Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
TO FORM HOLDING COMPANY
by and among
TRI
POINTE HOMES, INC.,
TRI POINTE GROUP, INC.,
and
TPG MERGER, INC.
July 7, 2015
AGREEMENT AND PLAN OF MERGER TO FORM HOLDING COMPANY
THIS AGREEMENT AND PLAN OF MERGER TO FORM HOLDING COMPANY (this “Agreement”), dated as of July 7, 2015, by and among TRI Pointe
Homes, Inc., a Delaware corporation (“TRI Pointe”), TRI Pointe Group, Inc., a Delaware corporation and a wholly-owned subsidiary of TRI Pointe (“Holdings”), and TPG Merger, Inc., a Delaware corporation and a wholly-owned
subsidiary of Holdings (“Merger Sub”).
WHEREAS, TRI Pointe has an authorized capitalization consisting of (i) 500,000,000
shares of common stock, par value $0.01 per share (“TRI Pointe Common Stock”), of which 161,737,684 shares are issued and outstanding, and (ii) 50,000,000 shares of preferred stock, par value $0.01 per share, none of which is issued
and outstanding;
WHEREAS, immediately prior to the Effective Time (as defined herein below), Holdings shall have an authorized
capitalization consisting of (i) 500,000,000 shares of common stock, par value $0.01 per share (“Holdings Common Stock”), of which 1,000 shares will be issued and outstanding and owned by TRI Pointe, and (ii) 50,000,000 shares of
preferred stock, par value $0.01 per share, none of which will be issued and outstanding;
WHEREAS, immediately prior to the Effective
Time, Merger Sub shall have an authorized capitalization consisting of 1,000 shares of common stock, par value $0.01 per share (“Merger Sub Common Stock”), all of which will be issued and outstanding and will be owned by Holdings;
WHEREAS, the Board of Directors of TRI Pointe has determined that it is advisable and in the best interests of TRI Pointe and its stockholders
to effect the implementation of a holding company structure whereby TRI Pointe will become a wholly-owned subsidiary of Holdings;
WHEREAS, it is intended that the holding company structure be effected without a vote of TRI Pointe’s stockholders pursuant to and in
accordance with Section 251(g) of the Delaware General Corporation Law (the “DGCL”);
WHEREAS, the respective Boards of
Directors of TRI Pointe, Holdings and Merger Sub, and TRI Pointe acting as the sole stockholder of Holdings, and Holdings acting as the sole stockholder of Merger Sub, have approved the merger of Merger Sub with and into TRI Pointe (the
“Merger”);
WHEREAS, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions, of
Holdings Common Stock are the same as those of TRI Pointe Common Stock;
WHEREAS, the certificate of incorporation of Holdings and the
bylaws of Holdings, in effect immediately after the Effective Time, will contain provisions identical to the certificate of incorporation of TRI Pointe, as amended, and the bylaws of TRI Pointe, as amended, in effect immediately before the Effective
Time (other than as required or permitted by Section 251(g) of the DGCL);
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WHEREAS, Holdings and Merger Sub have been recently formed for purposes of effecting the holding
company structure through the Merger; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the Merger shall qualify as
(i) a tax-free reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) an exchange under Section 351 of the Code, and in each case, the rules and
regulations promulgated thereunder.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.1.
The Merger
.
(a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 251(g) and other applicable
provisions of the DGCL, Merger Sub shall be merged with and into TRI Pointe at the Effective Time (as defined in Section 1.2). At the Effective Time, the separate corporate existence of Merger Sub shall cease and TRI Pointe shall continue as
the surviving corporation (the “Surviving Corporation”), as a wholly-owned subsidiary of Holdings, and shall maintain the name TRI Pointe Homes, Inc. The Surviving Corporation shall succeed to and assume all the rights and obligations
of Merger Sub in accordance with the DGCL.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of TRI
Pointe, Holdings, Merger Sub or the holders of any securities of TRI Pointe, Holdings or Merger Sub, each issued and outstanding share of TRI Pointe Common Stock (other than any TRI Pointe Common Stock to be cancelled pursuant to
Section 1.1(c)), shall be cancelled and extinguished and be converted into one validly issued, fully paid and nonassessable share of Holdings Common Stock, having the same designations, rights, powers and preferences, and the qualifications,
limitations and restrictions as the converted share of TRI Pointe Common Stock.
(c) At the Effective Time, each share of TRI Pointe
Common Stock that is owned by TRI Pointe immediately prior to the Effective Time shall, by virtue of the Merger, and without any action on the part of TRI Pointe, Holdings, Merger Sub or the holders of any securities of TRI Pointe, Holdings or
Merger Sub, be cancelled and retired without any consideration therefor.
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(d) At the Effective Time, each share of Holdings Common Stock outstanding immediately prior to
the Effective Time shall, by virtue of the Merger, and without any action on the part of TRI Pointe, Holdings, Merger Sub or the holders of any securities of TRI Pointe, Holdings or Merger Sub, be cancelled and retired without any consideration
therefor.
(e) At the Effective Time, each issued and outstanding share of Merger Sub Common Stock shall, by virtue of the Merger, and
without any action on the part of TRI Pointe, Holdings, Merger Sub or the holders of any securities of TRI Pointe, Holdings or Merger Sub, be converted into the right to receive one validly issued, fully paid and nonassessable share of the common
stock, par value $0.01 per share, of the Surviving Corporation.
(f) In accordance with the DGCL, no appraisal rights shall be available
to any holders of TRI Pointe Common Stock in connection with the Merger.
SECTION 1.2.
Effective Time
. The parties shall file a
Certificate of Merger (the “Certificate of Merger”), in the form attached hereto as
Exhibit A
, with the Secretary of State of the State of Delaware (the “
Delaware Secretary of State
”) executed in
accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL to effectuate fully the Merger. The Merger shall become effective as of the date and time as the parties shall agree and
specify in the Certificate of Merger, or if no specification is made, at the time that the Certificate of Merger is duly filed with the Delaware Secretary of State (the time the Merger becomes effective being hereinafter referred to as the
“Effective Time”).
SECTION 1.3.
Effects of the Merger
.
(a) The Merger shall have the effects set forth in Section 259 of the DGCL.
(b) All contractual rights and obligations relating to TRI Pointe Common Stock immediately prior to the Merger (including, without limitation,
any rights or obligations existing under (i) that certain Investor Rights Agreement, dated as of January 30, 2013, by and among the TRI Pointe, VIII/TPC Holdings, L.L.C. (“Starwood Fund”), and certain other TRI Pointe
stockholders party thereto, as amended by that certain First Amendment to Investor Rights Agreement, dated as of November 3, 2013 (as amended, the “Investor Rights Agreement”); (ii) that certain Registration Rights Agreement,
dated as of January 30, 2013, by and among TRI Pointe, Starwood Fund, and certain other TRI Pointe stockholders party thereto (the “Registration Rights Agreement”); (iii) the TRI Pointe Homes, Inc. 2013 Long-Term Incentive Plan,
as amended by that certain Amendment No. 1 to the TRI Pointe Homes, Inc. 2013 Long-Term Incentive Plan, dated as of June 23, 2014, and that certain Amendment No. 2 to the TRI Pointe Homes, Inc. 2013 Long-Term Incentive Plan, dated as
of June 23, 2014 (as amended, the “2013 LTIP”); and (iv) the Weyerhaeuser Real Estate Company 2004 Long-Term Incentive Plan and the Weyerhaeuser Real Estate Company 2013 Long-Term Incentive Plan, each of which was previously
assumed by TRI Pointe (as amended, collectively, the “WRECO Plans” and each, a “WRECO Plan” and together with the
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Investor Rights Agreement, the Registration Rights Agreement and the 2013 LTIP, the “TRI Pointe Capital Stock Agreements”) shall, as of the Effective Time, be assigned to and assumed by
Holdings and be deemed to apply to Holdings Common Stock. In addition, all contractual rights and obligations of TRI Pointe immediately prior to the Merger existing under the TRI Pointe Group Short-Term Incentive Plan (the “STIP”)
shall, as of the Effective Time, be assigned to and assumed by Holdings. The respective Boards of Directors of TRI Pointe and Holdings have approved the assignment to and the assumption by Holdings of the TRI Pointe Capital Stock Agreements and the
STIP. For avoidance of doubt, the assignment and assumption of the 2013 LTIP and the STIP shall apply to all rights and obligations under the 2013 LTIP and the STIP, including any rights or obligations with respect to non-equity incentive awards
that may be settled in cash.
(c) For U.S. federal income tax purposes, it is intended that the Merger shall qualify as a tax-free
reorganization under the provisions of Section 368(a) of the Code and as an exchange under Section 351 of the Code.
SECTION
1.4.
Certificate of Incorporation and Bylaws
.
(a) At the Effective Time, by virtue of the Merger, the certificate of incorporation
of TRI Pointe, as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety as set forth in
Exhibit B
, in accordance with Section 251(g) of the DGCL, and as so amended and restated, shall be the
certificate of incorporation of the Surviving Corporation, until thereafter changed or amended as provided therein or by applicable law.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub or TRI Pointe, the bylaws of TRI Pointe
immediately prior to the Effective Time, in the form attached hereto as
Exhibit C
, shall be the bylaws of the Surviving Corporation, until thereafter changed or amended as provided therein or in the certificate of incorporation of TRI
Pointe, or by applicable law.
(c) The certificate of incorporation of Holdings immediately prior to the Effective Time, in the form
attached hereto as
Exhibit D
, shall be the certificate of incorporation of Holdings until thereafter changed or amended as provided therein or by applicable law. The bylaws of Holdings immediately prior to the Effective Time, in the form
attached hereto as
Exhibit E
, shall be the bylaws of Holdings, until thereafter changed or amended as provided therein or in the certificate of incorporation of Holdings, or by applicable law.
SECTION 1.5.
Directors
. The directors of TRI Pointe immediately prior to the Effective Time shall continue as the directors of the
Surviving Corporation, and shall serve in accordance with the certificate of incorporation or bylaws of the Surviving Corporation and applicable law. The directors of TRI Pointe immediately prior to the Effective Time shall continue as the directors
of Holdings, and shall serve in accordance with the certificate of incorporation or bylaws of Holdings and applicable law.
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SECTION 1.6.
Officers
. The officers of TRI Pointe immediately prior to the Effective Time
shall continue as the officers of the Surviving Corporation, and shall serve in accordance with the bylaws of the Surviving Corporation and applicable law. The officers of TRI Pointe immediately prior to the Effective Time shall continue as or
become the officers of Holdings, and shall serve in accordance with the bylaws of Holdings and applicable law.
SECTION 1.7.
No
Surrender of Certificates; Book-Entry Shares.
At the Effective Time, the designations, rights, powers and preferences, and qualifications, limitations and restrictions, of the Holdings Common Stock will, in each case, be identical with those of
the TRI Pointe Common Stock immediately prior to the Effective Time. Accordingly, until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate that, immediately prior to the Effective Time, evidenced TRI
Pointe Common Stock shall, from the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Holdings Common Stock. In addition, each outstanding book-entry that, immediately prior to
the Effective Time, evidenced TRI Pointe Common Stock shall, from the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Holdings Common Stock.
SECTION 1.8.
Effect of the Merger on Options, Other Share-Based Awards and Cash-Based Awards
.
(a) At the Effective Time, each unexercised and unexpired option to purchase TRI Pointe Common Stock (each, an “Option”) then
outstanding under the 2013 LTIP, the WRECO Plans and any other equity-based incentive plans of TRI Pointe in existence as of the Effective Time, which provides for the purchase, grant or issuance of TRI Pointe Common Stock (collectively, the
“Equity Plans” and each, an “Equity Plan”), whether or not then exercisable, shall, by virtue of the Merger and without any action on the part of the holder thereof, be assumed by Holdings. Each Option so assumed by Holdings
under this Agreement will continue to have, and be subject to, the same terms and conditions as set forth in the applicable Equity Plan and any agreements in effect thereunder immediately prior to the Effective Time including, without limitation,
the vesting schedule (without acceleration thereof by virtue of the Merger and the transactions contemplated hereby) and per share exercise price, except that each Option will be exercisable (or will become exercisable upon vesting in accordance
with its terms) for that number of shares of Holdings Common Stock equal to the number of shares of TRI Pointe Common Stock which were subject to such Option immediately prior to the Effective Time.
(b) At the Effective Time, each share of TRI Pointe Common Stock granted under an Equity Plan that is subject to vesting or other lapse
restrictions (collectively, the “Restricted Stock”) shall, upon conversion into Holdings Common Stock and without any action on the part of the holder thereof, continue to have, and be subject to, the same terms and conditions as set forth
in the applicable Equity Plan and any agreements thereunder in effect immediately prior to the Effective Time (including, without limitation, the vesting or other lapse restrictions (without acceleration thereof by virtue of the Merger and the
transactions contemplated hereby)).
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(c) At the Effective Time, each restricted stock unit granted under an Equity Plan that is then
outstanding (collectively, the “RSUs”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be assumed by Holdings. Each RSU so assumed by Holdings under this Agreement will continue to have, and be
subject to, the same terms and conditions as set forth in the applicable Equity Plan and any agreements thereunder immediately in effect prior to the Effective Time (including, without limitation, the vesting schedule (without acceleration thereof
by virtue of the Merger and the transactions contemplated hereby)), except that each RSU will be converted into an RSU subject to that number of shares of Holdings Common Stock equal to the number of shares of TRI Pointe Common Stock which were
subject to such RSU immediately prior to the Effective Time.
(d) At the Effective Time, each performance share unit granted under an
Equity Plan that is then outstanding (collectively, the “PSUs”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be assumed by Holdings. Each PSU so assumed by Holdings under this Agreement will
continue to have, and be subject to, the same terms and conditions as set forth in the applicable Equity Plan and any agreements thereunder immediately in effect prior to the Effective Time (including, without limitation, the time-based vesting
schedule which became applicable upon TRI Pointe’s assumption of certain of the PSUs (without acceleration thereof by virtue of the Merger and the transactions contemplated hereby)), except that each PSU will be converted into a PSU subject to
that number of shares of Holdings Common Stock equal to the number of shares of TRI Pointe Common Stock which were subject to such PSU immediately prior to the Effective Time.
(e) At the Effective Time, each non-equity incentive cash-based award granted under the 2013 LTIP or the STIP (the STIP, together with the
Equity Plans, the “Plans”)that is then outstanding (collectively, the “Cash-Based Awards”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be assumed by Holdings. Each Cash-Based
Award so assumed by Holdings under this Agreement will continue to have, and be subject to, the same terms and conditions as set forth in the 2013 LTIP or the STIP, as applicable, and in any resolutions of the Board of Directors and/or Compensation
Committee of TRI Pointe and in any cash incentive award agreements, as applicable, adopted prior to the Effective Time (including, without limitation, any applicable performance metrics), except that the performance metrics applicable to each
Cash-Based Award will relate to the performance of Holdings following the Effective Time.
ARTICLE II
Certain Covenants
SECTION 2.1.
Assignment and Assumption of the Investor Rights Agreement and the Registration Rights Agreement
. Holdings and TRI Pointe
hereby agree that they
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will, at or promptly following the Effective Time, execute, acknowledge and deliver an assignment and assumption agreement (the “Rights Assignment and Assumption Agreement”) pursuant to
which, from and after the Effective Time, TRI Pointe will assign to Holdings, and Holdings will assume and agree to perform, all obligations of TRI Pointe pursuant to the Investor Rights Agreement and the Registration Rights Agreement.
SECTION 2.2.
Assumption of Plans
. Holdings and TRI Pointe hereby agree that they will, at or promptly following the Effective Time,
execute, acknowledge and deliver an assignment and assumption agreement (the “Plan Assignment and Assumption Agreement”) pursuant to which, from and after the Effective Time, TRI Pointe will assign to Holdings, and Holdings will assume and
agree to perform, all obligations of TRI Pointe pursuant to (i) the Plans and (ii) each stock option agreement, restricted stock agreement, restricted stock unit agreement, performance share unit agreement, cash incentive award agreement
and/or any other similar agreement entered into or outstanding pursuant to the Plans, including, without limitation, each outstanding Option, Restricted Stock, RSU, or PSU award or Cash-Based Award granted thereunder. At or promptly following the
Effective Time, the Plans and any award agreements entered into thereunder shall each be amended as necessary to provide that references to TRI Pointe or TRI Pointe Common Stock shall be read to refer to Holdings or Holdings Common Stock, as
applicable.
SECTION 2.3.
Compliance with Section 251(g) of the DGCL
. Prior to the Effective Time, the parties to this
Agreement will take all steps necessary to comply with Section 251(g) of the DGCL.
SECTION 2.4.
Further Assurances
. From time
to time, as and when requested by another party hereto, a party hereto shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further actions as such other
party may reasonably deem necessary or desirable to consummate the transactions contemplated by this Agreement.
SECTION 2.5.
Consummation of the Transaction
. Subject to the terms and conditions of this Agreement, each party shall use its commercially reasonable efforts to cause the Merger to occur upon the terms hereof.
SECTION 2.6.
Amendment to Registration Statements
. As of the Effective Time, Holdings shall be deemed a “successor issuer”
for purposes of continuing certain offerings of TRI Pointe under the Securities Act of 1933, as amended (the “Securities Act”). As soon as practicable following the Merger, Holdings will, to the extent deemed appropriate, file
post-effective amendments to TRI Pointe’s registration statements on Form S-3 and Form S-8 adopting such registration statements as its own registration statements for all purposes of the Securities Act and the Securities Exchange Act of 1934,
as amended, and setting forth any additional information necessary to reflect any material changes made in connection with or resulting from the succession, or necessary to keep the registration statements from being misleading in any material
respect.
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ARTICLE III
General Provisions
SECTION 3.1.
Interpretation
. The headings contained in this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The Exhibits attached hereto are hereby incorporated herein and made a part hereof
for all purposes, as if fully set forth herein.
SECTION 3.2.
Counterparts
. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.
SECTION 3.3.
No Third-Party Beneficiaries
. This Agreement (including the documents and instruments referred to herein) is not intended
to confer upon any person other than the parties hereto any rights or remedies.
SECTION 3.4.
Governing Law
. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the applicable principles of conflicts of laws of such State.
SECTION 3.5.
Severability
. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
SECTION 3.6.
Amendment
. At any time prior to the Effective Time, the parties hereto may, to the extent permitted by the DGCL, by
written agreement amend, modify or supplement any provision of this Agreement.
SECTION 3.7.
Termination
. This Agreement may be
terminated and the Merger abandoned by the respective Board of Directors or duly authorized committee thereof of any party at any time prior to the Effective Time if such Board of Directors determines that for any reason the completion of the Merger
would be inadvisable or not in the best interest of the respective corporation or its stockholders. In the event of termination of this Agreement, this Agreement shall become void and none of TRI Pointe, Holdings or Merger Sub, nor their respective
stockholders, directors or officers shall have any liability with respect to such termination.
[Signature Page Follows.]
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IN WITNESS WHEREOF, TRI Pointe, Holdings and Merger Sub have caused this Agreement to be signed by their
respective officers thereunto duly authorized, all as of the date first written above.
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TRI POINTE HOMES, INC.
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By:
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/s/ Douglas F. Bauer
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Name: Douglas F. Bauer
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Title: Chief Executive Officer
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TRI POINTE GROUP, INC.
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By:
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/s/ Douglas F. Bauer
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Name: Douglas F. Bauer
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Title: Chief Executive Officer
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TPG MERGER, INC.
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By:
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/s/ Douglas F. Bauer
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Name: Douglas F. Bauer
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Title: Chief Executive Officer
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[Signature Page to Agreement and Plan of Merger to Form Holding Company]
EXHIBIT A
CERTIFICATE OF MERGER
(See attached.)
CERTIFICATE OF MERGER
OF
TPG MERGER, INC.
(a Delaware corporation)
WITH AND INTO
TRI
POINTE HOMES, INC.
(a Delaware corporation)
Pursuant to
Section 251(g) of the
General Corporation Law of Delaware
The undersigned corporation, TRI Pointe Homes, Inc., organized and existing under and by virtue of the General Corporation Law of the State of
Delaware (the “DGCL”):
DOES HEREBY CERTIFY THAT:
FIRST: The names of each of the constituent corporations are TRI Pointe Homes, Inc., a Delaware corporation (the “Surviving
Corporation” or “TRI Pointe”) and TPG Merger, Inc., a Delaware corporation (the “Disappearing Corporation” or “Merger Sub”).
SECOND: An Agreement and Plan of Merger to Form Holding Company, dated as of July 7, 2015, by and among TRI Pointe, TRI Pointe Group,
Inc., a Delaware corporation (“Holdings”), and Merger Sub has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(g) of the DGCL, and
each of the requirements of Section 251(g) have been satisfied.
THIRD: Prior to the effectiveness of the merger herein certified,
Holdings is a wholly-owned subsidiary of TRI Pointe.
FOURTH: Merger Sub is a wholly-owned subsidiary of Holdings.
FIFTH: Upon the effectiveness of the merger herein certified, the separate corporate existence of the Disappearing Corporation shall cease and
the Surviving Corporation shall continue as a wholly-owned subsidiary of Holdings under the name of TRI Pointe Homes, Inc.
SIXTH: Upon
the effectiveness of the merger herein certified, the Surviving Corporation shall succeed to and assume all the rights and obligations of the Disappearing Corporation in accordance with the DGCL.
SEVENTH: The executed Agreement and Plan of Merger to Form Holding Company is on file at the
principal place of business of the Surviving Corporation at 19540 Jamboree Road, Suite 300, Irvine, California 92612.
EIGHTH: A copy of
the Agreement and Plan of Merger to Form Holding Company will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of the Disappearing Corporation, Holdings, or the Surviving Corporation.
NINTH: The certificate of incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as set forth on
Exhibit A
.
TENTH: The merger shall become effective at 4:01 p.m. New York City time on July 7, 2015.
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IN WITNESS WHEREOF, the undersigned has executed and subscribed to this Certificate of Merger on
behalf of TRI Pointe Homes, Inc., as its authorized officer and hereby affirms, under penalties of perjury, that this Certificate of Merger is the act and deed of such corporation and that the facts stated herein are true.
Dated: July 7, 2015
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TRI POINTE HOMES, INC., a Delaware corporation,
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By:
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/s/ Douglas F. Bauer
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Name:
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Douglas F. Bauer
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Title:
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Chief Executive Officer
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[Signature page to Certificate of Merger]
EXHIBIT A
(Omitted.)
EXHIBIT B
AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF TRI POINTE HOMES, INC.
(See attached.)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRI POINTE HOMES,
INC.
(a Delaware corporation)
ARTICLE I
NAME
The name of
the Corporation is TRI Pointe Homes, Inc. (hereinafter called the “
Corporation
”).
ARTICLE II
REGISTERED OFFICE
The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801, and the name of the registered agent at that address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The
purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (the “
DGCL
”).
ARTICLE IV
STOCK
SECTION
4.01
Authorized Stock
. The aggregate number of all classes of shares of capital stock which the Corporation shall have authority to issue is One Thousand (1,000) shares of Common Stock, par value $0.01 per share (“
Common
Stock
”).
SECTION 4.02
Common Stock
.
(a)
Voting
. Except as otherwise provided by the DGCL, the entire voting power of the shares of the Corporation for the election of
directors and for all other purposes shall be vested exclusively in the Common Stock. Each share of Common Stock shall have one vote upon all matters to be voted on by the holders of the Common Stock.
(b)
Dividends
. Each share of Common Stock shall be entitled to receive and share equally
in all dividends paid out of any funds of the Corporation legally available therefor when, as and if declared by the Board of Directors of the Corporation (“
Board of Directors
”).
(c)
Liquidation
. Upon the dissolution, liquidation or winding up of the Corporation, the holders of shares of Common Stock shall be
entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.
ARTICLE V
BOARD OF DIRECTORS
SECTION 5.01
Number
. The number of directors constituting the whole Board of Directors shall be not fewer than
three (3) and shall be fixed from time to time solely by resolution adopted by affirmative vote of a majority of such directors then in office and may not be fixed by any other person or persons, including stockholders.
SECTION 5.02
Vacancies
. Newly created directorships resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law, be filled solely by the affirmative vote of a majority of the remaining
directors then in office, even if such a majority is less than a quorum of the Board of Directors, or by a sole remaining director, and shall not be filled by any other person or persons, including stockholders. Any director so chosen shall hold
office for the remainder of the full term of the class for which such director shall have been chosen or in which such vacancy occurred and until his successor shall be elected and qualified. No decrease in the authorized number of directors shall
shorten the term of any incumbent director.
SECTION 5.03
Powers
. Except as otherwise expressly provided by the DGCL or this
Certificate of Incorporation, the management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors.
SECTION 5.04
Election
.
(a)
Ballot Not Required
. The directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation so
provide.
(b)
Notice
. Advance notice of stockholder nominations for the election of directors shall be given in the manner and to
the extent provided in the Bylaws of the Corporation.
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ARTICLE VI
STOCKHOLDER ACTION
The authority contemplated by Section 228 of the DGCL which permits stockholders to act by written consent is expressly denied to the
stockholders of the Corporation. Accordingly, the stockholders have no ability to take any action unless such action is taken at an annual or special meeting of the stockholders.
ARTICLE VII
SPECIAL MEETINGS OF STOCKHOLDERS
A special meeting of the stockholders of the Corporation may be called at any time only by the Chairman of the Board of Directors, the Chief
Executive Officer (or if there is no Chief Executive Officer, the President) or the Board of Directors of the Corporation pursuant to a resolution adopted by a majority of the total number of directors then in office. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.
ARTICLE VIII
EXISTENCE
The
Corporation shall have perpetual existence.
ARTICLE IX
AMENDMENT
SECTION 9.01
Amendment of Certificate of Incorporation
. The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred herein are granted subject to this reservation.
SECTION 9.02
Amendment of Bylaws
. The Bylaws of the Corporation may be altered, changed or repealed, and new Bylaws made, by the
majority vote of the whole Board of Directors.
ARTICLE X
LIABILITY OF DIRECTORS
SECTION 10.01
Personal Liability
. To the fullest extent elimination or limitation of personal liability of directors is
permitted by the DGCL, no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
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SECTION 10.02
Indemnification
. Each person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was a director or officer of the Corporation shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL. The right to indemnification conferred in this Article X shall also
include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by the DGCL. The rights to indemnification and advancement conferred in
this Article X shall be contract rights and shall become vested by virtue of the director’s or officer’s service at the time when the state of facts giving rise to the claim occurred. The Corporation may, by action of its Board of
Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the DGCL.
SECTION 10.03
Insurance
. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL.
SECTION 10.04
Non-Exclusivity
. The rights and authority conferred in this Article X shall not be exclusive of any other right
which any person may otherwise have or hereafter acquire.
SECTION 10.05
Applicability
. Neither the amendment nor repeal of
this Article X, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws of the Corporation, nor, to the fullest extent permitted by the DGCL, any modification of law, shall eliminate or reduce the effect of this Article
X in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification. Any vested rights to indemnification or advancement hereunder may not be amended or otherwise modified or limited without the express written
consent of the affected director.
ARTICLE XI
BUSINESS OPPORTUNITIES
SECTION 11.01
Business Opportunities
. To the fullest extent permitted by the DGCL and except as may be otherwise expressly
agreed in writing by the Corporation and VIII/TPC Holdings, L.L.C. or any affiliate or subsidiary thereof (other than the Corporation and its subsidiaries) (collectively, the “Starwood Fund”) the Corporation, on behalf of itself and its
subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in
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being offered an opportunity to participate in, any business opportunity that may be from time to time presented to the Starwood Fund or any of their officers, directors, agents, stockholders,
members, partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries) and that may be a business opportunity for the Starwood Fund or any of their affiliates and subsidiaries, even if the opportunity is one that the
Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable to the Corporation or any of its subsidiaries for breach of any
fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person, acting in good faith, pursues or acquires any such business opportunity, directs any such business opportunity to another person or fails to
present any such business opportunity, or information regarding any such business opportunity, to the Corporation or its subsidiaries unless, in the case of any such person who is a director or officer of the Corporation, any such business
opportunity is expressly offered to such director or officer solely in his or her capacity as a director or officer of the Corporation. Neither the Starwood Fund nor any of their affiliates or subsidiaries shall have any duty to refrain from
engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries.
SECTION 11.02
Termination
. The provisions of this Article XI shall have no further force or effect with respect to the Starwood
Fund or any of their affiliates or subsidiaries on the date that no person who is a director or officer of the Corporation is also a director, officer, member, partner or employee of the Starwood Fund or any of their affiliates or subsidiaries.
Neither the alteration, amendment or repeal of this Article XI nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article XI nor the termination of applicability pursuant to the immediately preceding
sentence shall eliminate or reduce the effect of this Article XI in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article XI, would accrue or arise, prior
to such alteration, amendment, repeal, adoption or termination.
SECTION 11.03
Deemed Notice
. Any person purchasing or
otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XI.
ARTICLE XII
DGCL SECTION 203 AND BUSINESS COMBINATIONS
SECTION 12.01
The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
SECTION 12.02
Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below) with any
interested stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
(a) prior to such time, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
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(b) upon consummation of the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock
outstanding those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer; or
(c) at or subsequent to such time, the business combination is approved by the Board of
Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.
SECTION 12.03
The restrictions contained in Section 12.02 shall not apply if:
(a) the Corporation does not have a class of voting stock that is: (i) listed on a national securities exchange; or (ii) held of
record by more than 2,000 stockholders, unless any of the foregoing results from action taken, directly or indirectly, by an interested stockholder or from a transaction in which a person becomes an interested stockholder; or
(b) a stockholder becomes an interested stockholder inadvertently and (i) as soon as practicable divests itself of ownership of
sufficient shares so that the stockholder ceases to be an interested stockholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between the Corporation and such stockholder, have been
an interested stockholder but for the inadvertent acquisition of ownership.
SECTION 12.04
For purposes of this Article XII,
references to:
(a) “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, another person.
(b) “associate,” when used to indicate a relationship with any
person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock;
(ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of
such spouse, who has the same residence as such person.
(c) “business combination,” when used in reference to the Corporation
and any interested stockholder of the Corporation, means:
(i) any merger or consolidation of the Corporation or any direct
or indirect majority-owned subsidiary of the Corporation (a) with the interested stockholder, or (b)
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with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or
consolidation Section 12.02 is not applicable to the surviving entity;
(ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of
the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;
(iii) any transaction
which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (A) pursuant to
the exercise, exchange or conversion of any security exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became
such; (B) pursuant to a merger under Section 251(g) of the DGCL; (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into
stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (D) pursuant to an exchange
offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (E) any issuance or transfer of stock by the Corporation;
provided
,
however
, that in no case under items (C)-(E) of this
subsection (iii) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation;
(iv) any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has
the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or of securities exercisable for, exchangeable for or convertible into the stock of any class or series, of the Corporation or of any such
subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the
interested stockholder; or
(v) any receipt by the interested stockholder of the benefit, directly or indirectly (except
proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (i)-(iv) above) provided by or through the Corporation or any
direct or indirect majority-owned subsidiary.
(d) “control,” including the terms “controlling,” “controlled
by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the
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direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting
stock of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a
presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article XII, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not
individually or as a group have control of such entity.
(e) “Existing Holder” means the Starwood Fund and their affiliates and
subsidiaries.
(f) “Existing Holder Direct Transferee” means any person (and its affiliates) who acquires (other than in a
registered public offering) directly in one or more related transactions from the Existing Holder or any “group”, or any member of any such group, to which such Existing Sponsor is a party under Rule 13d-5 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), beneficial ownership of 15% or more in the aggregate of the then outstanding voting stock of the Corporation.
(g) “Existing Holder Indirect Transferee” means any person (and its affiliates) who acquires (other than in a registered public
offering) directly in one or more related transactions from any Existing Holder Direct Transferee or any other Existing Holder Indirect Transferee beneficial ownership of 15% or more in the aggregate of the then outstanding voting stock of the
Corporation.
(h) “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting
stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person; but
“interested stockholder” shall not include (A) the Existing Holder, any Existing Holder Direct Transferee, any Existing Holder Indirect Transferee or any of their respective affiliates or successors or any “group”, or any
member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act, or (B) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the
Corporation, provided, in the case of this clause (B), that such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not
caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through
application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
(i) “person” means any individual, corporation, partnership, unincorporated association or other
entity.
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(j) “stock” means, with respect to any corporation, capital stock and, with respect to
any other entity, any equity interest.
(k) “voting stock” means, with respect to any corporation, stock of any class or series
entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity. Every reference to a percentage
of voting stock shall refer to such percentage of the votes of such voting stock.
(l) “owner,” including the terms
“own” and “owned,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:
(i) beneficially owns (as determined pursuant to Rule 13d-3 of the Exchange Act or any successor provision) such stock,
directly or indirectly;
(ii) has (A) the right to acquire such stock (whether such right is exercisable immediately
or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner
of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (B) the right to vote such stock pursuant to
any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises
solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
(iii) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to
a revocable proxy or consent as described in item (B) of subsection (l)(ii) above), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
ARTICLE XIII
TRI POINTE GROUP STOCKHOLDER APPROVAL
SECTION 13.01
Other than the election or removal of directors of the Corporation, any act or transaction by or involving the
Corporation that requires for its adoption under the DGCL or this Certificate of Incorporation the approval of the stockholders of the Corporation shall, pursuant to Section 251(g)(7)(i) of the DGCL, require, in addition, the approval of the
stockholders of TRI Pointe Group, Inc. (or any successor by merger), by the same vote as is required by the DGCL and/or this Certificate of Incorporation.
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EXHIBIT C
BYLAWS OF TRI POINTE HOMES, INC.
(See
attached.)
BYLAWS
OF
TRI POINTE HOMES,
INC.
(Amended and Restated August 7, 2013)
ARTICLE I
Offices
Section 1.1
Registered Offices
. The registered office of TRI Pointe Homes, Inc. (the “Corporation”) in the State of
Delaware shall be located at 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the Corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered
agent of the Corporation may be changed from time to time by action of the Board of Directors.
Section 1.2
Other Offices
. The
Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require
Section 1.3
Books
. The books of the Corporation may be kept within or without of the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
Stockholders Meetings
Section 2.1
Annual Meetings
.
(a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be
brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time.
(b) Only such business (other than stockholder nominations of directors, which shall be made in compliance with, and shall be exclusively
governed by, Section 3.1(a)) shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be (i) authorized by the Board of
Directors and specified in the notice, or a supplemental notice, of the meeting, (ii) otherwise brought before the meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting by a
stockholder of the Corporation who was a stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 2.1(b) and at the time of the annual meeting of stockholders, who is entitled to vote at the
meeting on any such business and who has complied with the notice and other requirements set forth in these Bylaws; clause (iii) shall be the exclusive means for a stockholder
to submit such business (other than proposals properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the
Corporation’s notice of the meeting, which proposals are not governed by these Bylaws) before an annual meeting of stockholders.
(c)
For business to be properly brought before an annual meeting by a stockholder pursuant to Section 2.1(b)(iii), the stockholder must have given timely written notice thereof to the Secretary of the Corporation as hereinafter provided and such
proposal must otherwise be a proper subject for action by the Corporation’s stockholders. To be timely, a stockholder’s written notice shall set forth all information required under this Section 2.1(c) and shall be delivered or mailed
to and received at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of
proxy materials (whichever is earlier) for the immediately preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within
30 days from the first anniversary of the immediately preceding year’s annual meeting date, written notice by a stockholder in order to be timely must be received not earlier than the 120th day before the date of such annual meeting and not
later than the later of the 90th day before the date of such annual meeting, as originally convened, or the close of business on the tenth day following the day on which the first public disclosure of the date of such annual meeting was made. In no
event shall the public disclosure of an adjournment or postponement of an annual meeting commence a new time period for the giving of stockholder’s notice as described above. A stockholder’s notice to the Secretary delivered pursuant to
this Section 2.1(c) shall set forth:
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(i)
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as to each matter the stockholder proposes to bring before the meeting, (A) a description of the proposal or business (including the complete text of any resolutions to be presented at the annual meeting, and, in
the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment) desired to be brought before the annual meeting, (B) the reasons for conducting such business at the annual meeting, and (C) any
material interest in such business of such stockholder or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the stockholder or the Stockholder Associated Person therefrom;
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(ii)
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to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the proposal of business on the date of such stockholder’s notice;
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(iii)
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as to the stockholder giving the notice and any Stockholder Associated Person:
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(A) the class
or series and number of shares of capital stock or other securities of the Corporation (collectively, “Company Securities”), if any, which are owned beneficially or of record by such person, the date(s) on which such Company Securities
were acquired and the investment intent of such acquisition(s), and any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such stock or other security) in any Company Securities of any such
person,
(B) the nominee holder for, and number of, any Company Securities owned beneficially but not of
record by such person,
(C) whether and the extent to which such person, directly or indirectly (through brokers, nominees or otherwise),
is subject to or during the last six months has engaged in any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or understanding (including any short interest, any borrowing or
lending of securities or any proxy or voting agreement), the effect or intent of which is to (x) manage risk or benefit of changes in the price of Company Securities for such person, or (y) increase or decrease the voting power of such
person in the Corporation disproportionately to such person’s economic interest in the Company Securities; and
(D) a representation
that such stockholder or Stockholder Associated Person intends to appear in person or by proxy at the annual meeting to bring such business before the meeting;
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(iv)
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as to the stockholder giving the notice or any Stockholder Associated Person with an interest or ownership referred to in clause (i) or clause (iii)(C) of this Section 2.1(c):
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(A) the name and address of such stockholder, as they appear on the Corporation’s stock ledger, and the current name and business
address, if different, of each such Stockholder Associated Person, and
(B) the investment strategy or objective, if any, of such
stockholder and each such Stockholder Associated Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in such stockholder and each such
Stockholder Associated Person;
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(v)
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as to the stockholder giving the notice and any Stockholder Associated Person, a description of all arrangements or understandings between such person and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any material interest of such stockholder or such beneficial owner in such business, including any anticipated benefit to the stockholder or such beneficial owner therefrom; and
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(vi)
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as to the stockholder giving the notice and any Stockholder Associated Person, a representation that such person intends to appear in person or by proxy at the annual meeting to bring such business before the meeting
(the information described in clauses (iii) through (vi), the “Proposing Stockholder Information”).
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(d)
Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the meeting of stockholders to present business proposed by such stockholder pursuant to this Section 2.1(c), such proposed business shall not
be transacted, even though proxies in respect of such vote may have been received by the Corporation. No business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (c). The chairman of the
meeting at which any business is proposed by a stockholder shall, if the facts warrant, determine and declare to the meeting that such business was not properly brought before the meeting in accordance with the provisions of this
Section 2.1(c), and in such event, the business not properly before the meeting shall not be transacted.
Section 2.2
Special Meetings
. Special meetings of stockholders may be called only as
set forth in the Certificate of Incorporation (the “Certificate of Incorporation”) of the Corporation.
Section 2.3
Notice of Meetings
. A written notice of each annual or special meeting of stockholders shall be given stating the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and,
in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, such notice of meeting shall be given not less than ten nor more than 60
days before the date of the meeting to each stockholder of record entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting, personally, by mail or, to the extent and in the manner
permitted by applicable law, electronically. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the
Corporation.
Section 2.4
Adjournments
. Any annual or special meeting of stockholders may be adjourned from time to time to
reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be
deemed present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting any business may be transacted which might have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in
accordance with Section 2.3. If the Board of Directors shall fix a new record date for determination of stockholders entitled to vote at an adjourned meeting, the Board of Directors shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as the record date determined for stockholders entitled to vote at the adjourned meeting.
Section 2.5
Quorum
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the presence in person
or by proxy of the holders of stock having a majority of the votes which could be cast by the holders of all outstanding stock entitled to vote at the meeting shall constitute a quorum at each meeting of stockholders. In the absence of a quorum, the
stockholders so present may, by the affirmative vote of the holders of stock having a majority of the votes which could be cast by all such holders, adjourn the meeting from time to time in the manner provided in Section 2.4 of these Bylaws
until a quorum is present. If a quorum is present when a meeting is convened, the subsequent withdrawal of stockholders, even though less than a quorum remains, shall not affect the ability of the remaining stockholders lawfully to transact
business.
Section 2.6
Conduct; Remote Communication
.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board or, in his or her absence, by the Chief Executive Officer, or
in his or her absence, by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
(b) If authorized by the Board of Directors in accordance with these
Bylaws and applicable law, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, (1) participate in a meeting of stockholders and (2) be deemed present in person and vote
at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or
proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
Section 2.7
Voting
.
(a) Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by such stockholder which has voting power on the matter in question.
(b) Voting at
meetings of stockholders need not be by written ballot and need not be conducted by inspectors of election unless so required by Section 2.9 of these Bylaws or so determined by the holders of stock having a majority of the votes which could be
cast by the holders of all outstanding stock entitled to vote which are present in person or by proxy at such meeting. Unless otherwise provided in the Certificate of Incorporation, directors shall be elected by a plurality of the votes cast in the
election of directors. Each other question shall, unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, be decided by the vote of the holders of stock having a majority of the votes which could be cast by the holders of
all stock entitled to vote on such question which are present in person or by proxy at the meeting.
(c) Stock of the Corporation standing
in the name of another corporation and entitled to vote may be voted by such officer, agent or proxy as the bylaws or other internal regulations of such other corporation may prescribe or, in the absence of such provision, as the board of directors
or comparable body of such other corporation may determine.
(d) Stock of the Corporation standing in the name of a deceased person, a
minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator,
debtor-in-possession
or trustee, as the case may be, either in person or by proxy, without transfer of such shares into the name of the official or other person so
voting.
(e) A stockholder whose voting stock of the Corporation is pledged shall be entitled to vote such
stock unless on the transfer records of the Corporation the pledgor has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or such pledgee’s proxy, may represent such shares and vote thereon.
(f) If voting stock is held of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (i) if only one votes, such act binds all; (ii) if more than one vote, the act
of the majority so voting binds all; and (iii) if more than one vote, but the vote is evenly split on any particular matter each faction may vote such stock proportionally, or any person voting the shares, or a beneficiary, if any, may apply to
the Court of Chancery of the State of Delaware or such other court as may have jurisdiction to appoint an additional person to act with the persons so voting the stock, which shall then be voted as determined by a majority of such persons and the
person appointed by the Court. If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even split for the purpose of this subsection shall be a majority or even split in interest.
(g) Stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election
of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present. Nothing in this
Section 2.7 shall limit the right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity.
Section 2.8
Proxies
.
(a) Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy
filed with the Secretary before or at the time of the meeting. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with
the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date.
(b) A stockholder may
authorize another person or persons to act for such stockholder as proxy (i) by executing a writing authorizing such person or persons to act as such, which execution may be accomplished by such stockholder or such stockholder’s authorized
officer, director, partner, employee or agent (or, if the stock is held in a trust or estate, by a trustee, executor or administrator thereof) signing such writing or causing his or her signature to be affixed to such writing by any reasonable
means, including, but not limited to, facsimile
signature, or (ii) by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission (each, a “Transmission”) to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such Transmission; provided that any such Transmission
must either set forth or be submitted with information from which it can be determined that such Transmission was authorized by such stockholder.
(c) Any inspector or inspectors appointed pursuant to Section 2.9 of these Bylaws shall examine Transmissions to determine if they are
valid. If no inspector or inspectors are so appointed, the Secretary or such other person or persons as shall be appointed from time to time by the Board of Directors shall examine Transmissions to determine if they are valid. If it is determined
that a Transmission is valid, the person or persons making that determination shall specify the information upon which such person or persons relied. Any copy, facsimile telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or Transmission for any and all purposes for which the original writing or Transmission could be used; provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or Transmission.
Section 2.9
Voting Procedures and Inspectors of
Elections
.
(a) If the Corporation has a class of voting stock that is (i) listed on a national securities exchange,
(ii) authorized for quotation on an interdealer quotation system of a registered national securities association or (iii) held of record by more than 2,000 stockholders, the Board of Directors shall, in advance of any meeting of
stockholders, appoint one or more inspectors (individually an “Inspector,” and collectively the “Inspectors”) to act at such meeting and make a written report thereof. The Board of Directors may designate one or more persons as
alternate Inspectors to replace any Inspector who shall fail to act. If no Inspector or alternate is able to act at such meeting, the chairman of the meeting shall appoint one or more other persons to act as Inspectors. Each Inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of Inspector with strict impartiality and according to the best of his or her ability.
(b) The Inspectors shall (i) ascertain the number of shares of stock of the Corporation outstanding and the voting power of each,
(ii) determine the number of shares of stock of the Corporation present in person or by proxy at such meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable
period of time a record of the disposition of any challenges made to any determination by the Inspectors and (v) certify their determination of the number of such shares present in person or by proxy at such meeting and their count of all votes
and ballots. The Inspectors may appoint or retain other persons or entities to assist them in the performance of their duties.
(c) The
date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at such meeting. No ballots, proxies or votes, nor any revocations thereof or changes thereto, shall be
accepted by the Inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by any stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots, the Inspectors shall be
limited to an examination of the proxies, any envelopes submitted with such proxies, any information referred to in paragraphs (b) and (c) of Section 2.8 of these Bylaws, ballots and the regular books and records of the Corporation,
except that the Inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder
of a proxy is authorized by a stockholder of record to cast or more votes than such stockholder holds of record. If the Inspectors consider other reliable information for the limited purpose permitted herein, the Inspectors, at the time they make
their certification pursuant to paragraph (b) of this Section 2.9, shall specify the precise information considered by them, including the person or persons from whom such information was obtained, when and the means by which such
information was obtained and the basis for the Inspectors’ belief that such information is accurate and reliable.
Section 2.10
Fixing Date of Determination of Stockholders of Record
.
(a) In order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and
which record date shall, unless otherwise required by law, be not more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting, unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board of Directors in respect of a meeting, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date
for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such action. If no such record date is so fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
Section 2.11
List of Stockholders Entitled to Vote
. The Secretary shall prepare, at
least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before
the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the
list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, the list shall also be produced and
kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, the list shall be open to the examination of any
stockholder during the whole time thereof on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
Board of
Directors
Section 3.1
Election; Resignation; Vacancies
.
