights and
obligations hereunder; (vi) release Guarantor; (vii) release any Collateral or
consent to the transfer, pledge, mortgage or assignment of any Collateral, other
than as specifically provided in this Agreement; or (viii) amend the provisions
of this Section 11.10, the definition of Requisite Lenders or any other
provision of this Agreement specifying the number or percentage of Lenders
required to (a) amend, waive or otherwise modify any rights of Lenders
hereunder, (b) make any determination that is to be made by Lenders or (c) grant
any consent that is required to be obtained from Lenders. In addition, no
amendment or waiver of the provisions of Article XI shall be made without the
written consent of Agent and no Lender's Commitment may be increased without
such Lender's consent.
11.11 Authority.
11.11.1 Agent, as described herein, shall have all rights
with respect to collection and administration of the Indebtedness, the security
therefor and the exercise of remedies with respect thereto, except, to the
extent otherwise expressly set forth herein. Lenders agree that Agent shall make
all determinations as to whether to grant or withhold approvals or consents
under the Loan Documents and as to compliance with the terms and conditions of
the Loan Documents, except to the extent otherwise expressly set forth therein
or herein. Agent will simultaneously deliver to Lenders copies of any default
notice sent to Borrowers under the terms of the Loan Documents and will promptly
provide to Lenders copies of any other material notices.
11.11.2 As to any matters which are subject to the consent of
any or all of Lenders, as set forth in this Agreement, Agent shall not be
permitted or required to exercise any discretion or to take any action except
upon the receipt of the written consent to such action by Lenders holding the
required Pro-Rata Shares, which written instructions shall be binding upon
54
Lenders. Notwithstanding anything contained herein to the contrary, it is
understood and agreed that Lenders' right to consent to or disapprove any
particular matter shall be limited to the extent that Lenders' or Agent's rights
to consent to or disapprove of such matter are limited in the Loan Documents.
Subject to the foregoing limitations, each Lender hereby appoints and
constitutes Agent as its agent with full power and authority to exercise on
behalf of such Lender any and all rights and remedies which such Lender may have
with respect to, and to the extent necessary under applicable law for, the
enforcement of the Loan Documents, including the right to exercise, or to
refrain from exercising, any and all remedies afforded to such Lender by the
Loan Documents or which such Lender may have as a matter of law.
11.12 Borrower Default. Agent shall not be deemed to have knowledge
of the occurrence of a default or an Event of Default (other than the nonpayment
of principal of or interest on the Loans, Letter of Credit Advances or Swing
Line Loans) unless Agent has received notice from a Lender, a Borrower or
Guarantor specifying such default or Event of Default and stating that such
notice is a "Notice of Default". In the event that Agent receives such a notice
of the occurrence of a default or an Event of Default, Agent shall give prompt
notice thereof to Lenders. Agent shall give each Lender prompt notice of each
nonpayment of principal of or interest on the Loans, Letter of Credit Advances
or Swing Line Loans, whether or not Agent has received any notice of the
occurrence of such nonpayment. Agent shall (subject to Section 11.10) take such
action hereunder with respect to such default or Event of Default as shall be
directed by Requisite Lenders, provided that, unless and until Agent shall have
received such directions, Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such default or
Event of Default as it shall deem advisable in the best interests of Lenders,
including, without limitation, continuing to make Loans.
11.13 Lender Default. If any Lender (a "DEFAULTING LENDER") fails to
fund its Pro Rata Share of any Loan or Letter of Credit Advance on or before the
time required pursuant to this Agreement, or fails to pay Agent, within twenty
(20) days of demand (which demand shall be accompanied by invoices or other
reasonable back up information demonstrating the amount owed) for such Lender's
Pro Rata Share of any out-of-pocket costs, expenses or disbursements incurred or
made by Agent pursuant to the terms of this Agreement (the aggregate amount
which the Defaulting Lender fails to pay or fund is referred to as the
"Defaulted Amount"), then, in addition to the rights and remedies that may be
available to the other Lenders (the "Non-Defaulting Lenders") at law and in
equity:
11.13.1 The Defaulting Lender's right to participate in the
administration of the Loan and the Loan Documents, including without limitation,
any rights to vote upon, consent to or direct any action of Agent or Lenders
shall be suspended and such rights shall not be reinstated unless and until such
default is cured (and all decisions, except the decision to remove Agent, which
are subject to receiving a vote of a required percentage of Lenders shall be
approved if voted in favor of by the required percentage of the Non-Defaulting
Lenders), provided, however, that if Agent is a Defaulting Lender, Agent shall
continue to have all rights provided for in this Agreement with respect to the
administration of the Loan, unless Requisite Lenders vote to remove and replace
such Agent as provided in Section 11.9.
11.13.2 Any or all of the Non-Defaulting Lenders shall be
entitled (but shall not be obligated) to fund the Defaulted Amount, and collect
interest at the Default Rate on the Defaulted Amount from the Defaulting Lender
(after crediting all interest actually paid by Borrower on the Defaulted Amount
from time to time) from amounts otherwise payable to the Defaulting Lender for
the period from the date on which the payment was due until the date on which
payment is made.
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11.13.3 In the event the Defaulted Amount is funded by any
Non-Defaulting Lenders pursuant to Section 11.13.2, the Defaulting Lender's
interest in the Loans and Letter of Credit Advances and the Loan Documents and
proceeds thereof shall be subordinated to any Defaulted Amount funded by any
Non-Defaulting Lenders pursuant to Section 11.13.2 plus interest which may be
due in accordance with Section 11.13.2, to be applied pari passu among the
Non-Defaulting Lenders funding the Defaulted Amount), without necessity for
executing any further documents, provided that such Defaulting Lender's interest
in the Loans and the Loan Documents and the proceeds thereof shall no longer be
so subordinated if the Defaulted Amount funded by the Non-Defaulting Lenders
(and all interest which has accrued pursuant to Section 11.13.2) shall be repaid
in full.
11.13.4 To achieve such subordination, (i) Agent shall deduct
from the interest due to the Defaulting Lender on its subordinated interest in
the Loans and Letter of Credit Advances the excess of interest on the Defaulted
Amount at the rate specified in Section 11.13.2 over the interest actually
received from Borrower by the Non-Defaulting Lenders which funded the Defaulted
Amount on account of their portion of the Defaulted Amount for the same time
period and (ii) all amounts received by Agent on account of principal (or
reimbursement for amounts otherwise advanced) which would otherwise be payable
to the Defaulting Lender shall be paid pari passu to the Non-Defaulting Lenders
until the Defaulted Amount and all interest thereon has been repaid in full.
11.13.5 Agent or any Lender shall have the right, with
Agent's consent and in Agent's sole discretion (but shall have no obligation) to
purchase from any Defaulting Lender, and such Defaulting Lender agrees that it
shall, upon Agent's request, sell and assign to Agent or such Lender or Lenders,
all of the Commitment of such Defaulting Lender for an amount equal to the
principal balance of the Note held by the Defaulting Lender and all accrued
interest and fees, less any amounts due from the Defaulting Lender with respect
thereto through the date of sale, such purchase and sale to be consummated
pursuant to an executed Assignment and Assumption Agreement.
Nothing contained in this Section 11.13 shall be deemed or
construed to waive, diminish or limit, or prevent or estop any Lender from
exercising or enforcing, any rights or remedies which may be available at law or
in equity as a result of or in connection with any default under this Agreement
by a Lender. In addition, no Lender shall be deemed to be a Defaulting Lender if
such Lender refuses to fund its Pro Rata Share of any Loan or Letter of Credit
Advance being made after any bankruptcy related Event of Default hereof due to
the lack of bankruptcy court approval for such Advance.
11.14 Ratable Sharing. The Lenders, by acceptance of a Note, agree
among themselves that with respect to all amounts received by them which are
applicable to the payment of or reduction of a proportion of the aggregate
amount of principal and interest due with respect to the Notes held by any
Lender (whether as a result of the enforcement of any Loan Document or on
foreclosure of any banker's or other lien or any setoff or other claim on or
against any deposit or other balance of any Borrower or Guarantor held by any
Lender) which is greater than the proportion received by any other holder of
56
a Note in respect to the aggregate amount of principal and interest due with
respect to the Notes held by it, or any other amount payable hereunder, such
Lender or such holder of a Note receiving such proportionately greater payments
shall notify each other Lender and Agent of such receipt and remit to them such
amounts as are necessary so that all such recoveries of principal and interest
with respect to the Notes shall be proportionate to the Lenders' respective Pro
Rata Shares. If any Lender or holder of a Note receiving such proportionately
greater payments is required to return such proportionately greater payment to
any trustee, receiver or other representative of or for any Borrower upon or by
reason of the bankruptcy, insolvency, reorganization or dissolution of such
Borrower, then such other Lender(s) which received its or their Pro Rata Share
of such proportionately greater payment must also return such amounts to the
appropriate Borrower as if such payment or payments from the Lender receiving
such proportionately greater payments had not been made. If at the time that the
provisions of this Section 11.14 are applied there is any Swing Line Loan
outstanding, each Lender's Pro Rata Share shall be appropriately adjusted to
reflect the existence of such Swing Line Loan and shall be based on such
Lender's proportionate share of all then-outstanding Indebtedness.
11.15 Documentation. Agent shall deliver to any Lender, in addition
to the information required to be delivered by Agent to Lenders pursuant to this
Agreement, copies of such Loan Documents now or hereafter executed by Borrowers
or Guarantor and other documents delivered by Borrowers to Agent, promptly after
receipt of a written request therefore.
ARTICLE XII. PARTICIPATION BY LENDERS IN SWING LINE LOANS.
12.1 Purchase and Sale of Participation. In the event that any
Swing Line Loan is not paid in full on or before the third (3rd) Business Day
after the Swing Line Loan was made (either by Borrowers or by the application of
the proceeds of a Loan), Swing Line Lender shall give notice thereof to each
Lender and, effective upon delivery of such notice and without any further act
by any party, Swing Line Lender shall be deemed to have sold to each Lender, and
each Lender shall be deemed to have purchased from Swing Line Lender, an
undivided participation interest in such Swing Line Loan in the amount thereof
that is equal to the purchasing Lender's Pro Rata Share. If Swing Line Lender's
notice to the other Lenders is delivered before 2:00 p.m. on a Business Day, the
purchasing Lenders shall pay to Agent, by wire transfer of funds to the account
specified in Section 2.12.3.2 above on or before 4:00 p.m. on such day, the
purchasing Lender's Pro Rata Share of the subject Swing Line Loan. If Swing Line
Lender's notice is delivered to the other Lenders after 2:00 p.m., such payment
by the purchasing Lenders shall be made on the next Business Day after delivery
of such notice. The date on which such payment is due by the purchasing Lenders
is referred to herein as the "Participation Date." The sale by Swing Line Lender
of each participation interest in each subject Swing Line Loan shall be without
recourse or warranty in any event, except that Swing Line Lender warrants that
it shall hold unencumbered title to each interest in a Swing Line Loan that is
sold pursuant to this Section 12.1.
12.2 Sharing of Interest and Expenses. All interest paid by
Borrowers with respect to a participated Swing Line Loan on account of the
period prior to the relevant Participation Date, regardless of when such payment
is received, shall be retained by Swing Line Lender. All other payments of
interest and payments of principal received by Swing Line Lender shall be
allocated to the Lenders in accordance with their respective Pro Rata Shares and
shall be paid over to the participating Lenders at the times and in the
57
manner provided in Section 2.6. with respect to Loans. All costs incurred by
Swing Line Lender that, had they been incurred by Agent or the Lenders with
respect to a Loan would be Lenders' Costs, shall also be Lenders' Costs and
shall be payable by Borrowers as elsewhere provided in this Agreement.
12.3 Assignment of Participation Interests. No Lender may assign to
any Person such Lender's participation interest in any Swing Line Loan, except
that if a Lender assigns to an Eligible Investor such Lender's entire interest
in the Facility and the Loan Documents in accordance with the terms of this
Agreement, such Lender shall, concurrently with such assignment, assign to such
Eligible Investor all of the assigning Lender's right, title and interest in, to
and under the assigning Lender's interests in all Swing Line Loans.
12.4 Administration of Swing Line Loans. Agent shall administer, in
accordance with the terms, all Swing Line Loans that are subject to
participation interests as provided in this Article XII. The enforcement of each
such participated Swing Line Loan shall be governed by the provisions of
Article XI.
