鲸鱼电竞比赛表新版

Exhibit 10.2

Execution Version

LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT AND SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
    THIS LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT AND SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “ Agreement ”) is dated as of April 29, 2022 (the “ Effective Date ”), by and among LGI HOMES, INC. , a Delaware corporation (the “ Borrower ”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent for the Lenders (together with its successors and assigns, the “ Administrative Agent ”), the increasing lenders party hereto (other than the Additional Lender) (individually and collectively, as the context may suggest or require, the “ Increasing Lender ”), and First National Bank of Pennsylvania and Third Coast Bank SSB (individually and collectively, as the context may suggest or require, the “ Additional Lender ”, and together with the Increasing Lender, individually and collectively as the context may suggest or require, the “ Lender ”).
W I T N E S S E T H :
WHEREAS, pursuant to that certain Fifth Amended and Restated Credit Agreement dated as of April 28, 2021 (as the same was amended by that certain First Amendment to Fifth Amended and Restated Credit Agreement dated as of February 22, 2022 and as it may have been further amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof, the “ Credit Agreement ”) among the Borrower, the Lenders (as defined in the Credit Agreement ) and the Administrative Agent have agreed to provide the Borrower with a revolving credit facility;
WHEREAS, pursuant to Section 2.17 of the Credit Agreement , the Borrower has requested an increase of the Revolving Commitments (such increase in Revolving Commitments, the “ Incremental Revolving Commitments ”) under the Credit Agreement pursuant to this Agreement;
WHEREAS, each Increasing Lender has agreed to increase its Revolving Commitment under the Credit Agreement pursuant to this Agreement;
WHEREAS, the Additional Lender has agreed to become a Lender under the Credit Agreement and provide a Revolving Commitment in connection therewith;
WHEREAS, the Borrower has requested that the Requisite Lenders amend certain provisions of the Credit Agreement, and the Administrative Agent and the Requisite Lenders have agreed to such amendments, subject to the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, each of the parties hereto hereby covenant and agree as follows:
SECTION 1.     Definitions . Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement. Each reference to “hereof,” “hereunder,” “herein,” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall from and after the date hereof refer to the Credit Agreement as amended hereby.
SECTION 2.     Increase in Commitment .
(a)    Pursuant to Section 2.17 of the Credit Agreement, each Lender has agreed, severally, but not jointly, on the terms set forth in this Agreement, to make the Incremental Revolving Commitments as set forth on Schedule I attached hereto. After giving effect to this
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Agreement, the Revolving Commitment for each of the Lenders shall be as set forth on Schedule I attached hereto.
(b)    Each Lender (i) confirms that it has received a copy of the Credit Agreement, the other Loan Documents and the amendments and exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees (and, if it was a Lender before the effectiveness of this Agreement, confirms that it has agreed) that it has and 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 entering into the Credit Agreement and this Agreement, and in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes (or, if it was a Lender before the effectiveness of this Agreement, confirms that it has appointed and authorized) the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees (and, if it was a Lender before the effectiveness of this Agreement, confirms that it has agreed) that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
(c)    The terms of repayment and the Applicable Margin with respect to the Incremental Revolving Commitments shall be the same as those applicable to Revolving Loans, as set forth in the Credit Agreement (as amended hereby).
(d)    Each of the Administrative Agent and the Borrower agrees that, as of the date hereof, the Additional Lender shall (a) be a party to the Credit Agreement and the other Loan Documents, (b) be a “Lender” for all purposes of the Credit Agreement and the other Loan Documents and (c) have the rights and obligations of a Lender under the Credit Agreement and the other Loan Documents.
(e)    The address of the Additional Lender for purposes of all notices and other communications is as set forth on the Administrative Questionnaire delivered by the Additional Lender to the Administrative Agent.
SECTION 3.     Amendments to the Credit Agreement . On and as of the Effective Date,
(a)    the text of the Credit Agreement (other than the Exhibits and Schedules thereto (except for Schedule I and Exhibits F, H and L, which are being amended hereunder)) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined ) as set forth in the pages of the Credit Agreement attached hereto as Exhibit A.
(b)    Schedule I is hereby deleted in its entirety and replaced with Schedule I attached hereto.
(c)    Exhibit L is hereby deleted in its entirety and replaced with Exhibit L attached hereto.
(d)    Each of Exhibit F and Exhibit H is hereby deleted in its entirety and replaced with each of Exhibit F ( Form of Notice of Borrowing ) and Exhibit H ( Form of Conversion/Continuation ), respectively, attached hereto.
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SECTION 4.     Reallocation . Immediately upon the Effective Date, to the extent necessary in order for each Lender’s Revolving Loans to be in accordance with their respective Pro Rata Share, each Lender shall sell to or purchase from, as applicable, each other Lender an amount necessary to place the aggregate outstanding amount of such Lender’s Revolving Loans in proportion to its Pro Rata Share, in light of the reallocation of the Commitment (with the Borrower being liable for any indemnification required pursuant to Section 5.4 of the Credit Agreement as provided immediately before this Agreement).
SECTION 5.     Representations and Warranties .
(a)    Each of the Borrower, the other Loan Parties and the other Subsidiaries is a corporation, limited liability company, partnership or other legal entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation or formation, has the power and authority to own or lease its respective properties and to carry on its respective business as now being and hereafter proposed to be conducted and is duly qualified and is in good standing as a foreign corporation, partnership or other legal entity, and authorized to do business, in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization and where the failure to be so qualified or authorized could reasonably be expected to have, in each instance, a Material Adverse Effect.
(b)    The Borrower and each other Loan Party has the right and power, and has taken all necessary action to authorize, to execute, deliver (with execution and delivery of this Agreement being limited solely to the Borrower) and perform this Agreement, the Reaffirmation and each of the Loan Documents to which it is a party in accordance with their respective terms and to consummate the transactions contemplated hereby and thereby. Each of this Agreement (solely with respect to the Borrower) and the Reaffirmation has been, and each of the Loan Documents to which the Borrower or any other Loan Party is a party have been duly executed and delivered by the duly authorized officers of such Person and each is a legal, valid and binding obligation of such Person enforceable against such Person in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally.
(c)    The execution, delivery (with execution and delivery of this Agreement being limited solely to the Borrower) and performance of this Agreement, the Reaffirmation and the other Loan Documents to which any Loan Party is a party in accordance with their respective terms and the borrowings and other extensions of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require any Governmental Approval (other than those that have been obtained or could be reasonably be expected to be obtained in the ordinary course of business) or violate any Applicable Law (including all Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Loan Party, or any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its benefit and the benefit of the other Lender Parties.
SECTION 6.     Miscellaneous .
(a)     Effect of Agreement . Except as set forth expressly hereinabove, all terms of the Credit Agreement and the other Loan Documents shall be and remain in full force and effect, and
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shall constitute the legal, valid, binding, and enforceable obligations of the Borrower and each of the Subsidiary Guarantors.
(b)     Loan Document . For the avoidance of doubt, the Borrower, the Lenders party hereto and the Administrative Agent hereby acknowledge and agree that this Agreement is a Loan Document.
(c)     No Novation or Mutual Departure . The Borrower expressly acknowledges and agrees that (i) there has not been, and this Agreement does not constitute or establish, a novation with respect to the Credit Agreement or any of the other Loan Documents, or a mutual departure from the strict terms, provisions, and conditions thereof, other than with respect to the amendments contained in Sections 2 and 3 above; and (ii) nothing in this Agreement shall affect or limit the Administrative Agent’s or Lenders’ right to demand payment of liabilities owing from the Borrower to the Administrative Agent or any Lender under, or to demand strict performance of the terms, provisions and conditions of, the Credit Agreement and the other Loan Documents, to exercise any and all rights, powers, and remedies under the Credit Agreement or the other Loan Documents or at law or in equity, or to do any and all of the foregoing, immediately at any time after the occurrence of a Default or an Event of Default under the Credit Agreement or the other Loan Documents.
(d)     Ratification . The Borrower hereby (i) restates, ratifies, and reaffirms each and every term, covenant, and condition, as modified by this Agreement, set forth in the Credit Agreement and the other Loan Documents to which it is a party effective as of the date hereof and (ii) restates and renews in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) each and every representation and warranty heretofore made by it in the Credit Agreement and the other Loan Documents as fully as if made on the date hereof and with specific reference to this Agreement and any other Loan Documents executed or delivered in connection herewith (except with respect to representations and warranties made as of an expressed date, in which case such representations and warranties shall be true and correct as of such date).
(e)     No Default . To induce the Administrative Agent and the Lenders party hereto to enter into this Agreement and to continue to make advances pursuant to the Credit Agreement (subject to the terms and conditions thereof), the Borrower hereby acknowledges and agrees that, as of the date hereof, and after giving effect to the terms hereof, there exists (i) no Default or Event of Default and (ii) no right of offset, defense, counterclaim, claim, or objection in favor of the Borrower or any Subsidiary Guarantor arising out of or with respect to any of the Loans or other obligations of the Borrower or the Subsidiary Guarantors owed to the Administrative Agent and the Lenders party hereto under the Credit Agreement or any other Loan Document.
(f)     Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Agreement may be executed by each party on separate copies, which copies, when combined so as to include the signatures of all parties, shall constitute a single counterpart of the Agreement.
(g)     Fax or Other Transmission . Delivery by one or more parties hereto of an executed counterpart of this Agreement via facsimile, telecopy, or other electronic method of transmission pursuant to which the signature of such party can be seen (including, without limitation, Adobe Corporation’s Portable Document Format) shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic method of transmission
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shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability, or binding effect of this Agreement.
(h)     Recitals Incorporated Herein . The preamble and the recitals to this Agreement are hereby incorporated herein by this reference.
(i)     Section References . Section titles and references used in this Agreement shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties hereto evidenced hereby.
(j)     Further Assurances . The Borrower agrees to take, at Borrower’s sole cost and expense, such further actions as the Administrative Agent shall reasonably request from time to time to evidence the amendments set forth herein and the transactions contemplated hereby.
(k)     Governing Law . This Agreement and the Reaffirmation (as defined below) shall be governed by and construed and interpreted in accordance with the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York .
(l)     Electronic Signatures .
(A)    Each of the parties hereto consents to do business electronically in connection with this Agreement, any other Loan Document and the transactions contemplated hereby or thereby. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Documents by telecopy, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document.
(B)    The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document, instrument, amendment, restatement, modification, reaffirmation, assignment and acceptance or other agreement to be signed in connection with this Agreement, any other Loan Document and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, admissibility into evidence and enforceability as a manually executed signature, physical delivery thereof 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, Uniform Real Property Electronic Recording Act, if applicable, the New York State Electronic Signatures and Records Act, the Illinois Electronic Commerce Security Act or any other similar state laws based on the Uniform Electronic Transactions Act, if applicable; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent, which consent can be withheld in its sole discretion.
(C)    Without limiting the generality of the foregoing, each of the parties hereto hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings, other proceedings or litigation arising out of or related to this Agreement, the other Loan Documents and the transactions contemplated hereby or thereby, electronic images of this Agreement or any other Loan Documents (in each case, including with respect to any signature pages thereto) shall have the
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same legal effect, validity, admissibility into evidence and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity, admissibility into evidence or enforceability of this Agreement, the Loan Documents or the transactions contemplated hereby or thereby based solely on the lack of paper original copies of any Loan Documents, including with respect to any signatures thereon. For the avoidance of doubt, the parties hereto hereby agree that this provision shall apply in equal force and have the same enforceability, validity and admissibility into evidence to each other Loan Document and any amendment, restatement, modification, reaffirmation, assignment and acceptance or other document related to this Agreement or such other Loan Document whether or not expressly stated therein.
(D)    Even though the parties agree that such Electronic Signatures are legally enforceable and intended to be effective for all purposes, the signing parties agree if requested by Administrative Agent in its sole discretion to promptly deliver to Administrative Agent the requested original document bearing an original manual signature, (i) in order to reduce the risk of fraud, comply with potentially applicable regulations, (ii) to the extent required or advisable to be delivered in connection with any program made available to the Administrative Agent or any of its affiliates by the Federal Reserve System or any Federal Reserve Bank, the U.S. Treasury Department or any other federal or state regulatory body, (iii) to the extent required pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or as otherwise as required by applicable law, rule or regulation or compulsory legal process, or as requested by a governmental and/or regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), or (iv) for other operational or risk management purposes.
(E)    As used in this section, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
SECTION 7.     Conditions Precedent . This Agreement shall become effective only upon the satisfaction of the following conditions precedent:
(a)    The Administrative Agent shall have received each of the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(i)    counterparts of this Agreement duly executed by the Borrower, each Increasing Lender, each Additional Lender, the Lenders (as defined in the Credit Agreement) that constitute the Requisite Lenders and the Administrative Agent;
(ii)    counterparts of the Consent, Reaffirmation, and Agreement of Subsidiary Guarantors (the “ Reaffirmation ”) attached hereto duly executed by each of the Subsidiary Guarantors;
(iii)    each Lender that requests a Note at least one Business Day prior to the satisfaction of the other conditions in this Section 7 shall have received its respective Note, conforming to the requirements of the Credit Agreement and duly executed and delivered by a duly authorized officer of the Borrower;
(iv)    a duly executed certificate of a Responsible Officer of the Borrower and the Subsidiary Guarantors, dated as of the date hereof, including a certificate of incumbency with respect
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each of the officers of such Loan Party authorized to execute and deliver this Agreement and the other Loan Documents, together with the following items: (1) a good standing certificate for each Loan Party issued by the jurisdiction of incorporation of such Person, (2) a true, complete and correct copy of the resolutions of such Person authorizing such Person to execute, deliver and perform this Agreement and the other Loan Documents to which such Person is a party, and (3) the governing documents of such Person or a statement, in form and substance reasonably satisfactory to the Administrative Agent, that the governing documents of the Borrower and each Subsidiary Guarantor have not been amended, modified or rescinded since the most recent delivery of such documents to the Lenders (as defined in the Credit Agreement), and as of the Effective Date, no actions or proceedings for the amendment, modification, or rescission of such governing documents are pending or contemplated;
(v)    a legal opinion of Xxxxx Xxxxx L.L.P., which shall be limited to New York , Delaware, Texas, California and customary federal law, to the Borrower and the Subsidiary Guarantors addressed to each Lender and the Administrative Agent and dated as of the Effective Date in form and substance reasonably satisfactory to the Administrative Agent;
(vi)    a duly executed Closing Certificate of the Borrower certifying that the increase in the Revolving Commitments is permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; and
(vii)    counterparts of the Fee Letter, duly executed by the Borrower, the Administrative Agent, and Xxxxx Fargo Securities, LLC.
(b)    pursuant to, and in accordance with, Section 13.2 of the Credit Agreement, the Borrower shall have paid to the Administrative Agent all fees and expenses incurred in connection with the preparation, negotiation and closing of this Agreement and the documents, instruments and agreements related thereto, if the same have been invoiced in reasonable detail delivered to the Borrower at least one Business Day before the earlier of (i) the satisfaction of the conditions in Section 7(a) above and (ii) the date this Agreement becomes effective.
SECTION 8.     Benchmark Early Opt-in Election . Each party hereto acknowledges and confirms that:
(a)    an “Early Opt-in Election” has occurred in respect of LIBOR;
(b)    the amendments related to the Early Opt-in Election as set forth in Exhibit A shall be deemed as “Benchmark Replacement Conforming Changes”;
(c)    this Agreement satisfies all notice from, and all actions required to be taken by, the Administrative Agent in connection with an occurrence of an Early Opt-in Election and the implementation of such Benchmark Replacement Conforming Changes pursuant to Exhibit L of the Credit Agreement; and
(d)    by executing this Agreement, each Lender party to this Agreement, hereby confirms and agrees (and does not object under paragraph (4) of the definition of “Benchmark Replacement Date” or otherwise) to such “Early Opt-in Election” contemplated herein.
[SIGNATURES ON FOLLOWING PAGES.]
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IN WITNESS WHEREOF, each of the Borrower, the Administrative Agent, and the Lenders party hereto has caused this Agreement to be duly executed by its duly authorized officer as of the day and year first above written.
                         BORROWER :
                         LGI HOMES, INC. ,
                        a Delaware corporation