(a) Only persons who are nominated in accordance with the procedures set forth in this Section 3.1(a) shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at a meeting of stockholders by the Board of Directors or by any stockholder of the Corporation entitled to vote in the election of directors at
the meeting who complies with the notice procedures set forth in this paragraph (a). Any nomination by a stockholder must be made by timely written notice to the Secretary as hereinafter provided. To be timely, a stockholder’s written notice
shall set forth all information required under this Section 3.1(a) and shall be delivered or mailed to and received at the principal executive offices of the Corporation: (i) with respect to an election to be held at an annual meeting of
stockholders, not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the immediately
preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within 30 days from the first anniversary of the immediately
preceding year’s annual meeting date, written notice by a stockholder in order to be timely must be received not earlier than the 120th day before the date of such annual meeting and not later than the later of the 90th day before the date of
such annual meeting, as originally convened, or the close of business on the tenth day following the day on which the first public disclosure of the date of such annual meeting was made, and (ii) with
respect to an election to be held at a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the tenth day following the day on
which the first public disclosure of the date of such special meeting was made. In no event shall the public disclosure of an adjournment or postponement of any annual or special meeting commence a new time period for giving of a stockholder notice
as described above. A stockholder’s notice to the Secretary delivered pursuant to this Section 3.1(a) shall set forth:
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(i)
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as to each person whom the stockholder proposes to nominate for election or re-election as a director (each, a “Proposed Nominee”), all information relating to the Proposed Nominee that would be required to be
disclosed in connection with the solicitation of proxies for the election of the Proposed Nominee as a director in an election contest (even if an election contest is not involved), or would otherwise be required in connection with such
solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules thereunder; and
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(ii)
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as to the stockholder giving the notice and any Stockholder Associated Person, the Proposing Stockholder Information with respect to such person.
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Such notice shall be accompanied by a written representation and agreement, in the form provided by the Secretary upon written request, executed by the
Proposed Nominee, that such Proposed Nominee (i) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation in connection with service or action as a director that
has not been disclosed to the Corporation, (ii) consents to being named as a nominee and to serve as a director if elected, (iii) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such Proposed Nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation or (B) any Voting Commitment that could limit or interfere with such Proposed Nominee’s ability to comply, if elected as a director of the Corporation, with such Proposed Nominee’s fiduciary duties under applicable law and
(iv) would be in compliance if elected as a director of the Corporation, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
At the request of the Board of Directors any person nominated by the Board of Directors for election as a director shall furnish to the Secretary (in
accordance with any applicable time periods prescribed for delivery of notice under these Bylaws) that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation.
Notwithstanding anything in this Section 3.1(a) to the contrary, in the event that the number of directors to be elected to the Board of Directors is
increased, and there is no public disclosure of such action at least 90 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier)
for the immediately preceding year’s annual meeting, a stockholder’s notice required by this Section 3.1(a) shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive office of the Corporation not later than the tenth day following the day on which such public disclosure is first made by the
Corporation.
No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.1(a). Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the meeting of stockholders to present a nomination proposed by such stockholder pursuant to this Section 3.1(a), such
nomination shall be disregarded, even though proxies in respect of such vote may have been received by the Corporation. The chairman of the meeting at which a stockholder nomination is presented shall, if the facts warrant, determine and declare to
the meeting that such nomination was not made in accordance with the procedures prescribed by this Section 3.1(a), and, in such event, the defective nomination shall be disregarded.
(b) Any director may resign at any time by giving written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary. A
resignation shall take effect when the resignation is delivered to the officer to whom it is directed unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events, without any need
for its acceptance. A resignation that is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable.
(c) Any newly created directorship or any vacancy occurring in the Board of Directors for any reason shall be filled as set forth in the
Certificate of Incorporation.
Section 3.2
Regular Meetings
. Unless otherwise determined by the Board of Directors, a regular
annual meeting of the Board of Directors shall be held, without call or notice, immediately after and, if the annual meeting of stockholders is held at a place, at the same place as the annual meeting of stockholders, for the purpose of electing
officers and transacting any other business that may properly come before such meeting. Additional regular meetings of the Board of Directors may be held without call or notice at such times as shall be fixed by resolution of the Board of Directors.
Section 3.3
Special Meetings
. Special meetings of the Board of Directors may be called by the Chairman of the Board, the
Chief Executive Officer, the Secretary or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special
meeting. The purpose or purposes of a special meeting need not be stated in the call or notice.
Section 3.4
Organization
.
Meetings of the Board of Directors shall be presided over by the Chairman of the Board or, in his or her absence, by the Chief Executive Officer, or in his or her absence, by a chairman chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. A majority of the directors present at a meeting, whether or not they constitute a quorum, may adjourn such meeting to any
other date, time or place without notice other than announcement at the meeting.
Section 3.5
Quorum; Vote Required for Action
. At all meetings of the Board of
Directors a majority of the whole Board of Directors shall constitute a quorum for the transaction of business. Unless the Certificate of Incorporation or these Bylaws otherwise provide, the vote of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors.
Section 3.6
Committees
. The Board of Directors may,
by resolution, designate one or more committees, including but not limited to an Audit Committee, a Compensation Committee, a Nominating and Corporate Governance Committee and an Executive Committee, each committee to consist of one or more
directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of
a member of the committee, the member or members present at any meeting and not disqualified from voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted by law and provided in these Bylaws or in the resolution of the Board of Directors designating such committee, or an amendment to such resolution, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
Section 3.7
Telephonic Meetings
. Directors, or any committee of directors designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 3.7 shall constitute presence in person at such meeting.
Section 3.8
Board of Director Action by Written Consent
Without a Meeting
. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing (which may be in counterparts) or by electronic transmission, and the written consent or consents or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such filing shall be made in paper form if the minutes of the Corporation are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form. Such action by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board of Directors.
Section 3.9
Committee Rules
. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors
may make, alter and repeal rules not inconsistent with the provisions of law for the conduct of its business. In the absence of such rules, each committee shall conduct its business in the same manner as the Board of Directors conducts its business
pursuant to this Article III of these Bylaws.
Section 3.10
Reliance upon Records
. Every director, and every member of any
committee of the Board of Directors, shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees,
or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation’s capital stock might properly be purchased or redeemed.
Section 3.11
Interested Directors
. A director who is directly or indirectly a party to a contract or transaction with the
Corporation, or is a director or officer of or has a financial interest in any other corporation, partnership, association or other organization which is a party to a contract or transaction with the Corporation, may be counted in determining
whether a quorum is present at any meeting of the Board of Directors or a committee thereof at which such contract or transaction is considered or authorized, and such director may participate in such meeting and vote on such authorization to the
extent permitted by applicable law, including Section 144 of the General Corporation Law of the State of Delaware.
Section 3.12
Compensation
. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance
at each meeting of the Board of Directors or a committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for services as a director or committee member. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1
Executive Officers; Election; Qualification; Term of Office
. The Board of Directors shall elect a Chairman of the
Board from among its members and shall elect a Chief Executive Officer and a Chief Financial Officer. The Board of Directors shall also elect a Secretary and may elect a President, one or more Vice Presidents, and one or more Assistant Secretaries.
Any number of offices may be held by the same person. Each officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is
elected and qualified or until his or her earlier death, resignation or removal.
Section 4.2
Resignation; Removal; Vacancies
.
Any officer may resign at any time by giving written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it
is directed, without any need for its acceptance. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.
Any officer chosen by another
officer pursuant to Section 4.10 of these Bylaws may be removed with or without cause at any time by that officer, but such removal shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation. A vacancy occurring in any office of the Corporation may be filled for the unexpired portion of the term thereof by the Board of Directors at any regular or special meeting.
Section 4.3
Powers and Duties of Executive Officers
. The officers of the Corporation shall have such powers and duties in the
management of the Corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require
any officer, agent or employee to give security for the faithful performance of his or her duties.
Section 4.4
Chief Executive
Officer
. The Chief Executive Officer of the Corporation shall in general supervise and control all of the business affairs of the Corporation, subject to the direction of the Board of Directors. The Chief Executive Officer may execute, in the
name and on behalf of the Corporation, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors or a committee thereof has authorized to be executed, except in cases where the execution shall have been expressly
delegated by the Board of Directors or a committee thereof to some other officer or agent of the Corporation.
Section 4.5
President
. The President, if there be one, shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of
the Chief Executive Officer, the President shall perform the duties of the Chief Executive Officer and, when so performing, shall have all the powers and be subject to all the restrictions upon the office of Chief Executive Officer.
Section 4.6
Chief Financial Officer
. The Chief Financial Officer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Controlling Officer and
the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all such officer’s transactions as Chief Financial Officer and of the financial condition of the Corporation. If required by the Board of
Directors, the Chief Financial Officer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office and for the restoration
to the Corporation, in case of such person’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 4.7
Secretary
. In addition to such other duties, if any, as may be assigned to the Secretary by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer, the Secretary shall (i) keep the minutes of proceedings of the stockholders, the Board of Directors and any committee of the Board of Directors in one or more books provided
for that
purpose; (ii) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (iii) be the custodian of the records and seal of the
Corporation; (iv) affix or cause to be affixed the seal of the Corporation or a facsimile thereof, and attest the seal by his or her signature, to all documents the execution of which under seal is authorized by the Board of Directors; and
(v) unless such duties have been delegated by the Board of Directors to a transfer agent of the Corporation, keep or cause to be kept a register of the name and address of each stockholder, as the same shall be furnished to the Secretary by
such stockholder, and have general charge of the stock transfer records of the Corporation.
Section 4.8
Assistant
Secretaries
. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, if there be one, or any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of such person’s disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 4.9
Vice Presidents
. Except as may be otherwise provided in these Bylaws, Vice Presidents, if there be any, shall perform
such duties and possess such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer or the President. The Board of Directors may assign to any Vice President the title of Executive Vice President,
Senior Vice President or any other such title.
Section 4.10
Other Officers
. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
Stock Certificates and Transfers
Section 5.1
Certificated and Uncertificated Shares
. Shares of the Corporation’s stock may be certificated or uncertificated,
as provided under Delaware law. All certificates of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. The certificates shall be signed by (i) the Chairman of the Board of
Directors, the Chief Executive Officer, the President, if any, or a Vice President, if any, and (ii) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, and certify the number of shares owned
by such holder in the Corporation.
Section 5.2
Signatures
. Any signature required to be on a certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 5.3
Lost Certificates; Issuance of New Certificates
. The Board of Directors
may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock
to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5.4
Transfers of Stock
. Stock of the
Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the record holder of such stock, or by their attorney lawfully constituted in writing,
and, in the case of stock represented by a certificate, upon the surrender of the certificate.
Section 5.5
Stockholders of
Record
. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of
any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty
(60) days nor less than ten days before the date of such meeting, nor more than sixty days prior to any such other corporate action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 5.6
Beneficial Owners
. The Corporation shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
Notices
Section 6.1
Manner of Notice
.
(a) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, whenever notice is required to be given to any
stockholder, director or member of any committee of the Board of Directors, such notice may be given by (i) personal delivery, (ii) depositing it, in a sealed envelope, in the United States mails, first class, postage prepaid, addressed,
(iii) delivering to a company for overnight or second day mail or delivery, (iv) delivering it to a telegraph company, charges prepaid, for transmission, or by transmitting it via
telecopier, or (v) any other reliable means permitted by applicable law (including, subject to Section 6.1(b), electronic transmission) to such stockholder, director or member, either
at the address of such stockholder, director or member as it appears on the records of the Corporation or, in the case of such a director or member, at his or her business address; and such notice shall be deemed to be given at the time when it is
thus personally delivered, deposited, delivered or transmitted, as the case may be. Such requirement for notice shall also be deemed satisfied, except in the case of stockholder meetings, if actual notice is received orally or by other writing by
the person entitled thereto as far in advance of the event with respect to which notice is being given as the minimum notice period required by law or these Bylaws.
(b) Without limiting the foregoing, any notice to stockholders given by the Corporation pursuant to these Bylaws shall be effective if given
by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation and shall also be deemed revoked if (1) the
Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary of the Corporation, the transfer agent or other
person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by a form of electronic transmission in accordance
with these Bylaws shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of such posting and the giving of such separate
notice; and (iv) if by another form of electronic transmission, when directed to the stockholder.
Section 6.2
Dispensation
with Notice
.
(a) Whenever notice is required to be given by law, the Certificate of Incorporation or these Bylaws to any stockholder
to whom (i) notice of two consecutive annual meetings of stockholders, and all notices of meetings of stockholders to such stockholder during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments
(if sent by first class mail) of dividends or interest on securities of the Corporation during a 12-month period, have been mailed addressed to such stockholder at the address of such stockholder as shown on the records of the Corporation and have
been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting which shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been
duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth the then current address of such stockholder, the requirement that notice be given to such stockholder shall be reinstated.
(b) Whenever notice is required to be given by law, the Certificate of Incorporation or these Bylaws to any person with whom communication is
unlawful, the giving of such notice to such person shall not be required, and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be
taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given.
Section 6.3
Waiver of Notice
. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of
the stockholders, directors, or members of a committee or directors need be specified in any written waiver of notice.
ARTICLE VII
Indemnification Section
Section 7.1
Right to Indemnification
.
(a) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as in effect on the date of adoption of these
Bylaws or as it may thereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture or other enterprise, against any and all liability and loss (including judgments, fines, penalties and amounts paid in settlement) suffered or incurred and expenses
reasonably incurred by such person. The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine
to be appropriate and authorized by Delaware law. The Corporation shall not be required to indemnify a person in connection with a proceeding initiated by such person, including a counterclaim or crossclaim, unless the proceeding was authorized by
the Board of Directors.
(b) For purposes of this Article VII: (i) any reference to “other enterprise” shall include all
plans, programs, policies, agreements, contracts and payroll practices and related trusts for the benefit of or relating to employees of the Corporation and its related entities (“employee benefit plans”); (ii) any reference to
“fines”, “penalties”, “liability” and “expenses” shall include any excise taxes, penalties, claims, liabilities and reasonable expenses (including reasonable legal fees and related expenses) assessed against
or incurred by a person with respect to any employee benefit plan; (iii) any reference to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation or trustee or
administrator of any employee benefit plan which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, beneficiaries, fiduciaries, administrators and service
providers; (iv) any reference to serving at the request of the Corporation as a director, officer, employee or agent of a partnership or trust shall include service as a partner or trustee; and (v) a person who acted in good faith and
in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to
the best interests of the Corporation” for purposes of this Article VII.
Section 7.2
Prepayment of Expenses
. The
Corporation shall pay or reimburse the reasonable expenses incurred in defending any proceeding in advance of its final disposition if the Corporation has received an undertaking by the person receiving such payment or reimbursement to repay all
amounts advanced if it should be ultimately determined that he or she is not entitled to be indemnified under this Article VII or otherwise.
Section 7.3
Claims
. If a claim for indemnification or payment of expenses under this Article VII is not paid in full within 60
days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 7.4
Non-Exclusivity of Rights
. The rights conferred on any person by this Article VII shall not be exclusive of any other
rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7.5
Other Indemnification
. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee, partner or agent of another corporation, partnership, joint venture or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership,
joint venture or other enterprise.
Section 7.6
Amendment or Repeal
. Any repeal or modification of the foregoing provisions of
this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
ARTICLE VIII
General
Section 8.1
Fiscal year
. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Initially, the fiscal year of the Corporation shall end on December 31 of each year.
Section 8.2
Seal
. The corporate
seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 8.3
Definitions
.
(a) For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
(b) For purposes of these Bylaws, “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable national news service, or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c) For purposes of these Bylaws, a “qualified representative” of a stockholder shall mean a duly authorized officer, manager
or partner of such stockholder or a person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, which writing (or a
reliable reproduction thereof) shall be produced at the meeting of stockholders.
(d) For purposes of these Bylaws, “Stockholder
Associated Person” of any stockholder means (i) any person acting in concert with such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder (other than a
stockholder that is a depositary) and (iii) any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such stockholder or such Stockholder Associated Person.
Section 8.4
Amendment of Bylaws
. These Bylaws may be altered or repealed, and new Bylaws made, by the majority vote of the whole
Board of Directors; provided, however, that a Bylaw adopted by the holders of stock representing a majority of the votes which could be cast by the holders of all outstanding stock that prescribes the required vote for the election of directors may
not be altered by the Board of Directors. The holders of stock representing a majority of the votes which could be cast by the holders of all outstanding stock may make additional Bylaws and may alter and repeal any Bylaws whether adopted by them or
otherwise.
TRI Pointe Homes, Inc.
Amendments to Amended and Restated Bylaws
Section 3.13 is added to read in its entirety as follows:
Section 3.13
Chairman of the Board
. The Board of Directors shall elect a Chairman of the Board from among its members. The position
of Chairman of the Board is not an officer position of the Corporation.
The first sentence of Section 4.1 is amended to read in its entirety as
follows:
The Board of Directors shall elect a Chief Executive Officer and a Chief Financial Officer.
Section 4.7 is amended to read in its entirety as follows:
Section 4.7.
Secretary
. In addition to such other duties, if any, as may be assigned to the Secretary by the Board of Directors or
the Chief Executive Officer, the Secretary shall (i) keep the minutes of proceedings of the stockholders, the Board of Directors and any committee of the Board of Directors in one or more books provided for that purpose; (ii) see that all
notices are duly given in accordance with the provisions of these Bylaws or as required by law; (iii) be the custodian of the records and seal of the Corporation; (iv) affix or cause to be affixed the seal of the Corporation or a facsimile
thereof, and attest the seal by his or her signature, to all documents the execution of which under seal is authorized by the Board of Directors; and (v) unless such duties have been delegated by the Board of Directors to a transfer agent of
the Corporation, keep or cause to be kept a register of the name and address of each stockholder, as the same shall be furnished to the Secretary by such stockholder, and have general charge of the stock transfer records of the Corporation.
Section 4.8 is amended to read in its entirety as follows:
Section 4.8
Assistant Secretaries
. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any,
shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer, the President, if there be one, or any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of such person’s disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 5.1 is amended to read in its entirety as follows:
Section 5.1
Certificated and Uncertificated Shares
. Shares of the Corporation’s stock may be certificated or uncertificated,
as provided under Delaware law. All certificates of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. The certificates shall be signed by (i) the Chief Executive Officer, the
President, if any, or a Vice President, if any, and (ii) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, and certify the number of shares owned by such holder in the Corporation.
EXHIBIT D
AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF TRI POINTE GROUP, INC.
(See attached.)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRI POINTE GROUP,
INC.
(a Delaware corporation)
TRI Pointe Group, Inc. (the “
Corporation
”), a corporation organized and existing under and by virtue of the Delaware General
Corporation Law (the “
DGCL
”), does hereby certify:
1. That the original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on May 28, 2015.
2. That an Amended and Restated Certificate of
Incorporation of the Corporation was filed with the Secretary of State of Delaware on June 11, 2015, and that the Amended and Restated Certificate of Incorporation as filed on June 11, 2015 inadvertently omitted a portion of a sentence
from Section 12.04 of Article XII.
3. That this Amended and Restated Certificate of Incorporation is being filed to include the
omitted text.
4. That this Amended and Restated Certificate of Incorporation has been duly adopted pursuant to Sections 228, 242 and
245 of the DGCL.
5. That the Certificate of Incorporation of the Corporation is hereby restated in its entirety as follows:
ARTICLE I
NAME
The name of
the Corporation is TRI Pointe Group, Inc. (hereinafter called the “
Corporation
”).
ARTICLE II
REGISTERED OFFICE
The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, County of
New Castle, Delaware 19808, and the name of the registered agent at that address is Corporation Service Company.
ARTICLE III
PURPOSE
The
purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (the “
DGCL
”).
ARTICLE IV
STOCK
SECTION
4.01
Authorized Stock
. The aggregate number of shares which the Corporation shall have authority to issue is Five Hundred Fifty Million (550,000,000), of which Five Hundred Million (500,000,000) shall be designated as Common Stock,
par value $0.01 per share (“
Common Stock
”), and Fifty Million (50,000,000) shall be designated as Preferred Stock, par value $0.01 per share (“
Preferred Stock
”).
SECTION 4.02
Common Stock
.
(a)
Voting
. Except as otherwise provided (i) by the DGCL, (ii) by Section 4.03 of this Article IV, or (iii) by
resolutions, if any, of the Board of Directors of the Corporation (“
Board of Directors
”) fixing the relative powers, preferences and rights and the qualifications, limitations or restrictions of the Preferred Stock, the entire
voting power of the shares of the Corporation for the election of directors and for all other purposes shall be vested exclusively in the Common Stock. Each share of Common Stock shall have one vote upon all matters to be voted on by the holders of
the Common Stock.
(b)
Dividends
. Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, each
share of Common Stock shall be entitled to receive and share equally in all dividends paid out of any funds of the Corporation legally available therefor when, as and if declared by the Board of Directors.
(c)
Liquidation
. Upon the dissolution, liquidation or winding up of the Corporation, subject to the rights, if any, of the holders of
any outstanding series of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.
SECTION 4.03
Preferred Stock
. The Preferred Stock may be issued at any time and from time to time in one or more series.
Subject to the provisions of this Amended and Restated Certificate of Incorporation (this “
Certificate of Incorporation
”), the Board of Directors is authorized to fix from time to time by resolution or resolutions the number of
shares of any class or series of Preferred Stock, and to determine the voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of any such
class or series. Further, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any such class or series, the Board of Directors is authorized to
increase or decrease (but not below the number of shares of such class or series then outstanding) the number of shares of any such class or series subsequent to the issuance of shares of that class or series.
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ARTICLE V
BOARD OF DIRECTORS
SECTION 5.01
Number
. Subject to the rights and preferences of any series of outstanding Preferred Stock, the number of directors
constituting the whole Board of Directors shall be not fewer than three (3) and shall be fixed from time to time solely by resolution adopted by affirmative vote of a majority of such directors then in office and may not be fixed by any other
person or persons, including stockholders.
SECTION 5.02
Vacancies
. Subject to the rights and preferences of any series of
outstanding Preferred Stock, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise provided by law, be filled solely by the affirmative vote of a majority of the remaining directors then in office, even if such a majority is less than a quorum of the Board of Directors, or by a sole
remaining director, and shall not be filled by any other person or persons, including stockholders. Any director so chosen shall hold office for the remainder of the full term of the class for which such director shall have been chosen or in which
such vacancy occurred and until his successor shall be elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
SECTION 5.03
Powers
. Except as otherwise expressly provided by the DGCL or this Certificate of Incorporation, the management of
the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors.
SECTION 5.04
Election
.
(a)
Ballot Not Required
. The directors of the Corporation need not be elected by written ballot unless the Bylaws
of the Corporation so provide.
(b)
Notice
. Advance notice of stockholder nominations for the election of directors shall be given
in the manner and to the extent provided in the Bylaws of the Corporation.
ARTICLE VI
STOCKHOLDER ACTION
The authority contemplated by Section 228 of the DGCL which permits stockholders to act by written consent is expressly denied to the
stockholders of the Corporation. Accordingly, the stockholders have no ability to take any action unless such action is taken at an annual or special meeting of the stockholders.
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ARTICLE VII
SPECIAL MEETINGS OF STOCKHOLDERS
A special meeting of the stockholders of the Corporation may be called at any time only by the Chairman of the Board of Directors, the Chief
Executive Officer (or if there is no Chief Executive Officer, the President) or the Board of Directors of the Corporation pursuant to a resolution adopted by a majority of the total number of directors then in office. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.
ARTICLE VIII
EXISTENCE
The
Corporation shall have perpetual existence.
ARTICLE IX
AMENDMENT
SECTION 9.01
Amendment of Certificate of Incorporation
. The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred herein are granted subject to this reservation.
SECTION 9.02
Amendment of Bylaws
. The Bylaws of the Corporation may be altered, changed or repealed, and new Bylaws made, by the
majority vote of the whole Board of Directors.
ARTICLE X
LIABILITY OF DIRECTORS
SECTION 10.01
Personal Liability
. To the fullest extent elimination or limitation of personal liability of directors is
permitted by the DGCL, no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
SECTION 10.02
Indemnification
. Each person (and the heirs, executors or administrators of such person) who was or is a party or
is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer
of the Corporation shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL. The right to indemnification conferred in this Article X shall also include the right to be paid by the Corporation the
expenses incurred in
4
connection with any such proceeding in advance of its final disposition to the fullest extent authorized by the DGCL. The rights to indemnification and advancement conferred in this Article X
shall be contract rights and shall become vested by virtue of the director’s or officer’s service at the time when the state of facts giving rise to the claim occurred. The Corporation may, by action of its Board of Directors, provide
indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the DGCL.
SECTION 10.03
Insurance
. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL.
SECTION 10.04
Non-Exclusivity
. The rights and authority conferred in this Article X shall not be exclusive of any other
right which any person may otherwise have or hereafter acquire.
SECTION 10.05
Applicability
. Neither the amendment nor
repeal of this Article X, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws of the Corporation, nor, to the fullest extent permitted by the DGCL, any modification of law, shall eliminate or reduce the effect of
this Article X in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification. Any vested rights to indemnification or advancement hereunder may not be amended or otherwise modified or limited without the
express written consent of the affected director.
ARTICLE XI
BUSINESS OPPORTUNITIES
SECTION 11.01
Business Opportunities
. To the fullest extent permitted by the DGCL and except as may be otherwise expressly
agreed in writing by the Corporation and VIII/TPC Holdings, L.L.C. or any affiliate or subsidiary thereof (other than the Corporation and its subsidiaries) (collectively, the “Starwood Fund”) the Corporation, on behalf of itself and its
subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, any business opportunity that may be from time to time presented to the Starwood Fund or any of
their officers, directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries) and that may be a business opportunity for the Starwood Fund or any of their affiliates and
subsidiaries, even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable to the
Corporation or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person, acting in good faith, pursues or acquires any such business opportunity, directs any
such business opportunity to another person or fails to present any such
5
business opportunity, or information regarding any such business opportunity, to the Corporation or its subsidiaries unless, in the case of any such person who is a director or officer of the
Corporation, any such business opportunity is expressly offered to such director or officer solely in his or her capacity as a director or officer of the Corporation. Neither the Starwood Fund nor any of their affiliates or subsidiaries shall have
any duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries.
SECTION 11.02
Termination
. The provisions of this Article XI shall have no further force or effect with respect to the Starwood
Fund or any of their affiliates or subsidiaries on the date that no person who is a director or officer of the Corporation is also a director, officer, member, partner or employee of the Starwood Fund or any of their affiliates or subsidiaries.
Neither the alteration, amendment or repeal of this Article XI nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article XI nor the termination of applicability pursuant to the immediately preceding
sentence shall eliminate or reduce the effect of this Article XI in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article XI, would accrue or arise, prior
to such alteration, amendment, repeal, adoption or termination.
SECTION 11.03
Deemed Notice
. Any person purchasing or
otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XI.
ARTICLE XII
DGCL SECTION 203 AND BUSINESS COMBINATIONS
SECTION 12.01
The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
SECTION 12.02
Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below) with any
interested stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
(a) prior to such time, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
(b) upon consummation of the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock
outstanding those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer; or
6
(c) at or subsequent to such time, the business combination is approved by the Board of Directors
and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.
SECTION 12.03
The restrictions contained in Section 12.02 shall not apply if:
(a) the Corporation does not have a class of voting stock that is: (i) listed on a national securities exchange; or (ii) held of
record by more than 2,000 stockholders, unless any of the foregoing results from action taken, directly or indirectly, by an interested stockholder or from a transaction in which a person becomes an interested stockholder; or
(b) a stockholder becomes an interested stockholder inadvertently and (i) as soon as practicable divests itself of ownership of
sufficient shares so that the stockholder ceases to be an interested stockholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between the Corporation and such stockholder, have been
an interested stockholder but for the inadvertent acquisition of ownership.
SECTION 12.04
For purposes of this Article XII,
references to:
(a) “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, another person.
(b) “associate,” when used to indicate a relationship with any
person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock;
(ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of
such spouse, who has the same residence as such person.
(c) “business combination,” when used in reference to the Corporation
and any interested stockholder of the Corporation, means:
(i) any merger or consolidation of the Corporation or any direct
or indirect majority-owned subsidiary of the Corporation (a) with the interested stockholder, or (b) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the
interested stockholder and as a result of such merger or consolidation Section 12.02 is not applicable to the surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of
transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of
the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock
of the Corporation;
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(iii) any transaction which results in the issuance or transfer by the
Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (A) pursuant to the exercise, exchange or conversion of any
security exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (B) pursuant to a merger under
Section 251(g) of the DGCL; (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such
subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (D) pursuant to an exchange offer by the Corporation to purchase
stock made on the same terms to all holders of said stock; or (E) any issuance or transfer of stock by the Corporation;
provided, however
,
that in no case under items (C)-(E) of this subsection (iii) shall there be an
increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation;
(iv) any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has
the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or of securities exercisable for, exchangeable for or convertible into the stock of any class or series, of the Corporation or of any such
subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the
interested stockholder; or
(v) any receipt by the interested stockholder of the benefit, directly or indirectly (except
proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (i)-(iv) above) provided by or through the Corporation or any
direct or indirect majority-owned subsidiary.
(d) “control,” including the terms “controlling,” “controlled
by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract,
or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a
preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article XII, as an agent, bank,
broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
(e)
“Existing Holder” means the Starwood Fund and their affiliates and subsidiaries.
(f) “Existing Holder Direct
Transferee” means any person (and its affiliates) who acquires (other than in a registered public offering) directly in one or more related transactions
8
from the Existing Holder or any “group”, or any member of any such group, to which such Existing Sponsor is a party under Rule 13d-5 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), beneficial ownership of 15% or more in the aggregate of the then outstanding voting stock of the Corporation.
(g) “Existing Holder Indirect Transferee” means any person (and its affiliates) who acquires (other than in a registered public
offering) directly in one or more related transactions from any Existing Holder Direct Transferee or any other Existing Holder Indirect Transferee beneficial ownership of 15% or more in the aggregate of the then outstanding voting stock of the
Corporation.
(h) “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting
stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person; but
“interested stockholder” shall not include (A) the Existing Holder, any Existing Holder Direct Transferee, any Existing Holder Indirect Transferee or any of their respective affiliates or successors or any “group”, or any
member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act, or (B) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the
Corporation, provided, in the case of this clause (B), that such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not
caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through
application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
(i) “person” means any individual, corporation, partnership, unincorporated association or other
entity.
(j) “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity
interest.
(k) “voting stock” means, with respect to any corporation, stock of any class or series entitled to vote generally in
the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity. Every reference to a percentage of voting stock shall refer to
such percentage of the votes of such voting stock.
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(l) “owner,” including the terms “own” and “owned,” when used with
respect to any stock, means a person that individually or with or through any of its affiliates or associates:
(i)
beneficially owns (as determined pursuant to Rule 13d-3 of the Exchange Act or any successor provision) such stock, directly or indirectly;
(ii) has (A) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant
to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (B) the right to vote such stock pursuant to any agreement, arrangement
or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
(iii) has
any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subsection (l)(ii) above), or disposing of such stock with any other
person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
10
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be executed, signed and acknowledged by the undersigned as of the date set forth below.
Dated: June 29, 2015
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TRI POINTE GROUP, INC.
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By:
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/s/ Douglas F. Bauer
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Name:
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Douglas F. Bauer
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Title:
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President and Director
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[Signature Page to A&R TRI Pointe Group, Inc. Certificate of Incorporation]
EXHIBIT E
BYLAWS OF TRI POINTE GROUP, INC.
(See
attached.)
BYLAWS
OF
TRI POINTE GROUP,
INC.
ARTICLE I
Offices
Section 1.1
Registered Offices
. The registered office of TRI Pointe Group, Inc. (the “Corporation”) in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808. The name of the
Corporation’s registered agent at such address shall be Corporation Service Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the Board of Directors.
Section 1.2
Other Offices
. The Corporation may also have offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require
Section 1.3
Books
. The books of the Corporation may be kept within or without of the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
Stockholders
Meetings
Section 2.1
Annual Meetings
.
(a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be
brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time.
(b) Only such business (other than stockholder nominations of directors, which shall be made in compliance with, and shall be exclusively
governed by, Section 3.1(a)) shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be (i) authorized by the Board of
Directors and specified in the notice, or a supplemental notice, of the meeting, (ii) otherwise brought before the meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting by a
stockholder of the Corporation who was a stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 2.1(b) and at the time of the annual meeting of stockholders, who is entitled to vote at the
meeting on any such business and who has complied with the notice and other requirements set forth in these Bylaws; clause (iii) shall be the exclusive means for a stockholder
to submit such business (other than proposals properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the
Corporation’s notice of the meeting, which proposals are not governed by these Bylaws) before an annual meeting of stockholders.
(c)
For business to be properly brought before an annual meeting by a stockholder pursuant to Section 2.1(b)(iii), the stockholder must have given timely written notice thereof to the Secretary of the Corporation as hereinafter provided and such
proposal must otherwise be a proper subject for action by the Corporation’s stockholders. To be timely, a stockholder’s written notice shall set forth all information required under this Section 2.1(c) and shall be delivered or mailed
to and received at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of
proxy materials (whichever is earlier) for the immediately preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within
30 days from the first anniversary of the immediately preceding year’s annual meeting date, written notice by a stockholder in order to be timely must be received not earlier than the 120th day before the date of such annual meeting and not
later than the later of the 90th day before the date of such annual meeting, as originally convened, or the close of business on the tenth day following the day on which the first public disclosure of the date of such annual meeting was made. In no
event shall the public disclosure of an adjournment or postponement of an annual meeting commence a new time period for the giving of stockholder’s notice as described above. A stockholder’s notice to the Secretary delivered pursuant to
this Section 2.1(c) shall set forth:
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(i)
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as to each matter the stockholder proposes to bring before the meeting, (A) a description of the proposal or business (including the complete text of any resolutions to be presented at the annual meeting, and, in
the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment) desired to be brought before the annual meeting, (B) the reasons for conducting such business at the annual meeting, and (C) any
material interest in such business of such stockholder or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the stockholder or the Stockholder Associated Person therefrom;
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(ii)
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to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the proposal of business on the date of such stockholder’s notice;
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(iii)
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as to the stockholder giving the notice and any Stockholder Associated Person:
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(A) the class
or series and number of shares of capital stock or other securities of the Corporation (collectively, “Company Securities”), if any, which are owned beneficially or of record by such person, the date(s) on which such Company Securities
were acquired and the investment intent of such acquisition(s), and any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such stock or other security) in any Company Securities of any such
person,
(B) the nominee holder for, and number of, any Company Securities owned beneficially but not of
record by such person,
(C) whether and the extent to which such person, directly or indirectly (through brokers, nominees or otherwise),
is subject to or during the last six months has engaged in any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or understanding (including any short interest, any borrowing or
lending of securities or any proxy or voting agreement), the effect or intent of which is to (x) manage risk or benefit of changes in the price of Company Securities for such person, or (y) increase or decrease the voting power of such
person in the Corporation disproportionately to such person’s economic interest in the Company Securities; and
(D) a representation
that such stockholder or Stockholder Associated Person intends to appear in person or by proxy at the annual meeting to bring such business before the meeting;
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(iv)
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as to the stockholder giving the notice or any Stockholder Associated Person with an interest or ownership referred to in clause (i) or clause (iii)(C) of this Section 2.1(c):
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(A) the name and address of such stockholder, as they appear on the Corporation’s stock ledger, and the current name and business
address, if different, of each such Stockholder Associated Person, and
(B) the investment strategy or objective, if any, of such
stockholder and each such Stockholder Associated Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in such stockholder and each such
Stockholder Associated Person;
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(v)
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as to the stockholder giving the notice and any Stockholder Associated Person, a description of all arrangements or understandings between such person and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any material interest of such stockholder or such beneficial owner in such business, including any anticipated benefit to the stockholder or such beneficial owner therefrom; and
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(vi)
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as to the stockholder giving the notice and any Stockholder Associated Person, a representation that such person intends to appear in person or by proxy at the annual meeting to bring such business before the meeting
(the information described in clauses (iii) through (vi), the “Proposing Stockholder Information”).
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(d)
Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the meeting of stockholders to present business proposed by such stockholder pursuant to this Section 2.1(c), such proposed business shall not
be transacted, even though proxies in respect of such vote may have been received by the Corporation. No business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (c). The chairman of the
meeting at which any business is proposed by a stockholder shall, if the facts warrant, determine and declare to the meeting that such business was not properly brought before the meeting in accordance with the provisions of this
Section 2.1(c), and in such event, the business not properly before the meeting shall not be transacted.
Section 2.2
Special Meetings
. Special meetings of stockholders may be called only as
set forth in the Certificate of Incorporation (the “Certificate of Incorporation”) of the Corporation.
Section 2.3
Notice of Meetings
. A written notice of each annual or special meeting of stockholders shall be given stating the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and,
in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, such notice of meeting shall be given not less than ten nor more than 60
days before the date of the meeting to each stockholder of record entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting, personally, by mail or, to the extent and in the manner
permitted by applicable law, electronically. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the
Corporation.
Section 2.4
Adjournments
. Any annual or special meeting of stockholders may be adjourned from time to time to
reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be
deemed present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting any business may be transacted which might have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in
accordance with Section 2.3. If the Board of Directors shall fix a new record date for determination of stockholders entitled to vote at an adjourned meeting, the Board of Directors shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as the record date determined for stockholders entitled to vote at the adjourned meeting.
Section 2.5
Quorum
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the presence in person
or by proxy of the holders of stock having a majority of the votes which could be cast by the holders of all outstanding stock entitled to vote at the meeting shall constitute a quorum at each meeting of stockholders. In the absence of a quorum, the
stockholders so present may, by the affirmative vote of the holders of stock having a majority of the votes which could be cast by all such holders, adjourn the meeting from time to time in the manner provided in Section 2.4 of these Bylaws
until a quorum is present. If a quorum is present when a meeting is convened, the subsequent withdrawal of stockholders, even though less than a quorum remains, shall not affect the ability of the remaining stockholders lawfully to transact
business.
Section 2.6
Conduct; Remote Communication
.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board or, in his or her absence, by the Chief Executive Officer, or
in his or her absence, by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
(b) If authorized by the Board of Directors in accordance with these
Bylaws and applicable law, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, (1) participate in a meeting of stockholders and (2) be deemed present in person and vote
at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or
proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
Section 2.7
Voting
.
(a) Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by such stockholder which has voting power on the matter in question.
(b) Voting at
meetings of stockholders need not be by written ballot and need not be conducted by inspectors of election unless so required by Section 2.9 of these Bylaws or so determined by the holders of stock having a majority of the votes which could be
cast by the holders of all outstanding stock entitled to vote which are present in person or by proxy at such meeting. Unless otherwise provided in the Certificate of Incorporation, directors shall be elected by a plurality of the votes cast in the
election of directors. Each other question shall, unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, be decided by the vote of the holders of stock having a majority of the votes which could be cast by the holders of
all stock entitled to vote on such question which are present in person or by proxy at the meeting.
(c) Stock of the Corporation standing
in the name of another corporation and entitled to vote may be voted by such officer, agent or proxy as the bylaws or other internal regulations of such other corporation may prescribe or, in the absence of such provision, as the board of directors
or comparable body of such other corporation may determine.
(d) Stock of the Corporation standing in the name of a deceased person, a
minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator, debtor-in-possession or trustee, as the case may be, either in person or by
proxy, without transfer of such shares into the name of the official or other person so voting.
(e) A stockholder whose voting stock of the Corporation is pledged shall be entitled to vote such
stock unless on the transfer records of the Corporation the pledgor has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or such pledgee’s proxy, may represent such shares and vote thereon.
(f) If voting stock is held of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (i) if only one votes, such act binds all; (ii) if more than one vote, the act
of the majority so voting binds all; and (iii) if more than one vote, but the vote is evenly split on any particular matter each faction may vote such stock proportionally, or any person voting the shares, or a beneficiary, if any, may apply to
the Court of Chancery of the State of Delaware or such other court as may have jurisdiction to appoint an additional person to act with the persons so voting the stock, which shall then be voted as determined by a majority of such persons and the
person appointed by the Court. If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even split for the purpose of this subsection shall be a majority or even split in interest.
(g) Stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election
of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present. Nothing in this
Section 2.7 shall limit the right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity.
Section 2.8
Proxies
.
(a) Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy
filed with the Secretary before or at the time of the meeting. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with
the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date.
(b) A stockholder may
authorize another person or persons to act for such stockholder as proxy (i) by executing a writing authorizing such person or persons to act as such, which execution may be accomplished by such stockholder or such stockholder’s authorized
officer, director, partner, employee or agent (or, if the stock is held in a trust or estate, by a trustee, executor or administrator thereof) signing such writing or causing his or her signature to be affixed to such writing by any reasonable
means, including, but not limited to, facsimile
signature, or (ii) by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission (each, a “Transmission”) to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such Transmission; provided that any such Transmission
must either set forth or be submitted with information from which it can be determined that such Transmission was authorized by such stockholder.
(c) Any inspector or inspectors appointed pursuant to Section 2.9 of these Bylaws shall examine Transmissions to determine if they are
valid. If no inspector or inspectors are so appointed, the Secretary or such other person or persons as shall be appointed from time to time by the Board of Directors shall examine Transmissions to determine if they are valid. If it is determined
that a Transmission is valid, the person or persons making that determination shall specify the information upon which such person or persons relied. Any copy, facsimile telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or Transmission for any and all purposes for which the original writing or Transmission could be used; provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or Transmission.
Section 2.9
Voting Procedures and Inspectors of
Elections
.
(a) If the Corporation has a class of voting stock that is (i) listed on a national securities exchange,
(ii) authorized for quotation on an interdealer quotation system of a registered national securities association or (iii) held of record by more than 2,000 stockholders, the Board of Directors shall, in advance of any meeting of
stockholders, appoint one or more inspectors (individually an “Inspector,” and collectively the “Inspectors”) to act at such meeting and make a written report thereof. The Board of Directors may designate one or more persons as
alternate Inspectors to replace any Inspector who shall fail to act. If no Inspector or alternate is able to act at such meeting, the chairman of the meeting shall appoint one or more other persons to act as Inspectors. Each Inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of Inspector with strict impartiality and according to the best of his or her ability.
(b) The Inspectors shall (i) ascertain the number of shares of stock of the Corporation outstanding and the voting power of each,
(ii) determine the number of shares of stock of the Corporation present in person or by proxy at such meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable
period of time a record of the disposition of any challenges made to any determination by the Inspectors and (v) certify their determination of the number of such shares present in person or by proxy at such meeting and their count of all votes
and ballots. The Inspectors may appoint or retain other persons or entities to assist them in the performance of their duties.
(c) The
date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at such meeting. No ballots, proxies or votes, nor any revocations thereof or changes thereto, shall be
accepted by the Inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by any stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots, the Inspectors shall be
limited to an examination of the proxies, any envelopes submitted with such proxies, any information referred to in paragraphs (b) and (c) of Section 2.8 of these Bylaws, ballots and the regular books and records of the Corporation,
except that the Inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder
of a proxy is authorized by a stockholder of record to cast or more votes than such stockholder holds of record. If the Inspectors consider other reliable information for the limited purpose permitted herein, the Inspectors, at the time they make
their certification pursuant to paragraph (b) of this Section 2.9, shall specify the precise information considered by them, including the person or persons from whom such information was obtained, when and the means by which such
information was obtained and the basis for the Inspectors’ belief that such information is accurate and reliable.
Section 2.10
Fixing Date of Determination of Stockholders of Record
.
(a) In order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and
which record date shall, unless otherwise required by law, be not more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting, unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board of Directors in respect of a meeting, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date
for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such action. If no such record date is so fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
Section 2.11
List of Stockholders Entitled to Vote
. The Secretary shall prepare, at
least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before
the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the
list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, the list shall also be produced and
kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, the list shall be open to the examination of any
stockholder during the whole time thereof on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
Board of
Directors
Section 3.1
Election; Resignation; Vacancies
.
(a) Only persons who are nominated in accordance with the procedures set forth in this Section 3.1(a) shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at a meeting of stockholders by the Board of Directors or by any stockholder of the Corporation entitled to vote in the election of directors at
the meeting who complies with the notice procedures set forth in this paragraph (a). Any nomination by a stockholder must be made by timely written notice to the Secretary as hereinafter provided. To be timely, a stockholder’s written notice
shall set forth all information required under this Section 3.1(a) and shall be delivered or mailed to and received at the principal executive offices of the Corporation: (i) with respect to an election to be held at an annual meeting of
stockholders, not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the immediately
preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within 30 days from the first anniversary of the immediately
preceding year’s annual meeting date, written notice by a stockholder in order to be timely must be received not earlier than the 120th day before the date of such annual meeting and not later than the later of the 90th day before the date of
such annual meeting, as originally convened, or the close of business on the tenth day following the day on which the first public disclosure of the date of such annual meeting was made, and (ii) with
respect to an election to be held at a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the tenth day following the day on
which the first public disclosure of the date of such special meeting was made. In no event shall the public disclosure of an adjournment or postponement of any annual or special meeting commence a new time period for giving of a stockholder notice
as described above. A stockholder’s notice to the Secretary delivered pursuant to this Section 3.1(a) shall set forth:
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(i)
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as to each person whom the stockholder proposes to nominate for election or re-election as a director (each, a “Proposed Nominee”), all information relating to the Proposed Nominee that would be required to be
disclosed in connection with the solicitation of proxies for the election of the Proposed Nominee as a director in an election contest (even if an election contest is not involved), or would otherwise be required in connection with such
solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules thereunder; and
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(ii)
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as to the stockholder giving the notice and any Stockholder Associated Person, the Proposing Stockholder Information with respect to such person.
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Such notice shall be accompanied by a written representation and agreement, in the form provided by the Secretary upon written request, executed by the
Proposed Nominee, that such Proposed Nominee (i) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation in connection with service or action as a director that
has not been disclosed to the Corporation, (ii) consents to being named as a nominee and to serve as a director if elected, (iii) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such Proposed Nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation or (B) any Voting Commitment that could limit or interfere with such Proposed Nominee’s ability to comply, if elected as a director of the Corporation, with such Proposed Nominee’s fiduciary duties under applicable law and
(iv) would be in compliance if elected as a director of the Corporation, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
At the request of the Board of Directors any person nominated by the Board of Directors for election as a director shall furnish to the Secretary (in
accordance with any applicable time periods prescribed for delivery of notice under these Bylaws) that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation.
Notwithstanding anything in this Section 3.1(a) to the contrary, in the event that the number of directors to be elected to the Board of Directors is
increased, and there is no public disclosure of such action at least 90 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier)
for the immediately preceding year’s annual meeting, a stockholder’s notice required by this Section 3.1(a) shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive office of the Corporation not later than the tenth day following the day on which such public disclosure is first made by the
Corporation.
No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.1(a). Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the meeting of stockholders to present a nomination proposed by such stockholder pursuant to this Section 3.1(a), such
nomination shall be disregarded, even though proxies in respect of such vote may have been received by the Corporation. The chairman of the meeting at which a stockholder nomination is presented shall, if the facts warrant, determine and declare to
the meeting that such nomination was not made in accordance with the procedures prescribed by this Section 3.1(a), and, in such event, the defective nomination shall be disregarded.