ARTICLE XIII. MISCELLANEOUS
13.1 Modifications. Modifications, waivers or amendments of or to
the provisions of this Agreement or any other Loan Document shall be effective
only if set forth in a written instrument signed by each of the parties to the
subject document.
13.2 Binding Nature. The rights and privileges of Agent and Lenders
contained in this Agreement shall inure to the benefit of their respective
successors and permitted assigns, and the duties of the Borrowers shall bind all
successors and permitted assigns. All agreement, representations, warranties and
covenants made by the Borrowers herein or in any of the other Loan Documents
shall survive the execution and delivery of this Agreement and all other
documents referred to herein and shall be continuing as long as any portion of
any Indebtedness owed to Lenders hereunder shall remain outstanding and unpaid.
13.3 Governing Law. This Agreement and all of the other Loan
Documents shall in all respects be governed by the laws of the Commonwealth of
Pennsylvania. This Agreement and all of the other Loan Documents shall be
construed as if drafted equally by all parties hereto.
13.4 Time of Performance. Time of performance hereunder is of the
essence of this Agreement.
13.5 Severability. If any provision hereof shall for any reason be
held invalid or unenforceable, no other provision shall be affected thereby, and
this Agreement shall be construed as if the invalid or unenforceable provision
had never been a part of it.
13.6 Captions. The descriptive headings hereof are for convenience
only and shall not in any way affect the meaning or construction of any
provision hereof.
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13.7 Computations. Except as otherwise expressly stated herein, all
computations required herein shall be made by the application of generally
accepted accounting principles and practices applied on a consistent basis.
13.8 Continuing Obligation. If any claim is ever made upon any
Lender for the repayment or return of any money or property received by such
Lender from any Borrower in payment of the Loan or any other Obligation and such
Lender repays or returns all or part of said money or property by reason of (i)
any judgment, decree or order of any court or administrative body having
jurisdiction over such Lender or any of its property or (ii) any settlement or
compromise of any such claim accomplished by such Lender with such claimant,
then in such event Borrowers agree that any such judgment, decree, settlement or
compromise shall be binding upon Borrowers, notwithstanding any termination
hereof or the cancellation of any note or other instrument evidencing any
liability to such Lender, and the Borrowers shall be and shall remain liable to
such Lender hereunder for the amount so repaid or the value of the property
returned to the same extent as if such had never originally been received by
such Lender. Borrowers agree that no Lender shall have any duty or affirmative
obligation to defend against such claim and may object to or pay such claim in
its sole discretion without impairing or relinquishing the obligations of
Borrowers hereunder. This Section 13.8 shall survive the termination of this
Agreement.
13.9 Assignment and Participation. Each Lender may, with the
consent of Borrowers (so long as no Default or Event of Default has occurred and
is continuing) and the consent of Agent, which consents shall not be
unreasonably withheld, delayed or denied, shall not be required if the assignee
is another Lender or is an Affiliate of the assigning Lender and, as to
Borrowers, shall be sufficiently given if given by Master Borrower alone on
behalf of all Borrowers, assign to one or more Eligible Investor all or a
portion of the assigning Lender's interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of the Loans and
Letter of Credit Advances at the time owing to it and the Line of Credit Note
held by it), provided that:
13.9.1.1 Each such assignment, if of less than
all of the assigning Lender's Commitment, shall not be less than $10,000,000
and, if greater, an integral multiple of $1,000,000.
13.9.1.2 If an assignment is of less than all of
the assigning Lender's Commitment, such Lender shall retain a commitment of at
least $10,000,000.
13.9.1.3 The parties to each such assignment
shall complete, execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit
13.9 attached hereto (an "Assignment and Acceptance"), together with the Line of
Credit Note subject to such assignment.
13.9.1.4 Such assignment shall not, without the
consent of the Borrowers, require any Borrower to file a registration statement
with the Securities and Exchange Commission or apply to or qualify the Loans or
the Line of Credit Note under the blue sky laws of any state.
59
13.9.1.5 Unless the assignee is an Affiliate of
the assigning Lender, the assigning Lender shall pay, or cause the assignee to
pay, to Agent an assignment fee of $3,500 upon the execution by such Lender of
the Assignment.
13.9.2 Upon execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five (5) Business Days after the
execution thereof, (i) the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereby, and (ii) the Lender thereunder shall, to the
extent provided in such assignment, be released from its obligations under this
Agreement. By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as set forth in such Assignment and
Acceptance.
13.9.3 Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders and the amount of the Loans and Letter of Credit
Advances with respect to each Lender from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and Borrowers, Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
Lender at any reasonable time and from time to time upon reasonable prior
notice.
13.9.4 Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Eligible Investor who has become an
assignee hereunder, together with the Line of Credit Notes subject to such
assignment and the written consent to such assignment, Agent shall, if such
Assignment and Acceptance has been completed:
13.9.4.1 Accept such Assignment and Acceptance;
13.9.4.2 Record the information contained therein
in the Register;
13.9.4.3 Give prompt notice thereof to the
Lenders and the Borrowers; and
13.9.4.4 Promptly deliver a copy of such
Assignment and Acceptance to Borrowers.
Within five (5) Business Days after receipt of notice, Master Borrower and each
other Borrower shall execute and deliver to the Agent, in exchange for the
surrendered Line of Credit Note, a new Note with all appropriate Joinders to the
order of such assignee in the amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and a new Line of Credit Note to the
order of the assigning Lender in the aggregate amount equal to the Commitment
(if any) retained by it hereunder. Such new Line of Credit Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Line of Credit Note, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
the Line of Credit Note previously delivered to the assigning Lender. The
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surrendered Line of Credit Note shall be canceled and returned to Master
Borrower.
13.9.5 Each Lender may sell participations to one or more
Eligible Investor in all or a portion of the selling Lender's rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Loans and Letter of Credit Advances and the Line of Credit Note
held by it); provided that:
13.9.5.1 Each such participation shall be in an
amount not less than $10,000,000;
13.9.5.2 Such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged;
13.9.5.3 Such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligation;
13.9.5.4 Such Lender shall remain the holder of
the Line of Credit Note held by it for all purposes of this Agreement;
13.9.5.5 Borrowers, Agent, and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement;
13.9.5.6 Such Lender shall not permit such
participant the right to approve any waivers, amendments or other modifications
to this Agreement or any other Loan Document other than waivers, amendments or
modifications which, by the terms of this Agreement, require the unanimous
approval of the Lenders.
13.9.6 Master Borrower may, by written notice to Agent and
any Rejecting Lender, elect to require such Rejecting Lender to assign all, or
any portion that is $10,000,000 or, if greater, an integral multiple of
$1,000,000, of such Rejecting Lender's Commitment to any Lender or, with the
consent of Agent (which consent shall not unreasonably be withheld, delayed or
denied), to another Eligible Investor. In such event, the portion of the
Rejecting Lender's Commitment so designated shall be assigned by the Rejecting
Lender to such Lender or Eligible Investor in accordance with this Section 13.9
within ten (10) Business Days after delivery of Master Borrower's notice to the
Rejecting Lender pursuant to this Section 13.9.6.
13.10 Notices. All notices or other communications required or
permitted to be made upon any party hereunder shall be in writing and sent by
(i) hand delivery or (ii) national overnight express courier with written
verification of actual delivery or (iii) first-class, United States mail,
postage prepaid, registered or certified with return receipt requested, or (iv)
when specifically permitted by the terms of this Agreement, facsimile
transmission or electronic transmission (e-mail). Such notice shall be delivered
or sent to the address set forth below or at such other address of which either
party shall have given the other by notice in writing in accordance with the
foregoing:
61
If to Master Borrower, any other
Borrower or Guarantor: c/o Orleans Homebuilders, Inc.
One Greenwood Square
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, CFO
Fax: 000-000-0000
E-mail: xxxxxxxxxxx@xxxxxxxxxxxx.xxx
with copies to: Xxxxxxxx X. Xxxxx, Esquire
c/o Orleans Homebuilders, Inc.
One Greenwood Square
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Fax: 000-000-0000
E-mail: xxxxxx@xxxxxxxxxxxx.xxx
and
Xxxxx X. Xxxxxxx, Esquire
Wolf Block Xxxxxx & Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: 000-000-0000
E-mail: xxxxxxxx@xxxxxxxxx.xxx
If to Agent (other than regarding Wachovia Bank, National Association
fundings): 000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx-Xxxxx, VP
Fax: 000-000-0000
E-mail: Xxxxx.Xxxxxxx-Xxxxx@xxxxxxxx.xxx
with copies to: Wachovia Bank, National Association
Mail Code VA 7391
X.X. Xxx 00000
Xxxxxxx, XX 00000
62
or
00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
and
Xxxxxxx X. Xxxxxxxxx, Esquire
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
E-mail: xxxxxxxxxx@xxxxxxxx.xxx
If to Agent regarding fundings: To Agent as provided in Section 2.12.2
If to Lenders:
Wachovia Bank, National Association
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx-Xxxxx,
Vice President
Fax: 000-000-0000
E-mail: xxxxx.xxxxxxx-xxxxx@xxxxxxxx.xxx
AmSouth Bank
0000 0xx Xxxxxx X., XXX/XXX-00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: 000-000-0000
E-mail: xxxxxxxxx@xxxxxxx.xxx
Comerica Bank
000 Xxxxxxxx Xxxxxx, XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: 000-000-0000
E-mail: XXXxxxxxx@Xxxxxxxx.xxx
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Compass Bank
15 So. 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx Xxxxx
Fax: 000-000-0000
E-mail: XXX@xxxxxxxxxx.xxx
Guaranty Bank
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
E-mail: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
National City Bank
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Fax: 000-000-0000
E-mail: Xxxxx.Xxxxxxxxx@xxxxxxxxxxxx.xxx
Sovereign Bank
Two Aldwyn Center
P. O. Xxx 000
Xxxxx 000 and Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: 000-000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxxx.xxx
US Bank National Association
000 X. XxXxxxx Xx, Xxx 000
MK-IL-RY4Q
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: 000-000-0000
E-mail: Xxxxx.xxxxx0@xxxxxx.xxx
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Citizens Bank of Pennsylvania
0000 Xxxxxx Xxxxxx 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxx
Fax: 000-000-0000
E-mail: Xxxxxxx.XxXxxxx@xxxxxxxxxxxx.xxx
SunTrust Bank
0000 Xxxxx Xxxxxxxxx 0xx Xxxxx
Xxxxxx, XX 00000
Attention: W. Xxxx Xxxxxxx
Fax: 000-000-0000
E-mail: xxxx.xxxxxxx@xxxxxxxx.xxx
Manufacturers and Traders Trust Company
000 Xxxxxxx Xx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
E-mail: Xxxxxxxx@xxxxxxxxx.xxx
Franklin Bank, SSB
000 X. Xxxxxxxxxx Xxxx, Xx. 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Fax: 000-000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
Firstrust Bank
00 X. Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Vice President
Fax: 000-000-0000
E-mail: xxxxx@xxxxxxxxx.xxx
Commerce Bank, National Association
000 X. XxXxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Fax: 000-000-0000
E-mail: xxxxx@xxxxxxx.xxx
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Bank of America, N.A.
0 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
E-mail: xxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
13.10.2 Notices given to Master Borrower shall be deemed to
have been given to all of the Borrowers, notwithstanding that any such notice is
addressed only to Master Borrower.
13.10.3 Notice sent by overnight courier or mailed in
accordance with the foregoing shall be effective three (3) Business Days
following deposit, or sooner upon receipt. Notice given in any other manner
permitted herein shall be effective only if and when received by the addressee.
13.10.4 Notice given to any party by the attorney for another
party shall constitute notice from such party (and the attorneys for each party
are hereby permitted to give such notice to each other party on behalf of their
client). Failure to provide copies of any notice to counsel as provided above
shall not invalidate or limit the effect of such notice.
13.11 Cumulative Remedies. The rights and remedies provided
hereunder are cumulative and not exclusive of any rights or remedies (including
without limitation, the right of specific performance) which Agent or Lenders
would otherwise have. Any waiver, consent or approval of any kind or character
on the part of Agent or Lenders of any Event of Default or breach of this
Agreement or any Loan Document or any such waiver of any provision or condition
hereof or thereof must be in writing, signed by Agent, and shall be effective
only to the extent in such writing specifically set forth. Borrowers acknowledge
that, with respect to this Agreement and its terms, Borrowers are neither
authorized nor entitled to rely on any representations, course of dealing,
modifications or assurances in any form as to any subject from any officer of
Agent unless and until such representations, modifications, course of dealing,
or assurances are set forth in writing and signed by such officer of Agent.