                        By: /s/ Xxxx Xxxxx                    
                        Name: Xxxx Xxxxx                    
                        Title: CEO                        


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


ADMINISTRATIVE AGENT, SWINGLINE LENDER AND LENDER :

XXXXX FARGO BANK, NATIONAL ASSOCIATION , as Administrative Agent, Swingline Lender and as Lender


                        By: /s/ Xxxx Xxxxxx                    
                        Name: Xxxx Xxxxxx                    
                        Title: Vice President                    


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

FIFTH THIRD BANK, NATIONAL ASSOCIATION


By: /s/ Xxx Xxxxx                    
Name: Xxx Xxxxx                    
Title: Senior Vice President            


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


TAIWAN COOPERATIVE BANK, LTD ., acting through its Los Angeles Branch


By: /s/ Tao-Xxx Xxx                
Name: Tao-Xxx Xxx                
Title: VP & General Manager            



[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


XXXXX XXX COMMERCIAL BANK, LTD., NEW YORK BRANCH


By: /s/ Xxxxx X.X. Xxx                
Name: Xxxxx X.X. Xxx                
Title: VP & General Manager            


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


FLAGSTAR BANK, FSB


By: /s/ Xxxxx X. Xxxxxxxxx                
Name: Xxxxx X. Xxxxxxxxx                
Title: Vice President                    


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

PNC BANK, NATIONAL ASSOCIATION

By: /s/ J. Xxxxxxx Xxxxxx                
Name: J. Xxxxxxx Xxxxxx                
Title: Senior Vice President                


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

CADENCE BANK , a Mississippi state banking corporation


By: /s/ Xxx Xxxxxxxx                
Name: Xxx Xxxxxxxx                
Title: Senior Vice President            

[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

TEXAS CAPITAL BANK , formerly known as TEXAS CAPITAL BANK, NATIONAL ASSOCIATION


By: /s/ Xxxx X. Xxxxxxx                
Name: Xxxx X. Xxxxxxx                
Title: Senior Vice President            


[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

U.S. BANK NATIONAL ASSOCIATION d/b/a HOUSING CAPITAL COMPANY


By: /s/ Xxxxxx Xxxxxx                
Name: Xxxxxx Xxxxxx                
Title: Vice President                

[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

BMO XXXXXX BANK N.A.


By: /s/ Xxxxxxx X. Xxxxxxx            
Name: Xxxxxxx X. Xxxxxxx            
Title: Vice President                




[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

BANK OF AMERICA, N.A.


By: /s/ Xxxxxx X. Xxxx                
Name: Xxxxxx X. Xxxx                
Title: Vice President                






[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

CITIZENS BANK, N.A.


By: /s/ Xxxx Xxxxxxx                
Name: Xxxx Xxxxxxx                
Title: SVP                        
[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

REGIONS BANK


By: /s/ Xxxxxx Xxxxxx                
Name: Xxxxxx Xxxxxx                
Title: Senior Vice President            
     [Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

VERITEX COMMUNITY BANK


By: /s/ Xxx Xxxxxx                
Name: Xxx Xxxxxx                
Title: Senior Vice President            



[Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD, LOS ANGELES BRANCH


By: /s/ Xxxxx Xxx Xxxx                
Name: Xxxxx Xxx Wang                
Title: VP & GM                    

     [Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]


THIRD COAST BANK, SSB


By: /s/ Xxxxxxx Xxxxx                
Name: Xxxxxxx Xxxxx                
Title: Bank Officer                


     [Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]

FIRST NATIONAL BANK OF PENNSYLVANIA


By: /s/ Xxxxx X. Xxxxxxx                
Name: Xxxxx X. Xxxxxxx                
Title: Senior Vice President            

     [Signature Page to Lender Addition and Acknowledgement Agreement and Second Amendment to Fifth Amended and Restated Credit Agreement]
SCHEDULE I

Commitments

LENDER REVOLVING COMMITMENT PRO-RATA SHARE
XXXXX FARGO BANK, NATIONAL ASSOCIATION $112,500,000.00 10.23%
FIFTH THIRD BANK, NATIONAL ASSOCIATION $107,500,000.00 9.77%
U.S. BANK NATIONAL ASSOCIATION D/B/A HOUSING CAPITAL COMPANY $100,000,000.00 9.09%
BANK OF AMERICA, N.A. $100,000,000.00 9.09%
BANK OF THE WEST $80,000,000.00 7.27%
CITIZENS BANK $100,000,000.00 9.09%
BMO XXXXXX BANK, N.A. $55,000,000.00 5%
FLAGSTAR BANK, FSB $75,000,000.00 6.82%
PNC BANK, NATIONAL ASSOCIATION $40,000,000.00 3.64%
FIRST NATIONAL BANK OF PENNSYLVANIA $35,000,000.00 3.18%
THIRD COAST BANK SSB $35,000,000.00 3.18%
TEXAS CAPITAL BANK, formerly known as TEXAS CAPITAL BANK, NATIONAL ASSOCIATION $50,000,000.00 4.55%
REGIONS BANK $50,000,000.00 4.55%
VERITEX COMMUNITY BANK $45,000,000.00 4.09%
CADENCE BANK, N.A. $30,000,000.00 2.73%
WOODFOREST NATIONAL BANK $20,000,000.00 1.82%
XXXXXXX XXXXXXX BANK $10,000,000.00 0.91%
MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD, LOS ANGELES BRANCH $10,000,000.00 0.91%
XXX XXX COMMERCIAL BANK LTD, LOS ANGELES BRANCH $10,000,000.00 0.91%
TAIWAN COOPERATIVE BANK, LTD., acting through its Los Angeles Branch $10,000,000.00 0.91%
BANK OF TAIWAN, NEW YORK BRANCH $10,000,000.00 0.91%
XXXXX XXX COMMERCIAL BANK, LTD., New York Branch $15,000,000.00 1.36%
TOTALS $1,100,000,000.00
100.000000000%







EXHIBIT A

FINAL VERSION

Conformed through First Amendment to Fifth Amended and Restated Credit Agreement dated as of February 22, 2022
EXHIBIT A






image_0a.jpg





FIFTH AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of April 28, 2021,

by and among

LGI HOMES, INC. , a Delaware corporation,
as Borrower

THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.6,
as Lenders

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent

______________________________________________________

XXXXX FARGO SECURITIES, LLC,
as sole Lead Arranger and sole Bookrunner

and

FIFTH THIRD BANK, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION, BANK OF AMERICA, N.A., BANK OF THE WEST, AND CITIZENS BANK, N.A.
as Documentation Agents