(b) Any director may resign at any time by giving written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary. A
resignation shall take effect when the resignation is delivered to the officer to whom it is directed unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events, without any need
for its acceptance. A resignation that is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable.
(c) Any newly created directorship or any vacancy occurring in the Board of Directors for any reason shall be filled as set forth in the
Certificate of Incorporation.
Section 3.2
Regular Meetings
. Unless otherwise determined by the Board of Directors, a regular
annual meeting of the Board of Directors shall be held, without call or notice, immediately after and, if the annual meeting of stockholders is held at a place, at the same place as the annual meeting of stockholders, for the purpose of electing
officers and transacting any other business that may properly come before such meeting. Additional regular meetings of the Board of Directors may be held without call or notice at such times as shall be fixed by resolution of the Board of Directors.
Section 3.3
Special Meetings
. Special meetings of the Board of Directors may be called by the Chairman of the Board, the
Chief Executive Officer, the Secretary or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special
meeting. The purpose or purposes of a special meeting need not be stated in the call or notice.
Section 3.4
Organization
.
Meetings of the Board of Directors shall be presided over by the Chairman of the Board or, in his or her absence, by the Chief Executive Officer, or in his or her absence, by a chairman chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. A majority of the directors present at a meeting, whether or not they constitute a quorum, may adjourn such meeting to any
other date, time or place without notice other than announcement at the meeting.
Section 3.5
Quorum; Vote Required for Action
. At all meetings of the Board of
Directors a majority of the whole Board of Directors shall constitute a quorum for the transaction of business. Unless the Certificate of Incorporation or these Bylaws otherwise provide, the vote of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors.
Section 3.6
Committees
. The Board of Directors may,
by resolution, designate one or more committees, including but not limited to an Audit Committee, a Compensation Committee, a Nominating and Corporate Governance Committee and an Executive Committee, each committee to consist of one or more
directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of
a member of the committee, the member or members present at any meeting and not disqualified from voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted by law and provided in these Bylaws or in the resolution of the Board of Directors designating such committee, or an amendment to such resolution, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
Section 3.7
Telephonic Meetings
. Directors, or any committee of directors designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 3.7 shall constitute presence in person at such meeting.
Section 3.8
Board of Director Action by Written Consent
Without a Meeting
. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing (which may be in counterparts) or by electronic transmission, and the written consent or consents or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such filing shall be made in paper form if the minutes of the Corporation are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form. Such action by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board of Directors.
Section 3.9
Committee Rules
. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors
may make, alter and repeal rules not inconsistent with the provisions of law for the conduct of its business. In the absence of such rules, each committee shall conduct its business in the same manner as the Board of Directors conducts its business
pursuant to this Article III of these Bylaws.
Section 3.10
Reliance upon Records
. Every director, and every member of any
committee of the Board of Directors, shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees,
or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation’s capital stock might properly be purchased or redeemed.
Section 3.11
Interested Directors
. A director who is directly or indirectly a party to a contract or transaction with the
Corporation, or is a director or officer of or has a financial interest in any other corporation, partnership, association or other organization which is a party to a contract or transaction with the Corporation, may be counted in determining
whether a quorum is present at any meeting of the Board of Directors or a committee thereof at which such contract or transaction is considered or authorized, and such director may participate in such meeting and vote on such authorization to the
extent permitted by applicable law, including Section 144 of the General Corporation Law of the State of Delaware.
Section 3.12
Compensation
. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance
at each meeting of the Board of Directors or a committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for services as a director or committee member. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 3.13
Chairman of the
Board
. The Board of Directors shall elect a Chairman of the Board from among its members. The position of Chairman of the Board is not an officer position of the Corporation.
ARTICLE IV
Officers
Section 4.1
Executive Officers; Election; Qualification; Term of Office
. The Board of Directors shall elect a Chief Executive Officer and a Chief
Financial Officer. The Board of Directors shall also elect a Secretary and may elect a President, one or more Vice Presidents, and one or more Assistant Secretaries. Any number of offices may be held by the same person. Each officer shall hold
office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.
Section 4.2
Resignation; Removal; Vacancies
. Any officer may resign at any time by giving written notice to the Chairman of the Board, the
Chief Executive Officer or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer
to whom it is directed, without any need for its acceptance. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation. Any officer chosen by another officer pursuant to Section 4.10 of these Bylaws may be removed with or without cause at any time by that officer, but such removal shall be without
prejudice to the contractual rights of such officer, if any, with the Corporation. A vacancy occurring in any office of the Corporation may be filled for the unexpired portion of the term thereof by the Board of Directors at any regular or special
meeting.
Section 4.3
Powers and Duties of Executive Officers
. The officers of the Corporation shall have such powers and
duties in the management of the Corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors
may require any officer, agent or employee to give security for the faithful performance of his or her duties.
Section 4.4
Chief
Executive Officer
. The Chief Executive Officer of the Corporation shall in general supervise and control all of the business affairs of the Corporation, subject to the direction of the Board of Directors. The Chief Executive Officer may execute,
in the name and on behalf of the Corporation, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors or a committee thereof has authorized to be executed, except in cases where the execution shall have been
expressly delegated by the Board of Directors or a committee thereof to some other officer or agent of the Corporation.
Section 4.5
President
. The President, if there be one, shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of
the Chief Executive Officer, the President shall perform the duties of the Chief Executive Officer and, when so performing, shall have all the powers and be subject to all the restrictions upon the office of Chief Executive Officer.
Section 4.6
Chief Financial Officer
. The Chief Financial Officer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Controlling Officer and
the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all such officer’s transactions as Chief Financial Officer and of the financial condition of the Corporation. If required by the Board of
Directors, the Chief Financial Officer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office and for the restoration
to the Corporation, in case of such person’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 4.7
Secretary
. In addition to such other duties, if any, as may be assigned
to the Secretary by the Board of Directors or the Chief Executive Officer, the Secretary shall (i) keep the minutes of proceedings of the stockholders, the Board of Directors and any committee of the Board of Directors in one or more books
provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (iii) be the custodian of the records and seal of the Corporation; (iv) affix or cause to be
affixed the seal of the Corporation or a facsimile thereof, and attest the seal by his or her signature, to all documents the execution of which under seal is authorized by the Board of Directors; and (v) unless such duties have been delegated
by the Board of Directors to a transfer agent of the Corporation, keep or cause to be kept a register of the name and address of each stockholder, as the same shall be furnished to the Secretary by such stockholder, and have general charge of the
stock transfer records of the Corporation.
Section 4.8
Assistant Secretaries
. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer, the President, if there be one, or any Vice
President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of such person’s disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
Section 4.9
Vice Presidents
. Except as may be otherwise provided in these
Bylaws, Vice Presidents, if there be any, shall perform such duties and possess such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer or the President. The Board of Directors may assign to
any Vice President the title of Executive Vice President, Senior Vice President or any other such title.
Section 4.10
Other
Officers
. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of
the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
Stock Certificates and Transfers
Section 5.1
Certificated and Uncertificated Shares
. Shares of the Corporation’s stock may be certificated or uncertificated,
as provided under Delaware law. All certificates of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. The certificates shall be signed by (i) the Chief Executive Officer, the
President, if any, or a Vice President, if any, and (ii) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, and certify the number of shares owned by such holder in the Corporation.
Section 5.2
Signatures
. Any signature required to be on a certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 5.3
Lost Certificates;
Issuance of New Certificates
. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5.4
Transfers of Stock
. Stock of the Corporation shall be transferable in the manner prescribed by law and in these
Bylaws. Transfers of stock shall be made on the books of the Corporation only by the record holder of such stock, or by their attorney lawfully constituted in writing, and, in the case of stock represented by a certificate, upon the surrender of the
certificate.
Section 5.5
Stockholders of Record
. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten days before the date of such meeting, nor more than
sixty days prior to any such other corporate action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 5.6
Beneficial Owners
. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
Notices
Section 6.1
Manner of Notice
.
(a) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, whenever notice is required to be given to any
stockholder, director or member of any
committee of the Board of Directors, such notice may be given by (i) personal delivery, (ii) depositing it, in a sealed envelope, in the United States mails, first class, postage
prepaid, addressed, (iii) delivering to a company for overnight or second day mail or delivery, (iv) delivering it to a telegraph company, charges prepaid, for transmission, or by transmitting it via telecopier, or (v) any other
reliable means permitted by applicable law (including, subject to Section 6.1(b), electronic transmission) to such stockholder, director or member, either at the address of such stockholder, director or member as it appears on the records of
the Corporation or, in the case of such a director or member, at his or her business address; and such notice shall be deemed to be given at the time when it is thus personally delivered, deposited, delivered or transmitted, as the case may be. Such
requirement for notice shall also be deemed satisfied, except in the case of stockholder meetings, if actual notice is received orally or by other writing by the person entitled thereto as far in advance of the event with respect to which notice is
being given as the minimum notice period required by law or these Bylaws.
(b) Without limiting the foregoing, any notice to stockholders
given by the Corporation pursuant to these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice
to the Corporation and shall also be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes
known to the Secretary of the Corporation, the transfer agent or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other
action. Notice given by a form of electronic transmission in accordance with these Bylaws shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such
specific posting, upon the later of such posting and the giving of such separate notice; and (iv) if by another form of electronic transmission, when directed to the stockholder.
Section 6.2
Dispensation with Notice
.
(a) Whenever notice is required to be given by law, the Certificate of Incorporation or these Bylaws to any stockholder to whom (i) notice
of two consecutive annual meetings of stockholders, and all notices of meetings of stockholders to such stockholder during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class
mail) of dividends or interest on securities of the Corporation during a 12-month period, have been mailed addressed to such stockholder at the address of such stockholder as shown on the records of the Corporation and have been returned
undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting which shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If
any such stockholder shall deliver to the Corporation a written notice setting forth the then current address of such stockholder, the requirement that notice be given to such stockholder shall be reinstated.
(b) Whenever notice is required to be given by law, the Certificate of Incorporation or these
Bylaws to any person with whom communication is unlawful, the giving of such notice to such person shall not be required, and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such
person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given.
Section 6.3
Waiver of Notice
. Any written waiver of notice, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a
committee or directors need be specified in any written waiver of notice.
ARTICLE VII
Indemnification Section
Section 7.1
Right to Indemnification
.
(a) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as in effect on the date of adoption of these
Bylaws or as it may thereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture or other enterprise, against any and all liability and loss (including judgments, fines, penalties and amounts paid in settlement) suffered or incurred and expenses
reasonably incurred by such person. The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine
to be appropriate and authorized by Delaware law. The Corporation shall not be required to indemnify a person in connection with a proceeding initiated by such person, including a counterclaim or crossclaim, unless the proceeding was authorized by
the Board of Directors.
(b) For purposes of this Article VII: (i) any reference to “other enterprise” shall include all
plans, programs, policies, agreements, contracts and payroll practices and related trusts for the benefit of or relating to employees of the Corporation and its related entities (“employee benefit plans”); (ii) any reference to
“fines”, “penalties”, “liability” and “expenses” shall include any excise taxes, penalties, claims, liabilities and reasonable expenses (including reasonable legal fees and related expenses) assessed against
or incurred by a person with respect to any employee benefit plan; (iii) any reference to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation or trustee or
administrator of any employee benefit plan which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants,
beneficiaries, fiduciaries, administrators and service providers; (iv) any reference to serving at the request of the Corporation as a director, officer, employee or agent of a partnership or trust shall include service as a partner or trustee;
and (v) a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the
best interests of the Corporation” for purposes of this Article VII.
Section 7.2
Prepayment of Expenses
. The Corporation
shall pay or reimburse the reasonable expenses incurred in defending any proceeding in advance of its final disposition if the Corporation has received an undertaking by the person receiving such payment or reimbursement to repay all amounts
advanced if it should be ultimately determined that he or she is not entitled to be indemnified under this Article VII or otherwise.
Section 7.3
Claims
. If a claim for indemnification or payment of expenses under this Article VII is not paid in full within 60
days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 7.4
Non-Exclusivity of Rights
. The rights conferred on any person by this Article VII shall not be exclusive of any other
rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7.5
Other Indemnification
. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee, partner or agent of another corporation, partnership, joint venture or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership,
joint venture or other enterprise.
Section 7.6
Amendment or Repeal
. Any repeal or modification of the foregoing provisions of
this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
ARTICLE VIII
General
Section 8.1
Fiscal year
. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Initially, the fiscal year of the Corporation shall end on December 31 of each year.
Section 8.2
Seal
. The corporate seal shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 8.3
Definitions
.
(a) For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
(b) For purposes of these Bylaws, “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable national news service, or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c) For purposes of these Bylaws, a “qualified representative” of a stockholder shall mean a duly authorized officer, manager
or partner of such stockholder or a person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, which writing (or a
reliable reproduction thereof) shall be produced at the meeting of stockholders.
(d) For purposes of these Bylaws, “Stockholder
Associated Person” of any stockholder means (i) any person acting in concert with such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder (other than a
stockholder that is a depositary) and (iii) any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such stockholder or such Stockholder Associated Person.
Section 8.4
Amendment of Bylaws
. These Bylaws may be altered or repealed, and new Bylaws made, by the majority vote of the whole
Board of Directors; provided, however, that a Bylaw adopted by the holders of stock representing a majority of the votes which could be cast by the holders of all outstanding stock that prescribes the required vote for the election of directors may
not be altered by the Board of Directors. The holders of stock representing a majority of the votes which could be cast by the holders of all outstanding stock may make additional Bylaws and may alter and repeal any Bylaws whether adopted by them or
otherwise.
CERTIFICATE OF SECRETARY
The undersigned, being the duly elected Secretary of TRI Pointe Group, Inc., a Delaware corporation, hereby certifies that the Bylaws to which
this Certificate is attached were duly adopted by the Board of Directors of the corporation as of the 11th day of June, 2015.
IN WITNESS
WHEREOF, I have hereunto set my hand as of this 11th day of June, 2015.
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By:
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/s/ Bradley W. Blank
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Name: Bradley W. Blank
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Title: Secretary
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Exhibit 4.4
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JULY 7, 2015
BETWEEN
TRI POINTE
GROUP, INC.,
a Delaware corporation
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, d/b/a Housing Capital Company
as Administrative Agent, lead arranger and book manager,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as syndication agent
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, d/b/a Housing Capital Company
as a Lender, LC Issuer and Swing Line Lender,
AND
The other Lenders
from
Time to Time Parties Hereto
Table of Contents
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Page
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ARTICLE I DEFINITIONS
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3
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ARTICLE II THE CREDITS
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32
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2.1
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Commitment
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32
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2.2
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Determination of Dollar Amounts; Required Payments; Termination
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32
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2.3
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Ratable Loans; Types of Advances
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32
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2.4
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Swing Line Loans.
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33
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2.5
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Unused Fee
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34
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2.6
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Minimum Amount of Each Advance
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34
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2.7
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Reductions in Aggregate Commitment; Optional Principal Payments
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34
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2.8
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Method of Selecting Types and Interest Periods for New Revolving Advances
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35
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2.9
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Conversion and Continuation of Outstanding Advances; Maximum Number of Interest Periods
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35
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2.10
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Interest Rates
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36
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2.11
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Rates Applicable After Event of Default
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37
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2.12
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Method of Payment
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37
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2.13
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Noteless Agreement; Evidence of Indebtedness
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37
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2.14
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Telephonic Notices
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38
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2.15
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Interest Payment Dates; Interest and Fee Basis
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38
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2.16
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Notification of Advances, Interest Rates, Prepayments and Commitment Reductions
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39
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2.17
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Lending Installations
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39
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2.18
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Non-Receipt of Funds by the Administrative Agent
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39
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2.19
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Facility LCs
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40
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2.20
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Replacement of Lender
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45
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2.21
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Limitation of Interest
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45
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2.22
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Defaulting Lenders
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46
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2.23
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Reserved
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50
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2.24
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Increase Option
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50
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2.25
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Returned Payments
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51
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2.26
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Assumption of Obligations
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51
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2.27
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Consent; Release of TRI Pointe Homes
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51
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ARTICLE III YIELD PROTECTION; TAXES
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53
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3.1
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Yield Protection
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53
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3.2
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Changes in Capital Adequacy Regulations
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54
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3.3
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Availability of Types of Advances; Adequacy of Interest Rate
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54
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3.4
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Funding Indemnification
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54
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3.5
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Taxes
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55
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3.6
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Selection of Lending Installation; Mitigation Obligations; Lender Statements; Survival of Indemnity
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58
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3.7
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Cutoff
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59
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-i-
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ARTICLE IV CONDITIONS PRECEDENT
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59
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4.1
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Closing
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59
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4.2
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Each Credit Extension
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60
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ARTICLE V REPRESENTATIONS AND WARRANTIES
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61
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5.1
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Existence and Standing
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61
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5.2
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Authorization and Validity
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61
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5.3
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No Conflict; Government Consent
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62
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5.4
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Financial Statements
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62
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5.5
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Material Adverse Change
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62
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5.6
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Taxes
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62
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5.7
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Litigation
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63
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5.8
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Subsidiaries
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63
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5.9
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ERISA
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63
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5.10
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Accuracy of Information
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63
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5.11
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Regulation U
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63
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5.12
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Material Agreements
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64
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5.13
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Compliance With Laws
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64
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5.14
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Ownership of Properties
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64
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5.15
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Plan Assets; Prohibited Transactions
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64
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5.16
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Environmental Matters
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64
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5.17
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Investment Company Act
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64
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5.18
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Insurance
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64
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5.19
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Subordinated Indebtedness
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65
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5.20
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Solvency
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65
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5.21
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No Default
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65
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5.22
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Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws
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65
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ARTICLE VI COVENANTS
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66
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6.1
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Financial Reporting
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66
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6.2
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Use of Proceeds
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67
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6.3
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Notice of Material Events
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67
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6.4
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Conduct of Business
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68
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6.5
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Taxes
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68
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6.6
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Insurance
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68
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6.7
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Compliance with Laws and Material Contractual Obligations
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69
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6.8
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Maintenance of Properties
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69
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6.9
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Books and Records; Inspection
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69
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6.10
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Payment of Obligations
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69
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6.11
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Restrictions on Aggregate Secured Indebtedness
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69
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6.12
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Merger
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69
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6.13
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Sale of Assets
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70
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6.14
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Investments and Acquisitions
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71
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6.15
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Liens
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73
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6.16
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Affiliates
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76
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6.17
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Modification of Certain Indebtedness
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76
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6.18
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Restricted Payment; Repurchase of Stock
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76
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-ii-
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6.19
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Financial Covenants and Tests
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77
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6.20
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Guaranty
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78
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6.21
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Negative Pledge
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79
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6.22
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Operating Accounts
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79
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6.23
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Patriot Act Compliance
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79
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ARTICLE VII DEFAULTS
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79
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ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
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82
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8.1
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Acceleration; Remedies
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82
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8.2
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Application of Funds
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84
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8.3
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Amendments
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84
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8.4
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Preservation of Rights
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85
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ARTICLE IX GENERAL PROVISIONS
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85
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9.1
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Survival of Representations
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85
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9.2
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Governmental Regulation
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85
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9.3
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Headings
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85
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9.4
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Entire Agreement
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85
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9.5
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Several Obligations; Benefits of this Agreement
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86
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9.6
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Expenses; Indemnification
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86
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9.7
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Reserved
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87
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9.8
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Accounting
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87
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9.9
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Severability of Provisions
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87
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9.10
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Nonliability of Lenders
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87
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9.11
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Confidentiality
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88
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9.12
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Nonreliance
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88
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9.13
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Disclosure
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88
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9.14
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USA PATRIOT ACT NOTIFICATION
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88
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ARTICLE X THE ADMINISTRATIVE AGENT
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89
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10.1
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Appointment; Nature of Relationship
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89
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10.2
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Powers
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89
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10.3
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General Immunity
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89
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10.4
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No Responsibility for Loans, Recitals, etc
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89
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10.5
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Action on Instructions of Lenders
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90
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10.6
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Employment of Agents and Counsel
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90
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10.7
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Reliance on Documents; Counsel
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90
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10.8
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Administrative Agent’s Reimbursement and Indemnification
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90
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10.9
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Notice of Event of Default
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91
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10.10
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Rights as a Lender
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91
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10.11
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Lender Credit Decision, Legal Representation
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92
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10.12
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Successor Administrative Agent
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92
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10.13
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Administrative Agent and Arranger Fees
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93
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10.14
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Delegation to Affiliates
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93
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10.15
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Arranger and Book Runner
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93
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10.16
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No Advisory or Fiduciary Responsibility
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93
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-iii-
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10.17
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Borrower Information Used to Determine Applicable Interest Rates
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94
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ARTICLE XI SETOFF; RATABLE PAYMENTS
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94
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11.1
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Setoff; Ratable Payments
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94
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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95
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12.1
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Successors and Assigns
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95
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12.2
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Participations
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96
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12.3
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Assignments
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97
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ARTICLE XIII NOTICES
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99
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13.1
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Notices; Effectiveness; Electronic Communication
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99
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ARTICLE XIV COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
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100
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14.1
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Counterparts; Effectiveness
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100
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14.2
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Electronic Execution of Assignments
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101
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ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
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101
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15.1
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CHOICE OF LAW
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101
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15.2
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CONSENT TO JURISDICTION
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101
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15.3
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WAIVER OF JURY TRIAL
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101
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-iv-
SCHEDULES
PRICING SCHEDULE
SCHEDULE 1 – Commitments
SCHEDULE 2 – Intentionally Omitted
SCHEDULE 2.9 – Conversion/Continuation Notice
SCHEDULE 3 – Guarantors
SCHEDULE 4 – LC
Issuer’s LC Limits
SCHEDULE 5.8 – Subsidiaries
SCHEDULE 5.19 – Subordinated Indebtedness
SCHEDULE 6.15 – Liens
EXHIBITS
EXHIBIT A – Intentionally Omitted
EXHIBIT B
– Form of Compliance Certificate
EXHIBIT C – Form of Assignment and Assumption Agreement
EXHIBIT D – Form of Borrowing Notice
EXHIBIT E
– Form of Guaranty
EXHIBIT F – Form of Note
EXHIBIT G – Form of Increasing Lender Supplement
EXHIBIT H – Form of Augmenting Lender Supplement
EXHIBIT I – Intentionally Omitted
EXHIBIT J
– Form of Borrowing Base Certificate
-v-
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement (the “Agreement”), dated as of July 7, 2015, is among TRI Pointe Group, Inc., a
Delaware corporation, the Lenders (as defined below) and U.S. Bank National Association, a national banking association, d/b/a Housing Capital Company, as LC Issuer, Swing Line Lender and Administrative Agent.
RECITALS
A. Under that
certain Credit Agreement dated as of June 26, 2014, by and among TRI Pointe Homes, Inc., a Delaware corporation (“TRI Pointe Homes”), Administrative Agent, and each of U.S. Bank National Association (“US Bank”), Wells Fargo
Bank, National Association (“Wells Fargo”), California Bank & Trust (“CBT”), Deutsche Bank AG, New York Branch (“Deutsche Bank”), Citibank, N.A. (“Citibank”), and Union Bank, N.A. (“Union
Bank,” and, together with US Bank, Wells Fargo, CBT, Deutsche Bank and Citibank, each an “Original Lender” and collectively, the “Original Lenders”) (the “Original Credit Agreement”), Original Lenders agreed to
make a revolving loan to TRI Pointe Homes (the
“Loan”
).
B. The Original Credit Agreement was modified by that
certain Modification Agreement dated as of January 20, 2015 (the “First Modification”).
C. Pursuant to that certain
Assignment and Assumption Agreement dated as of May 18, 2015 by and between Union Bank, as Assignor, and JPMorgan Chase Bank, N.A., a national banking association (“JPMorgan”), as Assignee, Union Bank assigned its full $50,000,000
commitment to JPMorgan.
D. The Original Credit Agreement was further modified by that certain Second Modification Agreement dated as of
May 18, 2015 (the “Second Modification”). The Original Credit Agreement, as modified by the First Modification and the Second Modification is referred to herein as the “Existing Credit Agreement.”
E. Pursuant to the Second Modification, Fifth Third Bank, an Ohio banking corporation (“Fifth Third”) became a “Lender”
under the Existing Credit Agreement with a commitment of $45,000,000.00, and Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”) became a “Lender” under the Existing Credit Agreement with a commitment of $25,000,000.00.
F. In connection with the Loan, TRI Pointe Communities, Inc., a Delaware corporation, and TRI Pointe Contractors, LP, a Delaware limited
partnership (individually and collectively, “Original Guarantor”) have executed that certain Guaranty dated as of June 26, 2014 in favor of Administrative Agent and the Lenders (as amended, restated or otherwise modified, the
“Original Guaranty”), pursuant to which Original Guarantor guaranteed to Administrative Agent and Lenders the payment and performance of TRI Pointe Homes’ obligations under the Loan Documents.
G. Pursuant to that certain Supplement to Guaranty dated as of July 7, 2014 (the “Supplemental Guaranty”), TRI Pointe Holdings,
Inc., a Washington corporation, Maracay 91, L.L.C., an Arizona limited liability company, Maracay Homes, L.L.C., an Arizona limited liability company, Maracay Bridges, LLC, an Arizona limited liability company, Maracay VR,
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LLC, an Arizona limited liability company, Pardee Homes, a California corporation, Pardee Homes of Nevada, a Nevada corporation, The Quadrant Corporation, a Washington corporation, Trendmaker
Homes, Inc., a Texas corporation, Winchester Homes Inc., a Delaware corporation, and Maracay Thunderbird, L.L.C., an Arizona limited liability company (each, a “Supplemental Guarantor,” and, together with Original Guarantor, collectively,
“Existing Guarantor”), joined, on a joint and several basis, in the obligations of Original Guarantor under the Original Guaranty and guaranteed to Administrative Agent and Lenders the payment and performance of TRI Pointe Homes’
obligations under the Loan Documents. The Original Guaranty and the Supplemental Guaranty are collectively referred to herein as the “Existing Guaranty.”
H. As of the date hereof, the outstanding principal balance of the Loan is $399,391,861.81, and Letters of Credit in the aggregate face amount
of $9,469,772.26 have been issued by LC Issuer and remain outstanding.
I. TRI Pointe Group, Inc., a Delaware corporation (“TRI
Pointe Group”) was incorporated on May 28, 2015 as a wholly-owned subsidiary of TRI Pointe Homes. TPG Merger, Inc., a Delaware corporation (“TPG Merger”), was incorporated on May 28, 2015 as a wholly-owned subsidiary of TRI
Pointe Group.
J. In accordance with Section 251(g) of the Delaware Corporation Code and pursuant to that certain Agreement and Plan
of Merger to Form Holding Company dated as of July 7, 2015 by and among TPG Merger, TRI Pointe Group and TRI Pointe Homes, the parties thereto effected a holding company merger pursuant to which TPG Merger was merged with and into TRI Pointe Homes,
with TRI Pointe Homes surviving the Merger as a wholly owned subsidiary of TRI Pointe Group (the “Merger Transaction”). As a result of the Merger Transaction, all of the outstanding shares of common stock of TRI Pointe Homes were converted
into the same number of shares of common stock of TRI Pointe Group, and the directors and officers of TRI Pointe Group immediately after completion of the holding company merger were comprised of the same persons who were directors and executive
officers of TRI Pointe Homes immediately prior to the consummation of the Merger Transaction.
K. TRI Pointe Homes and TRI Pointe Group
have requested that Administrative Agent and Lenders consent to (i) the Merger Transaction, (ii) the assumption by TRI Pointe Group of all of the obligations of TRI Pointe Homes under the Loan Documents, and (iii) the release of TRI
Pointe Homes from its obligations as a borrower under the Loan Documents.
L. Administrative Agent and Lenders have agreed to consent to
(i) the Merger Transaction, (ii) the assumption by TRI Pointe Group of all of the obligations of TRI Pointe Homes under the Loan Documents, and (iii) the release of TRI Pointe Homes from its obligations as a borrower under the Loan
Documents, provided that (1) TRI Pointe Homes guarantee, without limitation and with full recourse, the payment when due of all Obligations, including, without limitation, all principal, interest, letter of credit reimbursement obligations and
other amounts that shall be at any time payable by TRI Pointe Group under the Credit Agreement or the other Loan Documents, and (2) the Existing Guaranty be amended and restated in its entirety to evidence the guarantee by each Existing
Guarantor and TRI Pointe Homes, on a joint and several basis, without limitation and with full recourse, of the payment when due of all Obligations, including, without limitation, all principal, interest, letter of credit reimbursement obligations
and other amounts that shall be at any time payable by TRI Pointe Group under the Credit Agreement or the other Loan Documents.
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M. TRI Pointe Group, Administrative Agent and Lenders wish to evidence the assumption by TRI
Pointe Group of TRI Pointe Homes’ obligations under the Loan Documents and amend and restate their respective rights, duties and obligations under the Loan and the Existing Credit Agreement pursuant to the terms hereof.
Now, therefore, in consideration of the premises, and in further consideration of the mutual covenants and agreements herein set forth, the
parties covenant and agree as follows:
AGREEMENTS
ARTICLE I
DEFINITIONS
As used in this Agreement:
“Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by
which the Borrower or any of its Guarantors (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability
company.
“Act” is defined in Section 9.14.
“Administrative Agent” means U.S. Bank National Association in its capacity as contractual representative of the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article X.
“Advance” means a borrowing hereunder, (i) made by some or all of the Lenders on the same Borrowing Date, or
(ii) converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in the case of Eurocurrency Loans, for the same Interest
Period. The term “Advance” shall include Swing Line Loans unless otherwise expressly provided.
“Affected Lender” is
defined in Section 2.20.
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled
by or under common control with such Person, including, without limitation, such Person’s Subsidiaries.
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“Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as
increased or reduced from time to time pursuant to the terms hereof. As of the date of this Agreement, the Aggregate Commitment is $550,000,000.
“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.
“Agreement” means this Credit Agreement, as it may be amended or modified and in effect from time to time.
“Agreement Accounting Principles” is defined in Section 9.8.
“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the one-month LIBOR rate quoted by Administrative
Agent from Reuters Screen LIBOR01 Page or any successor thereto, which shall be that one-month LIBOR rate in effect and reset each Business Day, adjusted for any reserve requirement and any subsequent costs arising from a change in government
regulation (without duplication of amounts owing or payable under Article III), such rate rounded up to the nearest one-sixteenth percent;
provided
,
however
, if on any date for determining the one-month LIBOR rate, Administrative Agent
shall determine (which determination shall be conclusive in the absence of manifest error) that (a) because of circumstances affecting the Money Markets, adequate and fair means do not exist for ascertaining the one-month LIBOR rate, or
(b) it is unlawful to maintain any advance of the Loans at a rate based on the one-month LIBOR rate, Administrative Agent shall promptly give to Borrower telephonic notice (confirmed as soon as practicable in writing) of the nature and effect
of such circumstances and/or illegality. After receipt of such notice and during the existence of such circumstances and/or illegality, the interest rate applicable to the outstanding principal balance shall be determined based upon an alternate
index selected by Administrative Agent, in its sole discretion, reasonably comparable to that of one-month LIBOR, intended to generate a return substantially the same as that generated by the one-month LIBOR rate, and all references in the Loan
Documents to the Alternate Base Rate shall be deemed to be references to such alternate rate while such rate is in effect.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries
from time to time concerning or relating to bribery or corruption.
“Applicable Fee Rate” means, at any time, the percentage
rate per annum at which Unused Fees are accruing on the Available Aggregate Commitment at such time as set forth in the Pricing Schedule.
“Applicable Margin” means, with respect to Advances of any Type at any time, the percentage rate per annum which is applicable at
such time with respect to Advances of such Type as set forth in the Pricing Schedule.
“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
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“Arranger” means U.S. Bank, in its capacity as Lead Arranger and Book Runner.
“Article” means an article of this Agreement unless another document is specifically referenced.
“Augmenting Lender” is defined in Section 2.24.
“Authorized Officer” means any of the President, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, or
Treasurer of the Borrower, acting singly.
“Available Aggregate Commitment” means, at any time, the Aggregate Commitment then in
effect
minus
the Aggregate Outstanding Credit Exposure at such time.
“Base Rate” means, for any day, a rate per annum
equal to (i) the Alternate Base Rate for such day
plus
(ii) the Applicable Margin, in each case changing when and as the Alternate Base Rate changes.
“Base Rate Advance” means an Advance which, except as otherwise provided in Section 2.11, bears interest at the Base Rate.
“Base Rate Loan” means a Loan which, except as otherwise provided in Section 2.11, bears interest at the Base Rate.
“Book Value” means, with respect to any Property at any time, the book value of such Property as determined in accordance with GAAP
at such time.
“Borrower” means TRI Pointe Group, Inc., a Delaware corporation, and its successors and assigns.
“Borrowing Base” means, with respect to an Inventory Valuation Date for which it is to be determined, an amount equal to the sum
(without duplication) of the following assets of the Borrower and each Guarantor (but only to the extent that such assets are Qualified Real Property Inventory, and are not subject to any Liens other than Permitted Liens):
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(i)
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one hundred percent (100%) of Unrestricted Cash in excess of the Minimum Liquidity Amount;
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(ii)
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the Book Value of Presold Units, multiplied by ninety percent (90%); plus
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(iii)
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the Book Value of Model Units, multiplied by eighty percent (80%); plus
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(iv)
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the Book Value of Spec Units (other than such Spec Units, if any, as are excluded from the Borrowing Base pursuant to the provisions of Section 6.19(d)), multiplied by eighty percent (80%); plus
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(v)
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the Book Value of Finished Lots, multiplied by sixty-five percent (65%); plus
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(vi)
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the Book Value of Land Under Development, multiplied by sixty-five percent (65%); plus
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(vii)
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the Book Value of Entitled Land, multiplied by fifty percent (50%);
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provided
,
however
:
(a) the Borrowing Base shall not include any amounts under clause (vii) to the extent the aggregate of such amounts exceeds 35% of the
Borrowing Base;
(b) the advance rate for Spec Units (other than Model Units) shall decrease to (A) 75% for any Housing Unit that has
been a Spec Unit for more than 180 days, but not more than 360 days and (B) 25% for any Housing Unit that has been a Spec Unit for more than 360 days;
(c) the advance rate for Model Units shall decrease to 0% for any Housing Unit that has been a Model Unit for more than 180 days following the
sale of the last production Housing Unit in the applicable project relating to such Model Unit; and
(d) from and after June 1, 2016,
the aggregate amount included in the Borrowing Base under clauses (v), (vi) and (vii) shall not exceed 55% of the total Borrowing Base.
“Borrowing Base Certificate” means a certificate executed by an Authorized Officer, substantially in the form of the pro forma
certificate attached hereto as Exhibit J (with such modifications to such form as may be reasonably requested by the Administrative Agent or the Required Lenders from time to time), setting forth the Borrowing Base and the component calculations in
respect of the foregoing.
“Borrowing Base Debt” at any date, without duplication (a) all indebtedness for borrowed money
of the Loan Parties and their respective Subsidiaries determined on a consolidated basis (including, without limitation, all Loans and the Senior Debt); plus (b) all indebtedness for borrowed money with recourse to any limited or general
partnership in which any Loan Party or any of their respective Subsidiaries is a general partner; plus (c) the sum of (i) all reimbursement obligations with respect to drawn Financial Letters of Credit and drawn Performance Letters of
Credit (excluding any portion of the actual or potential obligations that are secured by cash collateral) and (ii) the maximum amount available to be drawn under all undrawn Financial Letters of Credit, in each case issued for the account of,
or guaranteed by, any Loan Party or any of their respective Subsidiaries (excluding any portion of the actual or potential obligations that are secured by cash collateral); plus (d) all repayment guarantees of any Loan Party or any of their
respective Subsidiaries of indebtedness for borrowed money of third parties; plus (e) all Obligations (including all Rate Management Obligations to the extent due and owing) of any Loan Party and any of their respective Subsidiaries; and plus
(f) Contingent Obligations that are due and payable at the time of determination;
provided
,
however
, “Borrowing Base Debt” excludes (i) Indebtedness of any Non-Guarantor Subsidiary, (ii) Indebtedness of the
Borrower to a Guarantor, a Guarantor to the Borrower, or a Guarantor to another Guarantor, (iii) any Subordinated Indebtedness and (iv) Indebtedness secured by collateral (not part of the Borrowing Base), provided, that the amount of such
Indebtedness in excess of the value of the collateral shall constitute Borrowing Base Debt hereunder.
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“Borrowing Date” means a date on which an Advance is made or a Facility LC is issued
hereunder.
“Borrowing Notice” is defined in Section 2.8.
“Business Day” means (i) with respect to any borrowing, payment or rate selection of Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in New York City, New York and London, England for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in Dollars
are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in New York City, New York for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
“Capitalized Lease” of a Person means any lease of
Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would
be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
“Cash
Collateralize” means to deposit in the Facility LC Collateral Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the applicable LC Issuers or Lenders, as collateral for LC Obligations
or obligations of Lenders to fund participations in respect of LC Obligations, cash or deposit account balances or, if the Administrative Agent and the applicable LC Issuers shall agree in their sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to the Administrative Agent and the applicable LC Issuers. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.
“Cash Equivalents” means Investments that would be set forth in a consolidated balance
sheet of Borrower (in a manner consistent with the financial statements referenced in Section 5.4) under the heading “cash and cash equivalents.”
“Change in Control” means (i) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the U.S. Securities and Exchange Commission under the Securities Exchange Act of 1934) of 50% or more of the outstanding shares of voting stock of the Borrower on a fully diluted basis; or (ii) a
“Change in Control” (or similar occurrence, however defined) occurs under any of Borrower’s outstanding senior public note indebtedness (including the Senior Debt) or any other notes issued by Borrower under an indenture or comparable
document.
“Change in Law” is defined in Section 3.1.
“Class”, when used in reference to any Loan or Advance, refers to whether such Loan, or the Loans comprising such Advance, are
Revolving Loans or Swing Line Loans.
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“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
“Collateral Shortfall Amount” is defined in Section 8.1.
“Commitment” means, for each Lender, the obligation of such Lender to make Loans to, and participate in Facility LCs issued upon the
application of and Swing Line Loans made to, the Borrower, in an amount not exceeding the amount set forth in Schedule 1, as it may be modified (i) pursuant to Section 2.7, (ii) as a result of any assignment that has become effective
pursuant to Section 12.3(c) or (iii) otherwise from time to time pursuant to the terms hereof.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from time to time, and any successor statute.
“Computation Date” is defined in Section 2.2.
“Consolidated EBITDA” means, for any period, without duplication, the following, all as determined on a consolidated basis for the
Borrower and the Subsidiaries in conformity with Agreement Accounting Principles,
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(i)
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the sum of the amounts, without duplication, for such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) charges against income for all federal, state and local taxes,
(d) depreciation expense, (e) amortization expense, (f) other non-cash charges and expenses, and (g) any losses arising outside of the ordinary course of business which have been included in the determination of such Consolidated
Net Income, (h) transaction costs and restructuring charges required to be expensed under FASB ASC 805, (i) non-recurring expenses and charges,
provided
that the amount of such expenses and charges shall not exceed 7.5% of
Consolidated EBITDA (without giving effect to this clause (i)) in the aggregate for any four consecutive fiscal quarters, (j) any transaction expenses or charges (not to exceed $10,000,000 per transaction, or $20,000,000 in the aggregate during
any rolling four (4) fiscal quarter period under any of (A) through (C) below) related to (A) any Acquisition permitted under this Agreement, (B) any issuance of securities, or (C) any recapitalization, incurrence,
amendment, modification or repayment of Indebtedness (in each case of clauses (A) through (C), whether or not successful),
less
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(ii)
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any gains arising outside of the ordinary course of business which have been included in the determination of such Consolidated Net Income.
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“Consolidated Indebtedness” means, at any date, the sum of (i) the Borrowing Base Debt, plus (ii) the amount of all
liabilities (without duplication of any liabilities included in Borrowing Base Debt) reflected on the most recently delivered consolidated balance sheet of the Borrower prepared in conformity with Agreement Accounting Principles, but excluding all
liabilities (other than indebtedness for financing insurance premiums) from such balance sheet consisting of the amounts listed under the line items for “Accounts Payable,” “Accrued Liabilities,” and “Other” (not to
exceed $10,000,000 for “Other”) or any other line item for similar liabilities, including without limitation, liabilities related to inventory not owned, warranty reserves, legal reserves, accrued tax liabilities and accrued payroll
liabilities.
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“Consolidated Interest Expense” means, for any period and without duplication, the
aggregate amount of interest which, in conformity with Agreement Accounting Principles, would be set opposite the caption “interest expense” or any like caption on a consolidated income statement for the Borrower and its Subsidiaries,
including, without limitation, imputed interest included on Capitalized Lease Obligations, all commissions, discounts and other fees and charges owed with respect to Letters of Credit and bankers’ acceptance financing, the net costs associated
with Rate Management Transactions, amortization of other financing fees and expenses, the interest portion of any deferred payment obligation, amortization of discount or premiums, if any, and all other noncash interest expense, other than interest
and other charges amortized to cost of sales. Consolidated Interest Expense includes, with respect to the Borrower and its Subsidiaries, without duplication, all interest included as a component of cost of sales for such period.
“Consolidated Interest Incurred” means, for any period and without duplication, the aggregate amount of interest which, in
conformity with Agreement Accounting Principles, would be set opposite the caption “interest expense” or any like caption on a consolidated income statement for the Borrower and its Subsidiaries, including, without limitation, imputed
interest included on Capitalized Lease Obligations, all commissions, discounts and other fees and charges owed with respect to Letters of Credit and bankers’ acceptance financing, the net costs associated with Rate Management Transactions,
amortization of other financing fees and expenses, the interest portion of any deferred payment obligation, amortization of discount or premiums, if any, and all other noncash interest expense, other than interest and other charges amortized to cost
of sales. Consolidated Interest Incurred includes, with respect to the Borrower and its Subsidiaries, without duplication, all capitalized interest for such period, all interest attributable to discontinued operations for such period to the extent
not set forth on the income statement under the caption “interest expense” or any like caption, and all interest actually paid by the Borrower or any of its Subsidiaries under any Contingent Obligation during such period.
“Consolidated Net Income” means, for any period, the net income of the Borrower and its Subsidiaries on a consolidated basis for
such period, determined in conformity with Agreement Accounting Principles.
“Consolidated Tangible Net Worth” means, at any
date, the stockholders’ equity of the Borrower determined on a consolidated basis in conformity with Agreement Accounting Principles
less
(a) its consolidated intangible assets determined in accordance with Agreement Accounting
Principles, (b) loans and advances to directors, officers and employees of the Borrower (excluding (i) loans for purposes of exercising options to purchase capital stock in the Borrower to the extent not otherwise netted out in the
determination of stockholders’ equity, (ii) any arms-length mortgage loans made by Borrower or any Subsidiary in the ordinary course of Borrower’s or any such Subsidiary’s business, and (iii) any advances made to employees
in the ordinary course of business for travel and other items, not to exceed $10,000,000 in the aggregate), and (c) the Net Worth of any Subsidiaries that primarily provide insurance or mortgage-related services.
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“Consolidated Tangible Net Worth Test” is defined in Section 6.19(a).
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or the obligations of any such Person as
general partner of a partnership with respect to the liabilities of the partnership.
“Conversion/Continuation Notice” is
defined in Section 2.9 (a form of which is attached as Schedule 2.9).
“Credit Extension” means the making of an Advance or
the issuance of a Facility LC hereunder.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions
from time to time in effect.
“Default” means an event which but for the lapse of time or the giving of notice, or both, would
constitute an Event of Default.
“Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed
to (i) fund all or any portion of its Loans within two (2) Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is
the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or
waived, or (ii) pay to the Administrative Agent, the LC Issuers, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Facility LCs or Swing Line Loans)
within two (2) Business Days after the date when due, (b) has notified the Borrower, the Administrative Agent, the LC Issuers or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or
has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written
request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (
provided
that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee,
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administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets (other than an Undisclosed Administration), including
the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity;
provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the
Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, the LC Issuers, the Swing Line Lender and each Lender.
“Dollar” and “$” means the lawful currency of the United States of America.
“Dollar Amount” means, on any date of determination, with respect to any amount in Dollars, such amount.
“Domestic Subsidiary” means a Subsidiary of the Borrower incorporated or organized under the laws of the United States of America,
any state thereof or the District of Columbia.
“Effective Date” means the date on which the conditions specified in
Section 4.1 are satisfied.
“Eligible Assignee” means (i) a Lender (ii) an Approved Fund; (iii) a commercial
bank, insurance company or other financial institution which invests in loans, in each case which is organized under the laws of the United States, or any state thereof, and having total assets in excess of $3,000,000,000, calculated in accordance
with the accounting principles prescribed by the regulatory authority applicable to such bank in its jurisdiction of organization; (iv) a commercial bank organized under the laws of any other country that is a member of the OECD or a political
subdivision of any such country, which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having a combined capital and surplus of at least
$3,000,000,000, calculated in accordance with the accounting principles prescribed by the regulatory authority applicable to such bank in its jurisdiction of organization, so long as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described in this clause (iv); or (v) the central bank of any country that is a member of the OECD; provided, however, that neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee; provided further that in all cases, the senior unsecured debt of an Eligible Lender (or its direct or indirect parent) shall have a rating of
Baa-2
or higher from Moody’s
Investors Service, Inc. or a comparable rating agency.
“Entitled Land” means parcels of land owned by the Borrower or any
Guarantor which are zoned for the construction of single-family dwellings, whether detached or attached (excluding mobile homes);
provided
,
however
, that the term “Entitled Land” shall not include Land
Under Development, Finished Lots or any real property upon which the construction of Housing Units has commenced (as described in the definition of “Housing Unit”).
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“Environmental Laws” means any and all federal, state, local and foreign statutes,
laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the
environment, (ii) personal injury or property damage relating to the release or discharge of Hazardous Materials, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water,
ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued
thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is
treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure with respect to any Plan to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 303(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates of withdrawal liability under Section 4201 of ERISA or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
“Eurocurrency Advance” means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurocurrency Rate.
“Eurocurrency Base Rate” means, with respect
to a Eurocurrency Advance for the relevant Interest Period, the applicable interest settlement rate for deposits in Dollar LIBOR appearing on the applicable Reuters Screen LIBOR01 (or on any successor or substitute page on such screen) as of 11:00
a.m. (London time) on the Quotation Date for such Interest Period, and having a maturity equal to such Interest Period,
provided
that, if the applicable Reuters Screen
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LIBOR01 for Dollar LIBOR (or any successor or substitute page) is not available to the Administrative Agent for any reason, the applicable Eurocurrency Base Rate for the relevant Interest Period
shall instead be the applicable interest settlement rate for deposits in Dollar LIBOR as reported by any other generally recognized financial information service selected by the Administrative Agent as of 11:00 a.m. (London time) on the Quotation
Date for such Interest Period, and having a maturity equal to such Interest Period,
provided
that, if no such interest settlement rate is available to the Administrative Agent, the applicable Eurocurrency Base Rate for the relevant Interest
Period shall instead be the rate determined by the Administrative Agent to be the rate at which the Administrative Agent or one of its Affiliate banks offers to place deposits in Dollars with first-class banks in the interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, in the approximate amount of the Administrative Agent’s relevant Eurocurrency Loan and having a maturity equal to such Interest
Period. The “Eurocurrency Base Rate” shall never be less than zero percent (0%).