13.12 Third Party Beneficiaries. The parties do not intend the
benefits of this Agreement to inure to any third party. Notwithstanding anything
contained herein or in the Notes or any other Loan Document executed in
connection with this transaction, or any conduct or course of conduct by either
or both of the parties hereto, or their respective Affiliates, agents, or
employees, before or after the signing of this Agreement or any of the other
aforesaid Loan Documents, this Agreement shall not be construed as creating
66
any rights, claims, or causes of action against Agent or any Lender, or any of
their respective officers, directors, agents, or employees, in favor of any
person or entity other than Borrowers.
13.13 Prior Understandings. This Agreement and the Loan Documents
supersede all prior understandings and agreements, whether written or oral,
between the parties hereto and thereto relating to the transactions provided for
herein or therein.
13.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
13.15 Indemnification.
13.15.1 Borrowers and, by its execution of the Guaranty,
Guarantor agree to indemnify and hold harmless Agent and Lenders and each of
their respective affiliates and each of their respective officers, directors,
employees, agents, advisors and representatives (each, an "INDEMNIFIED PARTY")
from and against any and all claims, damages, losses, liabilities and reasonable
expenses (including, without limitation, fees and disbursements of counsel),
joint or several, that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or relating
to any investigation, litigation or proceeding or the preparation of any defense
with respect thereto, arising out of or in connection with the Facility, any of
the Loan Documents or any of the transactions contemplated hereby or thereby, or
any use made or proposed to be made with the proceeds of the Facility, whether
or not such investigation, litigation or proceeding is brought by a Borrower,
Guarantor, any of its or their shareholders or creditors, an Indemnified Party
or any other Person, or an Indemnified Party is otherwise a party thereto,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
No Indemnified Party shall have any liability (whether direct
or indirect, in contract, tort or otherwise) to any Borrower, Guarantor or any
of its or their shareholders or directors for or in connection with the
transactions contemplated hereto, except to the extent such liability is found
in a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
13.15.2 Agent shall promptly give Borrowers written notice of
all suits or actions instituted against Lenders with respect to which Borrowers
have indemnified Lenders, and Borrowers shall timely proceed to defend any such
suit or action through counsel reasonably acceptable to Lenders. In the event
that Lenders determine in good faith that the subject action, if decided
adversely to Lenders' interest, would have a material adverse effect upon any
Lender, Lenders shall also have the right, at the expense of Borrowers, to
67
participate in or, at Lenders' election, assume the defense or prosecution of
such suit, action, or proceeding, and in the latter event Borrowers may employ
counsel and participate therein. Agent shall have the right to adjust, settle,
or compromise any claim, suit, or judgment after notice to Borrowers, unless
Borrowers desire to litigate such claim, defend such suit, or appeal such
judgment and simultaneously therewith deposit with Agent collateral security
sufficient to pay any judgment rendered, with interest, costs, legal fees and
expenses; and the right of Lenders to indemnification under this Agreement shall
extend to any money paid by Lenders in settlement or compromise of any such
claims, suits, and judgments in good faith, after notice to Borrowers.
13.15.3 If any suit, action, or other proceeding is brought
by Lenders against Borrowers for breach of Borrowers' covenant of indemnity
herein contained, separate suits may be brought as causes of action accrue,
without prejudice or bar to the bringing of subsequent suits on any other cause
or causes of action, whether theretofore or thereafter accruing.
13.15.4 The obligations of Borrowers and Guarantor under this
Section 13.15 shall survive the repayment of the Debt and termination of this
Agreement, and shall continue in full force and effect so long as the
possibility of such claim, action or suit exists. If, and to the extent that the
obligations of Borrowers or Guarantor under this Section 13.15 are unenforceable
for any reason, Borrowers and Guarantor hereby agree to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
13.16 Relationship of Parties. It is hereby acknowledged by Lenders
and Borrowers that the relationship between them created hereby and by the other
Loan Documents is that of creditor and debtor and is not intended to be and
shall not in any way be construed to be that of a partnership, a joint venture,
or principal and agent; and it is hereby further acknowledged that Agent's
disbursement of any Loan proceeds or Letter of Credit Advance to anyone other
than a Borrower shall not be deemed to make Agent or Lenders a partner, joint
venturer, or principal or agent of Borrowers, but rather shall be deemed to be
solely for the purpose of protecting Lenders' security for the Obligations. The
relationship between Agent and the Lenders is not intended by the parties to
create, and shall not create, any trust, joint venture or partnership relation
between or among them.
13.17 Joint and Several Liability. The liability of each Person that
is, or by reason of its execution of a Joinder hereafter becomes, a Borrower for
(i) the performance of this Agreement and of each of the other Loan Documents
and (ii) for payment of the Indebtedness shall be joint and several.
13.18 Publicity. Agent may, at its option and in such manner as it
may determine and which Master Borrower shall approve (such approval not to be
unreasonably withheld, delayed or conditioned), announce and publicize the
involvement of Agent and Lenders in the granting of the Facility.
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13.19 No Implied Waiver. No delay or failure of Agent or the Lenders
in exercising any right, power, or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise thereof or any abandonment or
discontinuance of steps to enforce such a right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.
13.20 Taxes. Borrowers agree to pay or cause to be paid any and all
stamp, document, transfer or recording taxes, and similar impositions payable or
hereafter determined to be payable in connection with the Notes, the Mortgages
or any other Loan Document, and agree to save Agent and the Lenders harmless
from and against any and all present or future claims or liabilities with
respect to, or resulting from, any delay in paying or omission to pay, any such
taxes or similar impositions.
13.21 Conflict; Construction of Documents; Reliance. In the event of
any conflict between the provisions of this Loan Agreement and any of the other
Loan Documents, the provisions of this Loan Agreement shall control; provided,
that any provision of the Loan Documents which imposes additional burdens on
Borrowers or further restricts the rights of Borrowers or gives the Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect. The parties hereto
acknowledge that they were represented by competent counsel in connection with
the negotiation, drafting and execution of the Loan Documents and that the Loan
Documents shall not be subject to the principle of construing their meaning
against the party which drafted them. Each Borrower acknowledges that it has
read the entirety of this Agreement and of every other Loan Document and that
Borrowers shall rely solely on their own judgment and on their legal counsel and
advisors in entering into the Facility and executing the Loan Documents, without
relying in any manner on any statements, representations or recommendations of
Agent or any Lender or any parent, subsidiary or Affiliate of Agent or of any
Lender, or of any employee, officer, agent or advisor of any of the foregoing
entities.
13.22 Jurisdiction. IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY LOAN
DOCUMENT OR THE RELATIONSHIP EVIDENCED HEREBY, BORROWERS HEREBY IRREVOCABLY
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURT OF COMMON PLEAS OF
PHILADELPHIA OR BUCKS COUNTY, PENNSYLVANIA, AND THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA. BORROWERS EXPRESSLY SUBMIT AND CONSENT
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH
COURT, AND BORROWERS HEREBY WAIVE ANY OBJECTION WHICH BORROWERS MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, OR FORUM NON CONVENIENS.
BORROWERS HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND ANY OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT, AND ANY OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
69
MAIL ADDRESSED TO BORROWERS AT THE ADDRESS SET FORTH ABOVE AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE PROVIDING OF NOTICE IN ACCORDANCE WITH
THE TERMS HEREOF. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT
THE RIGHTS OF AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW,
OR TO PRECLUDE THE ENFORCEMENT BY AGENT OR LENDERS OF ANY CLAIM, JUDGMENT OR
ORDER OBTAINED IN SUCH FORUM, OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT
OR OTHERWISE TO ENFORCE SAME, IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
13.23 Waiver of Jury Trial. BORROWERS, AGENT AND LENDER, AFTER
CONSULTATION WITH THEIR RESPECTIVE COUNSEL, EACH HEREBY WAIVE ANY RIGHT WHICH
THEY MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) COMMENCED BY OR AGAINST THEM OR ANY OF THEM IN ANY WAY ARISING OUT OF
OR RELATED TO THIS AGREEMENT, ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, OR IN ANY WAY PERTAINING TO THE FACILITY OR THE RELATIONSHIPS
EVIDENCED BY THIS AGREEMENT.
13.24 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
13.25 Entire Agreement. This Agreement, the other Loan Documents and
the Fee Letter referred to in Section 2.6.1 contain the entire agreement and
understanding among Borrowers, Lenders and Agent regarding the Facility. All
prior negotiations and discussions between or among any of the parties hereto
regarding the Facility and the terms and conditions thereof are superseded by
this Agreement, the other Loan Documents, and such Fee Letter. To the extent
that any Assigned Security Instrument secures a loan agreement that has been
assigned to Agent, such loan agreement shall be deemed to be merged into this
Agreement and, as such, amended and restated in full hereby.
70
IN WITNESS WHEREOF, the parties hereto have executed this Revolving
Credit Loan Agreement under seal the day and year set forth above.
Master Borrower: Greenwood Financial, Inc.,
a Delaware corporation
By: Xxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxx X. Xxxxxxxxxx
Vice President
Corporate Borrowers: Masterpiece Homes, Inc.
OHB Homes, Inc.
Orleans Corporation
Orleans Corporation of New Jersey
Orleans Construction Corp.
Xxxxxx & Xxxxxxxxx Corporation
Xxxxxx & Orleans Homebuilders, Inc.
Sharp Road Farms, Inc.
By: Xxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxx X. Xxxxxxxxxx
Vice President
Limited Liability Company
Borrowers: Kabro of Middletown, LLC
Orleans at Bordentown, LLC
Orleans at Cooks Bridge, LLC
Orleans at Cooks Bridge, LLC
Orleans at Elk Township, LLC
Orleans at Evesham, LLC
Orleans at Xxxxxxxx, LLC
Orleans at Lambertville, LLC
Orleans at Mansfield, LLC
Orleans at Maple Xxxx, LLC
Orleans at Meadow Xxxx, LLC
Orleans at Millstone, LLC
Orleans at Millstone River Preserve, LLC
Orleans at Moorestown, LLC
[Borrowers' signatures continued on the following page]
71
Orleans at Tabernacle, LLC
Orleans at Upper Freehold, LLC
Xxxxxx Xxxxxxxxx, Tidewater, LLC
OPCNC, LLC
By: Xxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxx X. Xxxxxxxxxx
Vice President
Limited Partnership
Borrowers: Orleans at Falls, LP
Orleans at Limerick, LP
Orleans at Lower Salford, LP
Orleans at Upper Uwchlan, LP
Orleans at West Xxxxxxxx, XX
Orleans at West Vincent, LP
Orleans at Windsor Square, LP
Stock Grange, LP
By: OHI PA GP, LLC, sole General Partner
By: Xxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxx X. Xxxxxxxxxx
Vice President
Realen Homes, L.P.
By: RHGP, LLC, sole General Partner
By: Orleans Homebuilders, Inc.,
Authorized Member
By: Xxxxxx X. Xxxxxxxxxx
--------------------
Xxxxxx X. Xxxxxxxxxx
Chief Financial Officer
Guarantor: Orleans Homebuilders, Inc.,
a Delaware corporation
By: Xxxxxx X. Xxxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxxx
Chief Financial Officer
Agent: Wachovia Bank, National Association
By: Xxxxxxx X. Xxxxxxx
-------------------
Xxxxxxx X. Xxxxxxx,
Vice President
[Lenders' signatures continued on the following pages]
72
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: Xxxxxxx X. Xxxxxxx
------------------
Xxxxxxx X. Xxxxxxx,
Vice President
73
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS
OF DECEMBER 22, 2004:
BANK OF AMERICA, N.A.