Table of Contents*

Page

ARTICLE I Definitions    1
Section 1.1 Definitions .     1
Section 1.2 General; References to Central Time .      32 35
Section 1.3 Financial Attributes of Non-Wholly Owned Subsidiaries .      33 35
Section 1.4 Rates .      33 36
Section 1.5 Divisions .      33 36
ARTICLE II Credit Facility     33 36
Section 2.1 Revolving Loans .      33 36
Section 2.2 Reserved .      35 38
Section 2.3 Reserved .      35 38
Section 2.4 Letters of Credit .      35 38
Section 2.5 Swingline Loans .      39 42
Section 2.6 Rates and Payment of Interest on Loans .      42 44
Section 2.7 Number of Interest Periods .      43 45
Section 2.8 Repayment of Loans .      43 45
Section 2.9 Prepayments .      43 46
Section 2.10 Continuation .      44 46
Section 2.11 Conversion .      44 47
Section 2.12 Notes .      44 47
Section 2.13 Voluntary Reductions of the Revolving Commitment .      45 48
Section 2.14 Extension of Revolving Loan Termination Date .      45 48
Section 2.15 Expiration Date of Letters of Credit Past Revolving Commitment Termination .      47 49
Section 2.16 Amount Limitations .      47 50
Section 2.17 Increase in Revolving Commitments .      47 50
Section 2.18 Funds Transfer Disbursements .      49 51
ARTICLE III Payments, Fees and Other General Provisions     49 51
Section 3.1 Payments .      49 51
Section 3.2 Pro Rata Treatment .      50 52
Section 3.3 Sharing of Payments, Etc .      50 53
Section 3.4 Several Obligations .      51 53
Section 3.5 Fees .      51 53
Section 3.6 Computations .      52 54
Section 3.7 Usury .      52 55
Section 3.8 Statements of Account .      52 55
*NTD: Page numbers to be updated
i

Table of Contents
(continued)
Page

Section 3.9 Defaulting Lenders .      52 55
Section 3.10 Taxes .      56 58
ARTICLE IV Borrowing Base Properties     59 62
Section 4.1 Eligibility of Properties .      59 62
Section 4.2 Unsecured Loan .      60 62
Section 4.3 Reserved .      60 62
Section 4.4 Reserved .      60 62
Section 4.5 Reserved .      60 62
Section 4.6 Release of Guarantors .      60 62
Section 4.7 Reserved .      60 63
Section 4.8 Frequency of Calculations of Borrowing Base .      60 63
Section 4.9 Inspections .      61 63
ARTICLE V Yield Protection, Etc .      61 63
Section 5.1 Additional Costs; Capital Adequacy .      61 63
Section 5.2 Changed Circumstances Affecting Benchmark Availability .      63 65
Section 5.3 Illegality .      63 68
Section 5.4     Compensation      64 Indemnity.      68
Section 5.5 Treatment of Affected Loans .      64 69
Section 5.6 Affected Lenders .      65 69
Section 5.7 Change of Lending Office .      65 70
Section 5.8 Assumptions Concerning Funding of LIBOR SOFR Loans .      65 70
ARTICLE VI Conditions Precedent     66 70
Section 6.1 Initial Conditions Precedent .      66 70
Section 6.2 Conditions Precedent to All Loans and Letters of Credit .      68 72
Section 6.3 Conditions Precedent to a Property becoming a Borrowing Base Property .      69 73
ARTICLE VII Representations and Warranties     69 73
Section 7.1 Representations and Warranties .      69 73
Section 7.2 Survival of Representations and Warranties, Etc .      76 80
ARTICLE VIII Affirmative Covenants     76 81
Section 8.1 Preservation of Existence and Similar Matters .      76 81
Section 8.2 Compliance with Applicable Law .      77 81
Section 8.3 Maintenance of Property .      77 81
Section 8.4 Conduct of Business .      77 81
Section 8.5 Insurance .      77 81
ii

Table of Contents
(continued)
Page

Section 8.6 Payment of Taxes and Claims .      78 83
Section 8.7 Books and Records; Inspections .      79 83
Section 8.8 Use of Proceeds     79 84
Section 8.9 Environmental Matters .      80 84
Section 8.10 Further Assurances .      80 84
Section 8.11 Material Contracts .      80 85
Section 8.12 Statements and Projections of the Loan Parties .      81 85
Section 8.13 Exchange Listing .      81 85
Section 8.14 Guarantors .      81 85
Section 8.15 Reserved .      81 85
Section 8.16 Beneficial Ownership .      81 85
Section 8.17 Account .      81 86
ARTICLE IX Information     82 86
Section 9.1 Quarterly Financial Statements .      82 86
Section 9.2 Year-End Statements .      82 86
Section 9.3 Compliance Certificate     82 86
Section 9.4 Other Information .      83 87
Section 9.5 Electronic Delivery of Certain Information .      85 89
Section 9.6 Public/Private Information .      86 90
Section 9.7 USA Patriot Act Notice; Compliance .      86 90
ARTICLE X Negative Covenants     86 90
Section 10.1 Financial Covenants .      86 90
Section 10.2 Negative Pledge .      87 91
Section 10.3 Restrictions on Intercompany Transfers .      88 91
Section 10.4 Merger, Consolidation, Sales of Assets and Other Arrangements .      88 92
Section 10.5 Subordinated Debt Prepayments; Amendments .      89 92
Section 10.6 Permitted Indebtedness .      89 93
Section 10.7 Plans .      91 95
Section 10.8 Fiscal Year .      91 95
Section 10.9 Modifications of Organizational Documents and Material Contracts .      91 95
Section 10.10 Transactions with Affiliates .      91 95
Section 10.11 Environmental Matters .      92 96
Section 10.12 Derivatives Contracts .      92 96
Section 10.13 Leasing     92 96
Section 10.14 Limitation on Distributions     92 96
iii

Table of Contents
(continued)
Page

ARTICLE XI Default     92 96
Section 11.1 Events of Default .      92 96
Section 11.2 Remedies Upon Event of Default .      96 100
Section 11.3 Reserved .      97 101
Section 11.4 Marshaling; Payments Set Aside .      97 101
Section 11.5 Allocation of Proceeds .      97 101
Section 11.6 Letter of Credit Collateral Account .      98 102
Section 11.7 Performance by Administrative Agent .      99 103
Section 11.8 Rights Cumulative .      99 103
ARTICLE XII The Administrative Agent; Intercreditor Provisions     100 104
Section 12.1 Appointment and Authorization .      100 104
Section 12.2 Administrative Agent as Lender .      101 105
Section 12.3 Reserved .      101 105
Section 12.4 Reserved .      101 105
Section 12.5 Approvals of Lenders .      101 105
Section 12.6 Notice of Events of Default .      102 106
Section 12.7 Administrative Agent’s Reliance .      102 106
Section 12.8 Indemnification of Administrative Agent .      103 107
Section 12.9 Lender Credit Decision, Etc .      104 107
Section 12.10 Successor Administrative Agent .      104 108
Section 12.11 Titled Agents .      105 109
Section 12.12 Specified Derivatives Contracts; Specified Derivatives Providers .      105 109
Section 12.13 Certain ERISA Matters .      105 109
Section 12.14    Erroneous Payments     106 110
ARTICLE XIII Miscellaneous     108 112
Section 13.1 Notices .      108 112
Section 13.2 Expenses .      110 114
Section 13.3 Stamp, Intangible and Recording Taxes .      110 115
Section 13.4 Setoff .      111 115
Section 13.5 Litigation; Jurisdiction; Other Matters; Waivers .      111 116
Section 13.6 Successors and Assigns .      112 117
Section 13.7 Amendments and Waivers .      116 121
Section 13.8 Nonliability of Administrative Agent and Lenders .      119 123
Section 13.9 Confidentiality .      119 123
Section 13.10 Indemnification .      120 124
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Table of Contents
(continued)
Page

Section 13.11 Termination; Survival .      121 125
Section 13.12 Severability of Provisions .      121 125
Section 13.13 GOVERNING LAW .      121 126
Section 13.14 Counterparts     121 ; Integration; Electronic Execution.      126
Section 13.15 Obligations with Respect to Loan Parties and Subsidiaries .      122 127
Section 13.16 Independence of Covenants .      122 127
Section 13.17 Limitation of Liability .      122 127
Section 13.18 Entire Agreement .      122 127
Section 13.19 Construction .      122 127
Section 13.20 Headings .      122 127
Section 13.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions .      122 127
Section 13.22 Amended and Restated Credit Agreement .      123 128
Section 13.23 Acknowledgment Regarding Any Supported QFCs     124 129

v




SCHEDULE I    Commitments
SCHEDULE 1.1(a)    List of Loan Parties
SCHEDULE 4.1    Borrowing Base Property
SCHEDULE 7.1(b)    Ownership Structure
SCHEDULE 7.1(f)    Properties
SCHEDULE 7.1(g)    Indebtedness and Guaranties
SCHEDULE 7.1(h)    Material Contracts
SCHEDULE 7.1(i)    Litigation
SCHEDULE 7.1(r)    Affiliate Transactions


EXHIBIT A    Form of Assignment and Assumption Agreement
EXHIBIT B    Form of Borrowing Base Certificate
EXHIBIT C    Reserved
EXHIBIT D    Form of Amended and Restated Subsidiary Guaranty
EXHIBIT E    Reserved
EXHIBIT F    Form of Notice of Borrowing
EXHIBIT G    Form of Notice of Continuation
EXHIBIT H    Form of Notice of Conversion
EXHIBIT I    Form of Notice of Swingline Borrowing
EXHIBIT J    Form of Revolving Note
EXHIBIT K    Form of Swingline Note
EXHIBIT L     Benchmark Replacement Reserved
EXHIBIT M    Form of Disbursement Instruction Agreement
EXHIBIT N    Form of Compliance Certificate
EXHIBITS O-1-O-4    Forms of U.S. Tax Compliance Certificates

vi


THIS FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “ Agreement ”) dated as of April 28, 2021 by and among LGI HOMES, INC. , a corporation formed under the laws of the State of Delaware (the “ Borrower ”), each of the financial institutions initially a signatory hereto together with their successors and assignees under Section 13.6 (the “ Lenders ”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION , as Administrative Agent, with XXXXX FARGO SECURITIES, LLC , as sole Lead Arranger and sole Bookrunner (in such capacities, the “ Arranger ”) and FIFTH THIRD BANK, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION, BANK OF AMERICA, N.A., BANK OF THE WEST AND CITIZENS BANK, N.A. (the “ Documentation Agents ”).
WHEREAS, the Borrower, the Administrative Agent, and the Existing Lenders, are party to that certain Fourth Amended and Restated Credit Agreement dated as May 6, 2019, as amended by that certain Lender Addition and Acknowledgement Agreement and First Amendment to Fourth Amended and Restated Credit Agreement dated as of December 6, 2019, that certain Second Amendment to Fourth Amended and Restated Credit Agreement dated as of April 30, 2020, and that certain Letter Agreement dated as of September 29, 2020 (as heretofore amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Existing Credit Agreement ”);
WHEREAS, certain of the Borrower, the Subsidiary Guarantors and the Administrative Agent are party to the other “Loan Documents” (as such term is defined in the Existing Credit Agreement, and together with the Existing Credit Agreement, the “ Existing Loan Documents ”); and
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders party hereto and the Administrative Agent have agreed to amend and restate the Existing Credit Agreement in its entirety as, and in accordance with and subject to the terms and conditions, set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I     DEFINITIONS
Section 1.1      Definitions .
In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:
“ Accession Agreement ” means an Accession Agreement substantially in the form of Annex I to the Guaranty.
“ Account ” means an account with Xxxxx Fargo in the name of LGI Homes, Inc. designated by Borrower in a writing to the Administrative Agent, for purposes of, among other thing, administering Swingline Loans hereunder.
“ Actual Costs ” means, with respect to the acquisition of Land Held for Development, the acquisition and development of Lots Under Development, the acquisition of a Finished Lot or the construction of a Housing Unit on a Lot for a Model Housing Unit, Speculative Housing Unit or Presold Housing Unit, as applicable, the amount that the Borrower or any Subsidiary Guarantor has actually expended (to the extent such expenditures shall ultimately constitute costs of sales in accordance with GAAP, but it any event excluding general administrative corporate overhead) as of the last day of the most recent calendar month with respect to which the Borrower is required to have delivered a certificate pursuant to Section 9.4(d) , for:
(a)    the acquisition of such Land Held for Development;
(b)    the acquisition and development of such Lots Under Development;
(c)    the acquisition of such Finished Lot; or