“Eurocurrency Loan” means a Loan
which, except as otherwise provided in Section 2.11, bears interest at the applicable Eurocurrency Rate.
“Eurocurrency
Rate” means, with respect to a Eurocurrency Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency Base Rate applicable to such Interest Period,
divided
by (b) one
minu
s
the Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus
(ii) the Applicable Margin.
“Event of Default” is defined in Article VII.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of
the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity
Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing
more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest becomes illegal.
“Excluded Taxes” means, in the case of each Lender or applicable Lending Installation, the LC Issuers, and the Administrative Agent,
(i) Taxes (a) imposed on assets, capital or liabilities, or imposed on or measured by its overall net income (however denominated), gross income, gross receipts, profits, gross profits, franchise Taxes, and branch profits Taxes imposed on
it, by the respective jurisdiction under the laws of which such Lender, the LC Issuers or the Administrative Agent is incorporated or is organized or in which its principal executive office is located or, in the case of a Lender, in which such
Lender’s applicable Lending Installation is located or (b) that are Other Connection Taxes, (ii) in the case of a Lender, any withholding tax that is imposed on amounts payable to such Lender pursuant to the laws in effect at the time
such
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Lender becomes a party to this Agreement or designates a new Lending Installation, except in each case to the extent that, pursuant to Section 3.5(a), amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Installation, or is attributable to the Non-U.S. Lender’s failure to comply with
Section 3.5(f), and (iii) any U.S. federal withholding taxes imposed by FATCA.
“Exhibit” refers to an exhibit to this
Agreement, unless another document is specifically referenced.
“Facility LC” means (a) any Existing Letter of Credit and
(b) any Letter of Credit issued by an LC Issuer in accordance with Section 2.19.
“Facility LC Application” is defined
in Section 2.19(c).
“Facility LC Collateral Account” is defined in Section 2.19(k).
“Facility Termination Date” means May 18, 2019, or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof.
“Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11:00 a.m. (Pacific time) on such day on such transactions received by the Administrative
Agent from three (3) Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.
“Fee Letters” is defined in Section 10.13.
“Financial Letter of Credit” means a Letter of Credit that is not a Performance Letter of Credit.
“Finished Lots” means parcels of land owned by the Borrower or any Guarantor which are duly recorded and platted for the
construction of single-family dwelling units, whether detached or attached (but excluding mobile homes) and zoned for such use, with respect to which all requisite governmental consents and approvals required for a building permit to be issued have
been, or could be (with no further material actions, other than the payment of fees) obtained, and all major infrastructure and offsite construction required to be completed by any applicable law as a condition of commencing vertical construction on
the applicable lot or lots have been substantially completed in compliance with applicable law;
provided
,
however
, that the term “Finished Lots” shall not include any real property upon which the construction of a
Housing Unit has commenced (as described in the definition of “Housing Unit”).
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“Fitch” means Fitch, Inc.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to an LC Issuer, such Defaulting
Lender’s ratable share of the LC Obligations with respect to Facility LCs issued by such LC Issuer other than LC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s ratable share of outstanding Swing Line Loans made by the Swing Line Lender other than Swing Line Loans as to which
such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Fund” means any Person (other
than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, applied in a manner
consistent with that used in preparing the financial statements referred to in Section 5.4, subject at all times to Section 9.8.
“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government (including, without limitation, any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including,
without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervisory Practices or any successor or similar authority to any of the foregoing).
“Guarantor” means the Subsidiaries listed on Schedule 3 hereto, and each Subsidiary that becomes a party to the Guaranty after the
date hereof pursuant to the terms of Section 6.20(a), and their respective successors and assigns (excluding any Guarantor released from the Guaranty in accordance with the terms of this Agreement).
“Guaranty” means that certain Amended and Restated Guaranty dated as of the date hereof executed by each of the Guarantors in the
form attached hereto as Exhibit E, as amended, restated, supplemented or otherwise modified, renewed or replaced from time to time pursuant to the terms hereof and thereof.
“Hazardous Material” means any explosive or radioactive substances or wastes, any hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and any other substances or wastes of any nature regulated pursuant to any
Environmental Law.
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“Highest Lawful Rate” means, on any day, the maximum non-usurious rate of interest
permitted for that day by applicable federal or state law, stated as a rate per annum.
“Homebuilding Subsidiary” means any
wholly-owned Subsidiary that is engaged in the homebuilding business. For purposes of clarification, a Homebuilding Subsidiary shall not include any Subsidiaries that primarily provide insurance or mortgage-related services.
“Housing Unit” means a single-family dwelling (where construction has commenced), whether detached or attached (including
condominiums but excluding mobile homes), including the parcel of land on which such dwelling is located, that is or will be available for sale by the Borrower or a Guarantor. The construction of a Housing Unit shall be deemed to have commenced upon
commencement of the trenching for the foundation of the Housing Unit. Each “Housing Unit” is either a Presold Unit, a Spec Unit or a Model Unit.
“Housing Unit Closing” means a closing of the sale of a Housing Unit by the Borrower or a Guarantor to a bona fide purchaser for
value.
“Increasing Lender” is defined in Section 2.24.
“Indebtedness” of a Person means, without duplication, such Person’s
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(i)
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obligations for borrowed money,
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(ii)
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obligations representing the deferred purchase price of Property or services (other than (A) trade accounts payable and accrued expenses arising or occurring in the ordinary course of such Person’s business,
and (B) obligations evidenced by the Permitted Liens described in clause (vi) of the definition of Permitted Liens, and (C) any earn-out, profit participation or other contingent purchase price obligation until such obligation appears
or should appear in the liabilities section of the balance sheet of such Person and is not paid within 30 days of such date),
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(iii)
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obligations, whether or not assumed, secured by Liens on, or payable out of the proceeds or production from, Property now or hereafter owned or acquired by such Person (other than the obligations evidenced by the
Permitted Liens described in clause (vi) of the definition of Permitted Liens),
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(iv)
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obligations which are evidenced by notes, bonds, debentures, or other similar instruments,
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(v)
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Capitalized Lease Obligations,
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(vi)
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Net Mark-to-Market Exposure under Rate Management Transactions,
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(vii)
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Contingent Obligations, including all liabilities and obligations of others of the kind described in clauses (i) through (vi) and (viii) that such Person has guaranteed, or that are secured by Liens on
Property now or hereafter owned or acquired by such Person (other than the obligations evidenced by the Permitted Liens described in clause (vi) of the definition of Permitted Liens) or that are otherwise the legal liability of such Person, and
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(viii)
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reimbursement obligations for which such Person is obligated with respect to a Letter of Credit (which shall be included in the face amount of such Letter of Credit, whether or not such reimbursement obligations are due
and payable),
provided, however
, that any Performance Letter of Credit shall not be included in Indebtedness unless and until such Letter of Credit is drawn upon and such draw is not reimbursed within 10 Business Days following such draw.
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(ix)
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all funded debt with recourse to any limited or general partnership in which any Loan Party or any of their respective Subsidiaries is a general partner.
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Indebtedness includes, without limitation, in the case of the Borrower, the Obligations (subject to clause (viii) above) and the obligations evidenced by
the Senior Notes and the documents executed in connection therewith.
“Indemnified Taxes” means Taxes imposed on or with respect
to any payment made by or on account of any obligation of any Loan Party under any Loan Document, other than Excluded Taxes and Other Taxes.
“Indenture” means the indentures dated June 13, 2014, as modified, amended or supplemented to the date hereof, among the
Borrower, TRI Pointe Homes (as successor to Weyerhaeuser Real Estate Company), the guarantors party thereto and U.S. Bank National Association, as Trustee, as further amended, restated, supplemented or otherwise modified from time to time
.
“Interest Coverage Ratio” means, as of the last day of any fiscal quarter, (a) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending on such date to (b) Consolidated Interest Incurred for the period of four consecutive fiscal quarters ending on such date.
“Interest Coverage Test” is defined in Section 6.19(c).
“Interest Differential” is defined in Section 3.4.
“Interest Period” means, with respect to a Eurocurrency Advance, a period of one (1), two (2) or three (3) months
commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such Interest Period shall end on the day which corresponds numerically to such date one (1), two (2) or three (3) months thereafter,
provided
,
however
, that if there is no such numerically corresponding day in such next, second or third succeeding month, such Interest Period shall end on the last Business Day of such next, second or third succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day,
provided
,
however
, that if said next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.
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“Inventory Valuation Date” means the last day of the most recent calendar quarter with
respect to which the Borrower is required to have delivered a Borrowing Base Certificate pursuant to Section 6.1(d) hereof.
“Investment” of a Person means (a) any loan, advance (other than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person; (b) stocks, bonds,
mutual funds, partnership interests, notes, debentures or other securities (including warrants or options to purchase securities) owned by such Person; (c) any deposit accounts and certificate of deposit owned by such Person; and
(d) structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person.
“Land
Under Development” means parcels of land owned by the Borrower or any Guarantor which are zoned for the construction of single-family dwelling units, whether attached or detached (excluding mobile homes) and upon which the construction of site
improvements has commenced and is proceeding;
provided
,
however
, that the term “Land Under Development” shall not include (i) Finished Lots, (ii) Entitled Land, (iii) any real property upon which the
construction of a Housing Unit has commenced, or (iv) vacant land held by the Borrower or any Guarantor for future development or sale and designated as inactive land in the footnotes to the Borrower’s or such Guarantor’s financial
statements.
“LC Fee” is defined in Section 2.19(d).
“LC Issuer” means each of the Lenders (or any subsidiary or affiliate of such Lender designated by such Lender) that has issued an
Existing Letter of Credit, U.S. Bank (or any subsidiary or affiliate of U.S. Bank designated by U.S. Bank), or any other Lender that agrees, at the Borrower’s request, to issue Facility LCs hereunder (or any subsidiary or affiliate of such
Lender designated by such Lender), each in its capacity as issuer of Facility LCs hereunder.
“LC Issuer’s LC Limit” means,
with respect to a Lender, the amount with respect to such Lender set forth in Schedule 4 hereto or such higher or lower amount as shall be agreed by such Lender, each other LC Issuer, if any, and the Borrower (but not to exceed, in the aggregate as
to all LC Issuers, the lesser of 25% of the Aggregate Commitment or $75,000,000). In the case of any Lender that becomes an LC Issuer after the date hereof, such Lender’s LC Issuer’s LC Limit shall be, subject to the aggregate LC
Issuer’s LC Limit set forth above, an amount equal to 25% of its Commitment unless such Lender, the Borrower and each other LC Issuer, if any, shall otherwise agree and so notify the Administrative Agent. A Lender or the Borrower shall promptly
notify the Administrative Agent of any change in such Lender’s LC Issuer’s LC Limit. For the avoidance of doubt, as of the date hereof, U.S. Bank is the sole LC Issuer and U.S. Bank’s LC Issuer’s LC Limit is $75,000,000.
“LC Obligations” means, at any time, the sum, without duplication, of (i) the aggregate undrawn stated amount under all
Facility LCs outstanding at such time
plus
(ii) the aggregate unpaid amount at such time of all Reimbursement Obligations.
“LC Payment Date” is defined in Section 2.19(e).
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“Lenders” means the lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns. Unless otherwise specified, the term “Lenders” includes U.S. Bank in its capacity as Swing Line Lender.
“Lending Installation” means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or affiliate of
such Lender or the Administrative Agent listed on the signature pages hereof (in the case of the Administrative Agent) or on its Administrative Questionnaire (in the case of a Lender) or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.17.
“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued
upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
“Leverage Ratio” means, as of any date of calculation, the ratio (expressed as a percentage) of (i) (A) Consolidated
Indebtedness outstanding on such date
less
(B) Unrestricted Cash in excess of $25,000,000 on such date to (ii) (A) the sum of Consolidated Indebtedness on such date
plus
(B) Consolidated Tangible Net Worth on such
date
less
(C) Unrestricted Cash in excess of $25,000,000 on such date.
“Leverage Test” is defined in
Section 6.19(b).
“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized
Lease or other title retention agreement).
“Loan” means a Revolving Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, the Facility LC Applications, the Guaranty, any Note or Notes executed by the Borrower in
connection with this Agreement and payable to a Lender, now or in the future, the Reference Agreement and any other instruments, documents and agreements executed by the Borrower or the Guarantors for the benefit of the Administrative Agent or any
Lender in connection with this Agreement.
“Loan Party” or “Loan Parties” means, individually or collectively, the
Borrower and the Guarantors.
“Marketable Securities” means Investments that would be set forth in a consolidated balance sheet
of Borrower (in a manner consistent with the financial statements referenced in Section 5.4) under the heading “marketable securities.”
“Material Adverse Effect” means a material adverse effect, based on commercially reasonable standards, on (i) the business,
Property, financial condition, or results of operations of the Borrower and Guarantors, taken as a whole, (ii) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under the Loan Documents, or
(iii) the validity or enforceability under applicable law of any of the Loan Documents or the
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rights or remedies of Administrative Agent, Lenders or any LC Issuer thereunder (except that, as to clause (iii), a Material Adverse Effect may not result solely from the acts or omissions of the
Administrative Agent or any Lender). Items disclosed by the Borrower in its form 10-Q and form 10-K or any other filings with the Securities and Exchange Commission shall not be deemed to have a Material Adverse Effect solely because of such
disclosure, and the existence and content of such disclosure shall not be prima facie evidence of a Material Adverse Effect.
“Material Indebtedness” means Indebtedness (excluding Non-Recourse Indebtedness) of the Borrower or any Guarantor in an outstanding
principal amount of $25,000,000 or more in the aggregate (or the equivalent thereof in any currency other than Dollars).
“Material
Indebtedness Agreement” means any agreement under which any Material Indebtedness was created or is governed or which provides for the incurrence of Indebtedness in an amount which would constitute Material Indebtedness (whether or not an
amount of Indebtedness constituting Material Indebtedness is outstanding thereunder).
“Material Portion” has the meaning set
forth in Section 6.13(c).
“Minimum Collateral Amount” means, with respect to a Defaulting Lender, at any time,
(i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of each LC Issuer with respect to such Defaulting Lender for all Facility LCs issued and outstanding at such
time and (ii) otherwise, such lesser amount determined by the Administrative Agent and the applicable LC Issuer in their sole discretion.
“Minimum Liquidity Amount” has the meaning set forth in Section 6.19(c).
“Model Unit” means a Housing Unit constructed initially for inspection by prospective purchasers that is not intended to be sold
until all or substantially all other Housing Units in the applicable subdivision are sold.
“Modify” and
“Modification” are defined in Section 2.19(a).
“Money Markets” refers to one or more wholesale funding markets
available to Lenders, including negotiable certificates of deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and others.
“Monthly Payment Date” means the first (1
st
) day of each month,
provided
, that if such day is not a Business Day, the Monthly Payment Date shall be the immediately succeeding Business Day.
“Moody’s” means Moody’s Investors Service, Inc.
“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the
Borrower or any ERISA Affiliate is a party to which more than one employer is obligated to make contributions.
-20-
“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Rate Management Transactions. “Unrealized losses” means the fair market value of the cost to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming the Rate Management Transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate Management Transaction were to be terminated as of that date).
“Net
Worth” means, at any date as to each Subsidiary, the sum of (A) all stockholders’ equity of such Subsidiary,
less
(B) all loans or advances made by such Subsidiary to the Borrower or any Guarantor and outstanding at such
date, all as determined on a consolidated basis in conformity with Agreement Accounting Principles.
“Non-Cash Collateralized Letters
of Credit” is defined in Section 2.19(l).
“Non-Defaulting Lender” means, at any time, each Lender that is not a
Defaulting Lender at such time.
“Non-Guarantor Subsidiary” means each Subsidiary of the Borrower that is not a Guarantor.
“Non-Recourse Indebtedness” with respect to any Person means Indebtedness of such Person (i) for which the sole legal recourse
for collection of principal and interest on such Indebtedness is against the specific property identified in the instruments evidencing or securing such Indebtedness and for which no other assets of such Person may be realized upon in collection of
principal or interest on such Indebtedness, or (ii) that refinances Indebtedness described in clause (i) and for which the recourse is limited to the same extent described in clause (i). Indebtedness that is otherwise Non-Recourse
Indebtedness will not lose its character as Non-Recourse Indebtedness because there is recourse for (i) environmental warranties or indemnities, (ii) indemnities for and liabilities arising from fraud, misrepresentation, misapplication or
non-payment of rents, profits, insurance and condemnation proceeds and other sums actually received by the obligor from secured assets to be paid to the lender, waste and mechanics liens or (iii) similar matters customarily excluded by
institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financing of real estate.
“Non-U.S. Lender” means a Lender that is not a United States person as defined in Section 7701(a)(30) of the Code.
“Note” is defined in Section 2.13(d).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Obligations, all Rate Management
Obligations provided to the Borrower or any Guarantor by the Administrative Agent or any other Lender or any Affiliate of any of the foregoing, all accrued and unpaid fees, and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Administrative Agent, any LC Issuer or any indemnified party arising under the Loan Documents;
provided
, that obligations in respect of
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Rate Management Obligations shall only constitute “Obligations” if owed to the Administrative Agent or if the Administrative Agent shall have received notice from the relevant Lender
not later than 120 days after such Rate Management Obligations have been provided;
provided, further,
that “Obligations” shall exclude all Excluded Swap Obligations.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Other Connection Taxes” means, with respect to any Lender, Taxes imposed as a result of a present or former connection between such
Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, documentary, intangible, recording, filing or similar Taxes that arise from any
payment made under, from the execution, delivery, performance or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to a Lender’s assignment of its interest in the Loan that would not otherwise be owing but for such assignment.
“Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the aggregate principal Dollar Amount of its
Revolving Loans outstanding at such time,
plus
(ii) an amount equal to its Pro Rata Share of the aggregate principal amount of Swing Line Loans outstanding at such time,
plus
(iii) an amount equal to its Pro Rata Share of the
LC Obligations at such time.
“Participants” is defined in Section 12.2(a).
“Participant Register” is defined in Section 12.2(c).
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time
to time, and any successor thereto.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Performance Letter of Credit” means any Letter of Credit issued: (a) on behalf of a Person in favor of a Governmental
Authority, including, without limitation, any utility, water, or sewer authority, or other similar entity, for the purpose of assuring such Governmental Authority that such Person or other Loan Party will properly and timely complete work it has
agreed to perform for the benefit of such Governmental Authority; (b) in lieu of cash deposits to obtain a license, in place of a utility deposit, or for land option contracts; or (c) in lieu of other contract performance, to secure
performance warranties payable upon breach, and to secure the performance of labor and materials, including, without limitation, construction, bid, and performance bonds.
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“Permitted Acquisition” means any Acquisition made by the Borrower or any of its
Subsidiaries,
provided
that, (a) as of the date of the consummation of such Acquisition, no Event of Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in
Section 5.11 shall be true both before and after giving effect to such Acquisition, (b) the business to be acquired in such Acquisition is in a Related Business or, if not in a Related Business, such transaction is in compliance with the
provisions of Section 6.14(vii), and (c) the Borrower shall have furnished to the Administrative Agent a certificate (i) certifying that, taking into account such Acquisition, no Event of Default exists and (ii) demonstrating in
reasonable detail, as of the last day of the quarter most recently ended prior to the date of such Acquisition, pro forma compliance with the financial covenants set forth in Section 6.19, in each case calculated as if such Acquisition,
including the consideration therefor, had been consummated on such day.
“Permitted Dispositions” means, as to the Borrower or
any Guarantor, any of the following:
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(i)
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Dispositions of assets in the ordinary course of business, together with any disposition of operations or divisions discontinued or to be discontinued.
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(ii)
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Any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property.
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(iii)
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The lapse or abandonment of intellectual property of the Borrower or any Guarantor to the extent, as determined by the Borrower in the exercise of its commercial judgment, not economically desirable in the conduct of
their business.
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(iv)
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The use of cash and Cash Equivalents in the ordinary course of business, or in connection with a Permitted Acquisition or to pay down debt, in each case to the extent not otherwise prohibited by this Agreement.
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(v)
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Dispositions of Property to the extent that (A) such Property is exchanged for credit against the purchase price of other Property or (B) the proceeds of such disposition are promptly applied to the purchase
price of such other Property.
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(vi)
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Dispositions of Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture or similar
parties set forth in joint venture arrangements and similar binding arrangements entered into in the ordinary course of business on fair and reasonable arm’s length terms.
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(vii)
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Any merger or consolidation permitted by Section 6.12 hereof.
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(viii)
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The sale or issuance of any equity interests by a Subsidiary to the Borrower or a Wholly Owned Subsidiary.
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“Permitted Liens” means, as to the Borrower or any Guarantor, any of the following:
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(i)
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Liens for taxes, assessments or governmental charges or levies on the Borrower’s or such Guarantor’s Property if the same (A) shall not at the time be delinquent or thereafter can be paid without penalty,
or (B) are not being foreclosed (or any such proceedings have been stayed), are being contested in good faith and by appropriate proceedings, the encumbered Property is not (in Administrative Agent’s reasonable determination) in danger of
being lost or forfeited by reason thereof, and for which adequate reserves shall have been established on the Borrower’s or such Guarantor’s books in accordance with Agreement Accounting Principles.
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(ii)
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Liens imposed by law, such as carriers’, warehousemen’s, mechanics’ and materialmen’s Liens and other similar Liens arising in the ordinary course of business with respect to amounts that either
(A) are not yet delinquent, or (B) are delinquent but are not being foreclosed (or any such proceedings have been stayed), are being contested in a timely manner in good faith by appropriate proceedings and the encumbered Property is not
(in Administrative Agent’s reasonable determination) in danger of being lost or forfeited by reason thereof, and for which adequate reserves shall have been established on the Borrower’s or Guarantor’s books in accordance with
Agreement Accounting Principles.
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(iii)
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Utility easements, rights of way, zoning restrictions, covenants, conditions, restrictions, reservations, and such other burdens, encumbrances or charges against real property, or other minor irregularities of title, as
are of a nature generally existing with respect to properties of a similar character and which do not in any material way interfere with the use or value thereof or the sale thereof in the ordinary course of business of the Borrower or such
Guarantor.
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(iv)
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Easements, dedications, assessment district or similar Liens in connection with municipal financing and other similar encumbrances or charges, in each case reasonably necessary or appropriate for the development of real
property of the Borrower or such Guarantor, and which are granted in the ordinary course of the business of the Borrower or such Guarantor, and which in the aggregate do not materially burden or impair the fair market value, sale or use of such real
property (or the project to which it is related) for the purposes for which it is or may reasonably be expected to be held.
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(v)
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Any option or right of first refusal to purchase real property granted to the master developer or the seller of real property that arises as a result of the non-use or non-development of such real property by the
Borrower or such Guarantor.
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(vi)
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Any arrangement (commonly referred to in the real estate industry (and defined herein) as “PAPAs”) in conjunction with any agreement or
contract for the purchase of real property, which provides for future payments due to the sellers of such real property at the time of the sale of Finished Lots or Housing Units, and which payments may be contingent on the sale price of such
Finished Lots or Housing Units, which arrangement may include (1) adjustments to the land purchase price, (2) community marketing fees and community enhancement fees,
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(3) reimburseable costs paid by the developer and (4) participations in the appreciation or profit, in each case under (1) through (4) paid from amounts in excess of Book Value or
to pay lot premiums in excess of Book Value, in each case derived from the sale of Finished Lots or Housing Units, and granted in the ordinary course of business.
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(vii)
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Easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of property affecting real property which in the aggregate do not materially burden or impair the fair
market value or use of such property for the purposes for which it is or may reasonably be expected to be held.
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(viii)
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Rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property.
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(ix)
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Liens for homeowner and property owner association developments and assessments if (A) the obligations secured by such Liens are not delinquent or thereafter can be paid without penalty, or (B) such Liens are
not being foreclosed (or any such proceedings have been stayed), are being contested in good faith and by appropriate proceedings, the Property encumbered thereby is not (in Administrative Agent’s reasonable determination) in danger of being
lost or forfeited by reason thereof, and adequate reserves therefor shall have been established on the Borrower’s or such Guarantor’s books in accordance with Agreement Accounting Principles.
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“Person” means any natural person, corporation, firm, joint venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code as to which the Borrower or any ERISA Affiliate may have any liability.
“Presold Unit” means
a Housing Unit owned by the Borrower or any Guarantor that is subject to a bona fide written agreement between the Borrower or such Guarantor and a third Person purchaser for sale in the ordinary course of the Borrower’s or such
Guarantor’s business of such Housing Unit and the related lot, accompanied by a cash earnest money deposit or down payment in an amount that is customary, and subject only to ordinary and customary contingencies to the purchaser’s
obligation to buy the Housing Unit and related lot.
“Pricing Schedule” means the Schedule attached hereto identified as such.
“Prime Rate” means a rate per annum equal to the prime rate of interest announced from time to time by the Administrative Agent
or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other
assets owned, leased or operated by such Person.
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“Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction
the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment,
provided, however
, if all of the Commitments are terminated pursuant to the terms of this Agreement, then “Pro Rata
Share” means the percentage obtained by dividing (a) such Lender’s Outstanding Credit Exposure at such time by (b) the Aggregate Outstanding Credit Exposure at such time; and
provided, further
, that when a Defaulting
Lender shall exist, “Pro Rata Share” shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment (except that no Lender is required to fund or
participate in Revolving Loans, Swing Line Loans or Facility LCs to the extent that, after giving effect thereto, the aggregate amount of its outstanding Revolving Loans and funded or unfunded participations in Swing Line Loans and Facility LCs
would exceed the amount of its Commitment (determined as though no Defaulting Lender existed)).
“Public Indebtedness”
means Indebtedness evidenced by notes, debentures, or other similar instruments issued after the date of this Agreement pursuant to either (i) a registered public offering or (ii) a private placement of such instruments in accordance with
an exemption from registration under the Securities Act of 1933 and/or the Securities Exchange Act of 1934 or similar law.
“Qualified Bank” means (a) any Lender or any Affiliate of a Lender, or (b) a bank that has, or is a wholly-owned
subsidiary of a corporation that has, (i) an unsecured long-term debt rating of not less than BBB+ from S&P or Baa1 from Moody’s and (ii) if its unsecured short-term debt is rated, an unsecured short-term debt rating of A2 from
S&P or P2 from Moody’s. For the avoidance of doubt, neither the Borrower nor an Affiliate of the Borrower shall qualify as a Qualified Bank.
“Qualified Real Property Inventory” means, as of any date, Real Property Inventory that is not subject to or encumbered by any deed
of trust, mortgage, judgment Lien, or any other Lien (other than the Permitted Liens), and which (i) is not subject to any pending condemnation proceeding, (ii) is not subject to or impaired by any environmental contamination or problem,
soils problem or other problem or issue that would materially impair the value thereof or make it unsuitable for a residential project, and (iii) is in compliance in all material respects with all applicable Environmental Laws.
“Quarterly Payment Date” means the first (1
st
) day of each calendar
quarter,
provided
, that if such day is not a Business Day, the Quarterly Payment Date shall be the immediately succeeding Business Day.
“Quotation Date” means, in relation to any Interest Period for which an interest rate is to be determined, two (2) Business
Days before the first day of that period.
“Rate Management Obligations” means any and all obligations of the Borrower or any
Guarantor, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Rate Management Transactions.
-26-
“Rate Management Transaction” means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into by the Borrower or any Guarantor which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
“Rating” means, at any time, the rating issued by a Rating Agency and then in effect with respect to the Borrower’s unsecured
long-term debt securities without third-party credit enhancement.
“Rating Agencies” means Fitch, Moody’s and S&P.
“Real Property Inventory” means, as of any date, land that is owned by any Loan Party, which land is being developed or held for
future development or sale of residential housing projects, together with the right, title and interest of the Loan Party in and to the streets, the land lying in the bed of any streets, roads or avenues, open or proposed, in or of, the air space
and development rights pertaining thereto and the right to use such air space and development rights, all rights of way, privileges, liberties, tenements, hereditaments and appurtenances belonging in or in any way appertaining thereto, all fixtures,
all easements now or hereafter benefiting such land and all royalties and rights appertaining to the use and enjoyment of such land necessary for the residential development of such land, together with all of the buildings and other improvements now
or hereafter erected on such land, and any fixtures appurtenant thereto and all related personal property.
“Reference
Agreement” means the California Judicial Reference Agreement dated as of June 26, 2014 by and among the Borrower (as successor to TRI Point Homes pursuant to Section 2.26 hereof), the Guarantors, the Administrative Agent and Lenders,
as amended, restated, supplemented or otherwise modified, renewed or replaced from time to time pursuant to the terms hereof and thereof.
“Refinancing Indebtedness” means Indebtedness that refunds, refinances or extends any Indebtedness (or that refunds, refinances or
extends any refund, refinancing or extension of such Indebtedness), but only to the extent that:
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(i)
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the Refinancing Indebtedness is subordinated to or
pari passu
with the Obligations (or a Guarantor’s obligations under its Guaranty, as applicable) to the same extent as the Indebtedness being refunded,
refinanced or extended,
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(ii)
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the Refinancing Indebtedness is scheduled to mature no earlier than the then current maturity date of such Indebtedness,
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(iii)
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such Refinancing Indebtedness is in an aggregate principal amount (or, if incurred with original issue discount, an aggregate issue price) that is
equal to or less than the sum of the aggregate amount then outstanding plus all amounts committed but
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-27-
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undisbursed under the Indebtedness being refunded, refinanced or extended, plus all fees (including, any premiums, if any), costs and expenses incurred in connection with the incurrence of such
Refinancing Indebtedness,
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(iv)
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One or more Loan Parties (or successor(s) thereto) were liable for the Indebtedness being refunded, refinanced or extended when such Indebtedness was initially incurred, and
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(v)
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such Refinancing Indebtedness is incurred within 120 days after the Indebtedness being refunded, refinanced or extended is so refunded, refinanced or extended.
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“Register” is defined in Section 12.3(d).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any
successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any
successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
“Reimbursement Obligations” means, at any time, the aggregate of all obligations of the Borrower then outstanding under
Section 2.19 to reimburse the LC Issuers for amounts paid by the LC Issuers in respect of any one or more drawings under Facility LCs.
“Related Business” means any of the following lines of business or business activity of the type conducted by the Borrower and its
Subsidiaries on the date hereof: (i) the home building business, (ii) the residential mortgage loan business, (iii) the real estate development business, (iv) the insurance business, (v) the title insurance agency and
settlement business, (vi) the insurance agency business, and (vii) any line of business ancillary, complementary, or reasonably related to, or a reasonable extension, development, or expansion of, or necessary to, the businesses described
in clauses (i) through (vi) of this definition.
“Replacement Lender” is defined in Section 2.20.
“Reports” is defined in Section 9.6(a).
“Required Lenders” means Lenders in the aggregate having greater than 66 2/3% of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding greater than 66 2/3% of the Aggregate Outstanding Credit Exposure. The Commitments and Outstanding Credit Exposure of any Defaulting Lender shall be disregarded in determining Required
Lenders at any time; provided, however, at all times there are two or more Lenders, Required Lenders shall in no event be less than two (2) Lenders.
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“Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other Property) with respect to any
equity interest in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other Property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such equity interests in the Borrower or any Subsidiary thereof or any option, warrant or other right to acquire any such equity interest in the Borrower or any Subsidiary thereof.
“Revolving Loan” means, with respect to a Lender, such Lender’s loan made pursuant to its commitment to lend set forth in
Section 2.1 (or any conversion or continuation thereof).
“Risk-Based Capital Guidelines” means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States, including transition
rules, and, in each case, any amendments to such regulations.
“S&P” means Standard & Poor’s Ratings Services,
a Standard & Poor’s Financial Services LLC business.
“Sanctioned Country” means, at any time, any country or
territory which is itself the subject or target of any comprehensive Sanctions.
“Sanctioned Person” means, at any time,
(a) any Person or group listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person or group
operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any Person 50% or more owned, directly or indirectly, by any of the above.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by
(a) the U.S. government, including those administered by OFAC or the U.S. Department of State; (b) the United Nations Security Council, the European Union, any EU Member State or Her Majesty’s Treasury of the United Kingdom; or
(c) any other applicable authority.
“Schedule” refers to a specific schedule to this Agreement, unless another document is
specifically referenced.
“Section” means a numbered section of this Agreement, unless another document is specifically
referenced.
“Senior Debt” means the Senior Notes or, if the Senior Notes are refinanced, the Refinancing Indebtedness with
respect thereto.
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“Senior Notes” means the notes initially issued under the Indenture.
“Senior Officer” means each of the Authorized Officers and the General Counsel of Borrower of Borrower.
“Significant Homebuilding Subsidiary” means any Homebuilding Subsidiary that has a Net Worth equal to or exceeding $3,000,000.00.
“Spec Unit” means any Housing Unit owned by the Borrower or any Guarantor that is not a Presold Unit or a Model Unit.
“Spec Unit Inventory Test” is defined in Section 6.19(d).
“Stated Rate” is defined in Section 2.21.
“Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of which is contractually subordinated in
right of payment to the payment of the Obligations (a) in the case of Indebtedness constituting Public Indebtedness, pursuant to market and generally accepted subordination terms governing such Public Indebtedness and (b) in all other
cases, pursuant to subordination terms reasonably satisfactory to the Required Lenders and (in each case) none of the principal of which is payable until at least 180 days after the Facility Termination Date (other than pursuant to customary change
of control and asset sale redemption provisions). Subordinated Indebtedness shall specifically not include Indebtedness of any Guarantor to Borrower or Borrower to any Guarantor.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the Borrower.
“Substantial Portion” means, with respect to the Property of
the Borrower and the Guarantors, Property which represents more than 10% of the consolidated assets of the Borrower and the Guarantors taken as a whole as would be shown in the consolidated financial statements of the Borrower and the Guarantors as
at the beginning of the fiscal quarter in which such determination is made.
“Swap Obligation” means, with respect to any
Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line Borrowing Notice” is defined in Section 2.4(b).
“Swing Line Lender” means U.S. Bank or such other Lender which may succeed to its rights and obligations as Swing Line Lender
pursuant to the terms of this Agreement.
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“Swing Line Loan” means a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.4.
“Swing Line Sublimit” means the maximum principal amount of Swing Line Loans the Swing Line
Lender may have outstanding to the Borrower at any one time, which, as of the date of this Agreement, is $30,000,000.
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions, fees, assessments, charges or withholdings, and any and all liabilities with respect to the foregoing, including interest, additions to tax and penalties applicable
thereto, imposed by any Governmental Authority.
“Type” means, with respect to any Advance, its nature as a Base Rate Advance or
a Eurocurrency Advance and with respect to any Loan, its nature as a Base Rate Loan or a Eurocurrency Loan.
“Undisclosed
Administration” means in relation to a Lender the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in
the country where such Lender is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.
“Unrestricted Cash” means cash, Cash Equivalents and Marketable Securities of the Borrower and the Guarantors that are free and
clear of all Liens and not subject to any restrictions (other than with respect to costs of liquidating certain Cash Equivalents prior to maturity).
“Unused Fee” is defined in Section 2.5.
“U.S. Bank” means U.S. Bank National Association, a national banking association, d/b/a Housing Capital Company, in its individual
capacity, and its successors.
“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary of which 100% of the
beneficial ownership interests shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or
(ii) any partnership, limited liability company, association, joint venture or similar business organization of which 100% of the beneficial ownership interests shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Advances also may be
classified and referred to by Class (e.g., a “Revolving Advance”) or by Type (e.g., a “Eurocurrency Advance”) or by Class and Type (e.g., a “Eurocurrency Revolving Advance”).
-31-
ARTICLE II
THE CREDITS
2.1
Commitment
. From and including the date of this Agreement and prior to the Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Revolving Loans to the Borrower in Dollars
and participate in Facility LCs issued upon the request of the Borrower,
provided
that after giving effect to the making of each such Loan and the issuance of each such Facility LC, (i) the Dollar Amount of such Lender’s Outstanding
Credit Exposure shall not exceed its Commitment, and (ii) the aggregate amount of all Borrowing Base Debt shall not exceed the Borrowing Base determined as of the most recent Inventory Valuation Date. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow the Revolving Loans at any time prior to the Facility Termination Date. Commitments shall terminate on the Facility Termination Date. Each LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.19. Each request for an Advance under this Agreement shall be submitted to Administrative Agent and signed by one of the authorized signatories of Borrower set forth on Schedule 2.1 hereto (or such other
signatory identified in writing to Administrative Agent by Borrower).
2.2
Determination of Dollar Amounts; Required Payments;
Termination
. The Administrative Agent will determine the Dollar Amount of: (a) each Advance as of the date three (3) Business Days prior to the Borrowing Date or, if applicable, date of conversion/continuation of such Advance, and
(b) all outstanding Advances on and as of the last Business Day of each quarter and on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders. Each day upon or as of which the
Administrative Agent determines Dollar Amounts as described in the preceding clauses (a) and (b) is herein described as a “Computation Date” with respect to each Advance for which a Dollar Amount is determined on or as of such
day. If at any time either (i) the Aggregate Outstanding Credit Exposure exceeds the Aggregate Commitment or (ii) the aggregate amount of all Borrowing Base Debt exceeds the Borrowing Base determined as of the most recent Inventory
Valuation Date, then the Borrower shall within three (3) Business Days after notice from the Administrative Agent make a payment on the Loans or Cash Collateralize LC Obligations in an account with the Administrative Agent pursuant to
Section 2.19(k) sufficient to eliminate such excess. The Aggregate Outstanding Credit Exposure (other than LC Obligations that are Cash Collateralized in accordance with this Agreement) and all other unpaid Obligations under this Agreement and
the other Loan Documents shall be paid in full by the Borrower on the Facility Termination Date.
2.3
Ratable Loans; Types of
Advances
. Each Advance hereunder (other than any Swing Line Loan) shall consist of Revolving Loans made from the several Lenders ratably according to their Pro Rata Shares. The Advances may be Base Rate Advances or Eurocurrency Advances, or a
combination thereof, selected by the Borrower in accordance with Sections 2.8 and 2.9, or Swing Line Loans selected by the Borrower in accordance with Section 2.4.
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2.4
Swing Line Loans
.
(a)
Amount of Swing Line Loans
. Upon the satisfaction of the conditions precedent set forth in Section 4.2 and, if such Swing Line
Loan is to be made on the date of the initial Advance hereunder, the satisfaction of the conditions precedent set forth in Section 4.1 as well, from and including the date of this Agreement and prior to the Facility Termination Date, the Swing
Line Lender shall, on the terms and conditions set forth in this Agreement, make Swing Line Loans in Dollars to the Borrower from time to time in an aggregate principal amount not to exceed the Swing Line Sublimit,
provided
that (i) the
Aggregate Outstanding Credit Exposure shall not at any time exceed the Aggregate Commitment and (ii) the aggregate amount of all Borrowing Base Debt outstanding at any time and from time to time shall not exceed the Borrowing Base determined as
of the most recent Inventory Valuation Date. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to the Facility Termination Date.
(b)
Borrowing Notice
. In order to borrow a Swing Line Loan, the Borrower shall deliver to the Administrative Agent and the Swing Line
Lender irrevocable notice (a “Swing Line Borrowing Notice”) not later than 11 a.m. (Pacific time) on the Borrowing Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date (which date shall be a Business Day), and
(ii) the aggregate amount of the requested Swing Line Loan which shall be an amount not less than $1,000,000.
(c)
Making of Swing
Line Loans; Participations
. Not later than 12:00 noon (Pacific time) on the applicable Borrowing Date, the Swing Line Lender shall make available the Swing Line Loan, in funds immediately available, to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will promptly make the funds so received from the Swing Line Lender available to the Borrower on the Borrowing Date at the Administrative Agent’s aforesaid address. Each time that a
Swing Line Loan is made by the Swing Line Lender pursuant to this Section 2.4(c), the Swing Line Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably sold to each Lender and each Lender
shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swing Line Lender, a participation in such Swing Line Loan in proportion to its Pro Rata Share.
(d)
Repayment of Swing Line Loans
. Each Swing Line Loan shall be paid in full by the Borrower on the earliest of (i) the date
selected by the Swing Line Lender, (ii) the first date after such Swing Line Loan is made that is the first or 15th day of a calendar month and is at least five Business Days after such Swingline Loan is made, or (iii) the date on which
the next Advance is made. In addition, the Swing Line Lender may at any time in its sole discretion with respect to any outstanding Swing Line Loan, require each Lender to fund the participation acquired by such Lender pursuant to
Section 2.4(c) or require each Lender (including the Swing Line Lender) to make a Revolving Loan in the amount of such Lender’s Pro Rata Share of such Swing Line Loan (including, without limitation, any interest accrued and unpaid
thereon), for the purpose of repaying such Swing Line Loan. Not later than 1 p.m. (Pacific time) on the date of any notice received pursuant to this Section 2.4(d) (which notice shall be given by Swingline Lender no later than 10 a.m. (Pacific
time)), each Lender shall make available its required Revolving Loan, in funds immediately available to the Administrative Agent at its address
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specified pursuant to Article XIII. Revolving Loans made pursuant to this Section 2.4(d) shall initially be Base Rate Loans and thereafter may be continued as Base Rate Loans or converted
into Eurocurrency Loans in the manner provided in Section 2.9 and subject to the other conditions and limitations set forth in this Article II. Unless a Lender shall have notified the Swing Line Lender, prior to the Swing Line Lender’s
making any Swing Line Loan, that any applicable condition precedent set forth in Sections 4.1 or 4.2 had not then been satisfied, such Lender’s obligation to make Revolving Loans pursuant to this Section 2.4(d) to repay Swing Line Loans or
to fund the participation acquired pursuant to Section 2.4(c) shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Borrower, the Administrative Agent, the Swing Line Lender or any other Person, (b) the occurrence or continuance of a Default or Event of Default, (c) any adverse
change in the condition (financial or otherwise) of the Borrower, or (d) any other circumstances, happening or event whatsoever. In the event that any Lender fails to make payment to the Administrative Agent of any amount due under this
Section 2.4(d), interest shall accrue thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount is received and the Administrative Agent shall be entitled to
receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. To the
extent not otherwise paid when due as specified herein, on the Facility Termination Date the Borrower shall repay in full the outstanding principal balance of the Swing Line Loans.
2.5
Unused Fee
. The Borrower agrees to pay to the Administrative Agent for the account of each Lender according to its Pro Rata Share
an unused fee (the “Unused Fee”) from the date hereof to and including the Facility Termination Date, which Unused Fee shall accrue on a daily basis in an amount equal to (a) the Available Aggregate Commitment on such day, multiplied
by (b) the Applicable Fee Rate then in effect, divided by (c) 360. The accrued Unused Fee shall be payable in arrears on each Quarterly Payment Date hereafter and on the Facility Termination Date. Swing Line Loans shall count as usage of
the Aggregate Commitment for the purpose of calculating the Unused Fee due hereunder.
2.6
Minimum Amount of Each Advance
. Each
Eurocurrency Advance shall be in the minimum amount of $1,000,000 and incremental amounts in integral multiples of $100,000, and each Base Rate Advance (other than an Advance to repay Swing Line Loans) shall be in the minimum amount of $500,000 and
incremental amounts in integral multiples of $50,000,
provided, however
, that any Base Rate Advance may be in the amount of the Available Aggregate Commitment or, if less, the maximum amount permitted to be advanced under clause (ii) of
Section 2.1.
2.7
Reductions in Aggregate Commitment; Optional Principal Payments
. The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders in integral multiples of $5,000,000 (but not less than $25,000,000), upon at least five (5) Business Days’ prior written notice to the Administrative Agent by 10:00 a.m.
(Pacific time), which notice shall specify the amount of any such reduction,
provided, however
, that the amount of the Aggregate Commitment may not be reduced below the Aggregate Outstanding Credit Exposure. All accrued Unused Fees shall be
payable on the effective date of
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any termination of the obligations of the Lenders to make Credit Extensions hereunder. The Borrower may from time to time pay, without penalty or premium, all outstanding Base Rate Advances
(other than Swing Line Loans), or, in a minimum aggregate amount of $500,000 and incremental amounts in integral multiples of $50,000 (or the aggregate amount of the outstanding Revolving Loans at such time), any portion of the aggregate outstanding
Base Rate Advances (other than Swing Line Loans) upon same day notice by 10:00 a.m. (Pacific time) to the Administrative Agent. The Borrower may at any time pay, without penalty or premium, all outstanding Swing Line Loans, or any portion of the
outstanding Swing Line Loans, with notice to the Administrative Agent and the Swing Line Lender by 10:00 a.m. (Pacific time) on the date of repayment. The Borrower may from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, all outstanding Eurocurrency Advances, or, in a minimum aggregate amount of $1,000,000 and incremental amounts in integral multiples of $100,000 (or the aggregate amount of the
outstanding Revolving Loans at such time), any portion of the aggregate outstanding Eurocurrency Advances upon at least two (2) Business Days’ prior written notice to the Administrative Agent by 10:00 a.m. (Pacific time). Any notice of
prepayment may be conditioned upon the effectiveness of other credit facilities or the occurrence of another transaction, in which case such notice may be revoked or delayed by the Borrower if such condition is not satisfied so long as Borrower
reimburses Agent and Lenders for any reasonable out-of-pocket costs incurred because of such revocation or delay.
2.8
Method of
Selecting Types and Interest Periods for New Revolving Advances
. The Borrower shall select the Type of Advance and, in the case of each Eurocurrency Advance, the Interest Period applicable thereto from time to time. The Borrower shall give the
Administrative Agent irrevocable notice in the form of Exhibit D (a “Borrowing Notice”) not later than 10 a.m. (Pacific time) on the Borrowing Date of each Base Rate Advance (other than a Swing Line Loan), two (2) Business Days before
the Borrowing Date for each Eurocurrency Advance in Dollars, specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Interest Period applicable thereto.
Not later than 12:00 noon (Pacific time) on each Borrowing Date, each Lender shall make available its Loan or Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article XIII. The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.