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Vice President
74
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
SOVEREIGN BANK
By: Xxxx Xxxxxxxx
-------------
Name: Xxxx Xxxxxxxx
Title: Vice President
75
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS
OF DECEMBER 22, 2004:
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: Xxxxxxx X. Xxxxxxx
------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
76
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
NATIONAL CITY BANK
By: Xxxxx Xxxxxxxxx
---------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
77
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
FIRSTRUST BANK
By: Xxxx X. Xxxx
------------
Name: Xxxx X. Xxxx
Title: Vice President
78
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
GUARANTY BANK
By: Xxxxx Xxxxxx
------------
Name: Xxxxx Xxxxxx
Title: Vice President
79
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
US BANK NATIONAL ASSOCIATION
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
80
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
CITIZENS BANK OF PENNSYLVANIA
By: Xxxxxxx X. XxXxxxx
-------------------
Name: Xxxxxxx X. XxXxxxx
Title: Senior Vice President
81
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
COMMERCE BANK, NATIONAL
ASSOCIATION
By: Xxxxxx X. Xxxx
--------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
82
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
SUNTRUST BANK
By: W. Xxxx Xxxxxxx
---------------
Name: W. Xxxx Xxxxxxx
Title: Director
83
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
AMSOUTH BANK
By: Xxxxx Xxxxxxxx
--------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
84
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
FRANKLIN BANK, SSB
By: Xxxxxx X. Xxxxxx
----------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
85
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
COMERICA BANK
By: Xxxxxxx Xxxxxxx
---------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
86
LENDER SIGNATURE PAGE TO
REVOLVING CREDIT LOAN AGREEMENT
WITH GREENWOOD FINANCIAL, INC. AS
MASTER BORROWER, DATED AS OF
DECEMBER 22, 2004:
COMPASS BANK, an Alabama Banking
Corporation
By: Xxxxxxx Xxxx Xxxxx
------------------
Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Vice President
87
Schedule 1.1A
Schedule of Borrowers
Greenwood Financial, Inc.
Masterpiece Homes, Inc.
OHB Homes, Inc.
Orleans Corporation
Orleans Corporation of New Jersey
Orleans Construction Corp.
Xxxxxx & Xxxxxxxxx Corporation
Xxxxxx & Orleans Homebuilders, Inc.
Sharp Road Farms, Inc.
Kabro of Middletown, LLC
Orleans at Bordentown, LLC
Orleans at Cooks Bridge, LLC
Orleans at Elk Township, LLC
Orleans at Evesham, LLC
Orleans at Xxxxxxxx, LLC
Orleans at Lambertville, LLC
Orleans at Mansfield, LLC
Orleans at Maple Xxxx, LLC
Orleans at Meadow Xxxx, LLC
Orleans at Millstone, LLC
Orleans at Millstone River Preserve, LLC
Orleans at Moorestown, LLC
Orleans at Tabernacle, LLC
Orleans at Upper Freehold, LLC
Xxxxxx Xxxxxxxxx, Tidewater, LLC
OPCNC, LLC
Orleans at Falls, LP
Orleans at Limerick, LP
Orleans at Lower Salford, LP
Orleans at Upper Uwchlan, LP
Orleans at West Xxxxxxxx, XX
Orleans at West Vincent, LP
Orleans at Windsor Square, LP
Stock Grange, LP
Realen Homes, L.P.
Exhibit 1.1C
Form of Joinder
This Joinder and Assumption Agreement ("this Joinder"), made as of the
____ day of ___________, 200_, by and among ___________________ ("Lender"),
GREENWOOD FINANCIAL, INC., a Delaware corporation ("Master Borrower") and
_________________________, a ____________________________ ("Additional
Borrower").
W I T N E S S E T H:
A. Lender, Master Borrower, Wachovia Bank, National Association
("Agent") and others are parties to a Revolving Credit Loan Agreement dated as
of December 22, 2004 (as thereafter from time to time amended, the "Loan
Agreement"). All capitalized terms used but not specifically defined herein have
the meanings defined in the Loan Agreement.
B. Pursuant to the Loan Agreement, Master Borrower and certain
Eligible Affiliates executed and delivered to Lender [a Line of Credit Note in
the principal amount equal to Lender's Pro Rata Share of the Facility] [the
Swing Line Note] (the "Note").
C. Additional Borrower is an Eligible Affiliate.
D. Pursuant to the Loan Agreement, Master Borrower and Additional
Borrower desire that Additional Borrower become a Borrower under the terms and
conditions of the Loan Agreement and enjoy the rights and benefit of, and assume
the liabilities and obligations undertaken by, a Borrower under the terms of the
Loan Agreement and Note.
E. Agent and Lender are willing to accept Additional Borrower as
a Borrower under the Loan Agreement and the Note.
F. Concurrently with the execution of this Joinder, Additional
Borrower is executing a joinder and assumption agreement in favor of each of the
other "Lenders" (as defined in the Loan Agreement) with respect to the "Notes"
(as defined in the Loan Agreement) that are held by them.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Agent (by its execution of its consent hereto), Lender, Master
Borrower and Additional Borrower hereby agree that Additional Borrower shall
hereafter be deemed to be a "Borrower" under the terms of the Loan Agreement and
the Note and shall enjoy all of the rights and benefits as such that are
available under the terms of the Loan Agreement and the Note.
2. Additional Borrower hereby assumes all of the obligations and
liabilities of a "Borrower" under the terms of the Loan Agreement and agrees to
be bound by the terms and conditions thereof. Additional Borrower hereby assumes
and agrees to pay, jointly and severally with Master Borrower and all other
Borrowers, all of the Indebtedness heretofore or hereafter arising under the
Loan Agreement or under the Note, as if Additional Borrower had been a
signatory, as a Borrower, to the Loan Agreement and the Note.
3. Additional Borrower hereby releases Lender and said attorney
or attorneys from all procedural error, defects and imperfections whatsoever in
entering judgment by confession hereon as aforesaid or in issuing any process or
instituting any proceedings relating thereto.
4. ADDITIONAL BORROWER HEREBY WAIVES, AND LENDER BY ITS
ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THE NOTE, THE
LOAN AGREEMENT OR THE RELATIONSHIP EVIDENCED HEREBY AND THEREBY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR PAYEE TO ENTER INTO, ACCEPT OR RELY UPON THIS
JOINDER AND ACKNOWLEDGMENT AGREEMENT, THE NOTE AND THE LOAN AGREEMENT.
5. The remedies of Lender provided herein, in the Loan Agreement,
in any other Loan Document or otherwise available to Lender at law or in equity,
and the warrant of attorney contained herein, shall be cumulative and
concurrent, and may be pursued singly, successively and together at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall in no event be
construed as a waiver or release of the same. Except as specifically modified
hereby, the Loan Agreement and Note continue in full force and effect, in
accordance with their respective terms. Nothing in this Agreement shall affect
any of the obligations or liabilities of Master Borrower or any other Borrower,
as set forth in the Loan Agreement or the Note.
6. Agent is intended to be a third party beneficiary of this
Joinder, to the extent that Additional Borrower has assumed and agreed to pay
the obligations of Master Borrower and the other Borrowers under the Loan
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Joinder and
Assumption Agreement as of the day and year first above written.
LENDER:
By:
-------------------------------
Name:
Title:
2
ORIGINAL BORROWER:
GREENWOOD FINANCIAL, INC., a Delaware
corporation
By:
-------------------------------
Name:
Title:
ADDITIONAL BORROWER:
________________________, a
________________________
By:
-------------------------------
Name:
Title:
3
CONSENT OF GUARANTOR
The undersigned, being the Guarantor of the obligations of the
Borrowers under the aforesaid Loan Agreement and Note, hereby consents to the
foregoing Joinder and Assumption Agreement and agrees that nothing therein shall
affect the liability of Guarantor under the terms of the Guaranty to which
reference is made in the Loan Agreement.
IN WITNESS WHEREOF, Guarantor has executed this Consent of Guarantor on
this _____ day of __________, 200_.
ORLEANS HOMEBUILDERS, INC., a Delaware corporation
By:
---------------------------------
Xxxxxx X. Xxxxxxxxxx
Chief Financial Officer
CONSENT OF AGENT
Wachovia Bank, National Association, as Agent pursuant to the aforesaid
Loan Agreement, hereby approves Additional Borrower as a Borrower that is
entitled to the benefits of the Loan Agreement.
Wachovia Bank, National Association
By:
---------------------------------
Name:
Title:
Exhibit 1.1E
Form of Line of Credit Note
PROMISSORY NOTE
Philadelphia, Pennsylvania
$_________________ __________, 2004
1. FOR VALUE RECEIVED, GREENWOOD FINANCIAL, INC., a Delaware
corporation and each of the other entities executing this promissory note
(herein referred to as "Borrowers") promise, jointly and severally with all
other Persons that hereafter become a Borrower pursuant to the Loan Agreement,
to pay to the order of _______________________ ("Lender"), on or before the
Maturity Date, __________ Million _________ Hundred __________ Thousand Dollars
($___________), in lawful money of the United States of America and in
immediately available funds. All initially capitalized terms that are used
herein but are not defined herein shall have the same meanings ascribed to them
in the Revolving Credit Loan Agreement dated the date hereof by and among
Borrowers, Wachovia Bank, National Association, as agent, Lender, and the other
financial institutions that are party thereto (as from time to time hereafter
amended, the "Loan Agreement") unless the context clearly requires to the
contrary. This promissory note is referred to herein as "this Note".
2. Borrowers also promise so to pay interest on the unpaid
principal amount of Lender's Pro Rata Share of all Loans and Letter of Credit
Advances from the Funding Date thereof to maturity (whether by acceleration or
otherwise) at the Interest Rate in effect from time to time.
3. Interest shall be payable on the Loans and Letter of Credit
Advances, in arrears, through the last day of each month, with the first payment
to be made on January 15, 2005, and continuing thereafter on the 15th day of
each month and at maturity.
4. In the event that the unpaid principal amount of this Note
shall become due and payable in full, whether at stated maturity, by
acceleration or otherwise, such principal amount and all other sums that are due
or owed by Borrowers to Lender under this Note or any other Loan Document shall
thereafter bear interest payable upon demand at the Default Rate in effect from
time to time.
5. This Note is one of the Line of Credit Notes referred to in
the Loan Agreement and is issued subject and pursuant to, and entitled to the
benefits of, the Loan Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions pertaining to Lender's Pro Rata
Share of the Loans and Letter of Credit Advances evidenced hereby on which this
Note and the other Line of Credit Notes were made and are to be repaid. All
recoveries by Lender under this Note or otherwise are subject to the provisions
of Article XI of the Loan Agreement.
6. All payments of principal and interest in respect of this Note
shall be made by Borrowers without defense, setoff or counterclaim in
immediately available funds and delivered to Agent not later than 1:00 p.m.
(prevailing Eastern time) on the date due by wire transfer of immediately
available funds to Agent's account as provided in Section 2.12.3.2 of the Loan
Agreement. Funds received by Agent after that time shall be deemed to have been
paid by the Borrowers on the next succeeding Business Day.
7. Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
8. Borrowers may prepay all or any portion of the outstanding
principal balance hereof subject to the terms, conditions and limitations of the
Loan Agreement (including the limitation contained in Section 2.7.1 of the Loan
Agreement) and shall make mandatory prepayments of this Note in accordance with
the provisions of the Loan Agreement.
9. The liabilities and obligations of Borrowers hereunder (i)
shall be joint and several, (ii) shall be unconditional without regard to the
liability or obligations of any other party other than Lender and (iii) shall
not be in any manner affected by any indulgence whatsoever granted or consented
to by Lender, including, but without being limited to, any extension of time,
renewal, waiver or other modification. Any failure of Lender to exercise any
right hereunder shall not be construed as a waiver of the right to exercise the
same or any other right at any time and from time to time thereafter.
10. Each Borrower hereby releases Lender and said attorney or
attorneys from all procedural error, defects and imperfections whatsoever in
entering judgment by confession hereon as aforesaid or in issuing any process or
instituting any proceedings relating thereto.
11. The remedies of Lender provided herein, in any other Loan
Document or otherwise available to Lender at law or in equity shall be
cumulative and concurrent, and may be pursued singly, successively and together
at the sole discretion of Lender, and may be exercised as often as occasion
therefor shall occur; and the failure to exercise any such right or remedy shall
in no event be construed as a waiver or release of the same.
12. Borrowers hereby waive all benefit that might accrue to
Borrowers by virtue of any present or future laws exempting any property, real
or personal, or any part of the proceeds arising from any sale of any such
property, from attachment, levy or sale under execution, or providing for any
stay of execution, exemption from civil process or extension of time, and agrees
that such property may be sold to satisfy any judgment entered on this Note or
on any other Loan Document, in whole or in part and in any order as may be
desired by Lender.