(d)    the construction of such Housing Unit on a Lot for a Model Housing Unit, Speculative Housing Unit or Presold Housing Unit.
“ Additional Costs ” has the meaning given that term in Section 5.1(b) .
“ Adjusted Term SOFR ” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than 0.50% per annum, then Adjusted Term SOFR shall be deemed to be 0.50% per annum.
“ Administrative Agent ” means Xxxxx Fargo Bank, National Association as contractual representative of the Lenders under this Agreement, or any successor Administrative Agent appointed pursuant to Section 12.10 .
“ Administrative Questionnaire ” means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the Lenders from time to time.
“ Affected Financial Institution ” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“ Affected Lender ” has the meaning given that term in Section 5.6 .
“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Unless explicitly set forth to the contrary, a reference to an “Affiliate” means a reference to an Affiliate of the Borrower.
“ Agreement ” has the meaning given that term in the preamble hereto.
“ Agreement Date ” means the date as of which this Agreement is dated.
“ Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder and the U.K. Xxxxxxx Xxx 0000, as amended, and the rules and regulations thereunder.
“ Anti-Money Laundering Law ” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules related to terrorism financing, money laundering, any predicate crime to money laundering or any financial record keeping, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“ Applicable Law ” means all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“ Applicable Margin ” means the percentage rate set forth below corresponding to the “Leverage Ratio” as determined in accordance with the definition thereof:
2



Level
Leverage Ratio
Applicable Margin for LIBOR SOFR Loans
Applicable Margin for Base Rate Loans
1
Less than 35.0%
1.45%
1.45 %
2
Greater than or equal to 35.0% but less than 40.0%
1.60% 1.60%
3
Greater than or equal to 40.0% but less than 45.0%
1.75% 1.75%
4
Greater than or equal to 45.0% but less than 50.0%
1.85% 1.85%
5
Greater than or equal to 50.0%
2.10% 2.10%

The Applicable Margin for Loans shall be determined by the Administrative Agent from time to time, based on the Leverage Ratio as set forth in the Compliance Certificate most recently delivered by the Borrower pursuant to Section 9.3 . Any adjustment to the Applicable Margin shall be effective as of the first (1 st ) day of the calendar month immediately following the month during which the Borrower delivers to the Administrative Agent the applicable Compliance Certificate pursuant to Section 9.3 . If the Borrower fails to deliver a Compliance Certificate pursuant to Section 9.3 , the Applicable Margin shall equal the percentages corresponding to Level 5 until the first (1 st ) day of the calendar month immediately following the month that the required Compliance Certificate is delivered. Notwithstanding the foregoing, for the period from the Effective Date through but excluding the date on which the Administrative Agent first determines the Applicable Margin for Loans as set forth above, the Applicable Margin shall be determined based on Level 1. Thereafter, such Applicable Margin shall be adjusted from time to time as set forth in this definition. The provisions of this definition shall be subject to Section 2.6(c) .
“ Approved Fund ” means any Fund that is administered, managed or underwritten by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender.
“ Approved Sales Contract ” means a bona fide, legally binding, enforceable contract for the sale of a Housing Unit, between the Borrower (or a Subsidiary of the Borrower), as seller, and a thirty party unrelated to the Borrower, as buyer, with respect to which (i) the form and substance of such contract shall be normal and customary for that market, (ii) to the extent permitted by local law, a non-refundable market based xxxxxxx money deposit consistent with similar product type has been received by the Borrower, and (iii) the Borrower has received sufficient information that would indicate that such buyer has (A) submitted a mortgage loan application to a qualified single family mortgage lender for the financing of the acquisition of such Housing Unit, and (B) such single family mortgage lender has or can provide evidence that buyer is qualified for the financing designated in the contract. Notwithstanding the foregoing, if after the date of such contract any of the aforementioned conditions cease to exist, then such contract shall thereafter no longer be deemed an Approved Sales Contract. The Administrative Agent reserves the right to periodically audit the Borrower’s records to ensure that any Housing Unit designated as a Presold Housing Unit satisfies all of the conditions referenced above.
“ Assignment and Assumption ” means an Assignment and Assumption Agreement entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 13.6 ), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
“ Automatic Swingline Borrowing ” has the meaning given that term in Section 2.5(b) .
“ Available Tenor ” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or
3


component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 5.2(c)(iv).
“ Bail-in Action ” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“ Bail-In Legislation ” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“ Bankruptcy Code ” means the Bankruptcy Code of 1978, as amended.
“ Base Rate ” means, subject to implementation of a Benchmark Replacement in accordance with Exhibit L attached hereto, the LIBOR Market Index Rate Section 5.2, the Adjusted Term SOFR for a one-month tenor in effect on such day ; provided, that if for any reason the LIBOR Market Index Rate Adjusted Term SOFR is unavailable or unascertainable, Base Rate shall mean the per annum rate of interest equal to the Federal Funds Rate plus one and one-half percent (1.50%).
“ Base Rate Loan ” means a Revolving Loan (or any portion thereof) bearing interest at a rate based on the Base Rate.
“ Benchmark Replacement ” has the meaning given that term in Exhibit L .
“ Benchmark Replacement Conforming Changes ” has the meaning given that term in Exhibit L .
“ Benchmark ” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.2(c)(i).
“ Benchmark Replacement ” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“ Benchmark Replacement Adjustment ” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body at such time or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for
4


calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“ Benchmark Replacement Date ” has the meaning given that term in Exhibit L . means the earliest to occur of the following events with respect to the then-current Benchmark:
(a)      in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)      in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“ Benchmark Transition Event ” has the meaning given that term in Exhibit L . means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)      a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b)      a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York , an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c)      a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
5


“ Benchmark Transition Start Date ” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“ Benchmark Unavailability Period ” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.2(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.2(c)(i).
“ Beneficial Ownership Certification ” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“ Beneficial Ownership Regulation ” means 31 C.F.R. § 1010.230.
“ Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan.”
“ BHC Act Affiliate ” has the meaning given that term in Section 13.23(b)(i) .
“ Borrower ” has the meaning set forth in the introductory paragraph hereof and shall include the Borrower’s successors and permitted assigns.
“ Borrower Information ” has the meaning given that term in Section 2.6(c) .
“ Borrowing Base ” means an amount equal to the sum of the Borrowing Base Values of the Borrowing Base Properties as determined from time to time in accordance with this Agreement. Notwithstanding anything to the contrary contained herein:
(a)    the aggregate Borrowing Base Value of Commercial Land shall not exceed at any time five percent (5%) of the Borrowing Base (and any amount in excess of such limitation shall be excluded from the calculation of Borrowing Base);
(b)    Reserved;
(c)    the aggregate Borrowing Base Value of Land Held for Development, Commercial Land, Lots Under Development and Finished Lots shall not exceed at any time fifty percent (50%) of the Borrowing Base (and any amount in excess of such limitation shall be excluded from the calculation of Borrowing Base);
(d)    the aggregate Borrowing Base Value of Speculative Housing Units and Model Housing Units shall not exceed (i) at any time during the calendar months of December, January and February, seventy percent (70%) of the aggregate Borrowing Base Value of Speculative Housing Units, Model Housing Units and Presold Housing Units (and any amount in excess of such limitation shall be excluded from the calculation of Borrowing Base) and (ii) at any other time, sixty-five percent (65%) of the aggregate of the Borrowing Base Value of Speculative Housing Units, Model Housing Units and Presold Housing Units (and any amount in excess of such limitation shall be excluded from the calculation of Borrowing Base); and
6