2.9
Conversion and Continuation of Outstanding Advances; Maximum Number of Interest Periods
. Base Rate Advances (other than Swing Line
Loans) shall continue as Base Rate Advances unless and until such Base Rate
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Advances are converted into Eurocurrency Advances pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each Eurocurrency Advance shall continue as a Eurocurrency
Advance until the end of the then applicable Interest Period therefor, at which time such Eurocurrency Advance shall be automatically converted into a Base Rate Advance unless (x) such Eurocurrency Advance is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurocurrency Advance continue as a Eurocurrency Advance
for the same or another Interest Period. Subject to the terms of Section 2.6, the Borrower may elect from time to time to convert all or any part of a Base Rate Advance (other than a Swing Line Loan) into a Eurocurrency Advance. The Borrower
shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of a Base Rate Advance into a Eurocurrency Advance, conversion of a Eurocurrency Advance to a Base Rate Advance, or continuation
of a Eurocurrency Advance not later than 10:00 a.m. (Pacific time) at least two (2) Business Days prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion or continuation,
(ii) the Type of the Advance which is to be converted or continued, and
(iii) the amount of such Advance which is to be converted into or continued as a Eurocurrency Advance and the duration of the
Interest Period applicable thereto.
After giving effect to all Advances, all conversions of Advances from one Type to another and all continuations of
Advances of the same Type, there shall be no more than five (5) Interest Periods in effect hereunder.
2.10
Interest Rates
.
Each Base Rate Advance (other than a Swing Line Loan) shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is automatically converted from a Eurocurrency Advance into a
Base Rate Advance pursuant to Section 2.9, to but excluding the date it becomes due or is converted into a Eurocurrency Advance pursuant to Section 2.9 hereof, at a rate per annum equal to the Base Rate for such day. Each Swing Line Loan
shall bear interest on the outstanding principal amount thereof, for each day from and including the day such Swing Line Loan is made to but excluding the date it is paid, at a rate per annum equal to the Base Rate for such day. Changes in the rate
of interest on that portion of any Advance maintained as a Base Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each Eurocurrency Advance shall bear interest on the outstanding principal amount thereof from
and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined by the Administrative Agent as applicable to such Eurocurrency Advance based upon the
Borrower’s selections under Sections 2.8 and 2.9 and the Pricing Schedule. No Interest Period may end after the Facility Termination Date.
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2.11
Rates Applicable After Event of Default
. Notwithstanding anything to the contrary
contained in Sections 2.8, 2.9 or 2.10, during the continuance of a Default or Event of Default the Required Lenders may, at their option, by notice from the Administrative Agent to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.3 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued as a Eurocurrency Advance. During the
continuance of an Event of Default the Required Lenders may, at their option, by notice from the Administrative Agent to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.3 requiring unanimous consent of the Lenders to changes in interest rates), declare that (i) each Eurocurrency Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to
such Interest Period
plus
2.00% per annum, (ii) each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate in effect from time to time
plus
2.00% per annum, and (iii) the LC Fee shall be
increased by 2.00% per annum,
provided
that, during the continuance of an Event of Default under Sections 7.6 or 7.7, the interest rates set forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in clause
(iii) above shall be applicable to all Credit Extensions without any election or action on the part of the Administrative Agent or any Lender. After an Event of Default has been waived (in the sole discretion of Administrative Agent and
Required Lenders), the interest rate applicable to advances and the LC Fee shall revert to the rates applicable prior to the occurrence of an Event of Default.
2.12
Method of Payment
. Each Advance shall be repaid and each payment of interest thereon shall be paid in the currency in which such
Advance was made. All payments of the Obligations under this Agreement and the other Loan Documents shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative
Agent’s address specified pursuant to Article XIII, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 10:00 a.m. (Pacific time) on the date when due and shall
(except (i) with respect to repayments of Swing Line Loans, (ii) in the case of Reimbursement Obligations for which the LC Issuers have not been fully indemnified by the Lenders, or (iii) as otherwise specifically required hereunder)
be applied ratably by the Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that
the Administrative Agent received at its address specified pursuant to Article XIII or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender. The Administrative Agent is hereby authorized to charge
the account of the Borrower maintained with U.S. Bank for each payment of principal, interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to the Administrative Agent in this Section 2.12 shall also be deemed
to refer, and shall apply equally, to the LC Issuers, in the case of payments required to be made by the Borrower to the LC Issuers pursuant to Section 2.19(f).
2.13
Noteless Agreement; Evidence of Indebtedness
.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
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(b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Loan made hereunder and Type thereof and the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder,
(iii) the original stated amount of each Facility LC and the amount of LC Obligations outstanding at any time, and (iv) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.
(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be
prima
facie
evidence of the existence and amounts of the Obligations therein recorded;
provided, however
, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender (including the Swing Line Lender)
may request that its Loans be evidenced by a promissory note substantially in the form of Exhibit F (with appropriate changes for notes evidencing Swing Line Loans) (each a “Note”). In such event, the Borrower shall prepare, execute and
deliver to such Lender such Note or Notes payable to the order of such Lender in a form supplied by the Administrative Agent. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (prior to any assignment pursuant to
Section 12.3) be represented by one or more Notes payable to the order of the payee named therein, except to the extent that any such Lender subsequently returns any such Note for cancellation and requests that such Loans once again be
evidenced as described in clauses (b) (i) and (ii) above.
2.14
Telephonic Notices
. The Borrower hereby authorizes
the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any Person or Persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation (which may include e-mail) of each telephonic notice authenticated by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error. The parties agree to prepare appropriate documentation to correct any such error within ten (10) days after
discovery by any party to this Agreement.
2.15
Interest Payment Dates; Interest and Fee Basis
. Interest accrued on each Base Rate
Advance and each Swing Line Loan shall be payable on each Monthly Payment Date, commencing with the first such Monthly Payment Date to occur after the date hereof and at maturity. Interest accrued on each Eurocurrency Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Eurocurrency Advance
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having an Interest Period longer than three (3) months, if any, shall also be payable on the last day of
each three-month interval during such Interest Period. Interest accrued pursuant to Section 2.11 shall be payable on demand. Interest on all Advances and fees shall be calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 10:00 a.m. (Pacific time) at the place of payment. If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.
2.16
Notification of
Advances, Interest Rates, Prepayments and Commitment Reductions
. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice, Swing Line
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly after notice from an LC Issuer, the Administrative Agent will notify each Lender of the contents of each request for issuance of a Facility LC
hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Eurocurrency Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base
Rate.
2.17
Lending Installations
. Each Lender may book its Advances and its participation in any LC Obligations and each LC Issuer
may book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as the case may be, and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation
and the Loans, Facility LCs, participations in LC Obligations and any Notes issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for the benefit of any such Lending Installation. Each Lender and each LC Issuer
may, by written notice to the Administrative Agent and the Borrower in accordance with Article XIII, designate replacement or additional Lending Installations through which Loans will be made by it or Facility LCs will be issued by it and for whose
account Loan payments or payments with respect to Facility LCs are to be made.
2.18
Non-Receipt of Funds by the Administrative
Agent
. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been
made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
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2.19
Facility LCs
.
(a)
Issuance
. Each LC Issuer hereby agrees, within the limits of its LC Issuer’s LC Limit and on the terms and conditions set forth
in this Agreement, to issue standby Letters of Credit denominated in Dollars (each, a “Facility LC”) and to renew, extend, increase, decrease or otherwise modify each Facility LC (“Modify,” and each such action a
“Modification”), from time to time from and including the date of this Agreement and prior to the Facility Termination Date upon the request of the Borrower;
provided
that immediately after each such Facility LC is issued or
Modified, (i) the aggregate maximum amount then available for drawing under Facility LCs issued by such LC Issuer shall not exceed its LC Issuer’s LC Limit, (ii) the aggregate Dollar Amount of the outstanding LC Obligations shall not
exceed the lesser of (a) twenty-five percent (25%) of the Aggregate Commitment or (b) $75,000,000, (iii) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment and (iv) the aggregate amount of
all Borrowing Base Debt shall not exceed the Borrowing Base determined as of the most recent Inventory Valuation Date. No Facility LC shall have an expiry date later than the fifth Business Day prior to the Facility Termination Date;
provided,
however
, that the expiry date of a Facility LC may be up to one (1) year later than the fifth Business Day prior to the Facility Termination Date if the Borrower has Cash Collateralized such Facility LC in accordance with
Section 2.19(l).
(b)
Participations
. Upon the issuance or Modification by an LC Issuer of a Facility LC in accordance with
this Section 2.19, such LC Issuer shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from such LC Issuer, a participation in such Facility LC (and each Modification thereof) and the related LC Obligations in proportion to its Pro Rata Share.
(c)
Notice
. Subject to Section 2.19(a), the Borrower shall give the Administrative Agent notice prior to 10:00 a.m. (Pacific time)
at least five (5) Business Days prior to the proposed date of issuance or Modification of each Facility LC, specifying the applicable LC Issuer, the beneficiary, the proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and the nature of the transactions proposed to be supported thereby. Upon receipt of such notice, the Administrative Agent shall promptly notify the applicable LC Issuer and each
Lender of the contents thereof and of the amount of such Lender’s participation in such proposed Facility LC. The issuance or Modification by an LC Issuer of any Facility LC shall, in addition to the conditions precedent set forth in Article
IV, be subject to the conditions precedent that such Facility LC shall be satisfactory to such LC Issuer and that the Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such
Facility LC as such LC Issuer shall have reasonably requested (each, a “Facility LC Application”). No LC Issuer shall have any independent duty to ascertain whether the conditions set forth in Article IV have been satisfied;
provided
,
however
, that no LC Issuer shall issue a Facility LC if, on or before the proposed date of issuance, such LC Issuer shall have received
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notice from the Administrative Agent or the Required Lenders that any such condition has not been satisfied or waived. In the event of any conflict between the terms of this Agreement and the
terms of any Facility LC Application, the terms of this Agreement shall control.
(d)
LC Fees
. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders ratably in accordance with their respective Pro Rata Shares, with respect to each Facility LC, a letter of credit fee at a per annum rate equal to the Applicable Margin in effect from time to time
on the average daily undrawn face amount of such Facility LC for the period from the date of issuance to the scheduled expiration date of such Facility LC, such fee to be payable in arrears on each Quarterly Payment Date (the “LC Fee”).
The Borrower shall also pay to each LC Issuer for its own account (x) a fronting fee in an amount equal to 0.125% per annum of the average daily undrawn face amount under such Facility LC issued by it, such fee to be payable in arrears on
each Quarterly Payment Date and (y) on demand, all amendment, drawing and other fees regularly charged by such LC Issuer to its letter of credit customers and all out-of-pocket expenses incurred by such LC Issuer in connection with the
issuance, Modification, administration or payment of any Facility LC.
(e)
Administration; Reimbursement by Lenders
. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under such Facility LC, the applicable LC Issuer shall notify the Administrative Agent and the Administrative Agent shall promptly notify the Borrower and each other Lender as to the
amount to be paid by such LC Issuer as a result of such demand and the proposed payment date (the “LC Payment Date”). The responsibility of each LC Issuer to the Borrower and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in connection with such presentment shall be in conformity in all material respects with such Facility LC. Each LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facility LCs as it does with respect to letters of credit in which no participations are granted, it being understood that in the absence of any gross negligence or willful misconduct by such LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the occurrence of any Event of Default or any condition precedent whatsoever, to reimburse such LC Issuer on demand for (i) such Lender’s Pro Rata Share of the amount of each payment
made by such LC Issuer under each Facility LC to the extent such amount is not reimbursed by the Borrower pursuant to Section 2.19(f) below and there are not funds available in the Facility LC Collateral Account to cover the same,
plus
(ii) interest on the foregoing amount to be reimbursed by such Lender, for each day from the date of such LC Issuer’s demand for such reimbursement (or, if such demand is made after 9:00 a.m. (Pacific time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds Effective Rate for the first three (3) days and, thereafter, at a rate of interest
equal to the rate applicable to Base Rate Advances.
(f)
Reimbursement by the Borrower
. The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuer on or before the applicable LC Payment Date (provided that the Borrower has received notice from the Administrative Agent of such LC Payment Date not later than 11:00 a.m. Pacific time on the LC
Payment Date, otherwise such payment shall be due on the Business Day immediately following the date on which the Borrower receives such notice) for any amounts to be paid by such LC Issuer upon any drawing
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under any Facility LC, without presentment, demand, protest or other formalities of any kind;
provided
that neither the Borrower nor any Lender shall hereby be precluded from asserting any
claim for direct (but not consequential) damages suffered by the Borrower or such Lender to the extent, but only to the extent, caused by (i) the willful misconduct or gross negligence of such LC Issuer in determining whether a request
presented under any Facility LC issued by it complied with the terms of such Facility LC or (ii) such LC Issuer’s failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms
and conditions of such Facility LC. All such amounts paid by an LC Issuer and remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid at a rate per annum equal to (x) the rate applicable to Base Rate
Advances for such day if such day falls on or before the applicable LC Payment Date and (y) the sum of 2.00% per annum
plus
the rate applicable to Base Rate Advances for such day if such day falls after such LC Payment Date. Each LC
Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all amounts received by it from the Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by such
LC Issuer, but only to the extent such Lender has made payment to such LC Issuer in respect of such Facility LC pursuant to Section 2.19(e). Subject to the terms and conditions of this Agreement (including without limitation the submission of a
Borrowing Notice in compliance with Section 2.8 and the satisfaction of the applicable conditions precedent set forth in Article IV), the Borrower may request an Advance hereunder for the purpose of satisfying any Reimbursement Obligation.
(g)
Obligations Absolute
. The Borrower’s obligations under this Section 2.19 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any LC Issuer, any Lender or any beneficiary of a Facility LC. The Borrower further agrees with the LC Issuers
and the Lenders that the LC Issuers and the Lenders shall not be responsible for, and the Borrower’s Reimbursement Obligation in respect of any Facility LC shall not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be transferred or any claims or defenses whatsoever of the Borrower or of any of its Affiliates against the beneficiary of any Facility LC or any such transferee. The LC Issuers shall
not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Facility LC. The Borrower agrees that any action taken or omitted by any LC
Issuer or any Lender under or in connection with each Facility LC and the related drafts and documents, if done without gross negligence or willful misconduct, shall be binding upon the Borrower and shall not put any LC Issuer or any Lender under
any liability to the Borrower. Nothing in this Section 2.19(g) is intended to limit the right of the Borrower to make a claim against an LC Issuer for damages as contemplated by the proviso to the first sentence of Section 2.19(f).
(h)
Actions of LC Issuers
. Each LC Issuer shall be entitled to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex, teletype or electronic mail message, statement, order or other document 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
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legal counsel, independent accountants and other experts selected by such LC Issuer. Each LC Issuer shall be fully justified in failing or refusing to take any action under this Agreement unless
it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable 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. Notwithstanding any other provision of this Section 2.19, each LC Issuer shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and any future holders of a participation in any Facility LC.
(i)
Indemnification
. The Borrower hereby agrees to indemnify and hold harmless each Lender, each LC Issuer and the Administrative
Agent, and their respective directors, officers, agents and employees from and against any and all claims and damages, losses, liabilities, costs or expenses (including reasonable counsel fees and disbursements) which such Lender, such LC Issuer or
the Administrative Agent may incur (or which may be claimed against such Lender, such LC Issuer or the Administrative Agent by any Person whatsoever) by reason of or in connection with the issuance, execution and delivery or transfer of or payment
or failure to pay under any Facility LC or any actual or proposed use of any Facility LC, including, without limitation, any claims, damages, losses, liabilities, costs or expenses (including reasonable counsel fees and disbursements) which such LC
Issuer may incur (i) by reason of or in connection with the failure of any other Lender to fulfill or comply with its obligations to such LC Issuer hereunder (but nothing herein contained shall affect any rights the Borrower may have against
any Defaulting Lender) or (ii) by reason of or on account of such LC Issuer issuing any Facility LC which specifies that the term “Beneficiary” included therein includes any successor by operation of law of the named Beneficiary, but
which Facility LC does not require that any drawing by any such successor Beneficiary be accompanied by a copy of a legal document, satisfactory to such LC Issuer, evidencing the appointment of such successor Beneficiary;
provided
that the
Borrower shall not be required to indemnify any Lender, any LC Issuer or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by (x) the willful misconduct or
gross negligence of an LC Issuer in determining whether a request presented under any Facility LC complied with the terms of such Facility LC or (y) an LC Issuer’s failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of such Facility LC. Nothing in this Section 2.19(i) is intended to limit the obligations of the Borrower under any other provision of this Agreement.
(j)
Lenders’ Indemnification
. Each Lender shall, ratably in accordance with its Pro Rata Share, indemnify each LC Issuer, its
affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees’ gross negligence or willful misconduct or such LC Issuer’s failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC) that such indemnitees may suffer or incur in connection with this Section 2.19 or any action taken or omitted by such indemnitees hereunder.
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(k)
Facility LC Collateral Account
. The Borrower agrees that it will, upon the request of
the Administrative Agent or the Required Lenders and until the final expiration date of any Facility LC and thereafter as long as any amount is payable to any LC Issuer or the Lenders in respect of any Facility LC, maintain a special collateral
account pursuant to arrangements satisfactory to the Administrative Agent (the “Facility LC Collateral Account”), in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the
Lenders and in which the Borrower shall have no interest other than as set forth in Section 8.1. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the LC
Issuers, a security interest in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the Facility LC Collateral Account to secure the prompt and complete payment and performance of the
Obligations. The Administrative Agent will invest any funds on deposit from time to time in the Facility LC Collateral Account in certificates of deposit of U.S. Bank having a maturity not exceeding thirty (30) days. Nothing in this
Section 2.19(k) shall either (i) obligate Borrower to deposit any funds in the Facility LC Collateral Account, (ii) obligate the Administrative Agent to require the Borrower to deposit any funds in the Facility LC Collateral Account
or (iii) limit the right of the Administrative Agent to release any funds held in the Facility LC Collateral Account, in each case other than as required by Section 2.2, Section 2.19(l), Section 2.22 or Section 8.1.
(l)
Cash Collateralization
. If the expiration date of any Facility LC is (i) later than the Facility Termination Date,
(ii) in the case of a Facility LC issued by a Defaulting Lender, which Defaulting Lender is replaced pursuant to Section 2.20 or (iii) in the case of a Facility LC otherwise issued by an Affected Lender that is replaced pursuant to
Section 2.20, later than the date of such replacement, the Borrower shall (x) in the case of clause (i) above, either, (A) Cash Collateralize such Facility LC not less than thirty (30) days prior to the Facility Termination
Date or (B) if acceptable to the applicable LC Issuer in its sole discretion, provide collateral or other alternatives acceptable to such LC Issuer in its sole discretion (in the case of clause (B), “Non-Cash Collateralized Letters of
Credit”) (provided that the obligations of the Lenders to make payments to the Administrative Agent for the account of an LC Issuer under Section 2.19(e) in respect of Non-Cash Collateralized Letters of Credit and the obligation of the
Borrower to pay the LC Fees and other fees required under Section 2.19(d) hereof in respect of Non-Cash Collateralized Letters of Credit shall in each case terminate on the Facility Termination Date and the Non-Cash Collateralized Letters of
Credit shall cease to be Facility LCs hereunder) or (y) in the case of clause (ii) or (iii) above, Cash Collateralize such Facility LC no later than the date of replacement of a Defaulting Lender or Affected Lender pursuant to
Section 2.20. In addition, the Borrower shall Cash Collateralize Facility LCs when required by and in accordance with Section 2.2, Section 2.22 and Section 8.1.
(m)
Rights as a Lender
. In its capacity as a Lender, each LC Issuer shall have the same rights and obligations as any other Lender.
(n)
Letters of Credit Must Relate to Related Business
. Notwithstanding anything contained in this Agreement which may be construed
to the contrary, each LC Issuer shall be obligated only to issue letters of credit in connection with the Related Business; and in no event shall any of the LC Issuers (or any other Lender hereunder) have any obligation to issue trade letters of
credit or other letters of credit that are not related to the Related Business.
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2.20
Replacement of Lender
. If (a) the Borrower is required pursuant to Sections 3.1,
3.2 or 3.5 to make any additional payment to any Lender or (b) if any Lender’s obligation to make or continue, or to convert Base Rate Advances into Eurocurrency Advances shall be suspended pursuant to Section 3.3 or (c) if any
Lender defaults in its obligation to make a Loan, reimburse the LC Issuers pursuant to Section 2.19(e) or the Swing Line Lender pursuant to Section 2.4(d) or (d) if any Lender declines to approve an amendment or waiver that is
approved by the Required Lenders or (e) if any Lender otherwise becomes a Defaulting Lender (any Lender so affected, an “Affected Lender”), the Borrower may elect, if the circumstances resulting in such Lender being an Affected Lender
continue, to replace such Affected Lender as a Lender party to this Agreement,
provided
that no Event of Default shall have occurred and be continuing at the time of such replacement, and
provided further
that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Swing Line Lender and which is either a Qualified Bank or reasonably satisfactory to each LC Issuer (a
“Replacement Lender”) shall agree, as of such date, to purchase for cash at par the Advances and other Obligations due to the Affected Lender under this Agreement and the other Loan Documents pursuant to an assignment substantially in the
form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.3 applicable to assignments;
and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due to such Affected Lender under Sections 3.1, 3.2, 3.4 and 3.5, and (B) an amount, if any, equal to the payment which would have been due to such Lender under Section 3.4 on
the day of such replacement had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.
2.21
Limitation of Interest
. The Borrower, the Administrative Agent and the Lenders intend to strictly comply with all applicable laws,
including applicable usury laws. Accordingly, the provisions of this Section 2.21 shall govern and control over every other provision of this Agreement or any other Loan Document which conflicts or is inconsistent with this Section 2.21,
even if such provision declares that it controls. As used in this Section 2.21, the term “interest” includes the aggregate of all charges, fees, benefits or other compensation which constitute interest under applicable law,
provided
that, to the maximum extent permitted by applicable law, (a) any non-principal payment shall be characterized as an expense or as compensation for something other than the use, forbearance or detention of money and not as
interest, and (b) all interest at any time contracted for, reserved, charged or received shall be amortized, prorated, allocated and spread, in equal parts during the full term of this Agreement. In no event shall the Borrower or any other
Person be obligated to pay, or any Lender have any right or privilege to reserve, receive or retain, (a) any interest in excess of the maximum amount of nonusurious interest permitted under the applicable laws (if any) of the United States or
of the State of California, or (b) total interest in excess of the amount which such Lender could lawfully have contracted for, reserved, received, retained or charged had the interest been calculated for the full term of this Agreement at the
Highest Lawful Rate. On each day, if any, that the interest rate (the “Stated Rate”) called for under this Agreement or any other Loan Document exceeds the Highest Lawful Rate, the rate at which interest shall accrue shall automatically be
fixed by operation of this sentence at the Highest Lawful Rate for that day, and shall remain fixed at the
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Highest Lawful Rate for each day thereafter until the total amount of interest accrued equals the total amount of interest which would have accrued if there were no such ceiling rate as is
imposed by this sentence. Thereafter, interest shall accrue at the Stated Rate unless and until the Stated Rate again exceeds the Highest Lawful Rate when the provisions of the immediately preceding sentence shall again automatically operate to
limit the interest accrual rate. The daily interest rates to be used in calculating interest at the Highest Lawful Rate shall be determined by dividing the applicable Highest Lawful Rate per annum by the number of days in the calendar year for which
such calculation is being made. None of the terms and provisions contained in this Agreement or in any other Loan Document which directly or indirectly relate to interest shall ever be construed without reference to this Section 2.21, or be
construed to create a contract to pay for the use, forbearance or detention of money at an interest rate in excess of the Highest Lawful Rate. If the term of any Loan or any other Obligation outstanding hereunder or under the other Loan Documents is
shortened by reason of acceleration of maturity as a result of any Event of Default or by any other cause, or by reason of any required or permitted prepayment, and if for that (or any other) reason any Lender at any time, including but not limited
to, the stated maturity, is owed or receives (and/or has received) interest in excess of interest calculated at the Highest Lawful Rate, then and in any such event all of any such excess interest shall be canceled automatically as of the date of
such acceleration, prepayment or other event which produces the excess, and, if such excess interest has been paid to such Lender, it shall be credited
pro tanto
against the then-outstanding principal balance of the Borrower’s
Obligations to such Lender, effective as of the date or dates when the event occurs which causes it to be excess interest, until such excess is exhausted or all of such principal has been fully paid and satisfied, whichever occurs first, and any
remaining balance of such excess shall be promptly refunded to its payor.
2.22
Defaulting Lenders
.
(a)
Defaulting Lender Adjustments
. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)
Waivers and Amendments
. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or
consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.
(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or
otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.1 shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first
, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuer and Swing Line Lender hereunder;
third
, to Cash
Collateralize each LC Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.22(d);
fourth
, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of
any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative
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Agent;
fifth
, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account (including the Facility LC Collateral Account) and released pro rata in order
to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each LC Issuer’s future Fronting Exposure with respect to such Defaulting Lender
with respect to future Facility LCs issued under this Agreement, in accordance with Section 2.22(d);
sixth
, to the payment of any amounts owing to the Lenders, the LC Issuers or Swing Line Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, any LC Issuer or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
seventh
, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement;
eighth
, if so determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Outstanding Credit Exposures of such Lenders to the Aggregate
Outstanding Credit Exposure of all Lenders equals such ratio immediately prior to the Defaulting Lender’s failure to fund any portion of any Loans or participations in Facility LCs or Swing Line Loans; and
ninth
, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction;
provided
that if (x) such payment is a payment of the principal amount of any Loans or Facility LC issuances in respect of which such Defaulting Lender has not fully
funded its appropriate share, and (y) such Loans were made or the related Facility LCs were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Credit
Extensions of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Credit Extensions of such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Obligations and Swing
Line Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.22(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. If there is more than one LC
Issuer, amounts in respect of the Fronting Exposure of each LC Issuer under this Section 2.22(a)(ii) shall be determined on a pro rata basis based on the respective Fronting Exposures of each such LC Issuer.
(iii)
Certain Fees
.
(A) No Defaulting Lender shall be entitled to receive any Unused Fee for any period during which that Lender is a Defaulting
Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for any period during which that Lender is a Defaulting Lender
only to the extent allocable to its ratable share of the stated amount of Facility LCs for which it has provided Cash Collateral pursuant to Section 2.22(d).
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(C) With respect to any Unused Fee or LC Fee not required to be paid to any
Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s
participation in LC Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise
payable to such Defaulting Lender to the extent allocable to such LC Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)
Reallocation of Participations to Reduce Fronting Exposure
. All or any part of such Defaulting Lender’s
participation in LC Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the
extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have
represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Outstanding Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.
No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of
such Non-Defaulting Lender’s increased exposure following such reallocation.
(v)
Cash Collateral; Repayment of
Swing Line Loans
. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay
Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize each LC Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.22(d).
(b)
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, the Swing Line Lender and the LC Issuers agree in writing that a
Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with
respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the
Loans and funded and unfunded participations in Facility LCs and Swing Line Loans to be held pro rata by the Lenders in accordance with the Commitments (without giving effect to Section 2.22(a)(iv)), whereupon such Lender will cease to be a
Defaulting Lender;
provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided
,
further
, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
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(c)
New Swing Line Loans/Facility LCs
. So long as any Lender is a Defaulting Lender,
(i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) no LC Issuer shall be required to issue,
extend, renew or increase any Facility LC unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(d)
Cash Collateral
. At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent or any LC Issuer (with a copy to the Administrative Agent) the Borrower shall
Cash Collateralize such LC Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.22(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the
Minimum Collateral Amount.
(i)
Grant of Security Interest
. The Borrower, and to the extent provided by any
Defaulting Lender, such Defaulting Lender, hereby grant(s) to the Administrative Agent, for the benefit of the LC Issuers, and agree(s) to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting
Lender’s obligation to fund participations in respect of LC Obligations, to be applied pursuant to clause (ii) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent and the LC Issuers as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or
provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(ii)
Application
. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under
this Section 2.22 in respect of Facility LCs shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of LC Obligations (including, as to Cash Collateral provided by a Defaulting Lender,
any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such Property as may otherwise be provided for herein.
(iii)
Termination of Requirement
. Cash Collateral (or the appropriate portion thereof) provided to reduce an LC
Issuer’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.22(d) following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender
status of the applicable Lender), or (ii) the determination by the Administrative Agent and the applicable LC Issuers that there exists excess Cash Collateral;
provided
that, subject to this Section 2.22 the Person providing Cash
Collateral and the applicable LC Issuer may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.
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(e)
Borrower’s Rights
. Without limitation of the foregoing, Borrower shall have such
rights and remedies against a Defaulting Lender as are available at law or in equity.
2.23
Reserved
.
2.24
Increase Option
. Subject to the prior written consent of the Administrative Agent (not to be unreasonably withheld), the Borrower
may from time to time (but in no event more than 3 times in the aggregate) elect to increase the Commitments, in each case in integral multiples of $5,000,000 (but not less than $25,000,000) or such lower amount as the Borrower and the
Administrative Agent agree upon, so long as, after giving effect thereto, the aggregate amount of such increases (when added to the existing Aggregate Commitment) does not exceed $700,000,000. The Borrower may arrange for any such increase to be
provided by one or more Lenders (each Lender so agreeing to an increase in its Commitment, an “Increasing Lender”), or by one or more new Eligible Assignees (each such new Eligible Assignee, an “Augmenting Lender”), to increase
their existing Commitments, or provide new Commitments, as the case may be;
provided
that (i) each Augmenting Lender and each Increasing Lender shall be subject to the approval of the Borrower, the Administrative Agent and the Swing Line
Lender, in each case not to be unreasonably withheld, and shall be either a Qualified Bank or approved by each LC Issuer, such approval not to be unreasonably withheld, and (ii) (x) in the case of an Increasing Lender, the Borrower and
such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto.
In no event shall any Lender become an Increasing Lender or an Augmenting Lender without such Lender’s prior written consent (in its sole discretion). No consent of any Lender (other than the Administrative Agent and the Lenders participating
in the increase) shall be required for any increase in Commitments pursuant to this Section 2.24. Increases and new Commitments created pursuant to this Section 2.24 shall become effective on the date agreed by the Borrower, the
Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of any Lender) shall
become effective under this paragraph unless, (1) on the proposed date of the effectiveness of such increase, the conditions set forth in paragraphs (a) and (b) of Section 4.2 shall be satisfied (or waived by the Required
Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (2) the Administrative Agent shall have received documents consistent with those
delivered on the Effective Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase, as well as such documents as the Administrative Agent may reasonably request (including, without
limitation, customary opinions of counsel and affirmations of Loan Documents and pro forma compliance with the financial covenants set forth in Section 6.19). On the effective date of any increase in the Commitments, (i) each relevant
Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to
cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Pro Rata Share of such outstanding
Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments
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(with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the
requirements of Section 2.8). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan,
shall be subject to indemnification by the Borrower pursuant to the provisions of Section 3.4 if the deemed payment occurs other than on the last day of the related Interest Periods. Nothing contained in this Section 2.24 shall constitute,
or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.
2.25
Returned
Payments
. If after receipt of any payment which is applied to the payment of all or any part of the Obligations, the Administrative Agent or any Lender is for any reason compelled to surrender such payment or proceeds to any Person because such
payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then the Obligations or part thereof
intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Administrative Agent or such Lender. The provisions of this Section 2.25 shall
be and remain effective notwithstanding any contrary action which may have been taken by the Administrative Agent or any Lender in reliance upon such payment or application of proceeds. The provisions of this Section 2.25 shall survive the
termination of this Agreement.
2.26
Assumption of Obligations
. The Borrower (i.e., TRI Pointe Group) hereby assumes and agrees to
perform each and all of the Obligations, covenants and agreements of TRI Pointe Homes, in its capacity as the original borrower, under the Loan Documents, including, without limitation, the Obligations evidenced by and/or arising under the Existing
Loan Agreement and each Note, whether accruing prior to, on or after the date hereof. All references in the Loan Documents to “Borrower” shall hereafter mean and be deemed to refer only to TRI Pointe Group.
2.27
Consent; Release of TRI Pointe Homes
.
(a)
Consent
. Administrative Agent and each Lender hereby consents to the Merger Transaction.
(b)
Release
. Subject to Section 2.27(e) below, Administrative Agent and each Lender hereby irrevocably and unconditionally
releases, remises, acquits and forever discharges TRI Pointe Homes from any and all claims, rights, remedies, demands, collections, controversies, actions, causes of action, injunctions, suits, complaints, arbitrations, indebtedness, liens,
encumbrances, obligations, liabilities, contracts and agreements, promises, damages, costs, fees and expenses (including attorneys’ costs, fees and expenses), penalties, losses or relief of any nature, amount or kind, in law or in equity, past
or present, known or unknown, suspected or unsuspected, matured or unmatured, in respect of any action, omission or event occurring from the beginning of time to the date of this Agreement, against TRI Pointe Homes, which Administrative Agent or
such Lender has had, now has or may in the future have, against or with respect to TRI Pointe Homes as a borrower under the Existing Loan Agreement and the other Loan Documents or the Loan, or the enforcement by Administrative Agent or such Lender
of its rights and remedies in connection therewith (collectively, the “
Released Claims Against TRI Pointe Homes
”).
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(c)
Different or Additional Facts
. Administrative Agent and each Lender agrees and
acknowledges that it may hereafter discover facts different from or in addition to those now known or believed to be true regarding the Released Claims Against TRI Pointe Homes and agrees that the foregoing releases shall remain in full force and
effect, notwithstanding the existence or nature of any such different or additional facts.
(d)
California Code
. Administrative
Agent and each Lender, having consulted with their respective counsel, is aware of the contents of Section 1542 of the Civil Code of the State of California. Section 1542 reads as follows:
Section 1542. (General Release - Claims Extinguished.) A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
Administrative Agent and each Lender expressly waives and relinquishes all rights and benefits under that section and any law or legal principle of similar
effect in any jurisdiction, with respect to the Released Claims Against TRI Pointe Homes. Administrative Agent and each Lender has executed this Agreement voluntarily, with full knowledge of the significance of this Section 2.27, and with the
express intention of effecting the legal consequences provided by a waiver of California Civil Code Section 1542, i.e., the extinguishment of all obligations whatsoever of TRI Pointe Homes to any other party, person or entity, known or unknown.
(e)
Reserved Claims
. Notwithstanding anything to the contrary set forth herein, the Released Claims Against TRI Pointe Homes
expressly exclude, and Administrative Agent and each Lender hereby expressly reserves:
(i) any and all claims, rights,
remedies, demands, collections, controversies, actions, causes of action, injunctions, suits, complaints, arbitrations, indebtedness, liens, encumbrances, obligations, liabilities, contracts and agreements, promises, damages, costs, fees and
expenses (including attorneys’ costs, fees and expenses), penalties, losses or relief of any nature, amount or kind, in law or in equity, which Administrative Agent or any Lender may have against TRI Pointe Homes in its capacity as a Guarantor
under the Guaranty; or
(ii) any claims, rights, remedies, demands, collections, controversies, actions, causes of action,
injunctions, suits, complaints, arbitrations, indebtedness, liens, encumbrances, obligations, liabilities, contracts and agreements, promises, damages, costs, fees and expenses (including attorneys’ costs, fees and expenses), penalties, losses
or relief of any nature, amount or kind, in law or in equity, whether sounding in contract or tort, which Administrative Agent or any Lender may have against TRI Pointe Homes arising out of or in connection with any promissory note, loan, guarantee,
security agreement or other obligation other than those Obligations under the Loan Documents that have been assumed by TRI Pointe Group pursuant to Section 2.26 above.
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ARTICLE III
YIELD PROTECTION; TAXES
3.1
Yield Protection
. If, after the date of this Agreement, there occurs any adoption of or change in any law, rule, regulation,
guideline, interpretation, or directive (whether or not having the force of law) or in the interpretation, promulgation, implementation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, including, notwithstanding the foregoing, all requests, rules, guidelines or directives (x) in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act or (y) promulgated by
the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States financial regulatory authorities, in each case under clause (y) pursuant
to Basel III, and in each case under clauses (x) and (y), regardless of the date enacted (subject to Section 3.7 below), adopted, issued, promulgated or implemented, or compliance by any Lender or applicable Lending Installation or any LC
Issuer with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency (any of the foregoing, a “Change in Law”) which:
(a) subjects any Lender or any applicable Lending Installation, any LC Issuer, or the Administrative Agent to any Taxes (other than with
respect to Indemnified Taxes, Excluded Taxes, and Other Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or
(b) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation or LC Issuer (other than reserves and assessments taken into account in determining the interest rate applicable to Eurocurrency
Advances), or
(c) imposes any other condition (other than Taxes) the result of which is to increase the cost to any Lender or any
applicable Lending Installation or LC Issuer of making, funding or maintaining its Eurocurrency Loans, or of issuing or participating in Facility LCs, or reduces any amount receivable by any Lender or any applicable Lending Installation or LC Issuer
in connection with its Eurocurrency Loans, Facility LCs or participations therein, or requires any Lender or any applicable Lending Installation or LC Issuer to make any payment calculated by reference to the amount of Eurocurrency Loans, Facility
LCs or participations therein held or interest or LC Fees received by it, by an amount deemed material by such Lender or LC Issuer, as the case may be,
and the result of any of the foregoing is to increase the cost to such Person of making or maintaining its Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the amount received by such Person in connection with such Loans or Commitment, Facility LCs or participations therein, then, within fifteen (15) days after demand by such Person, the Borrower shall pay such Person,
as the case may be, such additional amount or amounts as will compensate such Person for such increased cost or reduction in amount received.
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3.2
Changes in Capital Adequacy Regulations
. If a Lender or LC Issuer determines that the
amount of capital or liquidity required or expected to be maintained by such Lender or LC Issuer, any Lending Installation of such Lender or LC Issuer, or any corporation or holding company controlling such Lender or LC Issuer is increased as a
result of (i) a Change in Law or (ii) any change after the date of this Agreement in the Risk-Based Capital Guidelines, then, within fifteen (15) days after demand by such Lender or LC Issuer, the Borrower shall pay such Lender or the
LC Issuer the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital or liquidity which such Lender or LC Issuer determines is attributable to this Agreement, its Outstanding Credit Exposure
or its Commitment to make Loans and issue or participate in Facility LCs, as the case may be, hereunder (after taking into account such Lender’s or LC Issuer’s policies as to capital adequacy or liquidity), in each case that is
attributable to such Change in Law or change in the Risk-Based Capital Guidelines, as applicable.
3.3
Availability of Types of
Advances; Adequacy of Interest Rate
. If the Administrative Agent or the Required Lenders determine that deposits of a type and maturity appropriate to match fund Eurocurrency Advances are not available to such Lenders in the relevant market or
the Administrative Agent, in consultation with the Lenders, determines that the interest rate applicable to Eurocurrency Advances is not ascertainable or does not adequately and fairly reflect the cost of making or maintaining Eurocurrency Advances,
then the Administrative Agent shall suspend the availability of Eurocurrency Advances and require any affected Eurocurrency Advances to be repaid or converted to Base Rate Advances, subject to the payment of any funding indemnification amounts
required by Section 3.4.
3.4
Funding Indemnification
. If (a) any payment of a Eurocurrency Advance occurs on a date
which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, (b) a Eurocurrency Advance is not made on the date specified by the Borrower for any reason other than default by the
Lenders, (c) a Eurocurrency Loan is converted other than on the last day of the Interest Period applicable thereto, (d) the Borrower fails to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto, or (e) any Eurocurrency Loan is assigned other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.20, the Borrower will indemnify each
Lender for such Lender’s costs, expenses and Interest Differential (as determined by such Lender) incurred as a result of such prepayment. The term “Interest Differential” shall mean that sum equal to the greater of zero or the
financial loss incurred by the Lender resulting from prepayment, calculated as the difference between the amount of interest such Lender would have earned (from the investments in money markets as of the Borrowing Date of such Advance) had
prepayment not occurred and the interest such Lender will actually earn (from like investments in money markets as of the date of prepayment) as a result of the redeployment of funds from the prepayment. Because of the short-term nature of this
facility, the Borrower agrees that Interest Differential shall not be discounted to its present value.
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3.5
Taxes
.
(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding of any Tax from any such payment, then the applicable Loan Party shall be entitled to make such deduction or withholding and
shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax or Other Tax, then the sum payable by the applicable Loan Party shall be increased
as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.5) the applicable Lender, LC Issuer or the Administrative Agent
receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The Loan Parties shall
timely pay to the relevant Governmental Authority in accordance with applicable law or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) The Loan Parties shall indemnify each Lender, LC Issuer or the Administrative Agent, within fifteen (15) days after demand therefor,
for the full amount of any Indemnified Taxes or Other Tax (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.5) payable or paid by such Lender, LC Issuer or the
Administrative Agent or required to be withheld or deducted from a payment to such Lender, LC Issuer or the Administrative Agent and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes and Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or LC Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or LC Issuer, shall be conclusive absent manifest error.
(d) Each
Lender shall severally indemnify the Administrative Agent, within fifteen (15) days after demand therefor, for (i) any Indemnified Taxes and Other Taxes attributable to such Lender (but only to the extent that any Loan Party has not
already indemnified the Administrative Agent for such Indemnified Taxes and Other Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions
of Section 12.2(c) relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document,
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document
or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
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(e) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental
Authority pursuant to this Section 3.5, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f) (i) Any Lender that is entitled to an
exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent,
such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if
reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of
such documentation (other than such documentation set forth in Section 3.5(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a United States Person for U.S. federal income Tax purposes shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B) any Non-U.S. Lender shall, to the
extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income Tax treaty to which the United States is a party
(x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax
treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other
income” article of such Tax treaty;
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(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c)
of the Code, (x) a certificate to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) executed originals of IRS Form W-8BEN; or
(4) to the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS
Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8IMY or IRS
Form W-9, and/or
other certification documents from each beneficial
owner, as applicable.
(C) any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if
such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)
and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has
complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this
Agreement.
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(iii) Each Lender agrees that if any form or certification it previously
delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has
been indemnified pursuant to this Section 3.5 (including by the payment of additional amounts pursuant to this Section 3.5), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the
indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been
in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall
not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) Each party’s obligations under this Section 3.5 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i) For purposes of Section 3.5(d) and (f), the term “Lender” includes the LC Issuer.
3.6
Selection of Lending Installation; Mitigation Obligations; Lender Statements; Survival of Indemnity
. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with respect to its Eurocurrency Loans to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurocurrency
Advances under Section 3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on
the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurocurrency Loan shall be calculated as though each Lender funded its Eurocurrency Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference in determining the Eurocurrency
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Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be due within ten
(10) days after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4, 3.5 and 3.7 shall survive payment of the Obligations and termination of this Agreement.
3.7
Cutoff
. Failure or delay on the part of the Administrative Agent or any Lender, Lending Installation, or LC Issuer to demand
compensation pursuant to Section 3.1 or 3.2 shall not constitute a waiver of such Person’s right to demand such compensation; provided that Borrower shall not be required to compensate any such Person for any increased costs or reductions
incurred more than nine months prior to the date that such Person notifies Borrower of the event giving rise to such increased costs or reductions and of such Person’s intention to claim compensation therefor; provided further that, if the
event giving rise to such increased costs or reductions is retroactive, then the nine month period referred to above shall be extended to include the period of retroactive effect thereof.
ARTICLE IV
CONDITIONS PRECEDENT
4.1
Closing
. Before this Agreement becomes effective and any party becomes obligated under it, the following conditions shall have been
satisfied at the Borrower’s sole cost and expense in a manner acceptable to Administrative Agent in the exercise of Administrative Agent’s reasonable judgment:
(a) The Administrative Agent shall have received executed counterparts of each of this Agreement and the Guaranty.
(b) Each Lender shall have received an executed Note in the face amount of such Lender’s Commitment executed by the Borrower, which Note
shall amend, supersede and replace the Note previously made payable to such Lender by TRI Pointe Homes.
(c) The Administrative Agent
shall have received a certificate, signed by the chief financial officer of the Borrower, stating that on the date hereof (1) no Default or Event of Default has occurred and is continuing and (2) the representations and warranties
contained in Article V are true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) as of such date except to the extent
any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in
which case said representations and warranties are true and correct in all respects) on and as of such earlier date.
(d) The
Administrative Agent shall have received a written opinion of counsel to the Borrower and each Guarantor, addressed to the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received a Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying
(i) that there have been no
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changes in the charter document of such Loan Party, as attached thereto, since the date of the certification thereof by such governmental entity, (ii) that there have been no changes in the
Operating Agreement or other organizational document of such Loan Party since the date previously delivered to Administrative Agent, or otherwise as attached thereto, as in effect on the date of such certification, (iii) resolutions of the
Board of Directors or other governing body of such Loan Party authorizing the execution, delivery and performance of this Agreement (or, in the case of a Guarantor, the Guaranty attached hereto), (iv) the Good Standing Certificate (or analogous
documentation if applicable) for such Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, to the extent generally available in such jurisdiction, and (v) and the names and true
signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party.
(f) The
Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(g) There shall not have occurred a Material Adverse Effect since December 31, 2014.
(h) The Administrative Agent shall have received evidence of all governmental, equity holder and third party consents and approvals (if any)
necessary in connection with the contemplated financing and all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse
conditions on the Borrower and the Guarantors, taken as a whole, and no law or regulation shall be applicable which in the reasonable judgment of the Administrative Agent could have such effect.
(i) No action, suit, investigation or proceeding is pending or, to the knowledge of the Borrower, threatened in any court or before any
arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit Extensions.
(j) The Administrative Agent shall have received: (i) unaudited consolidated financial statements of the Borrower and its Subsidiaries
for the fiscal quarter ended March 31, 2015, and (ii) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended 2014.
(k) The Administrative Agent shall have received a copy of the Certificate of Merger certified by the Delaware Secretary of State evidencing
the consummation of the Merger Transaction.
4.2
Each Credit Extension
. The Lenders shall not (except as otherwise set forth in
Section 2.4(d) with respect to Revolving Loans for the purpose of repaying Swing Line Loans) be required to make any Credit Extension (other than pursuant to a Conversion/Continuation Notice, which shall be subject only to clauses (a) and
(c) below) unless on the applicable Borrowing Date:
(a) There exists no Default or Event of Default, nor would a Default or Event of
Default result from such Credit Extension.
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(b) The representations and warranties contained in Article V are true and correct in all
material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) as of such Borrowing Date except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and
warranties are true and correct in all respects) on and as of such earlier date.
(c) Following the making of the requested Credit
Extension, the aggregate amount of all Borrowing Base Debt would not exceed the Borrowing Base (determined as of the most recent Inventory Valuation Date).
Each Borrowing Notice or Swing Line Borrowing Notice, as the case may be, or request for issuance of a Facility LC with respect to each such
Credit Extension shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 4.2(a), (b) and (c) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1
Existence and Standing
. Each of the Borrower and Guarantors is a corporation or (in the case of Guarantors only) partnership or
limited liability company duly and properly incorporated, organized or formed, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation,
organization or formation, as applicable, and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted (except to the extent that a failure to maintain such existence, good standing or authority
would not reasonably be expected to have and does not have a Material Adverse Effect). Except as expressly permitted herein, Borrower shall not change its name, identity, or organizational structure, unless Borrower shall have obtained the
prior written consent of Administrative Agent to such change (such consent not to be unreasonably withheld, conditioned or delayed).