14. This Note shall be governed as to its validity, interpretation
and effect by the internal laws of the Commonwealth of Pennsylvania for
contracts made and to be performed in Pennsylvania.
15. IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED
HEREBY, EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
2
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN OR SERVING PHILADELPHIA OR
BUCKS COUNTY, PENNSYLVANIA. EACH BORROWER EXPRESSLY SUBMITS AND CONSENT IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH BORROWER HEREBY WAIVES ANY OBJECTION WHICH SUCH BORROWER MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, OR FORUM NON CONVENIENS.
EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND ANY
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH
SUMMONS, COMPLAINT, AND ANY OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH BORROWER AT THE ADDRESS SET FORTH IN THE LOAN AGREEMENT
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE PROVIDING OF NOTICE
IN ACCORDANCE WITH THE TERMS HEREOF. NOTHING IN THIS NOTE SHALL BE DEEMED OR
OPERATE TO AFFECT THE RIGHTS OF AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY AGENT OR
ANY LENDER OF ANY CLAIM, OR ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM, OR THE
TAKING OF ANY ACTION UNDER THIS AGREEMENT OR OTHERWISE TO ENFORCE SAME, IN ANY
OTHER APPROPRIATE FORUM OR JURISDICTION.
16. Borrowers hereby waive presentment, demand for payment, notice
of dishonor or acceleration, protest or notice of protest and any and all
notices or demands in connection with the delivery, acceptance, performance,
default or enforcement of this Note.
17. Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued but unpaid
interest thereon, and Lender's Pro Rata Share of all other Indebtedness may
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Loan Agreement.
18. The terms of this Note may not be changed or amended orally
but only by an agreement in writing and signed by all Lenders, or by such other
number of Lenders as all Lenders may determine from time to time.
19. Borrowers promise to pay all costs and expenses, including
reasonable attorneys' fees, as provided in Section 1.5 of the Loan Agreement,
incurred in the collection and enforcement of this Note. Borrowers and all
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
20. EACH BORROWER HEREBY WAIVES, AND LENDER BY ITS ACCEPTANCE
HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED
HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR PAYEE TO ENTER INTO, ACCEPT
OR RELY UPON THIS NOTE.
3
21. If any provision of this Note shall for any reason be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision hereof, but this Note shall be construed as if such
invalid or unenforceable provision had never been contained herein.
IN WITNESS WHEREOF, each Borrower has caused this Note to be executed
and delivered by its duly authorized officer or other representative as of the
day and year and at the place first above written.
GREENWOOD FINANCIAL, INC.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
--------------------------------------
--------------------------------------
--------------------------------------
By:
---------------------------------
Name:____________, as ______ of
each Borrower identified above
4
Exhibit 1.1F
Notice of Borrowing of a Loan
Wachovia Bank, National Association
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
____________, 200__
Gentlemen:
This Notice of Borrowing ("Notice") is provided to Wachovia Bank,
National Association ("Agent") to evidence the request of ____________________
("Requesting Borrower"), to borrow funds in the form of a Loan, pursuant to the
Revolving Credit Loan Agreement, dated as of December 22, 2004, by and among
Requesting Borrower, Greenwood Financial, Inc., Agent, the Lenders and certain
other Affiliates of Requesting Borrower identified therein (the "Loan
Agreement"). All capitalized terms not defined herein shall have the same
meaning as provided in the Loan Agreement unless the context clearly requires to
the contrary.
Requesting Borrower desires to borrow $__________ as a Loan on
______________, 200__ (the "Funding Date"). This Notice is provided to Lender by
11:00 a.m. at least two (2) Business Days prior to the Funding Date.
The undersigned hereby certifies that: (i) the representations and
warranties contained in Article V of the Loan Agreement are true and correct as
of the date hereof, except to the extent such representations and warranties
relate to an earlier date or except for changes therein which have been
disclosed to Agent in writing and (ii) no Event of Default under the Loan
Agreement has occurred and is continuing.
[Requesting Borrower]
By:
---------------------------------
, Vice President
Notice of Borrowing of a Swing Loan
Wachovia Bank, National Association
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
____________, 200__
Gentlemen:
This Notice of Borrowing ("Notice") is provided to Wachovia Bank,
National Association ("Agent") to evidence the request of ____________________
("Requesting Borrower"), to borrow funds in the form of a Swing Line Loan,
pursuant to the Revolving Credit Loan Agreement, dated as of December 22, 2004,
by and among Requesting Borrower, Greenwood Financial, Inc., Agent, the Lenders
and certain other Affiliates of Requesting Borrower identified therein (the
"Loan Agreement"). All capitalized terms not defined herein shall have the same
meaning as provided in the Loan Agreement unless the context clearly requires to
the contrary.
Requesting Borrower desires to borrow $__________ as a Swing Line Loan
on ______________, 200__ (the "Funding Date"). This Notice is provided to Lender
by 2:00 p.m. of the Funding Date.
The undersigned hereby certifies that: (i) the representations and
warranties contained in Article V of the Loan Agreement are true and correct as
of the date hereof, except to the extent such representations and warranties
relate to an earlier date or except for changes therein which have been
disclosed to Agent in writing and (ii) no Event of Default under the Loan
Agreement has occurred and is continuing.
[Requesting Borrower]
By:
---------------------------------
, Vice President
EXHIBIT 2.1.4.2
APPLICATION AND AGREEMENT FOR IRREVOCABLE STANDBY LETTER OF CREDIT
TO: WACHOVIA BANK, NATIONAL ASSOCIATION ("BANK")
Please TYPE Information in the fields below. We reserve the right to
return illegible applications for clarification.
Date: The undersigned Applicant hereby requests Bank to
issue and transmit by:
[ ] Overnight Carrier [ ] Teletransmission [ ] Mail
[ ] Other:
Explain:_____
L/C an Irrevocable Standby Letter of Credit (the
No. "Credit") substantially as set forth below. In
issuing the Credit, Bank is expressly authorized to
make such changes from the terms herein below set
forth as it, in its sole discretion, may deem
advisable.
(Bank Use Only)
Application (Full Name & Address) Advising Bank (Designate name &
address only if desired)
Beneficiary (Full Name & Address) Currency and Amount in Figures:
Currency and Amount in Words:
Expiration Date:
Charges: Wachovia's charges are for our account; all other banking charges
are to be paid by beneficiary.
Credit to be available for payment against Beneficiary's draft(s) at sight drawn
on Bank or its correspondent at Bank's option accompanied by the following
documents:
[ ] Statement, purportedly signed by the Beneficiary, reading as follows (please
state below exact wording to appear on the statement):
[ ] Other Documents
[ ] Special Conditions (including, if Applicant has a preference, selection of
UCP as herein defined or ISP98 as herein defined.)
[ ] Issue substantially in form of attached specimen. (Specimen must also be
signed by applicant.)
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Complete only when the Beneficiary (Foreign Bank, or other Financial
Institution) is to issue its undertaking based on this Credit.
[ ] Request Beneficiary to issue and deliver their (specify type of undertaking)
in favor of for an amount not exceeding the amount specified
above, effective immediately relative to (specify contract number or other
pertinent reference) to expire on . (This date must be at
least 15 days prior to expiry date indicated above.) It is understood that if
the Credit is issued in favor of any bank or other financial or commercial
entity which has issued or is to issue an undertaking on behalf of the Applicant
of the Credit in connection with the Credit, the Applicant hereby agrees to
remain liable under this Application and Agreement in respect of the Credit
(even after its stated expiry date) until Bank is released by such bank or
entity.
Each Applicant signing below affirms that it has fully read and agrees to this
Application and the attached Continuing Letter of Credit Agreement. In
consideration of the Bank's issuance of the Credit, the Applicant agrees to be
bound by the agreement set forth In this and in the following pages (even if the
following pages are not attached to the Application) delivered to the Bank.
(Note: If a bank, trust company, or other financial institution signs as
Applicant or joint and several co-Applicant for its customer, or if two
Applicants jointly and severally apply, both parties sign below). Documents may
be forwarded to the Bank by the beneficiary, or the negotiating bank, in one
mail. Bank may forward documents to Applicants customhouse broker, or Applicant
if specified above, in one mail. Applicant understands and agrees that this
Credit will be subject to the Uniform Customs and Practice for Documentary
Credits of the International Chamber of Commerce currently in effect, and in use
by Bank ("UCP") or to the International Standby Practices of the International
Chamber of Commerce, Publication 590 or any subsequent version currently in
effect and in use by Bank ("ISP98").
(Print or type name of Applicant) (Print or type name of Applicant)
(Address) (Address)
Authorized Signature (Title) Authorized Signature (Title)
Authorized Signature (Title) Authorized Signature (Title)
Customer Contact: Phone:
BANK USE ONLY
NOTE: Application will NOT be processed if this section is not complete
Approved (Authorized Signature) Date:
Approved (Print name and title) City:
Customer SIC Code: Borrower Default Grade: Telephone:
Charge DDA #: Fee: RC #: CLAS Bank #: CLAS Obligor #:
(ATTACHED ARE THE IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT TERMS AND
CONDITIONS.)
2
CONTINUING LETTER OF CREDIT AGREEMENT
In consideration of the Bank (as defined below) in its discretion
issuing from time to time letters of credit whether documentary or standby and
all amendments thereto (hereinafter each individually, and all collectively
called the "Credit") substantially in accordance with an Application (as defined
below) for a Credit tendered to the Bank the undersigned (hereinafter,
individually and collectively, the "Applicant") agrees:
1. DEFINITIONS. As used herein: (A) "AGREEMENT" means each
Application by the Applicant for a Credit and this Continuing Letter of Credit
Agreement, as each may be modified; (B) "APPLICATION" means, if Applicant uses
electronic communication facilities to apply for or instruct the Bank as to the
contents of a Credit, information sufficient to enable the Bank to prepare and
issue or amend a Credit for Applicant's account transmitted by electronic
message (which may, but need not, be computer generated), including facsimile,
directed to the Bank by Applicant using such identification codes, passwords,
and other security procedures as the Bank and Applicant may agree are
commercially reasonable from time to time; or a written and signed application
with sufficient information delivered to the Bank to enable it to prepare and
issue or amend a Credit for Applicant's account; (C) "BANK" means Wachovia Bank,
National Association and all of its branches, whether in the United States or
foreign and any of Bank's affiliates that issue letters of credit; Applicant
authorizes and directs the Bank to select the branch or affiliate which will
issue or process any Credit; and for the purposes of Sections 4, 7 and 9, "Bank"
includes correspondents of Bank; (D) "BUSINESS DAY" means any day that is not a
Saturday, Sunday or other day on which commercial banks are authorized or
required to close at the place where Bank is obligated to honor a presentation
or otherwise act under the Credit or this Agreement; (E) "COLLATERAL" means all
Applicant's Property (as hereinafter defined) now or hereafter in possession or
control of Bank or its agents, affiliates or representatives (for any purpose)
or in transit to or from Bank; (F) "DRAFT" means any draft (sight or time),
receipt, acceptance, cable, SWIFT or other written demand for payment; (G)
"EVENT OF DEFAULT" means (i) failure to pay or perform any of the Obligations
when due or (ii) the occurrence of any "Event of Default" as defined in the
Revolving Credit Loan Agreement dated December 22, 2004, among Applicant, Bank,
certain affiliates of Applicant and other financial institutions (as the same
may be amended from time to time, the "LOAN AGREEMENT") ; (H) "GOOD FAITH" means
honesty in fact in the conduct or transaction concerned; (I) "ISP 98" means the
International Standby Practices, International Chamber of Commerce ("ICC")
Publication No. 590, or any subsequent revisions or restatement thereof which
may be adopted by the ICC and in use by the Bank; (J) "JURISDICTION" means the
state in the United States where the Bank's branch which maintains Applicant's
major deposits is located, or if Applicant does not have deposits with the Bank,
the Bank's office in a state of the United States where Applicant's major
banking relationship with it is conducted; if neither of the foregoing apply,
then jurisdiction shall mean New York City, New York; (K) "OBLIGATIONS" means
all obligations of any, some or all of parties comprising the Applicant to Bank
now or hereafter existing under the Agreement or otherwise; (L) "PRIME RATE"
means that changing rate of interest announced publicly from time to time by
Bank as its Prime Rate; (M) "PROPERTY" means all present and future inventory,
equipment, farm products and other goods, documents, policies and certificates
of insurance, securities, securities entitlements, securities accounts,
financial assets, investment property, instruments, letters-of-credit and
letter-of-credit rights, chattel paper, accounts, general intangibles, money,
and any and all other types of property (including, but not limited to, deposit
accounts and certificates of deposit), together with all cash and non cash
proceeds and products thereof, and all Applicant's rights thereto and all
documents relative thereto; and (N) "UCP" means the Uniform Customs and Practice
for Documentary Credits, ICC Publication Number 500, or any subsequent revision
or restatement thereof adopted by the ICC and in use by the Bank. Terms not
defined herein will, if defined therein, have the same meaning as given in the
Uniform Commercial Code as amended from time to time.