(e)    the aggregate Borrowing Base, as otherwise calculated in accordance herewith, shall be reduced by an amount equal to the Permitted Deferred Purchase Price Debt Amount.
“ Borrowing Base Cash Componen t” means, at any time of determination, the amount of all available Unrestricted Cash in excess of $10,000,000.00.
“ Borrowing Base Certificate ” means a report in substantially the form of Exhibit B, certified by the chief executive officer or the chief financial officer of the Borrower, setting forth the Borrowing Base Property, calculations required to establish the Borrowing Base Value for each Borrowing Base Property, the Borrowing Base for all Borrowing Base Properties as of a specified date, and a calculation of the Permitted Deferred Purchase Price Debt Amount, all in form and detail satisfactory to the Administrative Agent.
“ Borrowing Base Property ” means Eligible Property and/or Commercial Land that the Administrative Agent has agreed to include in calculations of the Borrowing Base pursuant to Section 4.1 . A Property shall be excluded from the determination of the Borrowing Base if at any time such Property shall cease to be an Eligible Property.
“ Borrowing Base Values ” means, with respect to a Borrowing Base Property (subject to any additional limitations set forth in the definition of “Borrowing Base”), an amount equal to:
(a)    For Commercial Land, fifty percent (50%) of the Actual Cost; provided , however , the Borrowing Base Value for any Commercial Land included in the Borrowing Base as Commercial Land for more than twenty-four (24) months shall be thirty percent (30%) of Actual Cost; provided , further , however , any Commercial Land included in the Borrowing Base as Commercial Land for more than thirty-six (36) months shall be excluded from the Borrowing Base, plus
(b)    For Land Held for Development, fifty percent (50%) of the Actual Cost; plus
(c)    For Lots Under Development, sixty-five percent (65%) of the Actual Costs; provided , however , that any Lots Under Development shall be excluded from this clause (ii) if either (1) no physical development activity has occurred on such Lot Under Development for nine (9) months or (2) such Lots Under Development are Land Held for Development and are not being physically developed into Finished Lots within six (6) months following the date that such Land Held for Development was first included in the Borrowing Base as a “Lot Under Development”, plus
(d)    For Finished Lots, seventy percent (70%) of the Actual Costs, plus
(e)    For Presold Housing Units, ninety percent (90%) of the Actual Costs, plus
(f)    For Speculative Housing Units, eighty percent (80%) of the Actual Costs; provided , however , any Speculative Housing Units included in the Borrowing Base as Speculative Housing Units for more than eighteen (18) months shall be excluded from the Borrowing Base, plus
(g)    For Model Housing Units, eighty percent (80%) of the Actual Costs; provided , however , the Borrowing Base Value for any Model Housing Unit shall decrease by ten percent (10%) every twelve (12) months after any Model Housing Units have been included in the Borrowing Base as a Model Housing Unit for more than thirty-six (36) months (i.e., the first such reduction in Borrowing Base Value shall occur at month thirty-seven (37), and the second such reduction shall occur at month forty-nine (49), and so on), plus
(h)    One hundred percent (100%) of the Borrowing Base Cash Component.
“ Business Day ” means (a) for all purposes other than as set forth in clause (b) below, any day (other than any day that is not a Saturday, Sunday or legal holiday) on which banks in New York , New York , are open for the conduct of their commercial banking business, and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Loan, or
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any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market other day on which the Federal Reserve Bank of New York is closed . Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.
“ Capitalized Lease Obligations ” means obligations under a lease (or other arrangement conveying the right to use property) to pay rent or other amounts that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable date.
“ Cash Collateralize ” means, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Bank or the Lenders, as collateral for Letter of Credit Liabilities or obligations of Lenders to fund participations in respect of Letter of Credit Liabilities, cash or deposit account balances or, if the Administrative Agent and the Issuing Bank 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 Issuing Bank. “ 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: (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organisation for Economic Co-operation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short-term commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Xxxxx’x; (c) reverse repurchase agreements with terms of not more than seven (7) days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Xxxxx’x, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $500,000,000 and at least eighty-five percent (85%) of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.
“ CDD Debt ” means “low-floater” tax-exempt municipal bonds or other type of bond authorized by assessment district, improvement district or other community facilities district, to finance the development, construction and installation of infrastructure improvements on any Borrowing Base Property and off-site infrastructure improvements for the benefit of the project related to such Borrowing Base Property in connection with the development of the Borrowing Base Property, including without limitation roadway improvements, streets and utility lines and facilities.
“ Commercial Land ” means Property which: (a) is zoned for commercial purposes as a use by right (or comparable classification under local law); (b) is owned in fee simple by the Borrower or a Subsidiary Guarantor; (c) is located in the United States of America; (d) with respect to such Property, no payment or other material default by the Borrower or a Subsidiary Guarantor in the payment or performance of any assessment district obligations, special facility obligations or other similar obligations has occurred and is continuing with respect to such Property; (e) is not subject to any Liens other than Permitted Liens; (f) if all or any portion of such Property secures Permitted Deferred Purchase Price Debt, no enforcement action has been taken or is threatened to be taken by any holder of such Permitted Deferred Purchase Price Debt; and (g) is adjacent to and developed in connection with Residential Land.
“ Commitment ” means, as to a Lender, such Lender’s Revolving Commitment.
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“ 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.
“ Compliance Certificate ” has the meaning given that term in Section 9.3 .
“ Conforming Changes ” means, with respect to either the use or administration of Adjusted Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 5.4 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Consolidated Debt ” means the sum of the following (without duplication): (a) all funded debt of the Borrower and its respective Subsidiaries determined on a consolidated basis in accordance with GAAP, (b) all outstanding loan balances associated with recourse obligations of the Borrower or any Subsidiary not shown on the Borrower’s consolidated balance sheet including guarantees, (c) the principal amount of all financial surety bonds, non-cash secured letters of credit and/or tri-party agreements whether presented for payment or not, but excluding Performance Letters of Credit for which payment has not been demanded by the beneficiary and for which reimbursement by the Borrower or a Subsidiary has not been made, (d) net liabilities of the Borrower or any of its Subsidiaries under Derivatives Contracts, (e) the pro rata share of any Joint Venture indebtedness of the Borrower or any Subsidiary, and (f) all Senior Notes Indebtedness, (g) contingent obligations of the Borrower and its respective Subsidiaries to the extent of amount then due and payable.
“ Consolidated Earnings ” means, for any period, the amount which would be set forth opposite the caption “net income” (or any like caption) in a consolidated statement of income or operations of the Borrower and its Subsidiaries for such period prepared in accordance with GAAP.
“ Continue ,” “ Continuation ” and “ Continued ” each refers to the continuation of a LIBOR SOFR Loan from one Interest Period to another Interest Period pursuant to Section 2.10 .
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“ Convert ,” “ Conversion ” and “ Converted ” each refers to the conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.11 .
“ Credit Event ” means any of the following: (a) the making (or deemed making) of any Loan, (b) the Conversion of a Base Rate Loan into a LIBOR SOFR Loan, (c) the Continuation of a LIBOR SOFR Loan, and (d) the issuance of a Letter of Credit or the amendment of a Letter of Credit that extends the maturity, or increases the Stated Amount, of such Letter of Credit.
“ Credit Rating ” means the rating assigned by a Rating Agency to the senior unsecured long term Indebtedness of a Person.
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“ Cutoff Date ” means March 31, 2021.
“ Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America or other applicable jurisdictions from time to time in effect.
“ Default ” means any of the events specified in Section 11.1 , whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“ Defaulting Lender ” means, subject to Section 3.9(f) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of 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 (ii) pay to the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due; (b) has notified the Borrower, the Administrative Agent, the Issuing Bank or the Swingline 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, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; 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 of America 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 3.9(f) ) upon delivery of written notice of such determination to the Borrower, the Issuing Bank, the Swingline Lender and each Lender.
“ Derivatives Contract ” means a “swap agreement” as defined in Section 101 of the Bankruptcy Code.
“ Derivatives Value ” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out, the termination amount or value determined in accordance therewith, and (b) for any date prior to the date such Derivatives Contracts have been terminated or closed out, the then-current xxxx-to-market value for such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent, any Lender, any Specified Derivatives Provider or any Affiliate of any of them).
“ Disbursement Instruction Agreement ” means an agreement substantially in the form of Exhibit M to be executed and delivered by the Borrower pursuant to pursuant to Section 6.1(a)(xi) , as the
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same may be amended, restated or modified from time to time with the prior written approval of the Administrative Agent.
“ Distribution ” shall mean any dividend or other distribution (whether in cash or other tangible property) with respect to any capital stock or other equity interest of any Person or any Subsidiary, other than to the Borrower or to a third party in exchange for goods or services, including any redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest or of any option, warrant or other right to acquire any such capital stock or other equity interest.
“ Dollars ” or “ $ ” means the lawful currency of the United States of America.
“ EBITDA ” means, with respect to a Person for any period and without duplication: net income (loss) of such Person for such period determined on a consolidated basis excluding the following (but only to the extent included in determining net income (loss) for such period): (i) depreciation and amortization; (ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or nonrecurring items (excluding any real estate impairments); and (v) other items as approved by the Administrative Agent in its reasonable discretion. EBITDA shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of intangibles pursuant to FASB ASC 805 and ASC 840. For purposes of this definition, nonrecurring items shall be deemed to include (x) gains and losses on early extinguishment of Indebtedness, (y) non-cash severance and other non-cash restructuring charges and (z) transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP.
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any credit institution or investment firm established in any EEA Member Country.
“ Effective Date ” means the later of (a) the Agreement Date and (b) the date on which all of the conditions precedent set forth in Section 6.1 shall have been fulfilled or waived by all of the Lenders.
“ Electronic Record ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“ Electronic Signature ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“ Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than a natural person or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), provided that neither the Borrower nor any Affiliate of the Borrower shall be an Eligible Assignee.
“ Eligible Property ” means a Property which satisfies all of the following requirements: (a) such Property is located on Entitled Land and constitutes Land Held for Development, Lots Under Development, Finished Lots, Presold Housing Units, Speculative Housing Units or Model Housing Units; (b) such Property is owned in fee simple by the Borrower or Subsidiary Guarantor; (c) such Property is located in the United States of America; (d) with respect to such Property, no payment or other material default by the Borrower or a Subsidiary Guarantor in the payment or performance of any assessment