5.2
Authorization and Validity
. The Borrower has the corporate power and authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan Documents to which the Borrower is a party constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and
general principles of equity. Each Guarantor has the corporate, limited liability company or limited
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partnership (as applicable) power and authority to execute and deliver the Guaranty delivered by it and to perform its obligations thereunder. The execution and delivery by each Guarantor of such
Guaranty and the performance of its obligations thereunder have been duly authorized, and each Guaranty constitutes the legal, valid and binding obligations of such Guarantor enforceable against such Guarantor in accordance with its terms, subject
to bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.
5.3
No Conflict; Government Consent
. Neither the execution and delivery by the Borrower or any Guarantor of the Loan Documents to which
it is a party, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate in any material respect (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any Guarantor or (ii) the Borrower’s or any Guarantor’s articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, by-laws, or
operating or other management agreement, as the case may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower or any Guarantor is a party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of the Borrower or any Guarantor pursuant to the terms of any such indenture, instrument or agreement. No
order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof,
which has not been obtained by the Borrower or any Guarantor, is required to be obtained by the Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment and
performance by the Borrower or any Guarantor of the Obligations or the legality, validity, binding effect or enforceability of any of the Loan Documents.
5.4
Financial Statements
. The December 31, 2014 audited consolidated financial statements of the Borrower and its Subsidiaries,
and their unaudited financial statements dated as of March 31, 2015, heretofore delivered to the Lenders were prepared in accordance with GAAP in effect on the date such statements were prepared and fairly present, in all material respects, the
consolidated financial condition and operations of the Borrower and its Subsidiaries at such date and the consolidated results of their operations for the period then ended, subject to (in the case of such unaudited financial statements) final audit
adjustments and the absence of footnotes.
5.5
Material Adverse Change
. Since the date of the most recent audited financial
statements of the Borrower delivered to the Administrative Agent, there has been no change in the business, Property, financial condition or results of operations of the Borrower and the Guarantors which could reasonably be expected to have a
Material Adverse Effect.
5.6
Taxes
. The Borrower and Guarantors have filed all United States federal and state income Tax returns
and all other material Tax returns which are required to be filed by them and have paid all United States federal and state income Taxes and all other material Taxes due from the Borrower and Guarantors pursuant to such returns or pursuant to any
material assessment received by the Borrower or any Guarantor, except for such Taxes or assessments, if any, as are being contested in good faith and as to which adequate reserves have been provided. No Tax Liens have been filed and no claims are
being asserted with respect to any such Taxes that have had or would reasonably be expected to have a Material Adverse Effect.
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5.7
Litigation
. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any Senior Officer, threatened in writing against or affecting the Borrower or any Guarantor which would reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of any Credit Extensions.
5.8
Subsidiaries
. Schedule 5.8 contains an accurate list of all Subsidiaries of the
Borrower as of the date of this Agreement, setting forth their respective jurisdictions of organization and the percentage of their respective capital stock or other ownership interests owned by the Borrower or other Subsidiaries. All of the issued
and outstanding shares of capital stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and validly issued and are fully paid and
non-assessable. The Guarantors are all of the Significant Homebuilding Subsidiaries, subject to any grace periods provided therefor in Section 6.20.
5.9
ERISA
. With respect to each Plan, the Borrower and all ERISA Affiliates have paid all required minimum contributions and
installments on or before the due dates provided under Section 430(j) of the Code and could not reasonably be subject to a lien under Section 430(k) of the Code or Title IV of ERISA. Neither the Borrower nor any ERISA Affiliate has filed,
pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, an application for a waiver of the minimum funding standard. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.
5.10
Accuracy of Information
. No written information, exhibit or report furnished by the Borrower or any of its Guarantors (taken as a
whole) to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Loan Documents (taken as a whole) contained any material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements (taken as a whole) contained therein not misleading at the time the statements are furnished or dated; provided, that (a) with respect to information relating to the Borrower’s industry generally and trade
data which relates to a Person that is not the Borrower or a Subsidiary thereof, the Borrower represents and warrants only that such information is believed by it in good faith to be accurate in all material respects, (b) with respect to
financial statements, other than projected financial information, the Borrower represents only that such financial statements present fairly in all material respects the consolidated financial condition of the applicable Person as of the dates
indicated and (c) with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
5.11
Regulation U
. Margin stock (as defined in Regulation U) constitutes less than 25% of the value of those assets of the Borrower and
its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder.
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5.12
Material Agreements
. Neither the Borrower nor any Guarantor is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to which it is a party or (ii) any agreement or instrument evidencing or governing Indebtedness, which default (in the
case of clauses (i) and (ii)) would reasonably be expected to have a Material Adverse Effect.
5.13 C
ompliance With Laws
. The
Borrower and the Guarantors are in compliance with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property, the violation of which would reasonably be expected to have a Material Adverse Effect.
5.14
Ownership of Properties
. On the date of this Agreement, the Borrower and the Guarantors will have good title, free of all Liens
other than those permitted by Section 6.15, to all of the Property and assets reflected in the Borrower’s most recent consolidated financial statements provided to the Administrative Agent as owned by the Borrower and its Subsidiaries
(except to the extent that (i) they may have been disposed of in a manner permitted by Section 6.13(a) or (ii) the failure to have such title has not had and would not reasonably be expected to have a Material Adverse Effect).
5.15
Plan Assets; Prohibited Transactions
. The Borrower is not an entity deemed to hold “plan assets” within the meaning of
29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the execution of this
Agreement nor the making of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
5.16
Environmental Matters
. Based on commercially reasonable due diligence, the Borrower has concluded its Property and operations and
those of its Subsidiaries are in material compliance with applicable Environmental Laws and that none of the Borrower or any of its Subsidiaries is subject to any liability under Environmental Laws that individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received any notice to the effect that its Property and/or operations are not in material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Material, which non-compliance or remedial action would reasonably be expected to
have a Material Adverse Effect.
5.17
Investment Company Act
. Neither the Borrower nor any Guarantor is an “investment
company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.18
Insurance
. The Borrower maintains, and has caused each Guarantor to maintain, with financially sound and reputable insurance
companies insurance on all their Property, liability insurance and environmental insurance in such amounts, subject to such deductibles and self-insurance retentions and covering such Properties and risks as is consistent with sound business
practice.
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5.19
Subordinated Indebtedness
. As of the date of this Agreement, neither the Borrower nor
any Guarantor has any Subordinated Indebtedness except as set forth on Schedule 5.19.
5.20
Solvency
.
(a) Immediately after the consummation of the transactions to occur on the Effective Date and immediately following the making of each Credit
Extension, if any, made on the Effective Date and after giving effect to the application of the proceeds of such Credit Extensions, (i) the fair value of the assets of the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis; (ii) the present fair value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on a consolidated basis on their debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become due and matured; (iii) the Borrower and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become due
and matured; and (iv) the Borrower and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be
conducted after the Effective Date.
(b) The Borrower does not intend to, or to permit any Guarantors to, and does not believe that it or
any Guarantors will, incur debts beyond its or any such Guarantor’s ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Guarantor and the timing of the amounts of cash
to be payable on or in respect of its Indebtedness or the Indebtedness of any such Guarantor.
5.21
No Default
. No Default or Event
of Default has occurred and is continuing.
5.22
Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws
.
(a) The Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the Borrower, its directors and agents,
are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower, any Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees is
a Sanctioned Person. No Loan or Facility LC, use of the proceeds of any Loan or Facility LC or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable Sanctions.
(b) Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto.
The Borrower and its Subsidiaries are in compliance in all material respects with the PATRIOT Act.
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ARTICLE VI
COVENANTS
During
the term of this Agreement, unless the Required Lenders shall otherwise consent in writing:
6.1
Financial Reporting
. The Borrower
will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent:
(a) Within 120 days after the close of each of its fiscal years, an unqualified (except for qualifications (i) relating to changes in
accounting principles or practices reflecting changes in GAAP or (ii) reasonably approved by the Administrative Agent) audit report, with no going concern modifier (other than a “going concern” or like qualification for any period
within the twelve-month period prior to the end of the term of this Agreement arising solely from the impending maturity of the Loans), certified by one of the “Big Four” accounting firms or other nationally recognized independent
certified public accountants reasonably acceptable to the Administrative Agent, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, related profit and loss
and stockholders’ equity statement, and a statement of cash flows and income from operations.
(b) Within 60 days after the close of
the first three (3) quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated profit and loss and stockholders’ equity
statement and a statement of cash flows and income from operations for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer or other Authorized Officer has having been prepared in
accordance with GAAP, except for year-end adjustments and the absence of footnotes.
(c) Together with the financial statements required
under Sections 6.1(a) and (b), a compliance certificate in substantially the form of Exhibit B signed by its chief financial officer or other Authorized Officer showing the calculations necessary to determine compliance with Sections 6.19(a) through
(e) and stating that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof.
(d) By the forty-fifth (45
th
) day of each fiscal quarter of each fiscal year, a
Borrowing Base Certificate of an Authorized Officer of the Borrower, with respect to the Inventory Valuation Date occurring on the last day of the immediately preceding fiscal quarter.
(e) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements
so furnished.
(f) Promptly upon the filing thereof, copies of all registration statements (except Form S-8) and annual, quarterly, or
other periodic reports, with the exception of exhibits (unless otherwise requested by the Administrative Agent), which the Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.
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(g) Intentionally Omitted.
(h) Within 60 days after the commencement of each fiscal year, the plan and forecast for the next fiscal year and a projected consolidated
balance sheet, income statement and statement of cash flows of the Borrower for the next fiscal year.
(i) Promptly upon receipt thereof,
any management letter prepared in connection with the audited financial statements delivered pursuant to Section 6.1(a) hereof.
(j)
Such other information (including additional financial information, non-financial information and environmental reports) as the Administrative Agent may from time to time reasonably request.
Any financial statement required to be furnished pursuant to Section 6.1(a) or Section 6.1(b) or any document required to be delivered pursuant to
Section 6.1(e) or Section 6.1(f) shall be deemed to have been furnished on the date on which the Administrative Agent receives notice that the Borrower has filed such financial statement with the U.S. Securities and Exchange Commission and
is available on the EDGAR website on the Internet at
www.sec.gov
or any successor government website that is freely and readily available to the Administrative Agent and the Lenders without charge. Notwithstanding the foregoing, the Borrower
shall deliver paper or electronic copies of any such financial statement to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or
electronic copies is given by the Administrative Agent. If any information which is required to be furnished to the Administrative Agent under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body
on an earlier date, then the information required hereunder shall be furnished to the Administrative Agent at such earlier date.
6.2
Use of Proceeds
. The Borrower will, and will cause each Subsidiary to, use the proceeds of the Credit Extensions for general corporate purposes. The Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances to purchase or carry any “margin stock” (as defined in Regulation U) (a) in violation of Regulation T, U or X or (b) outside the ordinary course of business (unless, in the case of (b), in connection with a Permitted
Acquisition). The Borrower will not request any Loan or Facility LC, and the Borrower will not use, and will ensure that its Subsidiaries and its or their respective directors, officers, employees and agents will not use, the proceeds of any Loan or
Facility LC (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws; (ii) for the purpose of funding,
financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country; or (iii) in any other manner that would result in the violation of any Sanctions.
6.3
Notice of Material Events
. The Borrower will give notice in writing to the Administrative Agent, promptly and in any event within
ten (10) days after a Senior Officer of the Borrower obtains knowledge thereof, of the occurrence of any of the following:
(a) any
Default or Event of Default;
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(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority (including pursuant to any applicable Environmental Laws) against or affecting the Borrower or any Guarantor that would reasonably be expected to result in a Material Adverse Effect or which seeks to prevent, enjoin or delay
the making of any Credit Extensions;
(c) with respect to a Plan, (i) any failure to pay all required minimum contributions and
installments on or before the due dates provided under Section 430(j) of the Code or (ii) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding
standard;
(d) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably
be expected to result in a Material Adverse Effect; and
(e) any other development, financial or otherwise, which would reasonably be
expected to have a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of an officer of
the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
6.4
Conduct of Business
. Except as otherwise permitted under this Agreement, the Borrower shall at all times engage principally in the
Related Businesses, and will cause each Guarantor to carry on and conduct its business as a Homebuilding Subsidiary in the same general manner as presently conducted and to do all things necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation, limited liability company or limited partnership (as applicable) in their respective jurisdictions of incorporation or formation and maintain all requisite authority to conduct business in each jurisdiction
in which business is conducted, except where the failure to maintain such authority would not reasonably be expected to have a Material Adverse Effect;
provided
,
however
, that nothing contained herein shall prohibit the
dissolution of any Guarantor as long as the Borrower or another Guarantor succeeds to the assets, liabilities and business of the dissolved Guarantor.
6.5
Taxes
. The Borrower will, and will cause each Guarantor to, timely file complete and correct United States federal and applicable
foreign, state and material local tax returns required by law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except those which are being contested in good faith by appropriate
proceedings, with respect to which adequate reserves have been set aside in accordance with GAAP, and those which the failure to pay would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
6.6
Insurance
. The Borrower will, and will cause each Guarantor to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as is consistent with sound business practice (as determined in good faith by the Borrower), and the Borrower will furnish to Administrative Agent upon request full information
as to the insurance carried.
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6.7
Compliance with Laws and Material Contractual Obligations
. The Borrower will, and will
cause each Guarantor to, (i) comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject including, without limitation, all Environmental Laws and (ii) perform its
obligations under material agreements to which it is a party, except (in the case of clauses (i) and (ii)) where the failure to comply therewith or perform such obligations would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all Anti-Corruption Laws and applicable Sanctions.
6.8
Maintenance of Properties
. The Borrower and each Guarantor will do all things necessary to maintain, preserve, protect and keep its
Property in good repair, working order and condition, except to the extent that the failure to do so would not reasonably be expected to have and does not have a Material Adverse Effect.
6.9
Books and Records; Inspection
. The Borrower will, and will cause each of the Guarantors to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each Guarantor to, permit the Administrative Agent and the Lenders, by their respective
representatives and agents to inspect any of the Property, books and financial records of the Borrower and each Guarantor, to examine and make copies of the books of accounts and other financial records of the Borrower and each Guarantor, and to
discuss the affairs, finances and accounts of the Borrower and each Guarantor with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Administrative Agent or any Lender may designate. At any
time that a Default exists, such inspections and examinations shall be at Borrower’s expense.
6.10
Payment of Obligations
.
The Borrower will, and will cause each Guarantor to, pay its obligations, including Tax liabilities, that, if not paid, would reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, and (b) the Borrower or such Guarantor has set aside on its books adequate reserves with respect thereto in accordance with GAAP.
6.11
Restrictions on Aggregate Secured Indebtedness
. At no time shall the aggregate amount of outstanding Indebtedness and other
obligations of all Loan Parties secured by Liens on real property (excluding Permitted Liens) exceed 20.0% of Consolidated Tangible Net Worth on a pro forma basis as of the date of any such incurrence.
6.12
Merger
. Neither the Borrower nor any Guarantor will merge or consolidate with or into any other Person, unless:
(i) (A) any Guarantor is merging with any other Guarantor; (B) any Guarantor is merging with the Borrower, and the
Borrower is the continuing corporation; (C) any Guarantor is merging with a Person that is not a Subsidiary of the Borrower and (x) if the Guarantor is not the continuing corporation, such transaction is in compliance with the provisions
of Section 6.13(b) or the successor Person becomes a Guarantor
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hereunder, or (y) if the Guarantor is the continuing corporation, such transaction is a Permitted Acquisition; or (D) a Non-Guarantor Subsidiary is merging with the Borrower or any
Guarantor, and the Borrower or a Guarantor, as applicable, is the continuing corporation; and
(ii) no Event of Default
shall exist or shall occur after giving effect to such transaction; and
(iii) after giving effect to such transaction, the
Borrower shall be in actual and pro forma compliance with the financial covenants set forth in Section 6.19; and
(iv)
the transaction is not otherwise prohibited under this Agreement.
6.13
Sale of Assets
.
(a) Neither the Borrower nor any Guarantor will lease, sell or otherwise dispose of its Property, in a single transaction or a series of
transactions, to any other Person (other than the Borrower or another Guarantor) except for (i) sales or leases in the ordinary course of business, (ii) the events described in subsections (i), (ii), (iii), (iv), (vi) and
(vii) of the definition of Permitted Dispositions, and (iii) leases, sales or other dispositions (including the events described in subsections (v) and (viii) of the definition of Permitted Dispositions) of its Property that,
together with all other Property of the Borrower and Guarantors previously leased, sold or disposed of (other than as specified in subsections (i) and (ii) immediately above) as permitted by this Section 6.13 during the fiscal quarter
in which any such lease, sale or other disposition occurs, do not constitute a Material Portion of the Property of the Borrower and Guarantors (taken as a whole) so long as, immediately after giving effect thereto and the application of the proceeds
therefrom, (1) no Event of Default shall have occurred and be continuing or would result therefrom and (2) if the aggregate value of the dispositions in a quarter exceeds $100,000,000, the Borrower shall deliver, prior to or concurrently
with the consummation of any disposition during such quarter as a result of which or after such $100,000,000 threshold is exceeded, a certification that it is in pro forma and actual compliance with Section 6.19 hereof, and (iv) transfers
of assets by a Guarantor to another Guarantor (including any Subsidiary that becomes a Guarantor by executing and delivering a Guaranty to Administrative Agent at the time at which such assets are transferred to such Subsidiary).
(b) Without Administrative Agent’s prior written consent, the Borrower shall not sell or transfer or cause to be sold or transferred
(other than to the Borrower or another Guarantor, including any Subsidiary that becomes a Guarantor by executing and delivering a Guaranty to Administrative Agent at the time at which such assets are transferred to such Subsidiary), in a single
transaction or a series of transactions (i) all or substantially all of the assets of any Guarantor or (ii) such securities or other ownership interests in a Guarantor as would result in such Guarantor ceasing to be a Subsidiary of the
Borrower (whether by merger, consolidation, sale, assignment or otherwise) unless (A) any such transaction is (and, if it were the sale of all of the assets of such Guarantor, such transaction would be) in compliance with the provisions of
Section 6.13(a), (B) following such transaction and the release of such Guarantor provided for below, the Borrower would be in compliance with its obligations under this
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Agreement, and (C) such sale or transfer, taken together with all other prior sales or transfers, does not constitute a Material Portion of the Property. Upon not less than 30
days’ prior written request from the Borrower, accompanied by a certificate of the Borrower certifying as to the foregoing, Administrative Agent shall deliver, at the time of the consummation of such transaction, a release of such Guarantor
from its obligations under the Guaranty, and such entity shall cease to be a Guarantor hereunder.
(c) For purposes of this
Section 6.13, “Material Portion” means, with respect to the Property of the Borrower and Guarantors (taken as a whole), Property which represents more than 20% of the Book Value of all assets of the Borrower and Guarantors (taken as a
whole). If a Material Portion of the Property of the Borrower and Guarantors (taken as a whole) is leased, sold or disposed of in violation of this Section 6.13, the Borrower shall within three (3) Business Days after the date of such
lease, sale or disposition pay to Administrative Agent for the benefit of Lenders at the time of such lease, sale or disposal, all amounts (if any) owed by the Borrower pursuant to Section 2.2, taking into account the effect of such lease, sale
or disposal.
Notwithstanding anything else that could be construed to the contrary in this Section 6.13, the provisions of this
Section 6.13 do not govern the circumstances under which Liens may be granted, created or otherwise permitted to exist (which shall be governed by Section 6.15) nor shall this Section 6.13 govern the circumstances under which
Investments or Restricted Payments may be made (which shall be governed by Section 6.14 and 6.18, respectively).
6.14
Investments
and Acquisitions
. Neither the Borrower nor any Guarantor will make or suffer to exist any Investments (including without limitation, loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any Acquisition of any Person, except:
(i) Investments in Cash Equivalents and/or Marketable Securities.
(ii) Loans or advances made to officers, directors or employees of the Borrower or any Guarantor or any Subsidiary not to
exceed $3,000,000 in aggregate outstanding at any one time.
(iii) Carryback loans and PAPAs (as defined in the definition
of Permitted Liens) made in the ordinary course of business in conjunction with the sale of Property of the Borrower or such Guarantor.
(iv) Investments in interests in issuances of collateralized mortgage obligations, mortgages, mortgage loan servicing or other
mortgage related assets.
(v) Investments in contract rights granted by, entitlements granted by, interests in securities
issued by, or tangible assets of, political subdivisions or enterprises thereof related to the home building or real estate operations of the Borrower or any Guarantor or any Subsidiary, including without limitation Investments in special districts.
(vi) Investments (A) in existing Subsidiaries (subject, in the case of Non-Guarantor Subsidiaries, to the provisions
of Section 6.14(vii)) and other Investments
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in existence on the date hereof, (B) in the Borrower, and (C) relating to a Related Business in (1) any Guarantor and (2) any Person that becomes a Guarantor as a result of
such Investment or that is consolidated or merged with or into, or transfers all or substantially all of the assets of it or an operating unit or line of business to, the Borrower or another Guarantor.
(vii) Investments in (including Acquisitions of) (A) Non-Guarantor Subsidiaries or (B) other Persons, so long as,
immediately after giving effect to such Investment, (a) on the date of, and taking into account, the consummation of such Investment or Acquisition, there shall exist no Event of Default under this Agreement and the Borrower is in pro forma
compliance with the financial covenants set forth in Section 6.19, and (b) with respect to any such Investment or Acquisition in excess of $10,000,000, the Borrower shall deliver to Administrative Agent a certificate, signed by an
Authorized Officer, certifying to the best knowledge of the Borrower, that, on the date of, and taking into account, the consummation of such Investment or Acquisition, and based on the reasonable assumptions set forth in such Certificate, no Event
of Default has occurred and is continuing, and the Borrower is in pro forma compliance with the financial covenants set forth in Section 6.19.
(viii) Intentionally omitted.
(ix) The creation of new Subsidiaries engaged primarily in a Related Business (or the purpose of which is principally to
preserve the use of a name in which such business is conducted), subject to the limitations contained in Section 6.14(vii).
(x) Stock, obligations or securities received in satisfaction of debts owing to the Borrower or any Guarantor in the ordinary
course of business.
(xi) Pledges or deposits in cash by the Borrower or a Guarantor to support, and guaranty and
indemnification obligations arising in connection with, surety bonds, performance bonds or guarantees of completion in the ordinary course of business.
(xii) Loans representing intercompany Indebtedness between the Borrower, any Guarantor and/or any Subsidiary, subject to the
limitations contained in Section 6.14(vii).
(xiii) Investments pursuant to the Borrower’s or a Guarantor’s
employment compensation plans or agreements.
(xiv) Payments on account of the purchase, redemption or other acquisition or
retirement for value, or any payment in respect of any amendment (in anticipation of or in connection with any such retirement, acquisition or defeasance) in whole or in part, of any shares of capital stock or other securities of the Borrower, but
only to the extent the same is permitted under the Indenture.
(xv) Investments received in connection with any bankruptcy
or reorganization proceeding, or as a result of foreclosure, perfection or enforcement of any Lien or any judgment or settlement of any Person in exchange for or satisfaction of
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Indebtedness or other obligations or other Property received from such Person, or for other liabilities or obligations of such Person created, in accordance with the terms of this Agreement.
(xvi) Prepaid expenses, negotiable instruments held for collection and insurance deposits, lease deposits, utility deposits,
workers’ compensation deposits, performance deposits and other similar deposits, in each case made in the ordinary course of business.
(xvii) Obligations with respect to homeowners association obligations, community facility district bonds, metro district bonds,
mello-roos bonds and subdivision improvement bonds and similar bonding requirements arising in the ordinary course of business of a homebuilder.
(xviii) Guarantee or indemnification obligations (other than for the payment of borrowed money) entered into in the ordinary
course of business and incurred for the benefit of any adjoining landowner, seller of real property or municipal government authority (or enterprises thereof) in connection with the acquisition, entitlement and development of real property.
(xix) Investments arising under Rate Management Transactions under which Borrower or Guarantor are a counterparty.
(xx) Investments, in addition to those enumerated above in this Section 6.14, in an aggregate amount outstanding at any
time not to exceed $10,000,000.
6.15
Liens
. Neither the Borrower nor any Guarantor will create, incur, or suffer to exist any Lien
in, of or on the Property of the Borrower or any Guarantor, except:
(i) Permitted Liens.
(ii) Liens for taxes, assessments or governmental charges or levies which solely encumber property abandoned or in the process
of being abandoned and with respect to which there is no recourse to the Borrower or any Guarantor or any Subsidiary.
(iii) Purchase-money Liens on any Property hereafter acquired or the assumption of any Lien on Property existing at the time of
such acquisition (and not created in contemplation of such acquisition), or a Lien incurred in connection with any conditional sale or other title retention or a Capitalized Lease;
provided
that:
(A) The Lien on any such Property attaches to such asset concurrently or within ninety (90) days after the acquisition
thereof;
(B) Each Lien shall attach only to the Property so acquired, any accessions or improvements thereto, and any
other Property acquired from a common seller.
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(iv) Liens existing on the date hereof (and not otherwise permitted under this
Section 6.15) and described in
Schedule 6.15
hereto and Liens securing Refinancing Indebtedness with respect thereto, but only to the extent such Liens encumber the same collateral in whole or in part as the previous Liens securing the
Indebtedness being refunded, refinanced or extended.
(v) Liens for borrowed money incurred to secure Indebtedness
permitted under Section 6.11 to the extent such Liens are not otherwise restricted by the other provisions of this Section 6.15.
(vi) Judgments and similar Liens arising in connection with court proceedings;
provided
the execution or enforcement
thereof is stayed and the claim is being contested in good faith, with adequate reserves therefor being maintained by the Borrower or such Guarantor in accordance with GAAP.
(vii) Liens securing Non-Recourse Indebtedness of the Borrower or any Guarantor.
(viii) Liens existing with respect to Indebtedness of a Person acquired in an Acquisition permitted by this Agreement.
(ix) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar legislation.
(x) Liens incurred or deposits made to secure the
performance of (or in lieu of) tenders, bids, leases, statutory obligations, surety and appeal bonds, progress payments, government contracts, utility services and other obligations of like nature in each case incurred in the ordinary course of
business.
(xi) Leases or subleases granted to others not materially interfering with the ordinary course of business of
the Borrower or any Guarantor.
(xii) Any interest in or title of a lessor to property subject to any Capitalized Lease
Obligations.
(xiii) Liens on cash pledged to secure deductibles, retentions and other obligations to insurance providers
in the ordinary course of business.
(xiv) Any option, contract, right of first refusal or other agreement to sell or
purchase an asset or participate in the income or revenue derived therefrom, together with any Liens granted to secure the obligations incurred in respect of any of the foregoing.
(xv) Any legal right of, or right granted in good faith to, a lender or lenders to which the Borrower or a Guarantor may be
indebted to offset against, or appropriate and apply to the payment of, such Indebtedness any and all balances, credits, deposits, accounts, or monies of the Borrower or a Guarantor with or held by such lender or lenders.
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(xvi) Any pledge or deposit of cash or property by the Borrower or any Guarantor
in conjunction with obtaining surety, performance, completion or payment bonds and Letters of Credit or other similar instruments or providing earnest money obligations, escrows or similar undertakings or indemnifications required to engage in
constructing on-site and off-site improvements, or in connection with the entitlement of real Property, or with respect to agreements for the funding of infrastructure, or as otherwise required by political subdivisions or other governmental
authorities in the ordinary course of business.
(xvii) Liens incurred in the ordinary course of business as security for
the Borrower’s or any Guarantor’s obligations with respect to indemnification in favor of title insurance providers.
(xviii) Letters of Credit, bonds or other assets pledged to secure insurance in the ordinary course of business.
(xix) Liens on assets securing warehouse lines of credit and repurchase agreements and other credit facilities to finance the
operations of the Borrower’s mortgage lending Subsidiaries, insurance subsidiaries and/or financial asset management Subsidiaries and Liens related to issuances of CMOs and mortgage-related securities, so long as such assets are owned by such
mortgage lending Subsidiaries and financial asset Subsidiaries.
(xx) Liens incurred in the ordinary course of business to
secure (i) profit and price participation arrangements and (ii) fees, taxes and carry costs on, in respect of or owing to governmental issuers (including enterprises thereof) of community facility district, mello-roos, metro-district or
similar bonding obligations.
(xxi) Licenses of intellectual property granted in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of business of the Borrower and its Subsidiaries.
(xxii)
Liens, encumbrances or other restrictions contained in any joint venture agreement entered into by the Borrower or a Guarantor with respect to the equity interests issued by the relevant joint venture or the assets of such joint venture.
(xxiii) Customary Liens in favor of a trustee on cash, Cash Equivalents and Marketable Securities supporting the repayment of
the Senior Notes and/or other Public Indebtedness in any case arising in connection with the defeasance, discharge or redemption of such Indebtedness.
(xxiv) Customary Liens in favor of a trustee on all money or personal property held or collected by the trustee pursuant to the
indentures governing the Senior Notes and any indenture governing any other Public Indebtedness, to the extent such Liens secure only customary compensation and reimbursement obligations of such trustee.
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(xxv) Assignments of insurance or condemnation proceeds provided to landlords (or
their mortgagees) pursuant to the terms of any lease and Liens and rights reserved in any lease for rent or for compliance with the terms of such lease.
(xxvi) Liens consisting of pledges or deposits of property to secure performance in connection with operating leases made in
the ordinary course of business to which the Borrower or a Guarantor is a party as lessee.
(xxvii) Liens on real property
that (A) is not related to Housing Units and does not constitute Land Under Development, Finished Lots or Entitled Land, and (B) is owned by the Borrower or a Guarantor, which Liens secure Indebtedness of the Borrower or such Guarantor,
provided (x) each such Lien attaches only to such real property and (y) the obligation secured by such Lien is limited to such Indebtedness.
(xxviii) Liens arising by operation of law in favor of issuers of letters of credit in the documents presented under a letter
of credit.
(xxix) Rights of tenants under leases or subleases and rental agreements covering real property entered into in
the ordinary course of business of the Person owning such real property.
Notwithstanding anything herein to the contrary, neither the Borrower nor any
Guarantor will, create, incur, or suffer to exist any Lien in, of or on the capital stock of Borrower or any Guarantor.
6.16
Affiliates
. Neither the Borrower nor any Guarantor will enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate (other than a
Subsidiary) except (i) in the ordinary course of business and upon fair and reasonable terms no less favorable to the Borrower or such Guarantor than the Borrower or such Guarantor could reasonably be obtained in a comparable arms-length
transaction, (ii) Investments permitted under Section 6.14, (iii) Restricted Payment permitted under Section 6.18, (iv) pursuant to employment compensation plans and agreements, and (v) with officers, directors and
employees of the Borrower or any Subsidiary so long as the same are duly authorized pursuant to the articles of incorporation or bylaws (or procedures conducted in accordance therewith) of such Guarantor or the Borrower.
6.17
Modification of Certain Indebtedness
. Neither the Borrower nor any Guarantor will make any amendment or modification to the
subordination provisions of any indenture, note or other agreement evidencing or governing (i) as to the Borrower, any Subordinated Indebtedness, and (ii) as to any Guarantor, Indebtedness that has been subordinated to Guarantor’s
obligations under the Guaranty.
6.18
Restricted Payment; Repurchase of Stock
. The Borrower will not, directly or indirectly,
declare, make or pay, or incur any liability to make or pay, or cause or permit to be declared, made or paid, any Restricted Payment, or purchase, or incur any obligation to purchase,
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any capital stock of the Borrower if, prior to or after giving effect to the declaration and payment of any Restricted Payment or purchase of such stock, there shall exist any Event of Default
under this Agreement or any actual or pro forma violation of the financial covenants set forth in Section 6.19.
6.19
Financial
Covenants and Tests
.
(a)
Consolidated Tangible Net Worth Test
. The Borrower shall not permit Consolidated Tangible Net Worth
(monitored and tested quarterly as of the last day of each fiscal quarter) to be less than (i) $875,884,500, plus (ii) 50% of the cumulative Consolidated Net Income for each fiscal quarter commencing after March 31, 2015 (excluding
any quarter in which there is a loss but applying Consolidated Net Income thereafter first to such loss before determining 50% of such amount for purposes of this calculation), plus (iii) 50% of the aggregate proceeds received by the Borrower
(net of reasonable fees and expenses) in connection with any public offering of stock or equity (for the avoidance of doubt, an offering of convertible notes shall not be deemed to be an offering of equity) in each fiscal quarter after
March 31, 2015 (the “Consolidated Tangible Net Worth Test”).
(b)
Leverage Test
. The Borrower shall not permit the
Leverage Ratio (monitored and tested quarterly as of the last day of each fiscal quarter) to exceed 55% (the “Leverage Test”).
(c)
Interest Coverage Test
. The Borrower shall not permit the Interest Coverage Ratio (monitored and tested quarterly as of the last
day of each fiscal quarter) to be less than 1.50 to 1.0 (the “Interest Coverage Test”);
provided
,
however
, that should the Interest Coverage Test ever not be satisfied, Borrower shall not be in default hereunder so long as
Borrower shall at all times maintain Unrestricted Cash of Borrower in an amount equal to the greater of (i) $25,000,000, or (ii) the sum of (i) the trailing twelve month Consolidated Interest Incurred, plus (ii) the aggregate
principal amount of Consolidated Indebtedness maturing in the next twelve months (the “Minimum Liquidity Amount”).
(d)
Spec
Unit Inventory Test
. The Borrower shall not permit the aggregate number of Spec Units owned by the Borrower or any Guarantor (monitored and tested quarterly as of the last day of each fiscal quarter) to exceed the greater of (i) 50% of the
number of Housing Unit Closings during the preceding twelve (12) months or (ii) 100% of the number of Housing Unit Closings during the preceding six (6) months (the “Spec Unit Inventory Test”). A failure to comply with the
Spec Unit Inventory Test shall not be an Event of Default or a Default, but there shall be excluded from the Borrowing Base, as of the last day of the quarter in which such non-compliance occurs, any excess Spec Units.
(e)
Minimum Tangible Net Worth Requirement
. Borrower covenants and agrees that at least ninety-seven percent (97.0%) of
Consolidated Tangible Net Worth (monitored and tested quarterly as of the last day of each fiscal quarter) shall be attributable solely to the Borrower and Guarantors;
provided
,
however
, that Borrower shall not be in breach of this
Section 6.19(e) if, within 30 days after the date of delivery of the financial statements reflecting Borrower’s non-compliance with the foregoing, Borrower causes one or more Subsidiaries to become Guarantors (and to take the applicable
actions set forth in Section 6.20(a) in furtherance thereof) as and to the extent required to cause compliance with this Section 6.19(e).
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6.20
Guaranty
.
(a)
Guaranty by Significant Homebuilding Subsidiaries
. As promptly as possible but in any event within sixty (60) days (or within
such later date that is within thirty (30) days after the expiration of such sixty (60) day period as may be agreed by the Administrative Agent in its sole discretion, or such later date after the expiration of such additional thirty
(30) day period as may be agreed by the Administrative Agent and Required Lenders in their sole discretion) after a Significant Homebuilding Subsidiary is organized or acquired, or any Person becomes a Significant Homebuilding Subsidiary
pursuant to the definition thereof, the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Significant Homebuilding Subsidiary and shall
cause each such Subsidiary to deliver to the Administrative Agent a joinder to the Guaranty in the form contemplated thereby pursuant to which such Significant Homebuilding Subsidiary agrees to be bound by the terms and provisions thereof, each such
Guaranty joinder to be accompanied by an updated Schedule 5.8 hereto designating such Significant Homebuilding Subsidiary as such, appropriate corporate or limited liability company resolutions, other corporate or limited liability company
documentation and (if so requested by the Administrative Agent) legal opinions, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and such other documentation as the Administrative Agent may
reasonably request.
(b)
Release of Guarantor
. The Administrative Agent is authorized to and shall release and discharge from the
Guaranty any Guarantor requested in writing by the Borrower, provided that:
(i) no Default or Event of Default exists or
would result from release of such Guarantor;
(ii) the Guarantor being released has a Net Worth of less than $3,000,000, or
is being sold or otherwise disposed of in a transaction permitted by this Agreement to a Person other than Borrower or one of the other Loan Parties;
(iii) the Guarantor is released from its guarantee(s) under all other Indebtedness ranking pari passu with the Obligations
(other than by reason of payment under such guarantees);
(iv) no Property owned by such Guarantor remains in, or is
counted in the calculation of, the Borrowing Base; and
(v) Borrower is in pro forma compliance with Section 6.19(e).
provided further that, in each such case, the Borrower has delivered to the Administrative Agent a certificate of an Authorized Officer, each stating
that all conditions precedent provided for in this Section have been complied with and that such release is authorized and permitted under the Agreement.
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6.21
Negative Pledge
. Neither the Borrower nor any Guarantor will directly or indirectly
enter into any agreement (other than this Agreement) with any Person that prohibits or restricts or limits the ability of the Borrower or Guarantors to create, incur, pledge or suffer to exist any Lien in favor of Lenders granted pursuant to the
terms of this Agreement upon any real property assets of the Borrower or any Guarantor;
provided
,
however
, that those agreements creating Liens permitted under clause (vi) of the definition of “Permitted Liens”
(solely to the extent any Lien restrictions thereunder relate solely to limiting the aggregate amount of secured debt on a per lot basis in a market and customary manner, provided that if the Book Value of all Qualified Real Property Inventory
covered by any such agreement exceeds the aggregate amount of secured debt permitted under such agreement on all such property, then for purposes of calculating the Borrowing Base, the Book Value shall be deemed to be reduced to such aggregate
permitted secured debt amount) Sections 6.15(iii), (iv), (vii), (viii), (xix) and (xxii), agreements governing any Rate Management Transactions, and agreements respecting secured obligations for borrowed money may prohibit, restrict or limit
other Liens on those assets encumbered by the Liens created by such agreements, and
provided
further
that the foregoing shall not apply to restrictions and conditions (a) imposed by the Loan Documents, (b) imposed by the
Indenture, or by the agreements governing any other unsecured obligations for borrowed money permitted under this Agreement, so long as such restrictions (including Lien restrictions) set forth therein are not materially more restrictive than the
comparable provisions of this Agreement and the maturity date of such unsecured obligations is on or after the Facility Termination Date, (c) contained in agreements relating to any disposition permitted hereby pending such disposition, provided
such restrictions and conditions apply only to the assets subject to such disposition, (d) contained in leases or other agreements that are customary and restrict the assignment (or subletting) thereof and relate only to the assets subject
thereto, (e) set forth in any Refinancing Indebtedness (so long as such restrictions set forth therein are not materially more restrictive than the comparable provisions of the Indebtedness being refinanced), or (f) that are customary net
worth provisions contained in real property leases.
6.22
Operating Accounts
. Borrower shall at all times maintain all of its
principal cash concentration accounts with U.S. Bank.
6.23
Patriot Act Compliance
. The Borrower shall, and shall cause each
Subsidiary to, provide such information and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.
ARTICLE VII
DEFAULTS
The
occurrence of any one or more of the following events shall constitute an Event of Default (each, an “Event of Default”):
7.1
Any representation or warranty made or deemed made by or on behalf of the Borrower or any of its Guarantors to the Lenders or the Administrative Agent under or in
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connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false on the
date made or confirmed and, with respect to any matter which is reasonably capable of being cured, Borrower or such Guarantor, as applicable, shall have failed to cure the occurrence causing the representation or warranty to be materially false
within thirty (30) days after notice thereof by Administrative Agent to Borrower.
7.2 Nonpayment of (i) principal of any Loan
when due, or (ii) any Reimbursement Obligation, interest upon any Loan, any Unused Fee or LC Fee within five (5) days of when due, or (iii) any other obligation under any of the Loan Documents within five (5) days after written
notice (which may include the invoice therefor) from Administrative Agent that the same is due.
7.3 The breach of any of the covenants
set forth in Section 6.19 (other than as provided in Section 6.19(d)).
7.4 The breach by the Borrower (other than a breach
which constitutes an Event of Default under another Section of this Article VII) of any of the terms or provisions of this Agreement which is not remedied within thirty (30) days after the earlier of (i) any Senior Officer becoming aware
of any such breach and (ii) the Administrative Agent notifying the Borrower of any such breach.
7.5 Failure of the Borrower or any
Guarantor to pay when due any payment of principal or interest or any other material amount in respect of any Material Indebtedness within fifteen (15) days (or such greater applicable grace period as is provided in the applicable Material
Indebtedness Agreement) of the date when due; or the default by the Borrower or any Guarantor in the performance (beyond the greater of thirty (30) days or the applicable grace period with respect thereto, if any, provided in such Material
Indebtedness) of any material term, provision or condition contained in any Material Indebtedness Agreement if the effect of which default is to permit the holder(s) of such Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement to cause ten percent (10%) or more of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any Material Indebtedness Agreement to be terminated prior to its stated expiration date; or
ten percent (10%) or more of the Material Indebtedness of the Borrower or any Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the stated maturity
thereof; or the Borrower or any Guarantor shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6 The Borrower or any Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material
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allegations of any such proceeding filed against it, (v) take any corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in
this Section 7.6 or (vi) fail to contest in good faith any appointment or proceeding described in Section 7.7.
7.7 Without
the application, approval or consent of the Borrower or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Guarantor or any Substantial Portion of their Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower and the Guarantors which, when taken together with all other Property of the Borrower and the Guarantors so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Borrower or any Guarantor shall fail
within thirty (30) days to pay, obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $25,000,000 (or the equivalent thereof in currencies other than Dollars) in the
aggregate (net of amounts fully covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are
not stayed on appeal or otherwise being appropriately contested in good faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Guarantor to enforce any such judgment.
7.10 (a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $5,000,000 pursuant to
Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred,
would reasonably be expected to result in a Material Adverse Effect.
7.11 Any Change in Control shall occur.
7.12 The occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms
or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.13 Any Loan Document shall fail to remain in full force or effect or any action shall be taken by any Guarantor to discontinue or to assert
the invalidity or unenforceability of any Guaranty, or any Guarantor shall deny that it has any further liability under any Guaranty to which it is a party, or shall give notice to such effect.
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7.14
No Defaults
. The occurrence of any of the following events shall specifically not be
an Event of Default or a Default under this Agreement:
(a) The breach of the Spec Unit Inventory Test (except that the same shall result
in the exclusion of certain assets from the Borrowing Base to the extent provided for in Section 6.19(d)).
(b) So long as the
aggregate Book Value of the assets affected by the events hereinafter described does not exceed $30,000,000, if any Guarantor shall apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator
or similar official for it or for a Significant Amount of its Property, or if a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed for any Guarantor without its application, approval or consent for it or for a
Significant Amount of its Property; provided, however, that upon the occurrence and during the continuation of the foregoing, all Property of such Guarantor shall be automatically excluded from the Borrowing Base; and provided further, that upon any
such appointment for any Property of any Guarantor that is not a Significant Amount of its Property (which appointment shall not be an Event of Default or a Default under this Agreement), such Property shall be automatically excluded from the
Borrowing Base. “Significant Amount” means, with respect to the Property of such Guarantor and its Subsidiaries, taken as a whole, Property that (i) has a value in excess of $3,000,000 or (ii) represents more than 10% of the Book
Value of the assets of such Guarantor as would be shown on the financial statements of such Guarantor as of the beginning of the fiscal quarter in which such determination is made, all as determined in accordance with Agreement Accounting
Principles.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1
Acceleration; Remedies
. If any Event of Default described in Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power of the LC Issuers to issue Facility LCs shall automatically terminate and the Obligations under this Agreement and the other Loan Documents shall immediately become due
and payable without any election or action on the part of the Administrative Agent, any LC Issuer or any Lender and the Borrower will be and become thereby unconditionally obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall be held in the Facility LC Collateral Account, equal to the difference of (x) the amount of LC Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all rights and claims of third parties and has not been applied against the Obligations under this Agreement and the other Loan Documents (such difference, the “Collateral
Shortfall Amount”). If any other Event of Default occurs, the Administrative Agent may, and at the request of the Required Lenders shall, (a) terminate or suspend the obligations of the Lenders to make Loans hereunder and the obligation
and power of the LC Issuers to issue Facility LCs, or declare the Obligations under this Agreement and the other Loan Documents to be due and payable, or both, whereupon the Obligations under this Agreement and the other Loan Documents shall become
immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives, and (b) upon notice to the Borrower and in
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addition to the continuing right to demand payment of all amounts payable under this Agreement, make demand on the Borrower to pay, and the Borrower will, forthwith upon such demand and without
any further notice or act, pay to the Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in the Facility LC Collateral Account.
(a) If at any time while any Event of Default is continuing, the Administrative Agent determines that the Collateral Shortfall Amount at such
time is greater than zero, the Administrative Agent may make demand on the Borrower to pay, and the Borrower will, forthwith upon such demand and without any further notice or act, pay to the Administrative Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility LC Collateral Account.
(b) The Administrative Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such funds to the payment of the Obligations under this Agreement and the other Loan Documents and any other amounts as shall from time to time have become due and payable by the
Borrower to the Lenders or the LC Issuers under the Loan Documents, as provided in Section 8.2.
(c) At any time while any Event of
Default is continuing, neither the Borrower nor any Person claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Facility LC Collateral Account. After all of the Obligations under this Agreement
and the other Loan Documents have been paid in full (other than contingent indemnification obligations for which no claim has been made) and the Aggregate Commitment has been terminated (including all LC Obligations), any funds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to the Borrower or paid to whomever may be legally entitled thereto at such time.
(d) If, within thirty (30) days after acceleration of the maturity of the Obligations under this Agreement and the other Loan Documents
or termination of the obligations of the Lenders to make Loans and the obligation and power of the LC Issuers to issue Facility LCs hereunder as a result of any Event of Default (other than any Event of Default as described in Section 7.6 or
7.7 with respect to the Borrower) and before any judgment or decree for the payment of the Obligations due under this Agreement and the other Loan Documents shall have been obtained or entered, the Required Lenders (in their sole discretion) shall
so direct, the Administrative Agent shall, by notice to the Borrower, rescind and annul such acceleration and/or termination.
(e) Upon
the occurrence and during the continuation of any Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise all rights and remedies under the Loan Documents and enforce all other rights and remedies
under applicable law.