2. APPLICANT'S REIMBURSEMENT OF BANK: (A) Applicant shall pay
Bank, in accordance with the provisions of the Loan Agreement, (i) the amount of
each Draft drawn or purporting to be drawn under the Credit (whether drawn
before, on or after the expiry date stated in the Credit) and (ii) interest on
all amounts so drawn. (B) FEES COSTS AND EXPENSES. Applicant will pay Bank (i)
fees in respect of the Credit at such rates and times as are provided in the
Loan Agreement; and (ii) on demand, all costs and expenses that Bank incurs in
connection with the Credit or this Agreement, including (a) reasonable
attorneys' fees and disbursements and other dispute resolution expenses to
protect or enforce Bank's rights or remedies under or in connection with the
Credit, this Agreement or any separate security agreement, guaranty or other
agreement or undertaking supporting this Agreement or to respond to any notice
of forgery, fraud, abuse or illegality in connection with this Agreement, the
Credit, any presentation under the Credit or any transaction underlying the
Credit (including an active defense by Bank in any action in which an injunction
is sought or obtained against presentation or honor), (b) costs and expenses in
connection with any requested amendment to or waiver under the Credit or this
Agreement, (c) costs and expenses in complying with any governmental exchange,
currency control or other laws, rules or regulations of any country now or
hereafter applicable to the purchase or sale of, or dealings in, foreign
currency, (d) any stamp taxes, recording taxes, or similar taxes or fees payable
in connection with the Credit or this Agreement, and (e) any adviser, confirmer,
or other nominated person fees and expenses that are chargeable to Applicant or
Bank. References in this Agreement to attorneys' fees and disbursements shall
include any reasonably allocated costs of internal counsel.
3. INDEPENDENCE; APPLICANT RESPONSIBILITY. Applicant is
responsible for preparing or approving the text of the Credit as issued by Bank
and as received by any Beneficiary, including responsibility for any terms and
conditions thereof that are ineffective, ambiguous, inconsistent, unduly
complicated, or reasonably impossible to satisfy. Applicant's ultimate
responsibility for the final text shall not be affected by any assistance Bank
may provide such as drafting or recommending text or by Bank's use or refusal to
use text submitted by Applicant. Bank does not represent or warrant that the
Credit will satisfy Applicant's requirements or intentions. Applicant is
responsible for the suitability of the Credit for Applicant's purposes.
Applicant will examine the copy of the Credit, and any other documents sent by
Bank in connection with the Credit, and shall notify Bank of any non-compliance
with Applicant's instructions, and of any discrepancy in any document under any
presentment or other irregularity, within 3 Business Days after Applicant
receives or should have received any of such documents (the "Required Time");
provided, however, if the end of the Required Time falls on a weekend or Bank
holiday, the deadline shall be extended to the end of the next Business Day.
Applicant's failure to give timely and specific notice during the Required Time
of objection shall automatically waive Applicant's objection, authorize or
ratify Bank's action or inaction, and preclude Applicant from raising the
objection as a defense or claim against Bank.
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4. CLAIMS AGAINST BANK; WAIVERS; EXCULPATIONS; LIMITATIONS OF
LIABILITY, RATIFICATION; ACCOUNTING. (A) Applicant's Obligations shall be
irrevocable and unconditional and performed strictly in accordance with the
terms of this Agreement, irrespective of: (i) any change or waiver in the time,
manner or place of payment of or any other term of the Obligations (including
any release) of any other party who, if applicable, has guaranteed or is jointly
and severally liable for any of the Obligations or granted any security
therefore; (ii) any exchange, change or release of any Collateral or other
collateral (including any failure of Bank to perfect any security interest
therein), for any of the Obligations, (iii) any presentation under the Credit
being forged, fraudulent or any statement therein being untrue or inaccurate,
(iv) any agreement by Bank and any Beneficiary extending or shortening Bank's
time after presentation to examine documents or to honor or give notice of
discrepancies. (B) Without limiting the foregoing, it is expressly agreed that
the Obligations of Applicant to reimburse or to pay Bank pursuant to this
Agreement will not be excused by ordinary negligence, gross negligence, wrongful
conduct or willful misconduct of Bank. However, the foregoing shall not excuse
Bank from liability to Applicant in any independent action or proceeding brought
by Applicant against Bank following such reimbursement or payment by Applicant
to the extent of any unavoidable direct damages suffered by Applicant that are
caused directly by Bank's gross negligence or willful misconduct; provided that
(i) Bank shall be deemed to have acted with due diligence and reasonable care if
it acts in accordance with standard letter of credit practice of commercial
banks located in the place that the Credit is issued; and (ii) Applicant's
aggregate remedies against Bank for wrongfully honoring a presentation or
wrongfully retaining honored documents shall in no event exceed the aggregate
amount paid by Applicant to Bank with respect to the honored presentation, plus
interest. (C) Without limiting any other provision of the Agreement, Bank and,
as applicable, its correspondents: (i) may rely upon any oral, telephonic,
telegraphic, facsimile, electronic, written or other communication believed in
good faith to have been authorized by Applicant, whether or not given or signed
by an authorized person; (ii) shall not be responsible for any acts or omissions
by, or the solvency of, any Beneficiary, any nominated person or any other
person; (iii) May honor any presentation or drawing under the Credit that
appears on its face substantially to comply with the terms and conditions of the
Credit; (iv) (a) may permit partial shipment under the Credit, except as
otherwise expressly stated in the Credit, and may honor the relative Drafts
without inquiry regardless of any apparent disproportion between the quantity
shipped and the amount of the relative Draft and the total amount of the Credit
and the total quantity to be shipped under the Credit, and (b) if the Credit
specifies shipments in installments within stated periods and the shipper fails
to ship in any designated period, shipments of subsequent installments may
nevertheless be made in their respective designated periods, and the relative
Drafts may be honored; (v) may disregard any requirement of the Credit that
presentation be made to it at a particular place or by a particular time of day
(but not any requirement for presentation by a particular day) or that notice of
dishonor be given in a particular manner, and Bank may amend or specify any such
requirement in the Credits; (vi) may accept as a draft any written or electronic
demand or request for payment under the Credit, even if nonnegotiable or not in
the form of a draft, and may disregard any requirement that such draft, demand
or request bear any or adequate reference to the Credit; (vii) may discount or
authorize the discount of any accepted draft or deferred payment obligation
incurred under any Credit; (viii) may honor, before or after its expiration, a
previously dishonored presentation under the Credit, whether pursuant to court
order, to settle or compromises any claim that is wrongfully dishonored or
otherwise, and shall be entitled to reimbursement to the same extent (if any) as
if it had initially honored plus reimbursement of any interest paid by it;
4
(ix) may honor, upon receipt, any drawing that is payable upon presentation of a
statement advising negotiation or payment (even if such statement indicates that
a draft or other document is being separately delivered) and shall not be liable
for any failure of any Draft or document to arrive or to conform with the Draft
or document referred to in the statement or any underlying transaction; (x) may
retain proceeds of the Credit based on a valid exercise of Bank's set off rights
or an apparently applicable attachment order or blocking regulation; (xi) may
select any branch or affiliate of Bank or any other bank to act as advising,
transferring, confirming and/or nominated bank under the law and practice of the
place where it is located; (xii) shall not be responsible for any other action
or inaction taken or suffered by Bank or its correspondents under or in
connection with the Credit, with any presentation thereunder or with any
Collateral, if required or permitted under any applicable domestic or foreign
law or letter of credit practice. Examples of laws or practice that may be
applicable, depending upon the terms of the Credit and where and when it is
issued, include the UCC, the Uniform Rules for Demand Guarantees ("URG") the
UCP, the ISP, published rules of practice, applicable standard practice of banks
that regularly issue letters of credit, and published statements or
interpretations on matters of standard bank practice. (D) Applicant's taking
control, possession or retention of any documents presented under or in
connection with the Credit (whether or not the documents are genuine) or of any
Property for which payment is supported by the Credit, shall ratify Bank's honor
of the documents and preclude Applicant from raising a defense, set-off or claim
with respect to Bank's honor of the documents. (E) Neither Bank nor any of its
correspondents shall be liable in contract, tort, or otherwise, for any
punitive, exemplary, consequential, indirect or special damages. Any claim by
Applicant under or in connection with this Agreement or the Credit shall be
reduced by an amount equal to the sum of (I) the amount (if any) saved by
Applicant as a result of the breach or other wrongful conduct complained of; and
(ii) the amount (if any) of the loss that would have been avoided had Applicant
taken all reasonable steps to mitigate any loss, including by enforcing its
rights in the transaction(s) underlying the Credit, and in case of a claim of
wrongful dishonor, by specifically and timely authorizing Bank to effect a cure.
5. SECURITY AGREEMENT. The provisions of this Section shall only
supplement, not supersede, provisions of any other security agreement in favor
of Bank which are inconsistent herewith. (A) SECURITY INTEREST. As security for
the payment and performance of the Obligations, Applicant assigns, pledges and
grants to Bank a security interest in the Collateral. The security interest of
Bank in Collateral shall continue until all Obligations are repaid, and shall
not be invalidated by reason of the delivery or possession of the Property to
Applicant or anyone else. (B) SUBROGATION. As additional security for the
Obligations, Bank shall be subrogated to the Applicant's rights in respect of
any transaction in any way related to the Credit or any Drafts, including rights
against Beneficiary or any collateral.
6. COMMUNICATIONS. (A) INTERNET. Applicant may electronically
initiate the issuance and amendment of any Credit and retrieve or send
information about any outstanding Credit by accessing an Internet site
maintained by the Bank (the "Web Site") through Applicant's computer equipment
and web browser software. Applicant is responsible to provide its own computer
equipment and web browser software and shall be responsible for all acquisition,
installation, repair and maintenance costs associated therewith. Applicant shall
select its own Internet service provider. Applicant shall comply promptly with
all instructions on the Web Site governing its use and the security measures to
be maintained in connection with its use. Applicant authorizes the Bank to
5
receive data and act upon Applicant's requests which Bank receives over the Web
Site. Applicant agrees that Bank may rely on the authenticity and accuracy of
messages and information received by Bank on the Web Site purporting to be from
the Applicant. Applicant agrees: (i) to protect all assigned operator
identification passwords and accepts full responsibility for any compromise of
security;(ii) to limit access to the Web Site to those persons authorized by
Applicant through the use of security procedures implemented and enforced by the
Applicant; (iii) accurately to input any data fields necessary to initiate,
release or cancel any transaction; (iv) to access the Web Site as often as
necessary consistent with Applicant's business activities it conducts on the Web
Site, which may be daily, and retrieve and review outstanding Credit detail
reports; and (v) to notify the Bank promptly of any error or defect in the
report. Applicant acknowledges and understands that the instructions sent by it
through the Internet to the Bank and the information retrieved by the Applicant
from the Web Site through the internet will be encrypted, but that such
encryption is not completely secure and is not free from errors, poor
transmissions, interception, forgery, viruses, tampering, destruction,
deciphering or other delay or casualty. The Bank shall not be liable for any
loss, claim or liability, cost or expense arising from: (a) any of the
foregoing; (b) failure of any Internet service provider to provide its services;
(c) failure of communications media, legal restrictions; (d) act of God, fire or
other catastrophe, computer failure or any other cause or circumstance beyond
the Bank's control; (e) any unauthorized person's use of or access to the Web
Site; or (f) failure of Applicant to report errors or defects promptly. (B)
Electronic Systems. Applicant may desire to transmit and receive by means of
facsimile, open internet communication, or other unguarded electronic
communications (hereinafter collectively the "electronic systems") Applications
and other paper-writings to or from the Bank. To induce the Bank to accept
communication via electronic systems, Applicant shall: I) ensure that its
officers, agents and employees, will at all times follow and maintain the
integrity of any security established by the Applicant and the Bank; ii)
immediately notify the Bank in the event that Applicant should have reason to
believe that the security established for electronic systems transmission has
been breached or compromised in any manner; iii) ensure that only authorized
personnel selected and controlled by the Applicant request action(s) by
transmittal of document(s) by electronic systems; iv) ensure that any documents
transmitted to the Bank by means of electronic systems shall be a complete and
accurate copy and if signed be executed by personnel authorized by the
Applicant; and v) maintain its software and equipment and any privacy control
device within such software or equipment without any reliance on or
responsibility by the Bank. The Applicant acknowledges and agrees that the Bank
shall: I) not be responsible to the Applicant for any loss or damage arising
from the use of unguarded electronic systems, including access or misuse of
Applicant's confidential information, transmission of a virus, or failed,
incomplete or inaccurate transmission; ii) not be responsible to assure that,
its software and equipment for receiving messages or documents from electronic
systems will be compatible with that of Applicant or available at all times for
Applicant's use; iii) have absolute discretion but without liability, for any
reason whatsoever, not to act upon documentation received by electronic systems;
provided, however, that the Bank shall notify the undersigned promptly should it
elect to defer action until the original documentation is physically presented
to the Bank; iv) without any liability on its part to do so, have the right at
its discretion to make further inquiries and demand further verification to
determine the validity of any document prior to taking any action; and v) have
the right to assume that any reproduction of documentation received by
electronic systems constitutes a full, complete and accurate reproduction of the
original documentation and that all signatures are authorized and genuine.