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district obligations, special facility obligations or other similar obligations has occurred and is continuing with respect to such Property; (e) such Property is not subject to any Liens other than Permitted Liens; (f) intentionally omitted; and (g) if all or any portion of such Property secures Permitted Deferred Purchase Price Debt, no enforcement action has been taken or is threatened to be taken by any holder of such Permitted Deferred Purchase Price Debt.
“ Employee Benefit Plan ” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Loan Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding five (5) years been maintained, funded or administered for the employees of any Loan Party or any current or former ERISA Affiliate.
“ Entitled Land ” means Residential Land owned 100% by the Borrower or by any Subsidiary Guarantor in fee simple with respect to which (i) all requisite zoning requirements and land use requirements for such Land’s then-current use and state of development have been satisfied and (ii) the Borrower has sole control and management rights. “Entitled Land” shall include all Land Held for Development, Lots Under Development and Finished Lots.
“ Environmental Claims ” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.
“ Environmental Laws ” means any Applicable Law relating to environmental protection or the manufacture, storage, remediation, disposal or clean-up of Hazardous Materials, including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the United States Environmental Protection Agency, any applicable rule of common law and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment.
“ Equity Interest ” means, with respect to any Person, (a) any share of capital stock of (or other ownership or profit interests in) such Person; (b) any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, whether or not certificated; (c) any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests); and (d) any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
“ Equity Issuance ” means any issuance or sale by a Person of any Equity Interest in such Person and shall in any event include the issuance of any Equity Interest upon the conversion or exchange of any security constituting Indebtedness that is convertible or exchangeable, or is being converted or exchanged, for Equity Interests.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
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“ ERISA Affiliate” means any Person who together with any Loan Party or any of its Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code or Section 4001(b) of ERISA.
“ Erroneous Payment ” has the meaning assigned thereto in Section 12.14 (a) .
“ Erroneous Payment Deficiency Assignment ” has the meaning assigned thereto in Section 12.14(d).
“ Erroneous Payment Impacted Loans ” has the meaning assigned thereto in Section 12.14(d).
“ Erroneous Payment Return Deficiency ” has the meaning assigned thereto in Section 12.14(d).
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“ Eurodollar Reserve Percentage ” means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City. LIBOR for each outstanding LIBOR Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“ Event of Default ” means any of the events specified in Section 11.1 , provided that any requirement for notice or lapse of time, or both, or any other condition has been satisfied.
“ Excluded Swap Obligation ” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Loan Party for or the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any liability or 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 Loan Party’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 liability for or the Guarantee of such Loan Party or the grant of such Lien becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Loan Party, including under Section 31 of the Guaranty). 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 Lien is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.6 ) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10 , 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 office; (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10(g) ; and (d) any U.S. federal withholding Taxes imposed under FATCA.
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“ Existing Credit Agreement ” has the meaning given such term in the recitals hereto.
“ Existing Lenders ” means the “Lenders” under the Existing Credit Agreement immediately prior to the Agreement Date.
“ Existing Letters of Credit ” means those “Letters of Credit” issued and outstanding under the Existing Credit Agreement immediately prior to the Agreement Date.
“Existing Loan Documents” has the meaning given to such term in the recitals hereto.
“ Existing Loans ” means the “Revolving Loans” outstanding under the Existing Credit Agreement immediately prior to the Agreement Date.
“ Exiting Lender ” has the meaning given such term in Section 13.22 .
“ Fair Market Value ” means, (a) with respect to a security listed on a national securities exchange or the NASDAQ National Market, the price of such security as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial institutions, and (b) with respect to any other property, the price which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.
“ FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“ FATCA ” means Sections 1471 through 1474 of the Internal Revenue 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), current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, 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 for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent, provided that if the Federal Funds Rate as calculated above shall be less than 0.50% per annum, such rate shall be deemed to be 0.50% per annum for the purposes of this Agreement.
“ Fee Letter ” means that certain fee letter dated as of March 15, 2021, by and between the Borrower, the Administrative Agent, and Xxxxx Fargo Securities, LLC (as amended from time to time) .
“ Fees ” means the fees and commissions provided for or referred to in Section 3.5 and any other fees payable by the Borrower hereunder or under any other Loan Document.
“ Finished Lots ” means, Entitled Land (i) that has been legally subdivided for the construction of Housing Units, (ii) that has been graded substantially in accordance with all grading plans approved by the applicable agencies and contains level building pads (except for any fine or precise grading to be completed immediately prior to vertical construction), (iii) that has all water, sewer, electrical and other utility services for planned residences installed and stubbed to the lot behind the sidewalk, (iv) that has all storm drain, sewer, curb, gutter, sidewalk and pavement for public access constructed and installed, except for any final lift of the streets and lateral connections to Housing Units, (v) that has all property corners surveyed and marked and any required survey monumentation installed, and (vi) with respect to
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which all applicable development fees (including, without limitation, school and development impact fees) that are required to be paid prior to obtaining a building permit have been paid other than building permit and plan check fees. Except as otherwise expressly provided in this Agreement, the term “Finished Lot” shall not include any Land upon which the construction of a Housing Unit has commenced.
“ Fitch ” means Fitch Ratings, Inc. and its successors.
“ Floor ” means a rate of interest equal to 0.50%.
“ Foreign Lender ” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit Liabilities other than Letter of Credit Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving 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 activities.
“ GAAP ” means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards Codification”) or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States of America, which are applicable to the circumstances as of the date of determination.
“ Governmental Approvals ” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
“ Governmental Authority ” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, administrative, public or statutory instrumentality, authority (including any supranational bodies such as the European Union or the European Central Bank), body, agency, bureau, commission, board, department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“ Guaranteed Obligations ” means, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other than any Excluded Swap Obligation).
“ Guarantor ” means any Person that is party to the Guaranty as a “Guarantor” and shall in any event include each Material Subsidiary.
“ Guaranty ,” “ Guaranteed ” or to “ Guarantee ” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or
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obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires, “Guaranty” shall also mean, individually or collectively as the context may require, each guaranty executed and delivered pursuant to Section 6.1 or 8.14 and substantially in the form of Exhibit D .
“ Hazardous Materials ” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty parts per million.
“ Housing Unit ” means a single-family attached or detached dwelling (including without limitation a condominium or townhome), including the Lot on which such dwelling is located, for which a building permit has been issued and construction has begun and that is or will be available for sale by the Borrower or any Subsidiary Guarantor. Each “Housing Unit” is a Presold Housing Unit, a Speculative Housing Unit or a Model Housing Unit.
“ Improvements ” means all Housing Units and any other improvements, buildings, structures, equipment, fixtures and amenities located on the Lots owned by the Borrower or any Subsidiary Guarantor.
“ Indebtedness ” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed or for the deferred purchase price of property or services (excluding trade debt incurred in the ordinary course of business not more than thirty (30) days past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or for services rendered; (c) Capitalized Lease Obligations of such Person; (d) all reimbursement obligations (contingent or otherwise) of such Person under or in respect of any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) net obligations under any Derivatives Contract not entered into as a hedge against interest rate risk in respect of existing Indebtedness, in an amount equal to the Derivatives Value thereof at such time (but in no event less than zero); (h) all Indebtedness of other Persons which such Person has Guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to non-recourse liability); and (i) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other payment obligation. Indebtedness of a Person shall include Indebtedness of any other Person to the extent
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such Indebtedness is recourse to such first Person. All Loans and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower or any other Loan Party under any Loan Document, and (b) to the extent not otherwise described in the immediately preceding clause (a), Other Taxes.
“ Intellectual Property ” has the meaning given that term in Section 7.1(s) .
“ Interest Expense ” means, with respect to a Person and for any period, without duplication, total interest expense of such Person (whether expensed or capitalized, including (i) capitalized interest charged to cost of sales and (ii) capitalized interest not funded under a construction loan interest reserve account) determined on a consolidated basis in accordance with GAAP for such period.
“ Interest Period ” means, with respect to each LIBOR as to any SOFR Loan, each the period commencing on the date such LIBOR SOFR Loan is made, or in the case of the Continuation of a LIBOR Loan the last day of the preceding Interest Period for such Loan, disbursed or converted to or continued as a SOFR Loan and ending on the numerically corresponding day in the first date one ( 1st 1 ), third three ( 3rd 3 ) or sixth (6th) calendar month six (6) months thereafter, in each case as selected by the Borrower may select in a its Notice of Borrowing , Notice of Continuation or Notice of Conversion , as the case may be, except that each Interest Period that commences on /Continuation and subject to availability; provided that:
(a)      the Interest Period shall commence on the date of advance of or conversion to any SOFR Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;
(b)      if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
(c)      any Interest Period that begins on the last Business Day of a calendar month (or on any a day for which there is no numerically corresponding day in the appropriate subsequent calendar month at the end of such Interest Period ) shall end on the last Business Day of the appropriate subsequent relevant calendar month . at the end of such Interest Period;
Notwithstanding the foregoing: (i) if any Interest Period for a Loan would otherwise end after the Maturity Date, such Interest Period shall end on the Maturity Date; and (ii) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day).
(d)      no Interest Period shall extend beyond the Maturity Date; and
(e)      no tenor that has been removed from this definition pursuant to Section 5.2(c)(iv) shall be available for specification in any Notice of Borrowing, Notice of Conversion or Notice of Continuation.
“ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended.
“ Investment ” means, with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interest in such other Person, or (c) the
17


purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person. Any commitment to make an Investment in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment. For purposes of determining compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“ Issuing Bank ” means Xxxxx Fargo in its capacity as an issuer of Letters of Credit pursuant to Section 2.4 .
“ Joint Venture ” shall mean any Person (other than a Subsidiary) in which the Borrower or a Subsidiary holds any Equity Interest.
“ Land ” shall mean land owned by the Borrower or a Subsidiary Guarantor, which land is being developed or is held for future development or sale, including, without limitation, Residential Land and land being developed for commercial purposes or held for future development or sale for commercial purposes.
“ Land Held for Development ” means Entitled Land being held for development which is zoned to permit single-family residential development (attached or detached) as a use by right (or comparable classification under local law) but which is not developed.
“ Lender ” means each financial institution from time to time party hereto as a “Lender”, together with its respective successors and permitted assigns, including the Swingline Lender; provided , however , that the term “Lender”, except as otherwise expressly provided herein, shall exclude any Lender (or its Affiliates) in its capacity as a Specified Derivatives Provider.
“ Lender Parties ” means, collectively, the Administrative Agent, the Lenders, the Issuing Bank, the Specified Derivatives Providers, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 12.7 , any other holder from time to time of any of any Obligations and, in each case, their respective successors and permitted assigns.
“ Lending Office ” means, for each Lender and for each Type of Loan, the office of such Lender specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption, or such other office of such Lender as such Lender may notify the Administrative Agent in writing from time to time.
“ Letter of Credit ” has the meaning given that term in Section 2.4(a) .
“ Letter of Credit Collateral Account ” means a special deposit account maintained by the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Bank and the Lenders, and under the sole dominion and control of the Administrative Agent.
“ Letter of Credit Disbursements ” has the meaning given to that term in Section 3.9(b) .
“ Letter of Credit Documents ” means, with respect to any Letter of Credit, collectively, any application therefor, any certificate or other document presented in connection with a drawing under such Letter of Credit and any other agreement, instrument or other document, other than this Agreement and the other Loan Documents, governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral security for any of such obligations.
“ Letter of Credit Liabilities ” means, without duplication, at any time and in respect of any Letter of Credit (a) the Stated Amount of such Letter of Credit, plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all drawings made under such Letter of Credit. For purposes of this Agreement, a Lender (other than the Lender then acting as Issuing Bank) shall be deemed to hold a Letter of Credit Liability in an amount
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equal to its participation interest under Section 2.4 in the related Letter of Credit, and the Lender then acting as the Issuing Bank shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter of Credit after giving effect to the acquisition by the Lenders (other than the Lender then acting as the Issuing Bank) of their participation interests under such Section.
“ Leverage Ratio ” means, for any fiscal quarter of the Borrower, the ratio of (a) Consolidated Debt on the last day of such fiscal quarter to (b) Total Capitalization on the last day of such fiscal quarter.
“ LIBOR ” means, subject to the implementation of a Benchmark Replacement in accordance with Exhibit L , for any interest rate calculation with respect to a LIBOR Loan, the rate of interest per annum obtained by dividing (a) the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as published by the ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first (1st) day of the applicable Interest Period by (b) a percentage equal to one (1) minus the Eurodollar Reserve Percentage. Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error. Notwithstanding the foregoing, (x) in no event shall LIBOR (including any Benchmark Replacement with respect thereto) be less than 0.50% and (y) if a Benchmark Transition Event or an Early Opt-In Election (as defined in Exhibit L attached hereto), as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR, then the “LIBOR” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to Exhibit L .
“ LIBOR Loan ” means a Revolving Loan (or any portion thereof) (other than a Base Rate Loan) bearing interest at a rate based on LIBOR.
“ LIBOR Market Index Rate ” means, for any day, LIBOR as of that day that would be applicable for a LIBOR Loan having a one-month Interest Period determined at approximately 10:00 a.m. Central time for such day (rather than 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period as otherwise provided in the definition of “LIBOR”), or if such day is not a Business Day, the immediately preceding Business Day; provided that, if the rate of interest determined as provided above with respect to any LIBOR Loan for a one-month period would be less than 0.50% per annum, then the rate of interest with respect to such LIBOR Loan for such period shall be deemed to be 0.50% per annum. The LIBOR Market Index Rate shall be determined on a daily basis. Notwithstanding the foregoing, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR Market Index Rate, then the “LIBOR Market Index Rate” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to Exhibit L .
“ Lien ” as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, hypothecation, assignment, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; and (c) the filing of any financing statement under the UCC or its equivalent in any jurisdiction, other than any precautionary filing not otherwise constituting or giving rise to a Lien, including a financing statement filed (i) in respect of a lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the UCC or its equivalent as in effect in an applicable jurisdiction or (ii) in connection with a sale or other disposition of accounts or other assets not prohibited by this Agreement in a transaction not otherwise constituting or giving rise to a Lien.
“ Liquidity ” means (a) Unrestricted Cash not in the Borrowing Base, plus (b) the difference of (i) Maximum Loan Availability, minus (ii) the aggregate principal amount of all unsecured indebtedness (including outstanding Loans and Senior Notes Indebtedness) plus the aggregate amount of all Letter of Credit Liabilities.
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“ Loan ” means a Revolving Loan or a Swingline Loan.
“ Loan Document ” means this Agreement, each Note, each Security Document, each Letter of Credit Document, the Fee Letter and each other document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement (other than any Specified Derivatives Contract).
“ Loan Party ” means each of the Borrower, each other Person who guarantees all or a portion of the Obligations and/or who pledges any collateral to secure all or any portion of the Obligations. Schedule 1.1(a) sets forth the Loan Parties in addition to the Borrower as of the Agreement Date.
“ Lot ” means a Finished Lot or a lot that is part of Lots Under Development that the Borrower or any Subsidiary Guarantor intends to make into a Finished Lot.
“ Lots Under Development ” means all Land Held for Development with respect to which the Borrower or any Subsidiary Guarantor has obtained all necessary approvals for its subdivision for residential housing units (including condominium units), and which the Borrower or any Subsidiary Guarantor is actively developing into Finished Lots; provided , however , that the term “Lots Under Development” shall not include any land upon which the construction of a residential housing unit has commenced.
“ Mandatorily Redeemable Stock ” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in the case of each of clauses (a) through (c), on or prior to the Maturity Date.
“ Material Adverse Effect ” means a materially adverse effect on (a) the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower or any other Loan Party to perform its obligations, other than those for the payment of money, under any Loan Document to which it is a party, (c) the validity or enforceability of any of the Loan Documents, (d) the rights and remedies of the Lenders, the Issuing Bank and the Administrative Agent under any of the Loan Documents or (e) the timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith or the timely payment of all Reimbursement Obligations.
“ Material Contract ” means any contract or other arrangement (other than Loan Documents and Specified Derivatives Contracts), whether written or oral, to which the Borrower, any Subsidiary or any other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“ Material Subsidiary ” means any Subsidiary (i) having gross assets equal to or greater than $500,000 in value, (ii) owning a direct or indirect equity interest in any Joint Venture having gross assets equal to or greater than $500,000 in value, (iii) having assets constituting Borrowing Base Property, or (iv) that is a guarantor of any Senior Notes Indebtedness or under any Senior Notes Indenture.
“ Maturity Date ” means the Revolving Loan Termination Date.
“ Maximum Loan Availability ” means, at any time, the least of (a) the aggregate of the Commitments of all the Lenders, as reduced or increased from time to time pursuant to the terms hereof, (b) the amount, if any, by which (i) the Borrowing Base exceeds (ii) the sum of (x) Senior Notes Indebtedness, plus (y) Other Unsecured Indebtedness unless such Other Unsecured Indebtedness
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constitutes Subordinated Debt, and (c) the maximum Indebtedness permitted to be incurred under this Agreement pursuant to the terms of any Senior Notes Indebtedness or Senior Notes Indenture.
“ Model Housing Unit ” means, a Housing Unit that will be or has been constructed initially for use as an information center or sales office and that is not intended to be sold until all or substantially all other Housing Units in the applicable subdivision are sold.
“ Moody’s ” means Xxxxx’x Investors Service, Inc. and its successors.
“ Multiemployer Plan ” means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which Loan Party or any ERISA Affiliate is then making or accruing an obligation to make contributions or has within the preceding six plan years made contributions, including for these purposes any Person which ceased to be an ERISA Affiliate during such six-year period, or has any liability.
“ Negative Pledge ” means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other Person; provided , however , that an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.
“ Net Proceeds ” means with respect to an Equity Issuance by a Person, the aggregate amount of all cash and the Fair Market Value of all other property (other than securities of such Person being converted or exchanged in connection with such Equity Issuance) received by such Person in respect of such Equity Issuance, net of investment banking fees, legal fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred by such Person in connection with such Equity Issuance.
“ New Lenders ” means the Lenders (other than Existing Lenders) party to this Agreement on the Agreement Date.
“ Non-Defaulting Lender ” means, at any time, each Revolving Lender that is not a Defaulting Lender at such time.
“ Non-Recourse Indebtedness ” means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.
“ Note ” means a Revolving Note or a Swingline Note.
“ Notice of Borrowing ” means a notice substantially in the form of Exhibit F (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1(b) , evidencing the Borrower’s request for a borrowing of Revolving Loans.
“ Notice of Continuation ” means a notice substantially in the form of Exhibit G (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.10 , evidencing the Borrower’s request for the Continuation of a LIBOR SOFR Loan.
“ Notice of Conversion ” means a notice substantially in the form of Exhibit H (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such
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Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.11 , evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type.
“ Notice of Swingline Borrowing ” means a notice substantially in the form of Exhibit I (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Swingline Lender pursuant to Section 2.5(b) evidencing the Borrower’s request for a Swingline Loan.
“ Obligations ” means, individually and collectively: (a) the aggregate principal balance of, and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and the other Loan Parties owing to the Administrative Agent, the Issuing Bank or any Lender of every kind, nature and description, under or in respect of this Agreement or any of the other Loan Documents, including, without limitation, the Fees and indemnification obligations, whether direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any promissory note. For the avoidance of doubt, “Obligations” shall not include any indebtedness, liabilities, obligations, covenants or duties in respect of Specified Derivatives Contracts.
“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“ Off-Balance Sheet Obligations ” means, with respect to a Person: (a) obligations of such Person in respect of any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person has sold, conveyed or otherwise transferred, or granted a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose Subsidiary or Affiliate of such Person; (b) obligations of such Person under a sale and leaseback transaction that does not create a liability on the balance sheet of such Person; (c) obligations of such Person under any so-called “synthetic” lease transaction; and (d) obligations of such Person under any other transaction which is the functional equivalent of, or takes the place of, a borrowing but which does not constitute a liability on the balance sheet of such Person; and (e) in the case of the Borrower, liabilities and obligations of the Borrower, any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act) which the Borrower would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of the Borrower’s report on Form 10-Q or Form 10-K (or their equivalents) which the Borrower is required to file with the SEC.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient 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, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment of any interest in the Loan Documents (other than an assignment made pursuant to Section 5.6 ).
“ Other Unsecured Indebtedness ” means unsecured Indebtedness other than the Senior Notes Indebtedness.
“ Ownership Share ” means, with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or
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Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.
“ Participant ” has the meaning given that term in Section 13.6(d) .
“ Participant Register ” has the meaning given that term in Section 13.6(d) .
“ Patriot Act ” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
“ Payment Recipient ” has the meaning assigned thereto in Section 12.14(a).
“ PBGC ” means the Pension Benefit Guaranty Corporation established under ERISA and any successor agency.
“ Pension Plan ” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by a Loan Party or any ERISA Affiliate or (b) has at any time within the preceding six years been maintained, or contributed to, by any Loan Party or any ERISA Affiliate for employees of Loan party or ERISA Affiliate.
“ Performance Letter of Credit ” shall mean any Letter of Credit or surety bond issued on behalf of the Borrower or a Subsidiary in favor of a municipality, other Governmental Authority, utility, water or sewer authority, or other similar entity for the purpose of assuring such beneficiary of the Letter of Credit or surety bond of the proper and timely completion of construction work.
“ Permitted Deferred Purchase Price Debt” means Indebtedness in the nature of deferred purchase price (including earnout, deferred additional payment or similar incentive arrangements) owed to sellers of Land and incurred by the Borrower or a Subsidiary in the ordinary course of business in connection with the purchase of such Land in an amount reasonably projected in good faith by the Borrower to be payable to such seller.
“Permitted Deferred Purchase Price Debt Amount” means, with respect to Permitted Deferred Purchase Price Debt, the aggregate amount reasonably projected in good faith by the Borrower to be payable by the Borrower or any Subsidiary to any holder thereof.
“ Permitted Investment ” means the following:
(a)    Investments in Cash Equivalents;
(b)    Investments in or loans or advances to Subsidiary Guarantors;
(c)    Investments in or loans or advances to Subsidiaries which are not Guarantors; provided that any such investments, loans and advances do not exceed $500,000 in the aggregate per Subsidiary at any one time;
(d)    Investments in, loans or advances to Joint Ventures;
(e)    guarantees of payment or collection of the Indebtedness of a Joint Venture by the Borrower or any Subsidiary in an amount not to exceed $10,000,000 in the aggregate at any one time;
(f)    Reserved; and
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(g)    other Investments not included under clauses (a) through (f) above which do not, in the aggregate, exceed $5,000,000 at any one time.
“ Permitted Liens ” means, with respect to any asset or property of a Person:
(a)    Liens securing Taxes imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws) which are not at the time required to be paid or discharged under Section 8.6 ;
(b)    the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which, in each case, are not at the time required to be paid or discharged under Section 8.6 ;
(c)    Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or similar Applicable Laws;
(d)    Liens consisting of encumbrances in the nature of zoning restrictions, easements, rights-of-way, plats, declarations of covenants, condominium declarations, similar encumbrances and rights or restrictions of record on the use of real property, which do not materially detract from the value of such property or impair the intended use thereof in the business of such Person;
(e)    Liens in favor of the Administrative Agent for its benefit and the benefit of the other Lender Parties;
(f)    Liens in favor of property owners’ associations that are not yet due and payable or, to the extent due and payable, being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP and as to which the property subject to such Lien is not yet subject to foreclosure, sale or loss on account thereof;
(g)    Liens incurred or deposits made to secure the performance of bids, tenders, leases, contracts (other than for the payment of money), public or statutory obligations, surety, stay, appeal, indemnity, performance, or other similar bonds, developer’s or other obligations to make on-site or off-site improvements or other similar obligations arising in the ordinary course of business;
(h)     Liens on Property purchased, in part, with Permitted Deferred Purchase Price Debt that secure such Permitted Deferred Purchase Price Debt; provided , however , the aggregate amount of Permitted Deferred Purchase Price Debt secured by such Liens shall not exceed $15,000,000 at any one time outstanding.
(i)     Liens securing Capitalized Lease Obligations allowed by Section 10.6(l) ;
(j)     Liens securing CDD Debt; and
(k)    Other Liens that do not secure borrowed money and that are permitted by the Administrative Agent in its reasonable discretion.
“ Person ” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.
“ Post-Default Rate ” means, (a) in respect of any principal of any Loan or any Reimbursement Obligation, the rate otherwise applicable plus an additional two percent (2.0%) per annum, and (b) with respect to any other Obligation, a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin for Base Rate Loans plus two percent (2.0%).
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“ Presold Housing Unit ” means a Housing Unit which is subject to an Approved Sales Contract.
“ Principal Office ” means the office of the Administrative Agent located at 000 Xxxxx 0xx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or any other subsequent office that the Administrative Agent shall have specified as the Principal Office by written notice to the Borrower and the Lenders.
“ Pro Rata Share ” means, as to each Lender, the ratio, expressed as a percentage of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount of the Revolving Commitments of all Lenders; provided , however , that if at the time of determination the Revolving Commitments have terminated or been reduced to zero, the “Pro Rata Share” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the unpaid principal amount of all outstanding Revolving Loans, Swingline Loans and Letter of Credit Liabilities owing to such Lender as of such date to (B) the sum of the aggregate unpaid principal amount of all outstanding Revolving Loans, Swingline Loans and Letter of Credit Liabilities of all Lenders as of such date. If at the time of determination the Commitments have terminated and there are no outstanding Loans or Letter of Credit Liabilities, then the Pro Rata Shares of the Lenders shall be determined as of the most recent date on which Commitments were in effect or Loans or Letter of Credit Liabilities were outstanding.
“ Property ” means a parcel (or group of related parcels) of real property owned by the Borrower, any Subsidiary or any Unconsolidated Affiliate.
“ Property Category ” means each of Land Held for Development, Commercial Land, Lots Under Development, Finished Lots, Model Housing Units, Presold Housing Units and Speculative Housing Units.
“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“ Rating Agency ” means S&P, Moody’s, Fitch or any other nationally recognized securities rating agency selected by the Borrower and approved of by the Administrative Agent in writing.
“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“ Register ” has the meaning given that term in Section 13.6(c) .
“ Regulatory Change ” means, with respect to any Lender, any change effective after the Agreement Date (or, if a financial institution became a Lender after the Agreement Date, the date such financial institution became a Lender) in Applicable Law (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary, (a) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory Change,” regardless of the date enacted, adopted or issued.
“ Reimbursement Obligation ” means the absolute, unconditional and irrevocable obligation of the Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing Bank under a Letter of Credit.
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, directors, officers, employees, agents, counsel, other advisors and representatives of such Person and of such Person’s Affiliates.
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“ Relevant Governmental Body ” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.
“ Rental Pool Asset ” means a completed single-family attached or detached dwelling (including without limitation a condominium or townhome), including the Lot on which such dwelling is located which has been transferred to LGI Living, LLC. A Rental Pool Asset shall not be entitled to Borrowing Base credit.
“ Requested Swingline Borrowing ” has the meaning given that term in Section 2.5(b) .
“ Requisite Lenders ” means, as of any date, (a) Lenders (which shall include the Lender then acting as the Administrative Agent) having greater than fifty percent (50%) of the aggregate amount of the Revolving Commitments of all Lenders, or (b) if the Revolving Commitments have been terminated or reduced to zero, Lenders (which shall include the Lender then acting as the Administrative Agent) holding greater than fifty percent (50%) of the principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders. For purposes of this definition, a Lender shall be deemed to hold a Letter of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation. For purposes of this definition, a Lender (other than the Swingline Lender) shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.
“ Residential Land ” means land owned by the Borrower or a Subsidiary Guarantor, which land is being developed for residential purposes or is held for future development or sale for residential purposes. “Residential Land” shall include all Land Held for Development, Lots Under Development and Finished Lots.
“ Resolution Authority ” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“ Responsible Officer ” means the chief executive officer and the chief financial officer of the Borrower.
“ Revolving Commitment ” means, as to each Lender (other than the Swingline Lender) such Lender’s obligation to make Revolving Loans pursuant to Section 2.1 , to issue (in the case of the Issuing Bank) and to participate (in the case of the other Lenders) in Letters of Credit pursuant to Section 2.4(i) and to participate in Swingline Loans pursuant to Section 2.5(e) , in an amount up to, but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s “Revolving Commitment Amount” or as set forth in any applicable Assignment and Assumption, or agreement executed by a Person becoming a Lender in accordance with Section 2.17 , as the same may be reduced from time to time pursuant to Section 2.13 or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 13.6 or increased as appropriate to reflect any increase effected in accordance with Section 2.17 . The aggregate Revolving Commitment on the Second Amendment Effective Date is $ 850,000,000 1,100,000,000 . Notwithstanding anything to the contrary contained in this Agreement, if the Borrower or any Subsidiary enters into any Senior Notes Indebtedness after the Effective Date, the aggregate amount of the Revolving Commitments shall be automatically and permanently cancelled (if necessary) on the date such Senior Notes Indebtedness is incurred to an amount such that the reduced Revolving Commitments do not exceed the maximum amount of Indebtedness permitted to be incurred under such Senior Notes Indebtedness or Senior Notes Indenture entered into in connection therewith. Any such cancellation shall be allocated to each Lender’s Commitment ratably in accordance with its Pro Rata Share and Administrative Agent shall promptly provide to Lenders a new Schedule I to this Agreement reflecting the cancellation of the aggregate Commitment. On or about the date such Senior Notes Indebtedness is incurred, Borrower shall enter into a letter agreement with
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Administrative Agent acknowledging such cancellation of the aggregate Revolving Commitment and the updated Schedule I to this Agreement.
“ Revolving Commitment Percentage ” means, as to each Lender with a Revolving Commitment, the ratio, expressed as a percentage, of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount of the Revolving Commitments of all Revolving Lenders; provided , however , that if at the time of determination the Revolving Commitments have been terminated or been reduced to zero, the “Revolving Commitment Percentage” of each Lender shall be the ratio, expressed as a percentage, of (x) such Lender’s Revolving Credit Exposure to (y) the aggregate Revolving Credit Exposure of all Revolving Lenders.
“ Revolving Credit Exposure ” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s participation in Letter of Credit Liabilities and Swingline Loans at such time.
“ Revolving Lender ” means a Lender having a Revolving Commitment, or if the Revolving Commitments have terminated, holding any Revolving Loans.
“ Revolving Loan ” means a loan made by a Revolving Lender to the Borrower pursuant to Section 2.1(a) .
“ Revolving Loan Termination Date ” means April 28, 2025, or such later date to which the Revolving Loan Termination Date may be extended pursuant to Section 2.14 .
“ Revolving Note ” means a promissory note of the Borrower substantially in the form of Exhibit J , payable to the order of a Revolving Lender in a principal amount equal to the amount of such Lender’s Revolving Commitment.
“ Sanction ” or “ Sanctions ” means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and restrictions and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by the OFAC, the U.S. State Department, the U.S. Department of Commerce, or through any existing or future Executive Order, (b) the United Nations Security Council, (c) the European Union, any European member state, (d) the United Kingdom, Her Majesty’s Treasury or (e) any other Governmental Authorities (x) with jurisdiction over the Borrower or any of its Subsidiaries, (y) in which any of the proceeds of the Loans will be used or (z) from which repayment of the Loans will be derived
“ Sanctioned Country ” means, at any time, a country, territory or region or territory which is , or whose government is, itself the subject or target of any Sanctions (including, without limitation, at the time of this Agreement, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic or Luhansk People’s Republic regions of Ukraine, Cuba, Iran, North Korea , Sudan and Syria).
“ Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC (including OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, any European member state, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any such Person or Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Person(s) or (d) any Person otherwise a target of Sanctions, including without limitation, vessels and aircraft, that are designated under any Sanctions program
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“ Second Amendment Effective Date ” means April 29, 2022.
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“ Secured Indebtedness ” means, with respect to a Person as of a given date, the aggregate principal amount of all Indebtedness of such Person outstanding on such date that is secured in any manner by any Lien on any property and, in the case of the Borrower, shall include (without duplication) the Borrower’s Ownership Share of the Secured Indebtedness of its Unconsolidated Affiliates.
“ Securities Act ” means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder.
“ Security Document ” means the Subsidiary Guaranty, any security agreement and any financing statement, or other document, instrument or agreement creating, evidencing or perfecting the Administrative Agent’s Liens in any of the collateral (if any) securing any of the Obligations.
“ Senior Notes Indebtedness ” means any unsecured high yield or other bond Indebtedness heretofore or hereafter entered into by the Borrower or any Subsidiary in accordance with any Senior Notes Indenture.
“ Senior Notes Indenture ” means, individually or collectively as the context may suggest or require, any indenture, contract or instrument heretofore or hereafter entered into by the Borrower or any Subsidiary in accordance with the terms of this Agreement evidencing, providing for the creation of or otherwise concerning the Senior Notes Indebtedness.
“ Similar Law ” means federal, state or local laws, rules or regulations applicable to governmental plans (as defined in Section 3(32) of ERISA) and similar to Title I of ERISA or Section 4975 of the Internal Revenue Code.
“ SOFR ” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“ SOFR Administrator ” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“ SOFR Loan ” means any Loan bearing interest at a rate based on Adjusted Term SOFR, as provided in Section 2.6(a).
“ Solvent ” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness due from any Affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities computed at the amount which, in light of all facts and circumstances existing at such time, represents the amount that could reasonably be expected to become an actual and matured liability); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.
“ Specified Derivatives Contract ” means any Derivatives Contract that is made or entered into at any time, or in effect at any time now or hereafter, whether as a result of an assignment or transfer or otherwise, between or among any Loan Party and any Specified Derivatives Provider, and which was not prohibited by any of the Loan Documents when made or entered into.
“ Specified Derivatives Provider ” means any Person that (a) at the time it enters into a Specified Derivatives Contract with a Loan Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Specified Derivatives Contract with a Loan Party, in each case in its capacity as a party to such Specified Derivatives Contract.
“Speculative Housing Units” means, any Housing Unit owned by the Borrower or any Subsidiary Guarantor that is not a Presold Housing Unit or a Model Housing Unit. For the purposes of this Agreement, during such time as a Rental Pool Asset is not rented by a third party, such Rental Pool Asset shall be considered a Speculative Housing Unit for the purposes of Section 10.1(g) .
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“ S&P ” means S&P Global Ratings, a S&P Global Inc. business, or any successor.
“ Stated Amount ” means the amount available to be drawn by a beneficiary under a Letter of Credit from time to time, as such amount may be increased or reduced from time to time in accordance with the terms of such Letter of Credit.
“ Subordinated Debt ” means Indebtedness for money borrowed by the Borrower or any of its Subsidiaries that is unsecured and contains subordination and other provisions providing that such Indebtedness is subordinated in right of payment to the Loans, the other Obligations and the other Guaranteed Obligations in a manner satisfactory to the Administrative Agent in its sole and absolute discretion.
“ Subsidiary ” means, for any Person, any (a) corporation, (b) partnership, (c) limited liability company or (d) other entity, (i) of which at least a majority of the Equity Interests of such Person having by the terms thereof the ordinary voting power to elect a majority of the board of directors or other individuals performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency), and (ii) which is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP, provided that no Joint Venture shall be a Subsidiary.
“ Subsidiary Guarantor ” means each of the Borrower’s Subsidiaries listed as a “Subsidiary Guarantor” on Schedule 1.1(a) hereto and each Subsidiary of the Borrower which becomes a “Subsidiary Guarantor” pursuant to an Accession Agreement as provided in Section 8.14 .
“ Subsidiary Guaranty ” means the Fifth Amended and Restated Subsidiary Guaranty dated as of the Agreement Date by Subsidiary Guarantors in favor of the Administrative Agent, for its benefit and the benefit of the other Lender Parties, as modified, amended, supplemented or restated from time to time.
“ 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.
“ Swingline Availability ” has the meaning given that term in Section 2.5(a) .
“ Swingline Commitment ” means the Swingline Lender’s obligation to make Swingline Loans pursuant to Section 2.5 in an amount up to, but not exceeding the amount set forth in the first sentence of Section 2.5(a) , as such amount may be reduced from time to time in accordance with the terms hereof.
“ Swingline Lender ” means Xxxxx Fargo Bank, National Association, together with its successors and assigns.
“ Swingline Loan ” means a loan made by the Swingline Lender to the Borrower pursuant to Section 2.5 , including both Requested Swingline Borrowings and Automatic Swingline Borrowings.
“ Swingline Maturity Date ” means the date which is seven (7) Business Days prior to the Revolving Loan Termination Date.
“ Swingline Note ” means the promissory note of the Borrower substantially in the form of Exhibit K , payable to the order of the Swingline Lender in a principal amount equal to the amount of the Swingline Commitment as originally in effect and otherwise duly completed.
“ Tangible Net Worth ” means, as of a given date, the stockholders’ equity of the Borrower and its Subsidiaries determined on a consolidated basis minus the aggregate of all amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, service marks, trade names, goodwill, treasury stock, experimental or
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organizational expenses and other like assets which would be classified as intangible assets under GAAP, all determined on a consolidated basis.
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Term SOFR ” means,
(a)      for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “ Periodic Term SOFR Determination Day ”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b)      for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ Base Rate Term SOFR Determination Day ”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day.
“ Term SOFR Adjustment ” means, for any calculation with respect to a Base Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable type of such Loan and (if applicable) Interest Period therefor:

Base Rate Loans:
0.10%

SOFR Loans:
Interest Period Percentage
One month 0.10%
Three months 0.15%
Six months 0.25%

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“ Term SOFR Administrator ” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“ Term SOFR Reference Rate ” means the forward-looking term rate based on SOFR.
“ Termination Event ” means the occurrence of any of the following which, individually or in the aggregate, has resulted or could reasonably be expected to result in liability of the Loan Parties in an aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043 of ERISA, or (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which could constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303 of ERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or plan in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Internal Revenue Code or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan if Withdrawal Liability is asserted by such plan, or (i) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Section 4245 of ERISA, or (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate, or (1) the occurrence of a non-exempt prohibited transaction with respect to a Pension Plan within the meaning of Section 4975 of the Internal Revenue Code or Section 406 of ERISA.
“ Threshold Amount ” means $2,000,000.
“ Titled Agent ” has the meaning given that term in Section 12.11 .
“ Total Capitalization ” means, for any fiscal quarter of the Borrower, Consolidated Debt plus Tangible Net Worth.