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8.2
Application of Funds
. After the exercise of remedies provided for in Section 8.1
(or after the Obligations under this Agreement and the other Loan Documents have automatically become immediately due and payable as set forth in the first sentence of Section 8.1(a)), any amounts received by the Administrative Agent on account
of the Obligations shall be applied by the Administrative Agent in the following order:
(a) First, to payment of fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
(b) Second, to payment of fees, indemnities and other amounts (other than principal, interest, LC Fees and Unused Fees) payable to the Lenders
and the LC Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the LC Issuers as required by Section 9.6 and amounts payable under Article III);
(c) Third, to payment of accrued and unpaid LC Fees, Unused Fees and interest on the Loans and Reimbursement Obligations, ratably among the
Lenders and the LC Issuers in proportion to the respective amounts described in this Section 8.2(c) payable to them;
(d) Fourth, to
payment of all Obligations ratably among the Lenders;
(e) Fifth, to the Administrative Agent for deposit to the Facility LC Collateral
Account in an amount equal to the Collateral Shortfall Amount (as defined in Section 8.1(a)), if any; and
(f) Last, the balance, if
any, to the Borrower or as otherwise required by law.
8.3
Amendments
. Subject to the provisions of this Section 8.3, the
Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to this Agreement or the Guaranty
or changing in any manner the rights of the Lenders or the Borrower hereunder or thereunder or waiving any Default or Event of Default hereunder;
provided
,
however
, that no such supplemental agreement shall:
(a) without the consent of each Lender directly affected thereby, extend the final maturity of any Loan, or extend the expiry date of any
Facility LC to a date after the Facility Termination Date or postpone any regularly scheduled payment of principal of any Loan or forgive all or any portion of the principal amount thereof, the interest accrued thereon, or fees due in respect
thereof, or any Reimbursement Obligation related thereto, or reduce the rate or extend the time of payment of interest or fees thereon or Reimbursement Obligations related thereto or increase the amount of the Commitment of such Lender hereunder.
(b) without the consent of all of the Lenders, reduce the percentage specified in the definition of Required Lenders.
(c) without the consent of all of the Lenders, amend this Section 8.3.
(d) without the consent of all of the Lenders, release a Guarantor from the Obligations (except as provided in
Section 6.20(b)).
(e) without the consent of all of the Lenders, amend the LC Issuer’s LC Limit or the Swing Line Sublimit.
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No amendment of any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent, and no amendment of any provision relating to the LC Issuers shall be effective without the written consent of the LC Issuers. No amendment to any provision of this Agreement
relating to the Swing Line Lender or any Swing Line Loans shall be effective without the written consent of the Swing Line Lender. The Administrative Agent may waive payment of the fee required under Section 12.3(a)(iii) without obtaining the
consent of any other party to this Agreement. Notwithstanding anything to the contrary herein, the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure
any ambiguity, omission, mistake, defect or inconsistency of a technical or immaterial nature, as determined in good faith by the Administrative Agent.
8.4
Preservation of Rights
. No delay or omission of the Lenders, the LC Issuers or the Administrative Agent to exercise any right under
the Loan Documents shall impair such right or be construed to be a waiver of any Event of Default or an acquiescence therein, and the making of a Credit Extension notwithstanding the existence of an Event of Default or the inability of the Borrower
to satisfy the conditions precedent to such Credit Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 8.3, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent, the LC Issuers and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1
Survival of Representations
. All representations and warranties of the Borrower contained in this Agreement shall survive the
making of the Credit Extensions herein contemplated.
9.2
Governmental Regulation
. Anything contained in this Agreement to the
contrary notwithstanding, neither any LC Issuer nor any Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.
9.3
Headings
. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
9.4
Entire Agreement
. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, any LC Issuer and the Lenders and supersede all prior agreements and understandings among the Borrower, the Administrative Agent, the LC Issuer and the Lenders relating to the subject
matter thereof other than those contained in the Fee Letters which shall survive and remain in full force and effect during the term of this Agreement.
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9.5
Several Obligations; Benefits of this Agreement
. The respective obligations of the
Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors
and assigns,
provided
,
however
, that the parties hereto expressly agree that the Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement.
9.6
Expenses; Indemnification
.
(a) The Borrower shall reimburse the Administrative Agent for all reasonable out-of-pocket expenses paid
or incurred by the Administrative Agent, including, without limitation, filing and recording costs and fees, costs of any environmental review, and consultants’ fees, travel expenses, cusip costs and reasonable fees, charges and disbursements
of outside counsel to the Administrative Agent incurred from time to time, in connection with the due diligence, preparation, administration, negotiation, execution, delivery, syndication, distribution (including, without limitation, via DebtX and
any other internet service selected by the Administrative Agent), review, amendment, modification, and administration of the Loan Documents. The Borrower also agrees to reimburse the Administrative Agent, the LC Issuers and the Lenders for any
costs, internal charges and out-of-pocket expenses, including, without limitation, filing and recording costs and fees, costs of any environmental review, and consultants’ fees, travel expenses and reasonable fees, charges and disbursements of
outside counsel to the Administrative Agent, the LC Issuers and the Lenders and/or the allocated costs of in-house counsel incurred from time to time, paid or incurred by the Administrative Agent, any LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed by the Borrower under this Section include, without limitation, costs and expenses incurred in connection with the Reports described in the following sentence. The Borrower
acknowledges that from time to time Administrative Agent may prepare and may distribute to the Lenders (but shall have no obligation or duty to prepare or to distribute to the Lenders) certain audit reports (the “Reports”) pertaining to
the Borrower’s assets for internal use by Administrative Agent from information furnished to it by or on behalf of the Borrower, after Administrative Agent has exercised its rights of inspection pursuant to this Agreement.
(b) The Borrower hereby further agrees to indemnify and hold harmless the Administrative Agent, the Arranger, each LC Issuer, each Swing Line
Lender, each Lender, their respective affiliates, and each of their directors, officers and employees, agents and advisors against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, reasonable
attorneys’ fees, charges and disbursements and settlement costs (including, without limitation, all expenses of litigation or preparation therefor) whether or not the Administrative Agent, the Arranger, any LC Issuer, any Swing Line Lender, any
Lender or
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any affiliate is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the transactions contemplated hereby, any actual or
alleged presence or release of Hazardous Materials on or from any Property owned or operated by the Borrower or any of its Subsidiaries, any environmental liability related in any way to the Borrower or any of its Subsidiaries, or any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any of its Subsidiaries, or the direct or
indirect application or proposed application of the proceeds of any Credit Extension hereunder except to the extent that they are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification. The obligations of the Borrower under this Section 9.6 shall survive the termination of this Agreement.
9.7
Reserved
.
9.8
Accounting
. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP applied on a basis consistent with the consolidated
audited financial statements of Borrower as of December 31, 2014 (“Agreement Accounting Principles”). If any change in GAAP from the principles used in preparing such statements would have a material effect upon the results of any
calculation required by or compliance with any provision of this Agreement, then such calculation shall be made or calculated and compliance with such provision shall be determined using accounting principles used in preparing the consolidated
audited financial statements of Borrower as of December 31, 2014.
9.9
Severability of Provisions
. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
9.10
Nonliability of Lenders.
The relationship between the Borrower on the one hand and the Lenders, the LC Issuer and the
Administrative Agent on the other hand shall be solely that of the borrower and lender. Neither the Administrative Agent, the Arranger, any LC Issuer nor any Lender shall have any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent, the Arranger, any LC Issuer nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations. The Borrower
agrees that neither the Administrative Agent, the Arranger, any LC Issuer nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of,
or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Administrative Agent, the Arranger, any LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to sue for, any special, indirect, consequential or punitive damages suffered by the
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Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. It is agreed that the Arranger shall, in its capacity as such,
have no duties or responsibilities under the Agreement or any other Loan Document. Each Lender acknowledges that it has not relied and will not rely on the Arranger in deciding to enter into the Agreement or any other Loan Document or in taking or
not taking any action.
9.11
Confidentiality
. The Administrative Agent and each Lender agrees to hold any confidential information
which it may receive from the Borrower in connection with this Agreement in confidence, except for disclosure (i) to its Affiliates and to the Administrative Agent and any other Lender and their respective Affiliates (it being understood that
the Persons to whom disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential (“Confidentiality Direction”)), (ii) to legal counsel, accountants, and other
professional advisors to the Administrative Agent or such Lender, who will receive the Confidentiality Direction, (iii) as provided in Section 12.3(f), (iv) to regulatory officials, (v) to any Person as requested pursuant to or
as required by law, regulation, or legal process, (vi) to any Person in connection with any legal proceeding to which it is a party, (vii) to its direct or indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, who will receive the Confidentiality Direction, (viii) to Rating Agencies if requested or required by such Rating Agencies in connection with a rating relating to the Advances
hereunder (it being understood that, prior to any such disclosure, such Rating Agency shall undertake to preserve the confidentiality of the information), (ix) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, to the extent reasonably necessary, and (x) to the extent such information (1) becomes publicly available other than as
a result of a breach of this Section or (2) becomes available to the Administrative Agent, any LC Issuer, the Swing Line Lender or any other Lender on a non-confidential basis from a source other than the Borrower. Without limiting
Section 9.4, the Borrower agrees that the terms of this Section 9.11 shall set forth the entire agreement between the Borrower and the Administrative Agent and each Lender with respect to any confidential information previously or
hereafter received by the Administrative Agent or such Lender in connection with this Agreement, and this Section 9.11 shall supersede any and all prior confidentiality agreements entered into by the Administrative Agent or any Lender with
respect to such confidential information.
9.12
Nonreliance
. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U) for the repayment of the Credit Extensions provided for herein.
9.13
Disclosure
. The
Borrower and each Lender hereby acknowledge and agree that U.S. Bank and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with the Borrower and its Affiliates.
9.14
USA PATRIOT ACT NOTIFICATION
. The following notification is provided to the Borrower pursuant to Section 326 of the USA
PATRIOT Act of 2001, 31 U.S.C. Section 5318:
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Each Lender that is subject to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”) hereby notifies the Borrower and each other Loan Party that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies such Loan Party, which
information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Act.
ARTICLE X
THE
ADMINISTRATIVE AGENT
10.1
Appointment; Nature of Relationship
. U.S. Bank National Association is hereby appointed by each
of the Lenders as its contractual representative (herein referred to as the “Administrative Agent”) hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term “Administrative Agent,” it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Administrative Agent is merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the
Lenders’ contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any of the Lenders and (ii) is acting as an independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2
Powers
. The Administrative Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Administrative Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Administrative Agent.
10.3
General Immunity
. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person.
10.4
No Responsibility for Loans, Recitals, etc
. Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection
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with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article IV, except receipt of items required to be delivered solely to the Administrative Agent;
(d) the existence or possible existence of any Default or Event of Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the financial condition of the Borrower or any guarantor of any of the Obligations or of any of the Borrower’s or
any such guarantor’s respective Subsidiaries.
10.5
Action on Instructions of Lenders
. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or
any other Loan Document unless it shall be requested in writing to do so by the Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
10.6
Employment of Agents and Counsel
. The Administrative Agent may execute any of its duties as Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Lenders and all matters pertaining to
the Administrative Agent’s duties hereunder and under any other Loan Document.
10.7
Reliance on Documents; Counsel
. The
Administrative Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, electronic mail message, statement, paper or document believed by it to be genuine and correct and to have
been signed or sent by the proper Person or Persons, and, in respect to legal matters, upon the opinion of counsel selected by the Administrative Agent, which counsel may be employees of the Administrative Agent. For purposes of determining
compliance with the conditions specified in Sections 4.1 and 4.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the applicable date specifying its objection thereto.
10.8
Administrative Agent’s Reimbursement and Indemnification
. The Lenders agree to reimburse and indemnify the Administrative
Agent ratably in proportion to their respective Pro Rata Shares (disregarding, for the avoidance of doubt, the exclusion of Defaulting Lenders
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therein) (i) for any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without limitation, for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents,
provided
that (i) no Lender shall be liable for any of the foregoing to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent and (ii) any indemnification required pursuant to Section 3.5(d)
shall, notwithstanding the provisions of this Section 10.8, be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
10.9
Notice of Event of Default
. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement describing such Default or Event of Default and stating that
such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders;
provided
that, except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity.
10.10
Rights as a Lender
. In the event the
Administrative Agent is a Lender, the Administrative Agent shall have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the same as though it were not
the Administrative Agent, and the term “Lender” or “Lenders” shall, at any time when the Administrative Agent is a Lender, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby from engaging with any other Person.
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10.11
Lender Credit Decision, Legal Representation.
(a) Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender
and based on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other Loan Documents. Except for any notice, report, document or other information expressly required to be furnished to the Lenders by the Administrative Agent or Arranger
hereunder, neither the Administrative Agent nor the Arranger shall have any duty or responsibility (either initially or on a continuing basis) to provide any Lender with any notice, report, document, credit information or other information
concerning the affairs, financial condition or business of the Borrower or any of its Affiliates that may come into the possession of the Administrative Agent or Arranger (whether or not in their respective capacity as Administrative Agent or
Arranger) or any of their Affiliates.
(b) Each Lender further acknowledges that it has had the opportunity to be represented by legal
counsel in connection with its execution of this Agreement and the other Loan Documents, that it has made its own evaluation of all applicable laws and regulations relating to the transactions contemplated hereby, and that the counsel to the
Administrative Agent represents only the Administrative Agent and not the Lenders in connection with this Agreement and the transactions contemplated hereby.
10.12
Successor Administrative Agent
. The Required Lenders may vote to remove Administrative Agent if it is determined in a court or
like proceeding that the Administrative Agent has committed gross negligence or willful misconduct in the commission of its obligations as Administrative Agent under this Agreement;
provided
, that concurrent with such removal, the Required
Lenders shall designate a Lender to act as the successor Administrative Agent. Additionally, the Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower, such resignation to be effective upon the
appointment of a successor Administrative Agent or, if no successor Administrative Agent has been appointed, thirty (30) days after the retiring Administrative Agent gives notice of its intention to resign. Upon any such resignation, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders within fifteen (15) days
after the resigning Administrative Agent’s giving notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of the Borrower or any Lender, appoint any of its Affiliates which is a commercial bank as a successor Administrative Agent hereunder. If the Administrative Agent has resigned
and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent shall be deemed to be
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appointed hereunder until such successor Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000. Upon the acceptance of any appointment as Administrative 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 resigning Administrative Agent. Upon the effectiveness of the resignation of the Administrative Agent, the resigning Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Administrative Agent, the provisions of this Article X shall continue in effect for the benefit of such Administrative Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent hereunder and under the other Loan Documents. In the event that there is a successor to the Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to an
Affiliate pursuant to this Section 10.12, then the term “Prime Rate” as used in this Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative Agent.
10.13
Administrative Agent and Arranger Fees
. The Borrower agrees to pay to U.S. Bank the fees agreed to by U.S. Bank and the Borrower,
pursuant to that certain letter agreement dated as of June 26, 2014 between U.S. Bank and the Borrower (the “Fee Letter”). Lenders and Borrower understand and agree that, except only as may otherwise be set forth in a separate side
letter between U.S. Bank and any other Lender (if at all), U.S. Bank shall have no obligation to share any such fees paid to U.S. Bank pursuant to the Fee Letter with any of the other Lenders.
10.14
Delegation to Affiliates
. The Borrower and the Lenders agree that the Administrative Agent may delegate any of its duties under
this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification,
waiver and other protective provisions to which the Administrative Agent is entitled under Articles IX and X.
10.15
Arranger and Book
Runner
. None of the Lenders identified in this Agreement as an “Arranger” or “Book Runner” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all
Lenders as such,
provided
, however, that nothing in this Section 10.15 shall affect the rights, powers, obligations, liabilities, responsibilities or duties of the Administrative Agent in such capacity under this Agreement and the other
Loan Documents. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to such Lenders as it makes with respect to
the Administrative Agent in Section 10.11.
10.16
No Advisory or Fiduciary Responsibility
. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding
this Agreement provided by the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
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Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of
the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or
any other Person and (B) no Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and
(iii) each of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and no Lender has any obligation to disclose any of such
interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against each of the Lenders with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.17
Borrower Information Used to Determine
Applicable Interest Rates
. The parties understand that the applicable interest rate for the Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other
information to be provided or certified to the Lenders by Borrower (the “Borrower Information”). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including without limitation because
of a subsequent restatement of earnings by the Borrower) at the time it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated for any period were lower than they should have been had the correct
information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information. The Administrative Agent shall promptly notify Borrower in writing of any additional
interest and fees due because of such recalculation, and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender, within five (5) Business Days of receipt of such written notice.
The Borrower’s obligations under this paragraph shall survive for 90 days following the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent’s, the LC Issuer’s, the Swing
Line Lender’s, or any Lender’s other rights under this Agreement.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1
Setoff; Ratable Payments
. Upon the occurrence of an Event of Default and the acceleration of maturity of the principal
indebtedness pursuant to Article VIII, Borrower hereby specifically authorizes each Lender in which Borrower maintains a deposit account (whether a general or special deposit account, other than trust accounts) or a certificate of deposit to setoff
any Obligations owed to the Lenders against such deposit account or certificate of deposit without prior notice to Borrower (which notice is hereby waived) whether or not such deposit account or certificate of deposit has then matured. Nothing in
this Section shall limit or restrict the exercise by a Bank of any right to setoff or banker’s lien under applicable law, subject to the approval of the Required Lenders (such consents not to be unreasonably withheld or delayed). If any Lender,
whether by setoff, banker’s lien or otherwise, has payment made to it upon its Outstanding Credit Exposure (other than payments received pursuant to Section 3.1, 3.2, 3.4 or
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3.5) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to participate in and purchase a portion of the Aggregate Outstanding Credit
Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such
collateral or other protection ratably in proportion to their respective Pro Rata Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be
made. Borrower expressly consents to the foregoing arrangements and agrees that, to the extent permitted by applicable law, any Lender purchasing a portion of the Aggregate Outstanding Credit Exposure may exercise any and all rights of setoff,
banker’s lien or counterclaim with respect to the participation as fully as if the Bank were the original owner of the Obligation purchased. Notwithstanding anything in this Section 11.1 to the contrary, in the event that any Defaulting
Lender exercises any right of setoff, (i) all amounts so set off will be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.22(a)(ii) and, pending such payment, will be
segregated by such Defaulting Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent, and the Lenders entitled to such amounts pursuant to this Agreement and (y) the Defaulting Bank will provide promptly
to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Bank as to which it exercised such right of setoff.
ARTICLE XII
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1
Successors and Assigns
. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns permitted hereby, except that (i) the Borrower shall not have the right to assign its rights or obligations under the
Loan Documents without the prior written consent of each Lender, (ii) any assignment by any Lender must be made in compliance with Section 12.3, and (iii) any transfer by participation must be made in compliance with
Section 12.2. Any attempted assignment or transfer by any party not made in compliance with this Section 12.1 shall be null and void, unless such attempted assignment or transfer is treated as a participation in accordance with the terms
of this Agreement. The parties to this Agreement acknowledge that clause (ii) of this Section 12.1 relates only to absolute assignments and this Section 12.1 does not prohibit assignments by any Lender creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee;
provided
,
however
, that no such pledge or assignment creating a security interest shall
release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 12.3. The Administrative Agent may treat the Person which made any Loan or which holds any Note as
the owner thereof for all purposes hereof unless and until such Person complies with Section
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12.3;
provided
,
however
, that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds
any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
12.2
Participations
.
(a)
Permitted Participants; Effect
. Any Lender may at any time sell to one or more entities (“Participants”) participating
interests in any Outstanding Credit Exposure owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Credit Exposure and the holder of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents.
(b)
Voting Rights
. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents
provided
that each such Lender may agree in its participation agreement with its Participant that such Lender will not vote to approve any amendment, modification or waiver with
respect to any Outstanding Credit Exposure or Commitment in which such Participant has an interest which would require consent of all of the Lenders pursuant to the terms of Section 8.3 or of any other Loan Document.
(c)
Benefit of Certain Provisions
. The Borrower further agrees that each Participant shall be entitled to the benefits of Sections 3.1,
3.2, 3.4, 3.5, 9.6 and 9.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.3,
provided
that (i) a Participant shall not be entitled to receive any greater payment under
Section 3.1 or 3.2 than the Lender who sold the participating interest to such Participant would have received had it retained such interest for its own account, unless the sale of such interest to such Participant is made with the prior
written consent of the Borrower, (ii) each Participant shall be subject to the provisions of Section 3.7 and (iii) a Participant shall not be entitled to receive any greater payment under Section 3.5 than the Lender who sold the
participating interest to such Participant would have received had it retained such interest for its own account (A) except to the extent such entitlement to receive a greater payment results from a change in treaty, law or regulation (or any
change in the interpretation or administration thereof by any Governmental Authority) that occurs after the Participant acquired the applicable participation and (B), in the case of any Participant that would be a Non-U.S. Lender if it were a
Lender, such Participant agrees to comply with the provisions of Section 3.5 to the same extent as if it were a Lender (it
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being understood that the documentation required under Section 3.5(f) shall be delivered to the participating Lender). Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in any Outstanding Credit Exposure, any Note,
any Commitment or any other obligations under the Loan Documents (the “Participant Register”);
provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of
any Participant or any information relating to a Participant’s interest in any Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan Documents) to any Person except to the extent that such disclosure is
necessary to establish that such Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan Documents is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any
notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
12.3
Assignments
.
(a)
Permitted Assignments
. Any Lender may assign to any Eligible Assignee which meets the following conditions all or a portion of its respective Commitment, in such a manner as to create privity of contract between such person and the Borrower
and to make such person a Lender for all purposes hereunder:
(i) The minimum portion of the total commitment which the
assigning Lender may assign to an Eligible Assignee shall be Five Million Dollars ($5,000,000.00).
(ii) Unless such
assignment is to a Lender, an affiliate of a Lender or an Approved Fund, such assignment shall have been approved by (a) Administrative Agent, LC Issuer, Swing Line Lender and, (b) unless an Event of Default has occurred and is continuing,
the Borrower, which approvals in each case in subsections (a) and (b) shall not be unreasonably withheld.
(iii)
The Eligible Assignee shall have paid to the Administrative Agent an administrative fee of $3,500.00 to process the admission of such Eligible Assignee.
(iv) The Eligible Assignee shall not be Borrower or any of Borrower’s Affiliates or a natural Person.
For purposes of clarification, during the existence of any Event of Default, Borrower’s consent shall not be required in connection with
any sale, transfer, assignment or syndication of any portion of the Loan or any Lender’s interest therein.
(b)
Assignment and
Assumption
. The Borrower and Administrative Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Eligible Assignee until such time as (i) written notice of such
assignment, together with payment instructions, addresses and related information with respect to the Eligible
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Assignee shall have been given to the Borrower and Administrative Agent by the assigning Lender and the Eligible Assignee; (ii) the assigning Lender and the Eligible Assignee shall have
delivered to the Borrower and Administrative Agent an Assignment and Assumption. Upon request, Borrower will execute and deliver to Administrative Agent an appropriate replacement promissory note or replacement promissory notes in favor of each
assignee (and assignor, if such assignor is retaining a portion of its Commitment and advances) reflecting such assignee’s (and assignor’s) portion of the Commitment. Upon execution and delivery of such replacement promissory note(s) the
original promissory note or notes evidencing all or a portion of the Commitment being assigned shall be canceled and returned to Borrower.
(c)
Notice by Administrative Agent
. Promptly following receipt by Administrative Agent of an executed Assignment and Assumption,
Administrative Agent shall give notice to the Borrower and to the Lenders of: (i) the effectiveness of the assignment by the assigning Lender to the Eligible Assignee; and (ii) the revised Pro Rata Shares and maximum amounts of the
Commitment in effect as a result of such assignment.
(d)
Adjustment of Shares
. Immediately upon delivery of the Assignment and
Assumption to Administrative Agent, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Eligible Assignee and the resulting adjustment of the Pro Rata Shares and maximum
amounts of the Lenders’ Commitment arising therefrom. The portion of the Commitment assigned to each Eligible Assignee reduce the Commitment of the assigning Lender by a like amount.
(e)
Rights of Assignee
. From and after the date upon which Administrative Agent notifies the assigning Lender that it has received an
executed Assignment and Assumption: (1) the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, shall have
the rights and obligations of a Lender under this Agreement; and (2) the assigning Lender shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Assumption, relinquish its
rights and be released from its obligations under this Agreement.
(f)
Assignee’s Agreements
. By executing and delivering an
Assignment and Assumption, the Eligible Assignee thereunder confirms and agrees as follows: (1) other than as provided in such Assignment and Assumption, the assigning Lender makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Note or any other instrument or
document furnished pursuant to the Loan; (2) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other parties or the performance or observance by
the Borrower of any of its obligations under the Note and this Agreement; (3) the Eligible Assignee has received a copy of this Agreement, together with such other documents and information as the Eligible Assignee has deemed appropriate to
make its own credit analysis and decision to enter into the Assignment and Assumption (and delivery of such documents and information to such Eligible Assignee is expressly approved by the parties hereto); (4) the Eligible Assignee will,
independently and without reliance upon Administrative Agent, continue to make its own credit decisions in taking
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or not taking action under this Agreement; (5) the Eligible Assignee hereby appoints and authorizes Administrative Agent to take such action as administrative agent on its behalf and to
exercise such powers under the Loan Documents and this Agreement as are delegated to Administrative Agent thereunder and hereunder, together with such powers as are reasonably incidental thereto; and (6) the Eligible Assignee agrees that it
will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender and confirms the representations and warranties of the assigning Lender under this Agreement. Any assignment in violation of this
Section 12.3 shall be deemed to be a participation under Section 12.2 of this Agreement.
(g)
Register
. The
Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the State of California a copy of each Assignment and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
ARTICLE XIII
NOTICES
13.1
Notices; Effectiveness; Electronic Communication
.
(a)
Notices Generally
. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile as follows:
(i) if to the Borrower, to it at
TRI POINTE GROUP, INC., 19520 Jamboree Road, Irvine, CA 92612, Attention: General Counsel, Facsimile: (949) 478-8601 with a copy (which shall not constitute notice) to Gibson, Dunn & Crutcher LLP, 2029 Century Park East, Los
Angeles, CA 90067, Attention: Cromwell Montgomery, Facsimile: (310) 552-7063;
(ii) if to the Administrative Agent, to
it at U.S. BANK NATIONAL ASSOCIATION, d/b/a HOUSING CAPITAL COMPANY, 3200 Bristol Street, Suite #800, Costa Mesa, CA 92626-1810, Attention: Deanna Llanos, Facsimile: 714-438-4435;
(iii) if to a Lender or LC Issuer, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.
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Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the
next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
(b)
Electronic Communications
. Notices and other communications to the Lenders and the LC Issuers hereunder may be delivered or
furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent or as otherwise determined by the Administrative Agent,
provided
that the foregoing shall
not apply to notices to any Lender or LC Issuer pursuant to Article II if such Lender or LC Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it or as it otherwise determines,
provided
that such determination or approval may be limited to particular notices or communications.
Unless the recipient
otherwise prescribes pursuant to the preceding paragraph, (i) notices and other communications sent to an
e-mail
address shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement),
provided
that if such notice or other communication is not given during the normal
business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address
therefor.
(c)
Change of Address, Etc
. Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto given in the manner set forth in this Section 13.1.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1
Counterparts; Effectiveness
. This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Except as provided in Article IV, this Agreement shall become effective when it shall have been executed by the
Administrative Agent, and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the parties hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
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14.2
Electronic Execution of Assignments
. The words “execution,”
“signed,” “signature,” and words of like import in any assignment and assumption agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, or any other state laws based on the Uniform Electronic Transactions Act.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1
CHOICE OF LAW
.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL
BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF CALIFORNIA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2
CONSENT TO JURISDICTION
.
THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR STATE COURT SITTING IN ORANGE COUNTY, CALIFORNIA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN ORANGE
COUNTY, CALIFORNIA.
15.3
WAIVER OF JURY TRIAL
. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER, THE
ADMINISTRATIVE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
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MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the Administrative Agent have
executed this Agreement as of the date first above written.
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TRI POINTE GROUP, INC.,
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a Delaware corporation
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By:
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/s/ Michael D. Grubbs
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Name:
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Michael D. Grubbs
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Title:
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Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION, a national banking association, d/b/a Housing Capital Company, as a Lender, a Swing Line Lender, an LC Issuer and Administrative Agent
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By:
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/s/ Russ Wakeham
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Name:
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Russ Wakeham
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Title:
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Senior Vice President
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[Signatures Continue on the Following Page]
S-1
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CALIFORNIA BANK & TRUST, as a Lender
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By:
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/s/ Stefanus Junus
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Name:
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Stefanus Junus
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Title:
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Vice President
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[Signatures Continue on the Following Page]
S-2
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DEUTSCHE BANK AG, NEW YORK BRANCH, as a Lender
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By:
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/s/ Peter Cucchiara
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Name:
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Peter Cucchiara
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Title:
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Vice President
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By:
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/s/ Michael Shannon
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Name:
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Michael Shannon
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Title:
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Vice President
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[Signatures Continue on the Following Page]
S-3
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CITIBANK, N.A., as a Lender
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By:
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/s/ John C. Rowland
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Name:
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John C. Rowland
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Title:
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Vice President
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[Signatures Continue on the Following Page]
S-4
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
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By:
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/s/ Elena Bennett
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Name:
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Elena Bennett
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Title:
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Senior Vice President
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[Signatures Continue on the Following Page]
S-5
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JPMORGAN CHASE BANK, N.A.,
as a
Lender
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By:
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/s/ Mohammad Hasan
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Name:
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Mohammad Hasan
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Title:
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Executive Director
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[Signatures Continue on the Following Page]
S-6
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FIFTH THIRD BANK,
as a
Lender
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By:
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/s/ Talianna Carlson-Manne
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Name:
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Talianna Carlson-Manne
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Title:
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Senior Vice President
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[Signatures Continue on the Following Page]
S-7
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as a Lender
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By:
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/s/ Bill O’Daly /s/ Sean MacGregor
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Name:
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Bill O’Daly Sean MacGregor
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Title:
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Authorized Signatory Authorized Signatory
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S-8
PRICING SCHEDULE
The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the following table based on the Borrower’s Leverage
Ratio as reflected in the then most recent Financials:
1. Prior to the Pricing Schedule Adjustment Date:
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Level
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Leverage
Ratio
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Applicable
Margin
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Applicable
Fee
Rate
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I
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<
30%
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1.45%
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0.20%
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II
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>30%,
<
40%
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1.70%
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0.25%
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III
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>40%,
<
50%
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1.95%
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0.30%
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IV
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>50%
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2.20%
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0.35%
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2.
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From and after the Pricing Schedule Adjustment Date:
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Level
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Leverage
Ratio
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Applicable
Margin
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Applicable
Fee
Rate
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I
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<
30%
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1.25%
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0.20%
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II
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>30%,
<
40%
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1.50%
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0.25%
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III
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>40%,
<
50%
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1.75%
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0.30%
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IV
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>50%
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2.00%
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0.35%
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Adjustments, if any, to the Applicable Margin or Applicable Fee Rate, to the extent determined on the basis of
the Leverage Ratio, shall be effective from and after the first day of the first fiscal month immediately following the date on which the delivery of the Financials is required until the first day of the first fiscal month immediately following the
next such date on which delivery of such Financials of the Borrower is so required. If the Borrower fails to deliver the Financials to the Administrative Agent at the time required pursuant to Section 6.1, then the Applicable Margin and
Applicable Fee Rate shall be the highest Applicable Margin and Applicable Fee Rate set forth in the foregoing table then in effect until five (5) days after such Financials are so delivered.
“Financials” means the annual or quarterly financial statements of the Borrower delivered pursuant to Section 6.1(a) or (b).
For purposes hereof, the “Pricing Schedule Adjustment Date” shall mean the later of (i) June 1, 2016, and
(ii) the date as of which all of the following conditions are satisfied: (A) the aggregate amount contributed to the calculation of the Borrowing Base from clauses (v), (vi) and
Pricing Schedule –
Page 1
(vii) of the definition of the term “Borrowing Base” does not exceed fifty-five percent (55%) of the total amount of the Borrowing Base, and (B) no Default or Event of Default
has occurred and is then continuing; provided, however, that, notwithstanding the foregoing, with respect to all Eurocurrency Advances outstanding on the Pricing Schedule Adjustment Date, any adjustment in the Applicable Margin shall take effect
with respect to each such Eurocurrency Advance from and after the expiration of the applicable Interest Period in effect on the Pricing Schedule Adjustment Date.
Pricing Schedule –
Page 2
SCHEDULE 1
Commitments
|
|
|
|
|
|
|
|
|
|
|
Lender:
|
|
Commitment:
|
|
|
Pro Rata Share:
|
|
|
U.S. Bank National Association
|
|
$
|
200,000,000
|
|
|
|
36.363636364
|
%
|
|
Wells Fargo
|
|
$
|
100,000,000
|
|
|
|
18.181818182
|
%
|
|
JPMorgan Chase Bank
|
|
$
|
50,000,000
|
|
|
|
9.090909091
|
%
|
|
Citibank, N.A.
|
|
$
|
50,000,000
|
|
|
|
9.090909091
|
%
|
|
Deutsche Bank AG New York Branch
|
|
$
|
50,000,000
|
|
|
|
9.090909091
|
%
|
|
California Bank & Trust
|
|
$
|
30,000,000
|
|
|
|
5.454545455
|
%
|
|
Fifth Third Bank
|
|
$
|
45,000,000
|
|
|
|
8.181818182
|
%
|
|
Credit Suisse AG, Cayman Islands Branch
|
|
$
|
25,000,000
|
|
|
|
4.545454545
|
%
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL COMMITMENTS
|
|
$
|
550,000,000
|
|
|
|
100.000000000
|
%
|
|
|
|
|
|
|
|
|
|
|
Schedule 1
SCHEDULE 2
[Intentionally Omitted]
Schedule 2
SCHEDULE 2.1
Authorized Signatories
Administrative
Agent is hereby authorized to accept requests for Advances from any one of the following named individuals on written disbursement requests:
Douglas
Bauer
Thomas Mitchell
Michael Grubbs
Glenn Keeler
Christopher Martin
Schedule 2.1
Schedule 2.9
Form of Conversion/Continuation Notice
(See Attached)
Schedule 2.9, Page 1
FORM OF CONTINUATION/CONVERSION NOTICE
Date:
, 20
To: U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent (the “
Administrative Agent
”)
Ladies and Gentlemen:
Reference is made to that certain
Amended and Restated Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), dated as of July 7, 2015 among TRI Pointe Group, Inc. (the
“
Borrower
”), the financial institutions party thereto, as lenders (the “
Lenders
”), and the Administrative Agent.
The
undersigned hereby requests (select one):
A [conversion] [continuation] of Revolving Loans:
|
|
3.
|
Comprised of [Base Rate Advances] [Eurocurrency Advances]
|
|
|
4.
|
For Eurocurrency Advances: with an Interest Period of
months.
|
The undersigned hereby certifies to the Administrative Agent and the Lenders that at the time of and immediately after giving effect to such Advance, no
Default or Event of Default shall have occurred and be continuing.
[Signature Page Follows]
Schedule 2.9, Page 2
|
|
|
|
|
TRI POINTE GROUP, INC.,
a Delaware
corporation
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
Schedule 2.9, Page 3
SCHEDULE 3
Guarantors
TRI Pointe Homes, Inc.
TRI Pointe Communities, Inc.
TRI Pointe Contractors, LP
TRI Pointe Holdings, Inc.
Maracay 91, L.L.C.
Maracay Homes, L.L.C.
Maracay Bridges, LLC
Maracay VR, LLC
Pardee Homes
Pardee Homes of Nevada
The Quadrant Corporation
Trendmaker Homes, Inc.
Winchester Homes Inc.
Maracay Thunderbird, L.L.C.
Schedule 3
SCHEDULE 4
LC Issuer’s LC Limits
U.S. Bank
National Association - $75,000,000.00
The aggregate of all LC Issuer’s LC Limits shall not exceed the lesser of 25% of the Aggregate Commitment or
$75,000,000.
Schedule 4
SCHEDULE 5.8
Subsidiaries
|
|
|
|
|
|
|
Subsidiary
|
|
Jurisdiction of Organization
|
|
Ownership
|
|
TRI Pointe Homes, Inc.
|
|
Delaware
|
|
100% TRI Pointe Group, Inc.
|
|
|
|
|
|
TRI Pointe Communities, Inc.
|
|
Delaware
|
|
100% TRI Pointe Homes, Inc.
|
|
|
|
|
|
TRI Pointe Contractors, LP
|
|
Delaware
|
|
100% TRI Pointe Communities, Inc.
|
|
|
|
|
|
TRI Pointe Holdings, Inc.
|
|
Washington
|
|
100% TRI Pointe Homes, Inc.
|
|
|
|
|
|
Maracay Homes, L.L.C.
|
|
Arizona
|
|
100% TRI Pointe Holdings, Inc.
|
|
|
|
|
|
Pardee Homes
|
|
California
|
|
100% TRI Pointe Holdings, Inc.
|
|
|
|
|
|
Pardee Homes of Nevada
|
|
Nevada
|
|
100% Pardee Homes
|
|
|
|
|
|
The Quadrant Corporation
|
|
Washington
|
|
100% TRI Pointe Holdings, Inc.
|
|
|
|
|
|
Trendmaker Homes, Inc.
|
|
Texas
|
|
100% TRI Pointe Holdings, Inc.
|
|
|
|
|
|
Winchester Homes Inc.
|
|
Delaware
|
|
100% TRI Pointe Holdings, Inc.
|
|
|
|
|
|
TRI Pointe Solutions, Inc.
|
|
Delaware
|
|
100% TRI Pointe Homes, Inc.
|
|
|
|
|
|
TRI Pointe Connect, LLC
|
|
Delaware
|
|
55% TRI Pointe Solutions, Inc.
|
|
|
|
|
|
TRI Pointe Assurance, Inc.
|
|
Texas
|
|
100% TRI Pointe Solutions, Inc.
|
|
|
|
|
|
Las Positas Land Co.
|
|
California
|
|
100% Pardee Homes
|
|
|
|
|
|
Marmont Realty Company
|
|
California
|
|
100% Pardee Homes
|
|
|
|
|
|
Quadrant Real Estate, LLC
|
|
Washington
|
|
100% The Quadrant Corporation
|
|
|
|
|
|
Trendmaker Clear Lake, LLC
|
|
Texas
|
|
100% Trendmaker Homes, Inc.
|
Schedule 5.8-1
|
|
|
|
|
|
|
Cabin Branch Commons, LLC
|
|
Maryland
|
|
55% Winchester Homes Inc.
|
|
|
|
|
|
MH Financial Services, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 118, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 2012, LLC
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 56, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 63rd, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 75, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 83, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay 91, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay AMR, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Ashler Hills, LLC
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Bethany Estates II, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Bethany Estates, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Bridges, LLC
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Brooks, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Construction, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Cooper Ranch, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Cotton Commons, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Crismon, L.L.C. (Arizona)
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Desert Parks, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Dobbins, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay DVR, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Garden Trails, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
Schedule 5.8-2
|
|
|
|
|
|
|
Maracay Higley, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Landmark, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Las Casitas, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Lindsay Crossing, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Mcqueen, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Ocotillo Landing, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Palm Valley, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Parks, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Pecos Vistas II, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Pecos Vistas, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Preserve, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Pyramid II, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Pyramid, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Rancho Sahuarita, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Rancho, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Realty, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Riggs, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Rio Rancho, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay San Tan, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Sienna Manor, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Sienna Vista, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Sonoran Foothills, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Sonoran Mountain, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Stonefield, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
Schedule 5.8-3
|
|
|
|
|
|
|
Maracay Thunderbird, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Trails, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Tramonto, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Villas Boulders, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Vistancia II, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Vistancia, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay VR, LLC
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay WH, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay White Tanks, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
|
|
|
|
|
Maracay Windsong, L.L.C.
|
|
Arizona
|
|
100% Maracay Homes, L.L.C.
|
Schedule 5.8-4
SCHEDULE 5.19
Subordinated Indebtedness
None.
Schedule 5.19
SCHEDULE 6.15
Liens
None.
Schedule 6.15
EXHIBIT A
[Intentionally Omitted]
Exhibit A – Page 1
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
|
To:
|
The Lenders parties to the
|
|
|
Credit Agreement Described Below
|
This Compliance Certificate is furnished pursuant to that
certain Amended and Restated Credit Agreement dated as of July 7, 2015 (as amended, modified, renewed or extended from time to time, the “Agreement”) among TRI Pointe Group, Inc., a Delaware corporation (the
“Borrower”), the Lenders party thereto and U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent for the Lenders. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have
the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected
[
] of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing the Borrower’s compliance with certain covenants of
the Agreement, all of which data and computations are true, complete and correct in all material respects.
5. Schedule II attached hereto
sets forth the various reports and deliveries which are required at this time under the Credit Agreement and the other Loan Documents and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
Exhibit B – Page 1
The foregoing certifications, together with the computations set forth in Schedule I and Schedule
II hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this [ ] day of [ ],
20[ ].
|
|
|
|
|
TRI POINTE GROUP, INC.,
a Delaware
corporation
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
Exhibit B – Page 2
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of [
], 20[
] with
Provisions of Section 6.19 of
the Agreement
[insert relevant
calculations]
Exhibit B – Page 3
SCHEDULE II TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
Exhibit B – Page 4
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the “
Assignment and Assumption
”) is dated as of the Effective Date set forth below and is
entered into by and between [
Insert name of Assignor
] (the “
Assignor
”) and [
Insert name of Assignee
] (the “
Assignee
”). Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “
Credit Agreement
”), receipt of a copy of which is hereby acknowledged by the Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Terms and Conditions and the Credit Agreement, as of
the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the respective facilities identified below (including without limitation any
letters of credit, guaranties and swing line loans included in such facilities and, to the extent permitted to be assigned under applicable law, all claims (including without limitation contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity), suits, causes of action and any other right of the Assignor against any Person whether known or unknown arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the “
Assigned Interest
”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
|
|
|
|
|
|
|
1.
|
|
Assignor:
|
|
[ ]
|
|
|
|
|
|
2.
|
|
Assignee:
|
|
[ ]
[and is an affiliate/Approved
Fund of [
identify Lender
]
1
|
|
|
|
|
|
3.
|
|
Borrower(s):
|
|
TRI Pointe Group, Inc.
|
|
|
|
|
|
4.
|
|
Administrative Agent:
|
|
U.S. Bank National Association, d/b/a Housing Capital Company, as the agent under the Credit Agreement.
|
Exhibit C – Page 1
|
|
|
|
|
|
|
|
|
|
|
5.
|
|
Credit Agreement:
|
|
The [
amount
] Amended and Restated Credit Agreement dated as of July 7, 2015 among TRI Pointe Group, Inc., the Lenders party thereto, U.S. Bank National Association, d/b/a Housing Capital Company, as
Administrative Agent, and the other agents party thereto.
|
|
|
|
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6.
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Assigned Interest:
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Aggregate Amount of
Commitment/Loans
for all Lenders
2
|
|
|
Amount of
Commitment/Loans
Assigned
3
|
|
|
Percentage Assigned
of
Commitment/Loans
4
|
|
|
|
|
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$
|
[
|
]
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$
|
[
|
]
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|
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[
|
]%
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|
|
|
|
|
$
|
[
|
]
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$
|
[
|
]
|
|
|
[
|
]%
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|
|
|
|
|
$
|
[
|
]
|
|
$
|
[
|
]
|
|
|
[
|
]%
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Effective Date:
[ ], 20[ ] [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER BY THE ADMINISTRATIVE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF
ASSIGNOR]
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|
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By:
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Title:
|
|
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ASSIGNEE
[NAME OF
ASSIGNEE]
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|
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By:
|
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|
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Title:
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2
|
Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
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3
|
Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
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4
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Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
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5
|
Insert if satisfaction of minimum amounts is to be determined as of the Trade Date.
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Exhibit C – Page 2
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[Consented to and]
6
Accepted:
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U.S. BANK NATIONAL
ASSOCIATION, d/b/a Housing
Capital Company, as
Administrative Agent
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By:
|
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Title:
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[Consented to:]
7
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[NAME OF RELEVANT
PARTY]
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By:
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Title:
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6
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To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
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7
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To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, LC Issuer) is required by the terms of the Credit Agreement.
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Exhibit C – Page 3
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.
Representations and Warranties
.
1.1
Assignor
. The Assignor represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest,
(ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby. Neither the Assignor nor any of its officers, directors, employees, agents or attorneys shall be responsible for (i) any statements, warranties or representations made in or in connection with
the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency, perfection, priority, collectibility, or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Documents, (v) inspecting any of the Property, books or records of the Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to be taken
in connection with the Loans or the Loan Documents.
1.2.
Assignee
. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this Assignment and Assumption, (iv) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are
“plan assets” as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be “plan assets” under ERISA, (v) agrees to indemnify and hold the Assignor harmless against all
losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignee’s non-performance of the obligations assumed
under this Assignment and Assumption, (vi) it has received a copy of the Credit Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and
(vii) attached as Schedule 1 to this Assignment and Assumption is any documentation required to be delivered by the Assignee with respect to its tax status pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as
a Lender.
Exhibit C – Page 4
2.
Payments
. The Assignee shall pay the Assignor, on the Effective Date, the amount agreed
to by the Assignor and the Assignee. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, Reimbursement Obligations, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.
General Provisions
. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of California.
Exhibit C – Page 5
EXHIBIT D
FORM OF BORROWING NOTICE
|
TO:
|
U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent (the “
Administrative Agent
”) under that certain Amended and Restated Credit Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement
”), dated as of July 7, 2015 among TRI Pointe Group, Inc. (the “
Borrower
”), the financial institutions party thereto, as lenders
(the “
Lenders
”), and the Administrative Agent.
|
Capitalized terms used herein shall have the meanings
ascribed to such terms in the Credit Agreement.
The undersigned Borrower hereby gives to the Administrative Agent a request for borrowing
pursuant to Section 2.8 of the Credit Agreement, and the Borrower hereby requests to borrow on [
],
20[
] (the “
Borrowing Date
”):
(a) from the Lenders, on a pro rata basis, an aggregate
principal Dollar Amount of $[
] in Revolving Loans as:
1. a Base Rate Advance
2. a Eurocurrency Advance with an Interest Period of
[
] month(s)
(b) from the Swing Line Lender, a Swing Line Loan of $[
]
The undersigned hereby certifies to the Administrative Agent and the Lenders that (i) the representations and warranties contained in
Article V of the Credit Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects) as of such date except to
the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent already qualified by
materiality, in which case said representations and warranties are true and correct in all respects) on and as of such earlier date; (ii) at the time of and immediately after giving effect to such Advance, no Default or Event of Default shall
have occurred and be continuing; and (iii) all other relevant conditions set forth in
Section 4.2
of the Credit Agreement have been satisfied.
******
Exhibit D – Page 1
IN WITNESS WHEREOF, the undersigned has caused this Borrowing Notice to be executed by its
authorized officer as of the date set forth below.