6
(C) Indemnity. Separate and independent from any other indemnity set forth in
this Agreement, the Applicant hereby indemnifies and holds the Bank harmless
against any and all loss, liability, damage or expenses of whatever kind and
nature arising from Bank's acceptance and/or delivery of information and
Applications over its Web Site or by electronic systems.
7. TWO PARTIES SIGNING AGREEMENT. (A) CO-APPLICANTS. If the
Agreement is signed by two or more Applicants, it shall be the joint and several
obligation of each. Bank shall designate _____________________ in the Credit as
account party and ______________________ as Applicant, who without joinder of
the account party shall have the exclusive right to issue all instructions on
any matters relating to the Credit. If the foregoing information is left blank
or incomplete, the Bank at its discretion may accept an Application, or seek
instruction, from any Applicant regarding a Credit, including, without
limitation, any amendment thereto or waiver of any discrepancy thereunder, and
until Bank at the office at which the relevant Credit is issued actually
receives written notice of revocation, each Applicant shall be bound by and
hereby affirms the instructions of the other. (B) Financial Institution as
Customer. If the Agreement is signed as Applicant or co-Applicant by a bank,
trust company or other financial institution for its customer, such Applicant
appoints Bank as its agent to issue the Credit. Such Applicant and its customer
agree to act In accordance with and be subject to the Agreement. If such
Applicant is required (i) to reimburse Bank; (ii) to pay Bank in the Event of
Default; (iii) to indemnify Bank; or (iv) to provide collateral, then its
customer agrees to reimburse, pay or indemnify Applicant for the full amount of
those payments and to provide the requisite collateral. In addition, the
customer agrees to obtain such Applicant's consent before agreeing to waive any
discrepancy in the documents related to the Credit or to waive or amend any
terms of the Agreement or the Credit.
8. EVENT OF DEFAULT. On and after any Event of Default: (A) the
amount of the Credit, as well as any other Obligations, shall, at Bank's option,
become due and payable immediately without demand or notice to Applicant or if
contingent, may be treated by Bank as due and payable for its maximum face
amount; (B) Bank may set off and apply any deposits or any other indebtedness at
any time owing by Bank to or for Applicant's credit or account against any
matured or unmatured Obligations, irrespective of whether or not Bank shall have
made any demand under the Agreement and although such deposits, indebtedness or
Obligations may be unmatured or contingent; (C) Bank may exercise all rights and
remedies available to it in law or equity; and (D) in respect of any Collateral,
Bank may exercise all the rights and remedies of a secured party under the
Uniform Commercial Code or any other applicable law and also may, without notice
except as required by law, sell such Property or any part thereof in one or more
parcels at public or private sale, for cash, on credit or for future delivery,
and on such other terms as Bank may deem commercially reasonable. Written notice
mailed or delivered to Applicant at the address specified in the Agreement at
least five business days prior to the date of public sale or prior to the date
after which private sale is to be made shall be reasonable, adequate notice.
Applicant will pay on demand all costs and expenses (including reasonable
attorneys fees and legal expenses, incurred prior to or after a bankruptcy
filing) related to the custody, preservation or sale of, or collection from, or
realization upon, any of such Property and related to the collections of the
Obligations and the enforcement of Bank's rights against Property. In the event
of sale of or collection from the Collateral, Bank may in its discretion hold
the proceeds as Collateral or apply the proceeds as Bank deems appropriate to
the payment of costs and expenses or to one or more of the Obligations, whether
or not then due.
7
9. INDEMNIFICATION. Applicant will indemnify and hold harmless
Bank and its officers, directors, affiliates, employees, attorneys and agents
(each, an "Indemnified Party") from and against any and all claims, liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees and
disbursements and other dispute resolution expenses (including fees and expenses
in preparation for a defense of any investigation, litigation or proceeding) and
costs of collection) that arise out of or in connection with: (A) the Credit or
any pre-advice of its issuance; (B) any payment or action taken or omitted to be
taken in connection with the Credit or this Agreement (including any action or
proceeding to (i) restrain any presentation, (ii) compel or restrain any payment
or the taking of any other action under the Credit, (iii) obtain damages for
wrongful dishonor or honor of the Credit or for breach of any other duty arising
out of or related to the Credit, (iv) compel or restrain the taking of any
action under this Agreement or (v) obtain similar relief (including by way of
interpleader, declaratory judgment, attachment or otherwise), regardless of who
the prevailing party is in any such action or proceeding); (C) an adviser or a
confirmer or other nominated person seeking to be reimbursed, indemnified or
compensated, (D) any beneficiary requested to issue its own undertaking seeking
to be reimbursed, indemnified or compensated or (E) any third party seeking to
enforce the rights of an applicant, beneficiary, nominated person, transferee,
assignee of letter of credit proceeds, or holder of an instrument or document;
(F) the enforcement of this Agreement or any rights or remedies under or in
connection with this Agreement, the Collateral or the Credit; (G) the release by
Applicant of any Credit to any third party prior to its issuance by the Bank; or
(H) any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (including with respect
to any document or property received under this Agreement or the Credit) or any
other cause beyond the Bank's control-, except to the extent such liability,
loss, damage, cost or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted directly from such Indemnified
party's gross negligence or willful misconduct. Applicant will pay on demand
from time to time all amounts owing under this section. If and to the extent
that the obligations of Applicant under this section are unenforceable for any
reason, Applicant agrees to make the maximum contribution to the payment of such
obligation that is permissible under applicable law.
10. GOVERNING LAW; UCP, ISP 98. The UCP or ISP 98 as applicable to
each Credit governs this Agreement and is incorporated herein. Subject to the
other provisions of the Agreement, the Agreement shall be governed by and
construed in accordance with the substantive laws of the Jurisdiction, without
regard to conflicts of law principles, except to the extent that such law is
inconsistent with the UCP or ISP 98, as applicable. In the event any provision
of the UCP or ISP 98, as applicable, is or is construed to vary from or be in
conflict with any provision of any applicable law of the Jurisdiction or the
federal law of the United States, to the extent permitted by law, the UCP or the
ISP 98, as applicable, shall govern or be read to explain the applicable law.
Unless Applicant specifies otherwise in its application for the Credit,
Applicant agrees that Bank may issue the Credit subject to the UCP or ISP 98 or,
at Bank's option, such later revision of either thereof as is in effect at the
time of issuance of the Credit. Bank's privileges, rights and remedies under the
UCP, ISP 98 or such later revision shall be in addition to, and not in
limitation of, its privileges, rights, and remedies expressly provided
8
for herein. The UCP and ISP 98 shall serve, in the absence of proof to the
contrary, as evidence of standard practice with respect to the subject matter
thereof.
11. SAVINGS CLAUSE; CONFLICTS. Whenever possible, each provision
of the Agreement shall be interpreted in a manner as to be effective and valid
under applicable law, but if any provision of the Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of the Agreement. In the event
that any provision in the Agreement conflicts with the provisions of the Loan
Agreement, the provisions of the Loan Agreement shall control.
12. BANKRUPTCY AND FORFEITURE REINSTATEMENT. If any consideration
transferred to Bank in payment of, or as collateral for, or in satisfaction of
the Obligations, shall be voided in whole or in part as a result of (A) a
subsequent bankruptcy or insolvency proceeding; (B) any forfeiture or in rem
seizure action or remedy; (C) any fraudulent transfer or preference action or
remedy; or (D) any other criminal or equitable proceeding or remedy, then Bank
may at its option recover the Obligations or the consideration so voided from
Applicant. In such event, Bank's claim to recover the voided consideration shall
be a new and independent claim arising under the Agreement, and shall be jointly
and severally due and payable immediately by Applicant.
13. MISCELLANEOUS. The rights and remedies granted to Bank in the
Agreement are in addition to all other rights or remedies afforded to Bank under
applicable law, equity or other agreements. The terms of the Agreement may not
be waived or amended, unless the parties consent in writing. The Agreement shall
be binding on Applicant's heirs, executors, administrators, successors and
permitted assigns, and shall inure to the benefit of Bank's successors and
assigns. Bank can assign this Agreement and its rights to reimbursement
regarding any Credit without Applicant's consent. Applicant shall not assign any
rights or remedies related to the Agreement or the Credit without written
consent of the Bank. Any notice to Applicant, if mailed, shall be deemed given
when mailed, postage paid, addressed to Applicant at the address on the
Application or such other address furnished by Applicant to Bank. This Section
shall not be deemed to be an exclusive list of each means of notice from one
party to the other. The Agreement will continue in full force and effect until
the expiration or cancellation of each Credit and all outstanding Obligations
have been satisfied in a manner satisfactory to Bank, and Applicant requests
termination in writing. Applicant will comply with all laws, regulations and
customs now or hereafter applicable to the Agreement or to the transaction
related to the Credit, and will furnish evidence of compliance as Bank may
require. Applicant shall maintain or cause to be maintained insurance covering
any Property for which payment is supported by a Credit in amounts, from
insurers, or through parties satisfactory to the Bank and will furnish such
evidence of insurance as and when Bank may require. This Agreement contains the
final, complete and exclusive understanding of, and supersedes all prior or
contemporaneous, oral or written, agreements, understandings, representations
and negotiations between, the parties relating to the subject matter of this
Agreement.
14. CONSENT TO JURISDICTION AND VENUE. IN ANY PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THE
AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER, APPLICANT IRREVOCABLY
9
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN ANY COUNTY IN THE JURISDICTION AND AGREES NOT TO RAISE ANY OBJECTION TO THE
JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING
IN THE JURISDICTION. APPLICANT AGREES THAT SERVICE OF PROCESS IN ANY SUCH
PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED
MAIL, POSTAGE PREPAID, TO IT.
15. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, APPLICANT AND WHEN IT ISSUES A CREDIT, BANK KNOWINGLY AND VOLUNTARILY WAIVE
ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON, ARISING OUT
OF, OR RELATING TO THE AGREEMENT OR THE CREDIT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT
THERETO. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO ISSUE THE CREDIT.
16. EFFECTIVENESS OF AGREEMENT. Applicant agrees that the terms
and conditions of this Continuing Letter of Credit Agreement shall be continuing
and shall apply to any Credit currently, or in the future, issued by the Bank on
Applicant's behalf.