Dated: [ ],
20[ ]
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TRI POINTE GROUP, INC.,
a Delaware
corporation
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By:
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Name:
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Title:
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Exhibit D – Page 2
EXHIBIT E
FORM OF GUARANTY
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (as the same may be amended, restated, supplemented or otherwise modified from time to time, this
“
Guaranty
”) is made as of July 7, 2015 by and among TRI POINTE HOMES, INC., a Delaware corporation (“
TRI Pointe Homes
”), TRI POINTE COMMUNITIES, INC., a Delaware corporation (“
TRI Pointe
Communities
”), and TRI POINTE CONTRACTORS, LP, a Delaware limited partnership (“
TRI Pointe Contractors
”), TRI POINTE HOLDINGS, INC., a Washington corporation (“
TRI Pointe Holdings
”), MARACAY 91, L.L.C., an
Arizona limited liability company (“
Maracay 91
”), MARACAY HOMES, L.L.C., an Arizona limited liability company (“
Maracay Homes
”), MARACAY BRIDGES, LLC, an Arizona limited liability company (“
Maracay
Bridges
”), MARACAY VR, LLC, an Arizona limited liability company (“
Maracay VR
”), PARDEE HOMES, a California corporation (“
Pardee Homes
”), PARDEE HOMES OF NEVADA, a Nevada corporation (“
Pardee
Nevada
”), THE QUADRANT CORPORATION, a Washington corporation (“
Quadrant
”), TRENDMAKER HOMES, INC., a Texas corporation (“
Trendmaker
”), WINCHESTER HOMES INC., a Delaware corporation
(“
Winchester
”), MARACAY THUNDERBIRD, L.L.C., an Arizona limited liability company (“
Maracay Thunderbird,
” and, together with TRI Point Homes, TRI Pointe Communities, TRI Pointe Contractors, TRI Pointe Holdings,
Maracay 91, Maracay Homes, Maracay Bridges, Maracay VR, Pardee Homes, Pardee Nevada, Quadrant, Trendmaker, and Winchester, each an “
Initial Guarantor
”) and those additional Persons which become parties to this Guaranty by executing
a supplement hereto (a “
Guaranty Supplement
”) in the form attached hereto as
Annex I
(such additional Persons, together with the Initial Guarantors, the “
Guarantors
”), in favor of U.S. Bank National
Association, d/b/a Housing Capital Company, as Administrative Agent (the “
Administrative Agent
”), for the benefit of Lenders under the Credit Agreement described below. Unless otherwise defined herein, capitalized terms used herein
and not defined herein shall have the meanings ascribed to such terms in the Credit Agreement.
RECITALS
A. Under that certain Credit Agreement dated as of June 26, 2014, by and among TRI Pointe Homes, Administrative Agent, and each of U.S.
Bank National Association (“
US Bank
”), Wells Fargo Bank, National Association (“
Wells Fargo
”), California Bank & Trust (“
CBT
”), Deutsche Bank AG, New York Branch (“
Deutsche
Bank
”), Citibank, N.A. (“
Citibank
”), and Union Bank, N.A. (“
Union Bank,
” and, together with US Bank, Wells Fargo, CBT, Deutsche Bank and Citibank, each an “Original Lender” and collectively, the
“
Original Lenders
”) (the “
Original Credit Agreement
”), Original Lenders agreed to make a revolving loan to TRI Pointe Homes (the “
Loan
”).
B. The Original Credit Agreement was modified by that certain Modification Agreement dated as of January 20, 2015 (the “
First
Modification
”).
Exhibit E – Page 1
C. Pursuant to that certain Assignment and Assumption Agreement dated as of May 18, 2015 by
and between Union Bank, as Assignor, and JPMorgan Chase Bank, N.A., a national banking association (“
JPMorgan
”), as Assignee, Union Bank assigned its full $50,000,000 commitment to JPMorgan.
D. The Original Credit Agreement was further modified by that certain Second Modification Agreement dated as of
May 18, 2015 (the
“
Second Modification
”). The Original Credit Agreement, as modified by the First Modification and the Second Modification is referred to herein as the “
Existing Credit Agreement
.”
E. Pursuant to the Second Modification, Fifth Third Bank, an Ohio banking corporation (“
Fifth Third
”) became a
“Lender” under the Existing Credit Agreement with a commitment of $45,000,000.00, and Credit Suisse AG, Cayman Islands Branch (“
Credit Suisse
”) became a “Lender” under the Existing Credit Agreement with a
commitment of $25,000,000.00.
F. US Bank, Wells Fargo, CBT, Deutsche Bank, Citibank, JPMorgan, Fifth Third and Credit Suisse are
sometimes referred to herein individually as a “
Lender
” and collectively as the “
Lenders
.”
G. In
connection with the Loan, TRI Pointe Communities and TRI Pointe Contractors (individually and collectively, “
Original Guarantor
”), executed that certain Guaranty dated as of June 26, 2014 in favor of Administrative Agent and
the Lenders (as amended, restated or otherwise modified, the “
Original Guaranty
”), pursuant to which Original Guarantor guaranteed to Administrative Agent and Lenders the payment and performance of TRI Pointe Homes’ obligations
under the Loan Documents.
H. Pursuant to that certain Supplement to Guaranty dated as of July 7, 2014, TRI Pointe Holdings, Maracay
91, Maracay Homes, Maracay Bridges, Maracay VR, Pardee Homes, Pardee Nevada, Quadrant, Trendmaker, Winchester, and Maracay Thunderbird (each, a “
Supplemental Guarantor
,” and, together with Original Guarantor, collectively,
“
Existing Guarantor
”), joined, on a joint and several basis, in the obligations of Original Guarantor under the Original Guaranty and guaranteed to Administrative Agent and Lenders the payment and performance of TRI Pointe
Homes’ obligations under the Loan Documents.
I. TRI Pointe Group, Inc., a Delaware corporation (“
TRI Pointe Group
”)
was incorporated on May 28, 2015 as a wholly-owned subsidiary of TRI Pointe Homes. TPG Merger, Inc., a Delaware corporation (“
TPG Merger
”), was incorporated on May 28, 2015 as a wholly-owned subsidiary of TRI Pointe Group.
J. In accordance with Section 251(g) of the Delaware Corporation Code and pursuant to that certain Agreement and Plan of Merger to
Form Holding Company dated as of
by and among TPG Merger, TRI Pointe Group and TRI Pointe Homes, the parties thereto
effected a holding company merger pursuant to which TPG Merger was merged with and into TRI Pointe Homes, with TRI Pointe Homes surviving the Merger as a wholly owned subsidiary of TRI Pointe Group (the “
Merger Transaction
”). As a
result of the Merger Transaction, all of the outstanding shares of common stock of TRI Pointe Homes were converted into the same number of shares of common stock of TRI Pointe Group, and the directors and
Exhibit E – Page 2
officers of TRI Pointe Group immediately after completion of the holding company merger were comprised of the same persons who were directors and executive officers of TRI Pointe Homes
immediately prior to the consummation of the Merger Transaction.
K. The Existing Credit Agreement is being amended and restated in its
entirety by that certain Amended and Rested Credit Agreement of even date herewith among TRI Pointe Group, Administrative Agent and Lenders (as the same may be amended, restated, supplemented or otherwise modified from time to time, the
“
Credit Agreement
”), pursuant to which Credit Agreement, among other things, TRI Pointe Group is assuming all of TRI Pointe Homes’ obligations under the Loan Documents in its capacity as a borrower and Administrative Agent and
Lenders are releasing TRI Pointe Homes from all of its obligations as a borrower under the Loan Documents.
L. TRI Pointe Group is
referred to herein as “Borrower.”
M. Administrative Agent and Lenders have required as a condition precedent to the execution
and delivery of the Credit Agreement that (i) TRI Pointe Homes guarantee, without limitation and with full recourse, the payment when due of all Obligations, including, without limitation, all principal, interest, letter of credit reimbursement
obligations and other amounts that shall be at any time payable by the Borrower under the Credit Agreement or the other Loan Documents, and (ii) the Existing Guaranty be amended and restated in its entirety to evidence the guarantee by each
Existing Guarantor and TRI Pointe Homes, on a joint and several basis, without limitation and with full recourse, the payment when due of all Obligations, including, without limitation, all principal, interest, letter of credit reimbursement
obligations and other amounts that shall be at any time payable by the Borrower under the Credit Agreement or the other Loan Documents.
N. TRI Pointe Homes does hereby join in, accept and assume, on a joint and several basis with each Existing Guarantor, without limitation and
with full recourse, all obligations of “Guarantor” under the Existing Guaranty, including, without limitation, the guaranty of all principal, interest, letter of credit reimbursement obligations and other amounts that shall be at any time
payable by the Borrower under the Credit Agreement or the other Loan Documents.
O. By its execution below, TRI Pointe Homes further
unconditionally agrees to become, and does hereby become, in its capacity as a Guarantor under this Guaranty, a party to the California Judicial Reference Agreement, and agrees to be bound by all the terms, conditions, obligations, liabilities and
undertakings of each Guarantor or to which each Guarantor is subject under the California Judicial Reference Agreement as if originally a party thereto in the capacity of a Guarantor, all with the same force and effect as if the undersigned were an
original signatory to the California Judicial Reference Agreement in the capacity of a Guarantor.
P. In consideration of the direct and
indirect financial and other support and benefits that the Borrower has provided, and such direct and indirect financial and other support and benefits as the Borrower may in the future provide, to the Guarantors, and in consideration of the
increased ability of each Guarantor to receive funds through contributions to capital, and for each Guarantor to receive funds through intercompany advances or otherwise, from funds provided to the Borrower pursuant to the Credit Agreement and the
flexibility provided by the Credit
Exhibit E – Page 3
Agreement for each Guarantor to do so which significantly facilitates the business operations of the Borrower and each Guarantor and in order to induce the Lenders and the Administrative Agent to
enter into the Credit Agreement, and to make the Loans and the other financial accommodations to the Borrower and to issue the Facility LCs described in the Credit Agreement, each of the Guarantors is willing to guarantee the Obligations under the
Credit Agreement and the other Loan Documents.
Q. Guarantors now desire to amend and restate the Existing Guaranty in its entirety
pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.
Representations, Warranties
and Covenants
. Each of the Guarantors represents and warrants to each Lender and the Administrative Agent as of the date of this Guaranty, giving effect to the consummation of the transactions contemplated by the Loan Documents on the date
hereof, and thereafter on each date as required by
Section 4.2
of the Credit Agreement that:
(a) It (i) is a
corporation, partnership or limited liability company duly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation
or organization, (ii) is duly qualified to do business as a foreign entity and is in good standing (to the extent such concept is applicable) under the laws of each jurisdiction where the business conducted by it makes such qualification
necessary, and (iii) has all requisite corporate, partnership or limited liability company power and authority, as the case may be, to own, operate and encumber its property and to conduct its business in each jurisdiction in which its business
is conducted, except to the extent that the failure to maintain such existence status, or authority would not reasonably be expected to result in a Material Adverse Effect.
(b) It has the requisite corporate, limited liability company or limited partnership, as applicable, power and authority and legal right to
execute and deliver this Guaranty and to perform its obligations hereunder. The execution and delivery by it of this Guaranty and the performance of its obligations hereunder have been duly authorized by proper corporate, limited liability company
or partnership proceedings, including any required shareholder, member or partner approval, and this Guaranty constitutes a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor, in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.
(c) Neither the execution and delivery by it of this Guaranty, nor the consummation by it of the transactions herein contemplated, nor
compliance by it with the terms and provisions hereof, will (i) conflict with the charter or other organizational documents of such Guarantor, (ii) in any material respect conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on such Guarantor or any provisions of any
Exhibit E – Page 4
indenture, instrument or agreement to which the Guarantor is party or is subject or by which it or its property is bound, (iii) result in the creation or imposition of any Lien whatsoever
upon any of the property or assets of such Guarantor, other than Liens permitted or created by the Loan Documents, or (iv) require any approval of such Guarantor’s board of directors, shareholders, members or partners except such as have
been obtained. The execution, delivery and performance by such Guarantor of each of the Loan Documents to which such Guarantor is a party do not and will not require any registration with, consent or approval of, or notice to, or other action to,
with or by any Governmental Authority, except filings, consents or notices which have been made.
In addition to the foregoing, each of
the Guarantors covenants that, so long as any Lender has any Commitment or Facility LC outstanding under the Credit Agreement or any amount payable under the Credit Agreement or any other Obligations shall remain unpaid, it will fully comply with
those covenants and agreements of the Borrower applicable to such Guarantor set forth in the Credit Agreement.
SECTION 2.
The
Guaranty
. Each of the Guarantors hereby irrevocably and unconditionally guarantees, jointly and severally with the other Guarantors, the full and punctual payment when due (whether at stated maturity, upon acceleration or otherwise) of the
Obligations, including, without limitation, (i) the principal of and interest on each Loan made to the Borrower pursuant to the Credit Agreement, (ii) obligations owing under or in connection with Facility LCs, and (iii) all other
amounts payable by the Borrower under the Credit Agreement and the other Loan Documents, and including, without limitation, all Rate Management Obligations (but excluding, for the avoidance of doubt, all Excluded Swap Obligations) (all of the
foregoing being referred to collectively as the “
Guaranteed Obligations
”). Upon the failure by the Borrower to pay punctually any such amount, subject to any applicable grace or notice and cure period, each of the Guarantors agrees
that it shall forthwith on demand pay such amount at the place and in the manner specified in the Credit Agreement or the relevant other Loan Document, as the case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute,
irrevocable and unconditional guaranty of payment and is not a guaranty of collection. Each of the Guarantors hereby waives any and all benefits and defenses under California Civil Code (“
CC
”) Section 2810 and agrees that by
doing so Guarantors shall be liable even if Borrower had no liability at the time of execution of any of the Loan Documents or thereafter ceases to be liable. Each of the Guarantors hereby waives any and all benefits and defenses under CC
Section 2809 and agrees that by doing so Guarantors’ liability may be larger in amount and more burdensome than that of Borrower Notwithstanding any other provision of this Guaranty, the amount guaranteed by each Guarantor hereunder shall
be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law. In determining the limitations, if any, on the amount of any Guarantor’s obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation,
indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
Exhibit E – Page 5
SECTION 3.
Guaranty Unconditional
. The obligations of each of the Guarantors hereunder
shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, indulgence, compromise, waiver or release of or with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations, whether (in any such case) by operation of law or otherwise, or any failure or omission to enforce any
right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit Agreement, any agreement evidencing Rate Management Transactions or any
other Loan Document, including, without limitation, any such amendment which may increase the amount of, or the interest rates applicable to, any of the Guaranteed Obligations guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any Person or entity with respect to the Guaranteed Obligations or any part
thereof, or any nonperfection or invalidity of any direct or indirect security for the Guaranteed Obligations, any impairment or any diminution or loss of value of any security or collateral for the Loan, or any disability or other defense of
Borrower or any other Guarantor;
(iv) any change in the corporate, partnership, limited liability company or other existence, structure
or ownership of the Borrower or any other guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any other guarantor of the Guaranteed Obligations, or any
of their respective assets or any resulting release or discharge of any obligation of the Borrower or any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the Guarantors may have at any time against the Borrower, any other guarantor of
any of the Guaranteed Obligations, the Administrative Agent, any Lender or any other Person, whether in connection herewith or in connection with any unrelated transactions,
provided
that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof, or any other invalidity or unenforceability relating to or against the
Borrower or any other guarantor of any of the Guaranteed Obligations, for any reason related to the Credit Agreement, any agreement evidencing Rate Management Transactions or any provision of applicable law, decree, order or regulation purporting to
prohibit the payment by the Borrower or any other guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
Exhibit E – Page 6
(vii) the failure of the Administrative Agent to take any steps to perfect and maintain any
security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations, if any;
(viii) the
election by, or on behalf of, any one or more of the Lenders, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (or any successor statute, the “
Bankruptcy Code
”), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(x) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the Lenders or the Administrative Agent for repayment of all or any part of the Guaranteed Obligations;
(xi) the failure of any other guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the Borrower, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any Lender or any other Person or any other circumstance whatsoever which might, but for the provisions of this
Section 3
, constitute a legal or equitable discharge of any Guarantor’s obligations hereunder or
otherwise reduce, release, prejudice or extinguish its liability under this Guaranty.
SECTION 4.
Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances
. Each of the Guarantors’ obligations hereunder shall remain in full force and effect until all Guaranteed Obligations shall have been paid in full in cash (other than Unliquidated Obligations) and the
Commitments and all Facility LCs shall have terminated or expired or, in the case of all Facility LCs, are fully collateralized on terms reasonably acceptable to the Administrative Agent, at which time, subject to all the foregoing conditions, the
guarantees made hereunder shall automatically terminate. Each of the Guarantors agrees that Administrative Agent and Lenders may enforce this Guaranty without the necessity of resorting to or exhausting any security or collateral (including, without
limitation, pursuant to a judicial or nonjudicial foreclosure), if any, and without the necessity of proceeding against Borrower or any other Guarantor. Until all Guaranteed Obligations shall have been paid in full in cash (other than Unliquidated
Obligations), each of the Guarantors hereby waives any and all benefits under CC Sections 2845, 2849 and 2850, including, without limitation, the right to require Administrative Agent or Lenders to proceed against Borrower, to proceed against
any other Guarantor, to foreclose any lien on any real or personal property, to exercise any right or remedy under the Loan Documents, to draw upon any letter of credit issued in connection herewith, or to pursue any other remedy or to enforce any
other right. For purposes of this Guaranty “
Unliquidated Obligations
” means at any time, any Obligations (or portion thereof) that are contingent in nature
Exhibit E – Page 7
or unliquidated at such time, including any Obligation that is: (i) an obligation under the Credit Agreement to reimburse each LC Issuer for drawings not yet made under a Facility LC issued
by it; (ii) any other obligation (including any guarantee) under the Credit Agreement that is contingent in nature at such time; or (iii) an obligation under the Credit Agreement to provide collateral to secure any of the foregoing types
of obligations. If at any time any payment of the principal of or interest on any Loan Obligation, or any other amount payable by the Borrower or any other party under the Credit Agreement, any agreement evidencing Rate Management Transactions or
any other Loan Document is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise (including pursuant to any settlement entered into by a Lender in its discretion), each of
the Guarantors’ obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time.
SECTION 5.
General Waivers; Additional Waivers
.
(a)
General Waivers
.
(i)
Each of the Guarantors irrevocably waives acceptance hereof, presentment, demand or action on delinquency, protest, the benefit of any statutes of limitations and, to the fullest extent permitted by law, any notice not provided for herein or under
the other Loan Documents, as well as any requirement that at any time any action be taken by any Person against the Borrower, any other guarantor of the Guaranteed Obligations, or any other Person.
(ii) Each of the Guarantors waives any and all rights of subrogation, reimbursement, indemnification and contribution, and any other rights
and defenses that are or may become available to Guarantors by reason of CC Sections 2787 to 2855, inclusive, 2899 and 3433 including, without limitation, any and all rights or defenses Guarantors may have by reason of protection afforded to
the principal with respect to any of the Guaranteed Obligations or to any other guarantor of any of the Guaranteed Obligations with respect to such guarantor’s obligations under its guaranty, in either case, pursuant to the antideficiency or
other laws of this state limiting or discharging the principal’s indebtedness or such other guarantor’s obligations, including, without limitation, California Code of Civil Procedure (“
CCP
”) Sections 580a, 580b, 580d
or 726.
(iii) Each of the Guarantors waives all rights and defenses that Guarantors may have because Borrower’s debt is, or at any
time may be, secured by real property. This means, among other things:
(1) Administrative Agent and Lenders may collect
from Guarantors without first foreclosing on any real or personal property collateral (if any) pledged by Borrower;
(2) If
Administrative Agent or any Lender forecloses on any real property collateral pledged by Borrower:
(A) The amount of the
debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price;
Exhibit E – Page 8
(B) Administrative Agent and Lenders may collect from Guarantors even if
Administrative Agent or any Lender, by foreclosing on the real property collateral, has destroyed any right Guarantors may have to collect from Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses Guarantors may have because Borrower’s debt is secured by real
property. These rights and defenses include, but are not limited to, any rights or defenses based upon CCP Sections 580a, 580b, 580d, or 726.
(iv) Each of the Guarantors waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even
though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Guaranteed Obligations, if any, has destroyed Guarantors’ rights of subrogation and reimbursement against Borrower by the operation of CCP
Section 580d or otherwise, and even though that election of remedies by Administrative Agent or Lenders has destroyed Guarantors’ rights of contribution against another guarantor of any of the Guaranteed Obligations.
(v) Each of the Guarantors hereby waives any right it might otherwise have under Section 2822 of the California Civil Code or similar
law or otherwise to have Borrower designate the portion of any such obligation to be satisfied in the event that Borrower provides partial satisfaction of such obligation. Each of the Guarantors acknowledges and agrees that Borrower may already have
agreed with Administrative Agent, or may hereafter agree, that in any such event the designation of the portion of the obligation to be satisfied shall, to the extent not expressly made by the terms of the Loan Documents, be made by Administrative
Agent rather than by Borrower.
No other provision of this Guaranty shall be construed as limiting the generality of any of the covenants and waivers set
forth in this Section 5(a).
(b)
Additional Waivers
. Notwithstanding anything herein to the contrary, each of the Guarantors
hereby absolutely, unconditionally, knowingly, and expressly waives, to the fullest extent permitted by law:
(i) any right it may have
to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (1) notice of acceptance hereof; (2) notice
of any Loans, Facility LCs or other financial accommodations made or extended under the Loan Documents or the creation or existence of any Guaranteed Obligations; (3) notice of the amount of the Guaranteed Obligations, subject, however, to each
Guarantor’s right to make inquiry of the Administrative Agent and the Lenders to ascertain the amount of the Guaranteed Obligations at any reasonable time; (4) notice of any adverse change in the financial condition of the Borrower or of
any other fact that might increase such Guarantor’s risk hereunder; (5) notice of presentment for payment, demand, protest, and notice thereof as to any instruments among the Loan Documents; (6) notice of any Default or Event of
Default; and (7) all other notices (except if such notice is specifically required to be given to such Guarantor hereunder or under the other Loan Documents) and demands to which each Guarantor might otherwise be entitled;
Exhibit E – Page 9
(iii) its right, if any, to require the Administrative Agent and the other Lenders to institute
suit against, or to exhaust any rights and remedies which the Administrative Agent and the other Lenders has or may have against, the other Guarantors or any third party; and each Guarantor further waives any defense arising by reason of any
disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid in full in cash) of the other Guarantors or by reason of the cessation from any cause whatsoever of
the liability of the other Guarantors in respect thereof;
(iv) (a) any rights to assert against the Administrative Agent and the other
Lenders defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the other Guarantors or any other party liable to the Administrative Agent and the other Lenders; (b) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor;
(c) any defense such Guarantor has to performance hereunder, and any right such Guarantor has to be exonerated, arising by reason of: (1) the impairment or suspension of the Administrative Agent’s and the other Lenders’ rights or
remedies against the other guarantor of the Guaranteed Obligations; (2) the alteration by the Administrative Agent and the other Lenders of the Guaranteed Obligations; (3) any discharge of the other Guarantors’ obligations to the
Administrative Agent and the other Lenders by operation of law as a result of the Administrative Agent’s and the other Lenders’ intervention or omission; or (4) the acceptance by the Administrative Agent and the other Lenders of
anything in partial satisfaction of the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based upon an election of remedies by the Administrative
Agent and the Lenders; or (b) any election by the Administrative Agent and the other Lenders under the Bankruptcy Code, to limit the amount of, or any collateral securing, its claim against the Guarantors.
(vi) Without limiting the generality of the foregoing, each of the Guarantors hereby expressly waives any and all benefits and defenses under
(i) CCP Section 580a (which Section, if Guarantors had not given this waiver, would otherwise limit Guarantors’ liability after a nonjudicial foreclosure sale to the difference between the obligations guaranteed herein and the fair
market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) CCP Sections 580b and 580d (which Sections, if Guarantors had not given this waiver, would otherwise limit Administrative Agent’s and
Lenders’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) CCP Section 726 (which Section, if Guarantors had not given this waiver,
among other things, would otherwise require Administrative Agent and Lenders to exhaust all of its security before a personal judgment may be obtained for a
Exhibit E – Page 10
deficiency). Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all of the real or personal property secured thereby (if any), whether
by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, Guarantors shall remain bound under this Guaranty.
SECTION 6.
Subordination of Subrogation; Subordination of Intercompany Indebtedness
.
(a)
Subordination of Subrogation
. Until the Guaranteed Obligations have been fully and finally performed and indefeasibly paid in full
in cash (other than Unliquidated Obligations), the Guarantors waive all benefits and defenses under CC Sections 2847, 2848 and 2849 and agree Guarantors (i) shall have no right of subrogation with respect to such Guaranteed Obligations and
(ii) waive any right to enforce any remedy which any LC Issuer, any of the Lenders or the Administrative Agent now have or may hereafter have against the Borrower, any endorser or any guarantor of all or any part of the Guaranteed Obligations
or any other Person, and until such time the Guarantors waive any benefit of, and any right to participate in, any security or collateral given to the Lenders, any LC Issuer and the Administrative Agent to secure the payment or performance of all or
any part of the Guaranteed Obligations or any other liability of the Borrower to the Lenders, any LC Issuer or the Administrative Agent. Should any Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights, each
Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that such Guarantor may have to the payment in full in cash
of the Guaranteed Obligations until the Guaranteed Obligations are indefeasibly paid in full in cash (other than Unliquidated Obligations) and (B) waives any and all defenses available to a surety, guarantor or accommodation co-obligor until
the Guaranteed Obligations are indefeasibly paid in full in cash (other than Unliquidated Obligations). Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the Lenders and shall not
limit or otherwise affect such Guarantor’s liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the Lenders and their respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this
Section 6(a)
.
(b)
Subordination of Intercompany Indebtedness
. Each Guarantor
agrees that any and all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an “
Obligor
”) with respect to any Intercompany Indebtedness (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Guaranteed Obligations, or against any of its properties shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Guaranteed Obligations;
provided
that, as long
as no Event of Default has occurred and is continuing, such Guarantor may receive payments of principal and interest from any Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, sue for, take
or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the
Lenders and the Administrative Agent in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Guaranteed Obligations
(other than Unliquidated
Exhibit E – Page 11
Obligations) shall have been fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document and any agreement evidencing Rate Management Transactions have been
terminated. If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor
are sold, then, and in any such event (such events being herein referred to as an “
Insolvency Event
”), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor (“
Intercompany Indebtedness
”) shall be paid or delivered directly to the Administrative Agent for application on any of the Guaranteed Obligations,
due or to become due, until such Guaranteed Obligations shall have first been fully paid and satisfied (in cash). Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with
respect to the Intercompany Indebtedness after any Insolvency Event and prior to the satisfaction of all of the Guaranteed Obligations and the termination of all financing arrangements pursuant to any Loan Document among the Borrower and the
Lenders, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Lenders and shall forthwith deliver the same to the Administrative Agent, for the benefit of the Lenders, in precisely the form received (except for
the endorsement or assignment of the Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by the Guarantor as the property of the Lenders. If any
such Guarantor fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that until the Guaranteed
Obligations (other than Unliquidated Obligations) have been paid in full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document among the Borrower and the Lenders have been terminated, no Guarantor will assign or
transfer to any Person (other than the Administrative Agent) any claim any such Guarantor has or may have against any Obligor.
SECTION 7.
Contribution with Respect to Guaranteed Obligations
.
(a) To the extent that any Guarantor shall make a payment under this Guaranty
(a “
Guarantor Payment
”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantor’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor
Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment,
then
, following indefeasible payment in full in cash of the Guarantor Payment and the
Guaranteed Obligations (other than Unliquidated Obligations), termination or expiration of all Commitments and Facility LCs or, in the case of all Facility LCs, full collateralization on terms reasonably acceptable to the Administrative Agent,
termination of the Credit Agreement and satisfaction of all outstanding obligations under the agreements evidencing Rate Management Transactions, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess,
pro
rata
based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
Exhibit E – Page 12
(b) As of any date of determination, the “
Allocable Amount
” of any Guarantor
shall be equal to the excess of the value of the property of such Guarantor at a fair valuation over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities,
calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the
amount of such contributions.
(c) This
Section 7
is intended only to define the relative rights of the Guarantors, and
nothing set forth in this
Section 7
is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this
Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the
Guarantor or Guarantors to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against
other Guarantors under this
Section 7
shall be exercisable upon the full and indefeasible payment of the Guaranteed Obligations in cash (other than Unliquidated Obligations) and the termination or expiry (or in the case of all Facility
LCs, full collateralization), on terms reasonably acceptable to the Administrative Agent, of the Commitments and all Facility LCs and the termination of the Credit Agreement and the satisfaction of all outstanding obligations under the agreements
evidencing Rate Management Transactions.
SECTION 8.
Stay of Acceleration
. If acceleration of the time for payment of any amount
payable by the Borrower under the Credit Agreement, any counterparty to any agreement evidencing Rate Management Transactions or any other Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the Borrower or any of its
Affiliates, all such amounts otherwise subject to acceleration under the terms of the Credit Agreement, any agreement evidencing Rate Management Transactions or any other Loan Document shall nonetheless be payable by each of the Guarantors hereunder
forthwith on demand by the Administrative Agent.
SECTION 9.
Notices
. All notices, requests and other communications to any party
hereunder shall be given in the manner prescribed in
Section 13.1
of the Credit Agreement with respect to the Administrative Agent at its notice address therein and, with respect to any Guarantor, in the care of the Borrower at the
address of the Borrower set forth in the Credit Agreement, or such other address or telecopy number as such party may hereafter specify for such purpose in accordance with the provisions of
Section 13.1
of the Credit Agreement.
SECTION 10.
No Waivers
. No failure or delay by the Administrative Agent or any Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the
Exhibit E – Page 13
exercise of any other right, power or privilege. The rights and remedies provided in this Guaranty, the Credit Agreement, any agreement evidencing Rate Management Transactions and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.
Successors and Assigns
.
This Guaranty is for the benefit of the Administrative Agent and the Lenders and their respective successors and permitted assigns,
provided
that no Guarantor shall have any right to assign its rights or obligations hereunder without the
consent of the Administrative Agent and the Required Lenders, and any such assignment in violation of this
Section 11
shall be null and void; and in the event of an assignment of any amounts payable under the Credit Agreement, any
agreement evidencing Rate Management Transactions or the other Loan Documents in accordance with the respective terms thereof, the rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness.
This Guaranty shall be binding upon each of the Guarantors and their respective successors and assigns.
SECTION 12.
Changes in
Writing
. Other than in connection with the addition of other Guarantors, which become parties hereto by executing a Guaranty Supplement hereto in the form attached as
Annex I
, neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated orally, but only in writing signed by each of the Guarantors and the Administrative Agent and in accordance with
Section 8.3
of the Credit Agreement.
SECTION 13.
Governing Law; Jurisdiction
.
(a)
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF CALIFORNIA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
(b)
EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN ORANGE COUNTY, CALIFORNIA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND EACH GUARANTOR HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN ORANGE COUNTY, CALIFORNIA.
Exhibit E – Page 14
(c) Each party to this Guaranty irrevocably consents to service of process in the manner provided
for notices in
Section 9
of this Guaranty, and each of the Guarantors hereby appoints the Borrower as its agent for service of process. Nothing in this Guaranty or any other Loan Document will affect the right of any party to this
Guaranty to serve process in any other manner permitted by law.
SECTION 14.
WAIVER OF JURY TRIAL; WAIVER OF CERTAIN DAMAGES
. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS GUARANTY HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER. EACH GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER GUARANTOR HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER GUARANTOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER GUARANTORS HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 14
. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ADMINISTRATIVE AGENT OR ANY LENDER, ON ANY
THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTY, THE GUARANTEED OBLIGATIONS, THE LOAN DOCUMENTS, THE
TRANSACTIONS DESCRIBED THEREIN, THE LOAN OR THE USE OF THE PROCEEDS THEREOF.
SECTION 15.
No Strict Construction
. The parties
hereto have participated jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Guaranty.
SECTION 16.
Taxes, Expenses of Enforcement, Etc.
(a)
Taxes
.
(i) Any and
all payments by or on account of any obligation of any Guarantor under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding
of any Tax from any such payment, then the applicable Guarantor shall be entitled
Exhibit E – Page 15
to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant governmental authority in accordance with applicable law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this
Section 16
) the applicable Lender or the Administrative Agent receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(ii) The Guarantor shall timely pay to the relevant governmental authority in accordance with applicable law or, at the option of the
Administrative Agent, timely reimburse it for the payment of, any Other Taxes.
(iii) The Guarantor shall indemnify each Lender or the
Administrative Agent, within fifteen (15) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 16
) payable or paid by such Lender or the Administrative Agent or required to be withheld or deducted from a payment to such Lender or the Administrative Agent and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Guarantor by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(iv) As soon as practicable after any payment of Taxes by any Guarantor to a governmental authority pursuant to this
Section 16
,
such Guarantor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such governmental authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(b)
Expenses of Enforcement, Etc
. The Guarantors agree to reimburse the
Administrative Agent and the other Lenders for any reasonable costs and out-of-pocket expenses (including attorneys’ fees) paid or incurred by the Administrative Agent or any other Lenders in connection with the collection and enforcement of
amounts due under the Loan Documents, including without limitation this Guaranty.
SECTION 17.
Financial Information
. Each
Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, the other Guarantors and any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Lenders or the Administrative Agent shall have any duty to
advise such Guarantor of information known to any of them regarding such condition or any such circumstances. In the event any Lender or the Administrative Agent, in its sole discretion, undertakes at any time or from time to time to provide any
such information to a Guarantor, such Lender or the Administrative Agent shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which such Lender or the
Exhibit E – Page 16
Administrative Agent, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.
SECTION 18.
Severability
. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 19.
Merger; No Oral Agreements
. This Guaranty represents the final agreement of each of the Guarantors with respect to the matters contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or subsequent oral
agreements, between each such Guarantor and any Lender or the Administrative Agent. Each Guarantor, by executing this Guaranty (or the Supplement to Guaranty), expressly represents and warrants that it did not rely on any representation, assurance
or agreement, oral or written, not expressly set forth in this Guaranty in reaching its decisions to enter into this Guaranty and that no promises or other representations have been made to such Guarantor which conflict with the written terms of
this Guaranty. No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature may be used to supplement, modify or vary any of the terms hereof. There are no conditions to the full effectiveness of
this Guaranty.
SECTION 20.
Headings
. Section headings in this Guaranty are for convenience of reference only and shall not govern
the interpretation of any provision of this Guaranty.
SECTION 21.
Keepwell
. Each Qualified ECP Guarantor (as hereinafter defined)
hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Guaranty in respect of
all Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this
Section 21
for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this
Section 21
, or otherwise under this Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this
Section 21
shall remain in full force and effect until all Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid in full in cash (other than Unliquidated Obligations) and the Commitments and all
Facility LCs shall have terminated or expired or, in the case of all Facility LCs, are fully collateralized on terms reasonably acceptable to the Administrative Agent. Each Qualified ECP Guarantor intends that this
Section 21
constitute,
and this
Section 21
shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Notwithstanding anything herein to the contrary, if a Guarantor or a counterparty under any swap makes a written representation to the Lenders in connection with this Guaranty, a swap, or any master agreement governing a swap to the effect that such
Guarantor is or will be an “eligible contract participant” as defined in the Commodity Exchange Act on the date the Guaranty becomes effective with respect to such swap (this date shall be the date of the execution of the swap if the
corresponding Guaranty is then in effect, and otherwise it shall be the date of execution and delivery of such Guaranty
Exhibit E – Page 17
unless the Guaranty specifies a subsequent effective date), and such representation proves to have been incorrect when made or deemed to have been made, the Lenders reserve all of their
contractual and other rights and remedies, at law or in equity, including (to the extent permitted by applicable law) the right to claim, and pursue a separate cause of action, for damages as a result of such misrepresentation, provided that such
Guarantor’s liability for such damages shall not exceed the amount of the Excluded Swap Obligations with respect to such swap. As used herein, “
Qualified ECP Guarantor
” means, in respect of any Swap Obligation, each Guarantor
that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract
participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under
Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[SIGNATURE PAGES TO FOLLOW]
Exhibit E – Page 18
IN WITNESS WHEREOF, each Initial Guarantor has caused this Guaranty to be duly executed by its
authorized officer as of the day and year first above written.
GUARANTOR:
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TRI POINTE HOMES, INC.
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TRI POINTE COMMUNITIES, INC.,
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TRI POINTE HOLDINGS, INC.
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MARACAY 91, L.L.C.
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MARACAY HOMES, L.L.C.
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MARACAY BRIDGES, LLC
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MARACAY VR, LLC
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PARDEE HOMES
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PARDEE HOMES OF NEVADA
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THE QUADRANT CORPORATION
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TREND MAKER HOMES, INC.
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WINCHESTER HOMES INC,
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By:
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Name: Michael D. Grubbs
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Title: Chief Financial Officer
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TRI POINTE CONTRACTORS, LP,
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By:
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TRI Pointe Communities, Inc.,
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its General Partner
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By:
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Name: Michael D. Grubbs
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Title: Chief Financial Officer
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MARACAY THUNDERBIRD, L.L.C.,
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By:
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Maracay Homes, L.L.C.,
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its Manager
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By:
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Name: Michael D. Grubbs
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Title: Chief Financial Officer
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Exhibit E – Page 19
Acknowledged and Agreed to:
U.S. BANK NATIONAL ASSOCIATION,
d/b/a Housing Capital Company,
as Administrative Agent
Exhibit E – Page 20
ANNEX I
SUPPLEMENT TO GUARANTY
Reference is hereby made to the Amended and Restated Guaranty (as the same may be amended, restated, supplemented or otherwise modified from
time to time, the “
Guaranty
”), dated as of July 7, 2015, made by the Persons listed on the signature pages thereto (each an “
Initial Guarantor
”, and together with any additional Persons which become parties to
the Guaranty by executing Guaranty Supplements thereto substantially similar in form and substance hereto, the “
Guarantors
”), in favor of the Administrative Agent, for the ratable benefit of the Lenders, under the Credit Agreement.
Each capitalized term used herein and not defined herein shall have the meaning given to it in the Guaranty.
By its execution below, the
undersigned, [NAME OF NEW GUARANTOR], a [ ] [corporation] [partnership] [limited liability company] (the “
New
Guarantor
”), unconditionally agrees to become, and does hereby become, a Guarantor under the Guaranty and a party to the California Judicial Reference Agreement, and agrees to be bound by all the terms, conditions, obligations, liabilities
and undertakings of each Guarantor or to which each Guarantor is subject under such Guaranty and the California Judicial Reference Agreement as if originally a party thereto, all with the same force and effect as if the undersigned were an original
signatory to the Guaranty and the California Judicial Reference Agreement. By its execution below, the undersigned represents and warrants as to itself that all of the representations and warranties contained in
Section 1
of the Guaranty
are true and correct in all respects as of the date hereof. The undersigned hereby acknowledges and affirms as of the date hereof with respect to itself, its properties and its affairs each of the waivers, representations, warranties,
acknowledgements and certifications applicable to any Guarantor contained in the Guaranty.
IN WITNESS WHEREOF, the New Guarantor has
executed and delivered this Supplement to Guaranty as of this day of , 20 .
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[NAME OF NEW GUARANTOR]
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By:
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Name:
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Title:
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Exhibit E – Page 21
EXHIBIT F
FORM OF NOTE
, 20
TRI Pointe Group, Inc., a Delaware corporation (the “Borrower”), promises to pay to the order of
[ ] (the “Lender”) the principal sum of
Dollars ($ ), or so much of the aggregate unpaid principal amount of all Loans made by the Lender to the Borrower pursuant to Section 2.1 of the
Agreement (as hereinafter defined), in immediately available funds at the applicable office of U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent, together with interest on the unpaid principal amount hereof at
the rates and on the dates set forth in the Agreement. The Borrower shall pay the principal of and accrued and unpaid interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Loan and the date and amount of each principal payment hereunder.
This Note is one of the Notes
issued pursuant to, and is entitled to the benefits of, the Amended and Restated Credit Agreement dated as of July 7, 2015 (which, as it may be amended or modified and in effect from time to time, is herein called the “Agreement”),
among the Borrower, the lenders party thereto, including the Lender, and U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent, to which Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note may be prepaid or its maturity date accelerated. This Note is guaranteed pursuant to the Guaranty, all as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof. Capitalized terms used herein and not otherwise defined herein are used with the meanings attributed to them in the Agreement.
In the event of default hereunder, the undersigned agree to pay all costs and expenses of collection, including reasonable attorneys’
fees. The undersigned waive demand, presentment, notice of nonpayment, protest, notice of protest and notice of dishonor.
THE VALIDITY,
CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO
NATIONAL BANKS.
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TRI POINTE GROUP, INC., a Delaware corporation
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By:
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Print Name:
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Title:
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Exhibit F – Page 1
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF
[ ],
DATED
, 20
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Date
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Principal
Amount of
Loan
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Maturity
of Interest
Period
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Principal
Amount
Paid
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Unpaid
Balance
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Exhibit F – Page 2
EXHIBIT G
FORM OF INCREASING LENDER SUPPLEMENT
INCREASING LENDER SUPPLEMENT, dated [
],
20[
] (this “Supplement”), by and among each of the signatories hereto, to the Amended and Restated Credit Agreement, dated as of July 7, 2015 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among TRI Pointe Group, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto and U.S. Bank National Association, d/b/a Housing Capital Company, as
Administrative Agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, pursuant to Section 2.24 of the Credit Agreement, the Borrower has the right, subject to the terms and conditions thereof, to
effectuate from time to time an increase in the Aggregate Commitment under the Credit Agreement by requesting one or more Lenders to increase the amount of its Commitment;
WHEREAS, the Borrower has given notice to the Administrative Agent of its intention to increase the Aggregate Commitment pursuant to such
Section 2.24 of the Credit Agreement; and
WHEREAS, pursuant to Section 2.24 of the Credit Agreement, the undersigned Increasing
Lender now desires to increase the amount of its Commitment under the Credit Agreement by executing and delivering to the Borrower and the Administrative Agent this Supplement;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit Agreement, that on the date of this Supplement
it shall have its Commitment increased by $[
], thereby making the aggregate amount of its total Commitment equal to $[
].
2. The Borrower hereby represents and warrants that no Default or Event of Default has occurred and is continuing on and as of the date
hereof.
3. Terms defined in the Credit Agreement shall have their defined meanings when used herein.
4. This Supplement shall be governed by, and construed in accordance with, the laws of the State of California.
5. This Supplement 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 all of which taken together shall constitute one and the same document.
Exhibit G – Page 1
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.
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[INSERT NAME OF INCREASING LENDER]
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By:
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Name:
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Title:
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Accepted and agreed to as of the date first written above:
TRI POINTE GROUP, INC., a Delaware corporation
Acknowledged as of the date first written above:
U.S. BANK NATIONAL ASSOCIATION, d/b/a Housing Capital Company,
as Administrative Agent
Exhibit G – Page 2
EXHIBIT H
FORM OF AUGMENTING LENDER SUPPLEMENT
AUGMENTING LENDER SUPPLEMENT, dated [
],
20[
] (this “Supplement”), to the Amended and Restated Credit Agreement, dated as of July 7, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among TRI Pointe Group, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto and U.S. Bank National Association, d/b/a Housing Capital Company, as Administrative Agent (in such capacity, the
“Administrative Agent”).
W I T N E S S E T H
WHEREAS, the Credit Agreement provides in Section 2.24 thereof that any bank, financial institution or other entity may extend
Commitments under the Credit Agreement subject to the approval of the Borrower and the Administrative Agent, by executing and delivering to the Borrower and the Administrative Agent a supplement to the Credit Agreement in substantially the form of
this Supplement; and
WHEREAS, the undersigned Augmenting Lender was not an original party to the Credit Agreement but now desires to
become a party thereto;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date of
this Supplement, become a Lender for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment of $[
].
2. The undersigned Augmenting Lender (a) represents and warrants that it is legally authorized to enter into this Supplement;
(b) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and has reviewed such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this Supplement; (c) agrees that it will, independently and without reliance upon the Administrative 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 decisions in taking or not taking action under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as a Lender.
Exhibit H – Page 1
3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:
[
]
4. The Borrower hereby represents and warrants that no Default or Event of Default has occurred and is continuing on and as of the date
hereof.
5. Terms defined in the Credit Agreement shall have their defined meanings when used herein.
6. This Supplement shall be governed by, and construed in accordance with, the laws of the State of California.
7. This Supplement 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 all of which taken together shall constitute one and the same document.
[remainder of
this page intentionally left blank]
Exhibit H – Page 2
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.
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[INSERT NAME OF AUGMENTING LENDER]
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By:
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Name:
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Title:
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Accepted and agreed to as of the date first written above:
TRI POINTE GROUP, INC., a Delaware corporation
Acknowledged as of the date first written above:
U.S. BANK NATIONAL ASSOCIATION, d/b/a Housing Capital Company,
as Administrative Agent
Exhibit H – Page 3
EXHIBIT I
INTENTIONALLY OMITTED
Exhibit I
EXHIBIT J
PRO FORMA BORROWING BASE CERTIFICATE
[ , 20 ]
The undersigned herby certifies that as of the above date, TRI Pointe Group was in compliance with the Financial Covenant Tests as provided for in the Credit
Agreement. Borrower and each Guarantor are in compliance with all covenants, terms and conditions applicable to Borrower and each Guarantor under or pursuant to the Credit Documents. Other than as hereinafter disclosed there exists no Event of
Default or Default by the Borrower or Guarantors under the Credit Agreement. In addition, this Borrowing Base Certificate is in compliance with all terms of the Amended and Restated Credit Agreement dated as of July 7, 2015 (as amended,
modified, renewed or extended from time to time) among TRI Pointe Group, Inc. (“Borrower”) , the Lenders party thereto and U.S Bank National Association, as Administrative Agent for the Lenders and LC Issuer(s).
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($ in thousands)
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Total
Borrowing Base
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Available
Commitment
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Aggregate Commitment:
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$ [550,000]
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Borrowing Base Value:
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$ [ ]
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Less: Borrowing Base Debt
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Borrowed Money, net:
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-$ [ ]
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Borrowed Money (General Partner Liability)
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$ [0]
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Repayment Guarantees
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$ [0]
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Loan Obligations/Advances
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$ [0]
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Contingent Obligations (due and payable)
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$ [0]
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Total Borrowing Base Debt:
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-$ [ ]
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Letters of Credit:
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$ 0
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$ 0
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Excess:
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$ [ ]
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Available Revolving Credit
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[$ 550,000]
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Certified:
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Exhibit J – Page 1
Exhibit J – Page 2