Very truly yours,
(Corporation or Firm Name of Applicant)
By: Date:
(Authorized Signature and Title)
By: Date:
(Authorized Signature and Title)
(Corporation or Firm Name of Applicant)
By: Date:
(Authorized Signature and Title)
By: Date:
(Authorized Signature and Title)
10
Exhibit 8.7
Form of Covenant Compliance Certificate
For the Fiscal Quarter ended
_________________, 200_
I, ____________________________, the Chief Financial Officer of Orleans
Homebuilders, Inc. ("OHB") certify to Wachovia Bank, National Association, as
agent for the Lenders ("Agent"), and the Lenders that the calculations shown on
the attached covenant compliance spreadsheet are true and correct as of
______________, 200_:
The undersigned hereby certifies that no Event of Default under the
Revolving Credit Loan Agreement dated as of December 22, 2004 by and among
Greenwood Financial, Inc., the other Affiliates of OHB that are party thereto,
Agent, and the Lenders (as heretofore amended, the "Loan Agreement") has
occurred and is continuing. All capitalized terms used and not defined in this
Certificate have the meanings defined in the Loan Agreement.
--------------------------
Exhibit 13.9
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT ("this Agreement") made and
entered into on _____________________, 200__, between _________________________
("Assignor") and ______________________________ ("Assignee"), and consented to
and accepted by each of WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent ("Agent")
and, if required by the terms of the Loan Agreement (defined below), GREENWOOD
FINANCIAL, INC. (the "Master Borrower").
RECITALS
A. Assignor is a party to the Revolving Credit Loan Agreement,
dated December 22, 2004, by and among Agent, Master Borrower and the Lenders and
other Borrowers that are signatories thereto (as heretofore amended, the "Loan
Agreement"). Copies of the Loan Agreement and related documents have been
delivered to Assignee prior to the date hereof.
B. Initially capitalized terms not otherwise defined herein shall
have the same meanings as ascribed to them in the Loan Agreement.
C. Pursuant to the Loan Agreement, Assignor agreed to make Loans
and Letter of Credit Advances to Borrowers up to an aggregate principal amount
of $___________ at any one time outstanding (the "Assignor Commitment"),
evidenced by a Line of Credit Note payable to Assignor in the same original
principal amount (the "Assignor Note"). On the date hereof, the unfunded portion
of the Assignor Commitment is $ ____________ (the "Available Commitment") and
the funded portion of the Assignor Commitment is $____________, representing
currently outstanding Loans and Letter of Credit Advances previously made by
Assignor.
D. Assignor desires to sell and assign to Assignee, and Assignee
desires to purchase and assume from Assignor, [a portion of] the interest of
Assignor in, and of the rights and obligations of Assignor under, the Loan
Agreement, the Assignor Note, the Loan Documents, and all other documents,
instruments and agreements executed and delivered in connection therewith in the
manner, to the extent and upon the terms set forth below.
NOW, THEREFORE, in consideration of the foregoing and the agreements
and covenants hereinafter set forth, the parties hereto agree as follows:
1. Assignment and Assumption.
1.1 Assignor hereby sells, assigns, delegates and
transfers to Assignee, without recourse and without any representations or
warranties, except as set forth in Section 7.1 of this Agreement, effective on
the Assignment Date, (as such term is defined in Section 4 of this Agreement) a
_____% (the "Assigned Percentage") interest in and to Assignor's rights and
obligations under the Loan Agreement and other Loan Documents and representing:
1.1.1 the Assigned Percentage of the aggregate principal
amount of Loans and Letter of Advances made by Assignor on or prior to, and
outstanding on, the Assignment Date (the "Assigned Fundings"), which Assigned
Fundings, as of the date hereof, equal the sum of $____________ respecting
outstanding Loan and Letter of Credit Advances with all interest accruing and
payable thereon on and after the Assignment Date;
1.1.2 the Assigned Percentage of the Assignor Commitment
pursuant to the terms and provisions of the Loan Agreement (the "Assigned
Commitment"), which Assigned Commitment is equal to, on the date hereof,
$____________ of which, on the date hereof, $____________ constitutes an amount
equal to the Assigned Percentage of the Available Commitment;
1.1.3 the Assigned Percentage of Assignor's interest in the
Unused Fee accruing and payable pursuant to Section 2.6.3 of the Loan Agreement
after the Assignment Date; and
1.1.4 the Assigned Percentage of all of Assignor's rights
(including voting rights), interests and obligations under the Loan Agreement,
the Assignor Note and each other Loan Document;
provided, however, that in no event shall such assignment include, or be deemed
to include (y) any amounts paid to Assignor under or pursuant to the Loan
Agreement prior to the Assignment Date, and (z) interest, fees and other amounts
accruing on the Assigned Fundings and the Assigned Commitments prior to the
Assignment Date but which are payable after such date.
1.2 Assignee hereby irrevocably purchases, takes and
assumes, effective on the Assignment Date, all duties, liabilities, obligations,
rights and interests assigned to it by Assignor (including, without limitation,
the obligation to make Loans and Letter of Credit Advances up to the amount of
the Assigned Commitment) and agrees to perform all such duties, liabilities and
obligations on and after the Assignment Date as if it had been an original party
to the Loan Agreement and other Loan Documents to which Lenders are parties, all
as is more specifically set forth in Section 1.1 of this Agreement.
2. Purchase Price.
As consideration for the assignment effected hereby, and as a
precondition to the effectiveness thereof, prior to 5:00 p.m. prevailing Eastern
time on the Assignment Date, Assignee shall pay to Assignor an amount equal to
such aggregate principal amount of the Assigned Fundings, in immediately
available U.S. Dollars.
3. Confirmation and Agreement.
By executing and delivering this Agreement, (a) Assignor and
Assignee confirm to and agree with each other and the other parties to the Loan
Agreement as follows: (i) Assignor makes no representation or warranty (except
as provided in Section 7.1 of this Agreement) and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency, collectibility or
value of this Agreement, the Loan Agreement, the Assignor Note or any other
Loan Document; and (ii) Assignor makes no representations or warranties and
assumes no responsibility with respect to the financial condition of Borrowers
or of Guarantor or the performance or observance by Borrowers or Guarantor of
any of their respective obligations under the Loan Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto; (b)
Assignee confirms that it has received a copy of the Loan Agreement and other
Loan Documents, together with such other documents and information as Assignee
has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (c) Assignee confirms that it has made, independently and
without reliance upon the Agent, Assignor or any other Lender or, except as
provided in Section 7.1 of this Agreement, any representations or warranties
made by the foregoing and based on such documents and information as Assignee
shall deem appropriate at the time, and Assignee shall continue to make, its own
credit decisions in entering into this Agreement and taking or not taking any
action hereunder or under the Loan Agreement or any other Loan Document; and (d)
Assignee appoints and authorizes Agent to take such action as agent on its
behalf and to exercise such powers under the Loan Agreement as are delegated to
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.
4. Assignment Date.
The Assignment Date for this Agreement shall be the date first
above written; provided, however, that if Assignee shall not have paid to
Assignor the amount referred to in Section 2 hereof, prior to 5:00 p.m.
prevailing Eastern time on such date, then the Assignment Date shall instead be
the date on which Assignee shall have so satisfied such condition; further
provided, that if Assignee does not so satisfy such condition prior to 5:00 p.m.
prevailing Eastern time on the tenth (10th) Business Day following the date
first written above, this Agreement shall terminate and Assignor shall have no
further obligations to Assignee.
5. Exercise of Rights.
From and after the Assignment Date, (a) the Assignee shall be
a party to the Loan Agreement and each other Loan Document to which Lenders are
parties and, to the extent provided in this Agreement, shall have the rights,
liabilities, duties and obligations of a Lender thereunder, and (b) the Assignor
shall, to the extent provided in this Agreement, relinquish such rights and be
released from such liabilities, duties and obligations under the Loan Agreement
and such other Loan Documents as shall have been assigned to the Assignee
hereunder.
6. Payments.
Following the Assignment Date, Agent shall make all payments
in respect of the Assigned Fundings and Assigned Commitment (including payments
of principal, and of fees, interest, and other amounts accruing and payable
subsequent to the Assignment Date) to the Assignee at the address specified on
the signature pages hereto which address shall be deemed to be the Assignee's
notice address for purposes of the Loan Agreement and the other Loan Documents
unless Assignee otherwise notifies the relevant parties pursuant to the terms
thereof. To the extent either Assignee or Assignor shall receive amounts to
which the other is entitled pursuant to the terms hereof, Assignor and Assignee
shall make all appropriate adjustments thereof. Without limiting the generality
of the foregoing, Assignor shall be entitled to retain all amounts received by
it on account of its Pro Rata Share of (x) any interest accrued on any Loans or
Letter of Credit Advances prior to the Assignment Date, (y) Unused Fees with
respect to the Assignor Commitment accrued prior to the Assignment Date and (z)
interest, fees and other amounts accruing on the Assigned Fundings and the
Assigned Commitment prior to the Assignment Date. To the extent that Assignee
shall receive any such amounts, Assignee shall hold the same in trust for the
benefit of, and shall immediately pay the same over to, Assignor.
7. Representations.
7.1 Assignor represents and warrants that (i) the
documents referred to in the final sentence of Recital A which have been
delivered to Assignee are the current versions of such documents; and (ii) the
officer of the Assignor responsible for the credit relationship with Borrowers
is not aware of the existence of any Event of Default as of the Assignment Date
nor does the Assignor have any knowledge of any waiver of any material provision
of any Loan Document having been given in writing; and (iii) it is the legal and
beneficial owner of the interest being assigned hereby, free and clear of any
adverse claim.
7.2 Except for the representation and warranty set forth
in Section 7.1 of this Agreement, Assignor does not make any representation or
warranty, expressed or implied, and assumes no responsibility with respect to,
the sufficiency, value or collectibility of the Assigned Fundings, the Loan
Agreement or related documents or any rights afforded thereby or matters
mentioned therein; or with respect to the financial condition of Borrowers or of
Guarantor or the ability of any of the foregoing to liquidate any of their
respective assets; or with respect to the validity, enforceability, authenticity
or accuracy of any statement, report, certificate or other information made or
given or to be given to Assignor or Assignee by Borrowers, or Guarantor in
connection with the Loan Agreement.
8. Assignment.
Assignee agrees that it shall not sell, assign,
subdivide or transfer in any way its rights or interests or delegate all or any
part of its obligations which are the subject of this Agreement except as
permitted by the Loan Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and,
subject to the foregoing, assigns. Nothing herein shall impair Assignor's right
to sell, without notice to or the consent of Assignee, further assignments of,
or participations in, the Assignor Commitment remaining after giving effect to
this Agreement under the Loan Agreement, to the extent permitted thereunder.
9. Entire Agreement.
This Agreement contains the entire agreement of the Assignee
and Assignor with respect to the subject matter contained herein.
10. Governing Law.
This Agreement and all rights and obligations hereunder shall
be governed by and construed in accordance with the internal laws of the
Commonwealth of Pennsylvania.
11. Exchange of Line of Credit Notes.
Promptly after the Assignment Date, Assignor shall deliver to
Agent the Assignor Note. Agent shall exchange the Assignor Note for new Line of
Credit Notes, each dated the Assignment Date, payable to the Assignor and
Assignee, as their interests shall appear, after giving effect to the assignment
made hereunder, which new Line of Credit Notes Master Borrower agrees to (and
shall cause each of the other Borrowers to) duly execute and deliver to Assignor
and Assignee. Master Borrower, for itself and for each of the other Borrowers,
agrees that the substitution of the new Line of Credit Notes shall not
constitute a novation of any of Borrowers' obligations under the Assignor Note.
Notwithstanding the date of the new Line of Credit Note made in favor of
Assignee, Assignee hereby agrees and confirms, on which confirmation Borrowers
may rely, that Assignee has no right to, or interest in, any interest which
shall have accrued on the Assigned Fundings prior to the Assignment Date.
12. Counterparts.
This Agreement may be executed in counterparts, each of which
shall be an original and all of which shall constitute one agreement. It shall
not be necessary in making proof of this Agreement, or of any document required
to be executed and delivered in connection herewith, to produce or account f or
more than one counterpart signed by each signatory.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have duly executed this Agreement as of the date first above
written.
ASSIGNOR:
By:
-------------------------------
Name:
Title:
ASSIGNEE:
By:
-------------------------------
Name:
Title:
Signatures Continued on Next Page
Signatures Continued from Previous Page
Address for Notices:
____________________________________
____________________________________
____________________________________
Telecopier No.: ____________________
Telephone No.: ____________________
Email: ____________________
Acknowledged, Accepted
Accepted and Consented to: And Consented to on behalf of all
Borrowers:
Wachovia Bank, National Association, Greenwood Financial, Inc.
as Agent
By: By:
-------------------------------- -----------------------------
Name: Name:
Title: Title:
