Exhibit 10.18(i)


 


SECOND AMENDED AND RESTATED REVOLVING CREDIT LOAN AGREEMENT


 


among


 


GREENWOOD FINANCIAL, INC. AND CERTAIN AFFILIATES,

as Borrowers



ORLEANS HOMEBUILDERS, INC.,

as Guarantor



WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent


 


WACHOVIA CAPITAL MARKETS, LLC,

as Lead Arranger


 


BANK OF AMERICA, N.A.,

as Syndication Agent



SOVEREIGN BANK,

as Documentation Agent



MANUFACTURERS AND TRADERS TRUST COMPANY,

as Documentation Agent



NATIONAL CITY BANK,

as Documentation Agent


 


and


 


WACHOVIA BANK, NATIONAL ASSOCIATION

FIRSTRUST BANK

GUARANTY BANK

CITIZENS BANK OF PENNSYLVANIA

COMMERCE BANK, N.A.

SUNTRUST BANK

REGIONS BANK, successor to Amsouth Bank

FRANKLIN BANK, SSB

COMERICA BANK

COMPASS BANK, an Alabama Banking Corporation

JPMORGAN CHASE BANK, N.A.

LASALLE BANK NATIONAL ASSOCIATION

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Lenders


 


$440,000,000

Senior Secured Revolving Credit and Letter of Credit Facility

Dated:  As of September 30, 2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS

  	
  2

  
	
  1.1

  	
  Definitions

  	
  2

  
	
  1.2

  	
  Construction
  of Terms

  	
  20

  
	
  1.3

  	
  Accounting
  Reports and Principles

  	
  20

  
	
  1.4

  	
  Business
  Day; Time

  	
  20

  
	
  1.5

  	
  Charging
  Accounts

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. AMOUNT AND TERMS OF THE FACILITY; SECURITY FOR THE
  FACILITY

  	
  21

  
	
  2.1

  	
  The Facility

  	
  21

  
	
  2.2

  	
  Term of
  Facility

  	
  23

  
	
  2.3

  	
  Repayment
  Terms

  	
  24

  
	
  2.4

  	
  Interest
  Rate

  	
  25

  
	
  2.5

  	
  Default Rate

  	
  26

  
	
  2.6

  	
  Fees Payable
  by Borrowers

  	
  26

  
	
  2.7

  	
  Prepayments

  	
  28

  
	
  2.8

  	
  No Setoff or
  Deduction

  	
  27

  
	
  2.9

  	
  Illegality

  	
  28

  
	
  2.10

  	
  Notes

  	
  28

  
	
  2.11

  	
  Security

  	
  28

  
	
  2.12

  	
  General
  Provisions

  	
  30

  
	
  2.13

  	
  Advances
  Made Through Title Company

  	
  32

  
	
  2.14

  	
  Swap
  Contracts

  	
  32

  
	
  2.15

  	
  Alternate
  Interest Rate

  	
  32

  
	
  2.16

  	
  Taxes

  	
  33

  
	
  2.17

  	
  Increased
  Costs

  	
  34

  
	
  2.18

  	
  Designation
  of a Different Lending Office

  	
  35

  
	
  2.19

  	
  Survival of
  Indemnity

  	
  35

  
	
  2.20

  	
  Replacement
  of Lenders

  	
  36

  
	
  2.21

  	
  Lending
  Office

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. NOTICE OF BORROWING; BORROWING BASE; BORROWING BASE
  AVAILABILITY

  	
  36

  
	
  3.1

  	
  Notice of
  Borrowing

  	
  36

  
	
  3.2

  	
  Admission of
  Projects to Borrowing Base

  	
  37

  



 


i

















 


	
  3.3

  	
  Borrowing
  Base Availability

  	
  37

  
	
  3.4

  	
  Submission
  of Borrowing Base Certificate

  	
  40

  
	
  3.5

  	
  Inspection
  of Projects

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS OF LENDING

  	
  40

  
	
  4.1

  	
  Agreement to
  Make Available the Facility

  	
  40

  
	
  4.2

  	
  Availability
  of Letters of Credit and Tri-Party Agreements

  	
  44

  
	
  4.3

  	
  Conditions
  Precedent to Loans

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. REPRESENTATIONS AND WARRANTIES

  	
  45

  
	
  5.1

  	
  Use of
  Proceeds

  	
  45

  
	
  5.2

  	
  Incorporation,
  Good Standing, and Due Qualification

  	
  45

  
	
  5.3

  	
  Power and
  Authority

  	
  46

  
	
  5.4

  	
  Legally
  Enforceable Agreement

  	
  47

  
	
  5.5

  	
  Financial
  Statements; Accuracy of Information

  	
  46

  
	
  5.6

  	
  Conflicts

  	
  47

  
	
  5.7

  	
  Consents

  	
  48

  
	
  5.8

  	
  Litigation

  	
  47

  
	
  5.9

  	
  Other
  Agreements

  	
  47

  
	
  5.10

  	
  No Defaults
  and Outstanding Judgments or Orders

  	
  47

  
	
  5.11

  	
  Taxes

  	
  47

  
	
  5.12

  	
  Debt

  	
  48

  
	
  5.13

  	
  Ownership
  and Liens

  	
  48

  
	
  5.14

  	
  ERISA

  	
  48

  
	
  5.15

  	
  Representations
  and Warranties as to Real Estate

  	
  48

  
	
  5.16

  	
  No Violation

  	
  50

  
	
  5.17

  	
  Accurate and
  Complete Disclosure

  	
  50

  
	
  5.18

  	
  Compliance
  with Covenants

  	
  50

  
	
  5.19

  	
  Solvency

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. AFFIRMATIVE COVENANTS

  	
  49

  
	
  6.1

  	
  Reporting
  Requirements

  	
  50

  
	
  6.2

  	
  Payment of
  Taxes

  	
  51

  
	
  6.3

  	
  Access to
  Properties, Books and Records

  	
  52

  
	
  6.4

  	
  Maintenance
  of Records

  	
  52

  
	
  6.5

  	
  Maintenance
  of Existence

  	
  53

  
	
  6.6

  	
  Insurance

  	
  53

  
	
  6.7

  	
  ERISA

  	
  55

  
	
  6.8

  	
  Accounts

  	
  55

  



 


ii

















 


	
  6.9

  	
  Compliance
  with Laws

  	
  55

  
	
  6.10

  	
  Payment of Debt

  	
  54

  
	
  6.11

  	
  [Intentionally
  Omitted]

  	
  54

  
	
  6.12

  	
  Further
  Assurances

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. NEGATIVE COVENANTS

  	
  55

  
	
  7.1

  	
  Creation of
  Debt

  	
  55

  
	
  7.2

  	
  Grant of
  Liens

  	
  56

  
	
  7.3

  	
  Mergers and
  Acquisitions

  	
  56

  
	
  7.4

  	
  Transaction
  With Affiliates

  	
  55

  
	
  7.5

  	
  Use of
  Proceeds

  	
  55

  
	
  7.6

  	
  Restricted
  Payments

  	
  56

  
	
  7.7

  	
  Amendments
  of Documents Relating to Subordinated Debt

  	
  56

  
	
  7.8

  	
  Second Lien
  Indebtedness

  	
  57

  
	
  7.9

  	
  Investments.

  	
  58

  
	
  7.10

  	
  Limitation
  on Holdings of Cash and Cash Equivalents.

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. FINANCIAL COVENANTS

  	
  59

  
	
  8.1

  	
  [Intentionally
  Omitted]

  	
  59

  
	
  8.2

  	
  Consolidated
  Tangible Net Worth

  	
  59

  
	
  8.3

  	
  [Intentionally
  Omitted]

  	
  61

  
	
  8.4

  	
  [Intentionally
  Omitted.]

  	
  61

  
	
  8.5

  	
  Real Estate
  Acquisitions

  	
  61

  
	
  8.6

  	
  [Intentionally
  Omitted]

  	
  60

  
	
  8.7

  	
  Cash Flow
  From Operations

  	
  60

  
	
  8.8

  	
  Liquidity

  	
  60

  
	
  8.9

  	
  Reports Regarding
  Financial Covenants

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. EVENTS OF DEFAULT

  	
  62

  
	
   

  	
   

  
	
  ARTICLE X. REMEDIES

  	
  62

  
	
  10.1

  	
  Remedies of
  Lenders

  	
  62

  
	
  10.2

  	
  Effect of
  Delay

  	
  63

  
	
  10.3

  	
  Acceptance
  of Partial Payment

  	
  63

  
	
  10.4

  	
  Other
  Available Remedies

  	
  63

  
	
  10.5

  	
  Waiver of
  Marshalling of Assets

  	
  63

  
	
  10.6

  	
  Waiver of
  Counterclaim

  	
  65

  



 


iii

















 


	
  ARTICLE XI. THE AGENT

  	
  65

  
	
  11.1

  	
  Appointment

  	
  65

  
	
  11.2

  	
  Delegation
  of Duties

  	
  64

  
	
  11.3

  	
  Exculpatory
  Provisions

  	
  64

  
	
  11.4

  	
  Reliance by
  Agent

  	
  66

  
	
  11.5

  	
  Non-Reliance
  on Agent and Other Lenders

  	
  65

  
	
  11.6

  	
  Indemnification

  	
  67

  
	
  11.7

  	
  Consequential
  Damages

  	
  66

  
	
  11.8

  	
  Agent in Its
  Individual Capacity

  	
  66

  
	
  11.9

  	
  Resignation
  or Removal of Agent as Administrative Agent

  	
  68

  
	
  11.10

  	
  Amendments,
  Waivers and Consents

  	
  67

  
	
  11.11

  	
  Authority

  	
  69

  
	
  11.12

  	
  Borrower
  Default

  	
  68

  
	
  11.13

  	
  Lender
  Default

  	
  68

  
	
  11.14

  	
  Ratable
  Sharing

  	
  71

  
	
  11.15

  	
  Documentation

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII. INTENTIONALLY OMITTED.

  	
  70

  
	
   

  	
   

  
	
  ARTICLE XIII. MISCELLANEOUS

  	
  72

  
	
  13.1

  	
  Modifications

  	
  72

  
	
  13.2

  	
  Binding
  Nature

  	
  72

  
	
  13.3

  	
  Governing
  Law

  	
  72

  
	
  13.4

  	
  Time of Performance

  	
  72

  
	
  13.5

  	
  Severability

  	
  71

  
	
  13.6

  	
  Captions

  	
  71

  
	
  13.7

  	
  Computations

  	
  71

  
	
  13.8

  	
  Continuing
  Obligation

  	
  71

  
	
  13.9

  	
  Assignment
  and Participation

  	
  73

  
	
  13.10

  	
  Notices

  	
  74

  
	
  13.11

  	
  Cumulative
  Remedies

  	
  78

  
	
  13.12

  	
  Third Party
  Beneficiaries

  	
  77

  
	
  13.13

  	
  Entire
  Agreement

  	
  77

  
	
  13.14

  	
  Counterparts

  	
  77

  
	
  13.15

  	
  Expenses and
  Indemnification

  	
  77

  
	
  13.16

  	
  Relationship
  of Parties

  	
  80

  
	
  13.17

  	
  Joint and
  Several Liability

  	
  79

  



 


iv

















 


	
  13.18

  	
  Damage
  Waiver

  	
  79

  
	
  13.19

  	
  Publicity

  	
  79

  
	
  13.20

  	
  No Implied
  Waiver

  	
  79

  
	
  13.21

  	
  USA Patriot
  Act

  	
  81

  
	
  13.22

  	
  Taxes

  	
  81

  
	
  13.23

  	
  Conflict;
  Construction of Documents; Reliance

  	
  81

  
	
  13.24

  	
  Jurisdiction

  	
  80

  
	
  13.25

  	
  Waiver of
  Jury Trial

  	
  82

  
	
  13.26

  	
  Existing
  Credit Agreement; No Novation

  	
  81

  
	
  13.27

  	
  Releases.

  	
  81

  
	
  13.28

  	
  Electronic
  Execution of Assignments

  	
  84

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1C

  	
  -

  	
  Form of Joinder

  	
   

  
	
  1.1E

  	
  -

  	
  Form of Line of Credit Note

  	
   

  
	
  1.1F

  	
  -

  	
  Notice of Borrowing of a Loan

  	
   

  
	
  2.1.4.2

  	
  -

  	
  Form of Application and Agreement for Irrevocable Standby Letter
  of Credit

  	
   

  
	
  3.4

  	
  -

  	
  Form of Borrowing Base Certificate

  	
   

  
	
  8.9

  	
  -

  	
  Form of Covenant Compliance Certificate

  	
   

  
	
  13.9

  	
  -

  	
  Form of Assignment and Acceptance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  
	
  1.1A

  	
  -

  	
  Schedule of Borrowers

  	
   

  
	
  1.1B

  	
  -

  	
  Schedule of Commitments

  	
   

  
	
  1.1D

  	
  -

  	
  Schedule of Outstanding Letters of Credit and Tri-Party
  Agreements

  	
   

  
	
  1.1G

  	
  -

  	
  Schedule of Existing Debt

  	
   

  
	
  5.1

  	
  -

  	
  Schedule of Ownership and Jurisdiction of Organization

  	
   

  
	
  5.8

  	
  -

  	
  Schedule of Litigation

  	
   

  
	
  5.13

  	
  -

  	
  Schedule of Projects

  	
   

  
	
  7.9

  	
  -

  	
  Schedule of Existing Cost-Sharing Partnerships

  	
   

  
	
  13.27.2

  	
  -

  	
  Schedule of Limited Waiver Project

  	
   

  
					



 


v














 


SECOND
AMENDED AND RESTATED 

REVOLVING CREDIT LOAN AGREEMENT


 


This Second Amended and Restated Revolving
Credit Loan Agreement (“this Agreement”), made as of the 30th day of
September, 2008, by and among GREENWOOD FINANCIAL, INC., a Delaware corporation
(“Master Borrower”), each of the other
entities identified on Schedule 1.1A that is attached hereto as
Borrowers, the Lenders who are or may become a party hereto, and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Agent for the Lenders (“Agent”).


 


BACKGROUND


 


A.            Master Borrower is a corporation
principally formed to engage in financing transactions with and on behalf of
the Guarantor and the other Borrowers. 
Each of the other Borrowers is a corporation, limited partnership or
limited liability company formed to acquire land in one or more of the States
of Pennsylvania, New Jersey, New York, Maryland, Illinois, Delaware, Virginia,
North Carolina, South Carolina and Florida, to improve such land with
residential dwellings, and to sell such dwellings, or to invest in Eligible
Affiliates formed for such purposes (the “Business”).


 


B.            Pursuant to that certain Amended and
Restated Revolving Credit Loan Agreement dated as of December 22, 2004
(the “Original Credit Agreement”), executed
by Master Borrower, certain of the other Borrowers, Agent and certain of the
Lenders, such Lenders agreed to provide a credit facility to Borrowers on the
terms and conditions contained in the Original Credit Agreement to finance
Borrowers’ acquisition of residential real estate and construction activities.


 


C.            Pursuant to that certain Amended and
Restated Revolving Credit Loan Agreement dated as of January 24, 2006 (as
amended prior to the date hereof, the “Existing Credit Agreement”),
executed by Master Borrower, certain of the other Borrowers, Agent and certain
of the Lenders, such Lenders agreed to amend and restate the Original Credit
Agreement on the terms and conditions contained in the Existing Credit
Agreement.


 


D.            Borrowers and Lenders desire to
amend and restate the Existing Credit Agreement on the terms and conditions set
forth herein, and to continue to secure all of the Indebtedness hereunder and
under the other Loan Documents with a first priority Lien on certain Projects,
and Guarantor desires to continue its guaranty of the Indebtedness hereunder
and to continue to secure its guaranty with a first priority lien on all of its
deposit accounts held at a Lender and any income tax refunds received or
payable to Borrowers or Guarantor after the Closing Date.


 


NOW,
THEREFORE, in consideration of their mutual covenants and agreements herein
contained, the parties hereto hereby amend and restate the Existing Credit
Agreement in full and, intending to be legally bound, hereby agree as follows:


 


1

















 


ARTICLE I.

DEFINITIONS


 


1.1           Definitions.  In addition to other words and terms defined
elsewhere in this Agreement, as used in this Agreement, the following words and
terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:


 


“Administrative Questionnaire” means an Administrative
Questionnaire in a form supplied by Agent.


 


“Advance” means the cash that Lenders advance to a Borrower
under the Facility, all subject to and in accordance with the provisions of Article II
hereof.


 


“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.


 


“Agent” means Wachovia Bank, National Association, in its
capacity as agent for Lenders, and any successor thereto appointed pursuant to Section 11.9.


 


“Agreement” means this Second Amended and Restated Revolving
Credit Loan Agreement, and any schedules, exhibits, riders, extensions,
supplements, amendments, or modifications to this Amended and Restated
Revolving Credit Loan Agreement.


 


“Alternate Interest Rate” means, on any day, the per annum
rate of interest that is equal to the sum of (i) the Federal Funds Rate in
effect on such day plus (ii) one-quarter of one percent (0.25%) per annum
(that is, 25 “basis points”) plus (iii) the Applicable Spread in effect on
such day.


 


“Applicable Spread” means
5.00% per annum.


 


“Appraisal” means an appraisal or re-appraisal, on a fair
market value basis, of a Project that (i) is directed to Agent and, if the
Project is not admitted to the Borrowing Base as of the date hereof, is dated
not earlier than six (6) months before the date the Project is admitted to
the Borrowing Base, (ii) contains terms and conditions satisfactory to
Agent and (iii) conforms in all respects to Title X of the Federal
Financial and Institutional Reform, Recovery and Enforcement Act of 1989
(FIRREA).  The cost of each Appraisal
shall be paid by Borrowers.


 


“Appraised Value” means, with respect to the Real Estate,
Units and Improvements in any Project, the value thereof as determined pursuant
to Section 3.3.4.  The “Appraised Value” of Improved Land and
Units shall be determined on an “as completed” basis in accordance with Section 3.3.4.


 


“Approved Bank” any commercial bank incorporated under the
laws of the United States or any state thereof, having capital and unimpaired
surplus in excess of $500,000,000.


 


“Approved Fund” means any Fund that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an
entity or an Affiliate of an entity that administers or manages a Lender.


 


2

















 


“Approved Jurisdiction” means the States or Commonwealths of
Pennsylvania, New Jersey, New York, Maryland, Illinois, Delaware, Virginia,
North Carolina, South Carolina, Florida, and such other State or Commonwealth
as may from time to time be approved by Requisite Lenders.


 


“Approved Land” means land that has received all Governmental
Approvals necessary for immediate development as for-sale residential housing,
other than building permits; provided that land that has received all
such Governmental Approvals except for state- and federally-issued permits (but
not local subdivision and land development approvals, which may, however, be
conditioned upon the receipt of state- and federally-issued permits) that the
owning Borrower in good faith believes will be issued within 120 days may be
included in the Borrowing Base as “Approved Land” for a period of 120 days; provided further
that if all such state- and federally-issued permits are not issued within such
120 day period, such land shall no longer be deemed to be “Approved Land” until
all such state- and federally-issued permits are actually obtained.


 


“Assignment and Assumption” means an assignment and
assumption entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section 13.9.1), and accepted by
Agent, in substantially the form of Exhibit 13.9 attached hereto or
any other form approved by Agent.


 


“Authorized Signer” means any of the Persons listed on the
certificate to be delivered to Agent at Closing in accordance with Section 4.1.6 or on any replacement certificate
with respect thereto subsequently delivered to Agent at any time.


 


“Bankruptcy Code” means Title 11 of the United States Code as
now or hereafter in effect, or any successor statute.


 


“Borrower” means, individually and at any time, Master
Borrower, each Person identified on Schedule 1.1A and each Eligible Affiliate which has theretofore
qualified as a “Borrower” pursuant to Section 2.1.1.3, together with any Person that is a successor to all or
substantially all of the assets and liabilities of any Person that immediately
prior to such succession was a Borrower (including, in particular, any
liabilities of such Person arising out of this Agreement or any other Loan
Document) and which succession was a result of any merger, consolidation,
conversion or other reorganization undertaken pursuant to an Internal
Reorganization; provided that if any entity that is a successor
to any Borrower(s) as a result of an Internal Reorganization was not
previously a Borrower, such entity shall promptly execute and deliver to Agent
and the Lenders such documents as are required to be executed and delivered by
new Borrowers by Section 2.1.1.3.


 


“Borrowing Base” means at any time the Real Estate, Lots,
Improvements and Units (excluding (i) dwelling units in any mid-rise or
high-rise structure containing more than three (3) stories of space for
residential occupancy and (ii) any asset classified as “Inventory not
Owned” (FASB 46) on Guarantor’s or any Borrower’s balance sheet) that are part
of Borrowing Base Projects, subject to the limitations contained in this
Agreement.  The Borrowing Base shall
change from time to time as provided herein. 
The Borrowing Base may not include any Real Estate, Lots, Improvements
or Units (i) owned by a Borrower that is not a wholly-owned Affiliate of
Guarantor or (ii) that is not part of an Eligible Project.


 


3

















 


“Borrowing Base Availability” means, at any time, (i) the
amount determined pursuant to Section 3.3, based on the most recently delivered Borrowing Base
Certificate, minus (ii) the aggregate amount of liability of Agent under
then-outstanding Financial Letters of Credit, minus (iii) the aggregate
amount of Swing Line Loans outstanding, minus (iv) the aggregate principal
amount of all OHI Financing Subordinated Debt that by its terms matures within
one (1) year and Subordinated Debt that by its terms matures within one (1) year.


 


“Borrowing Base Certificate” means a certificate in the form
as shown on Exhibit 3.4,
attached hereto, the purpose of which is to state, on a per Lot and per Unit
basis, the amount of the Borrowing Base Availability as of the date thereof.


 


“Borrowing Base Project” means an Eligible Project that is
then included in the Borrowing Base Certificate most recently delivered to
Agent.


 


“Business”
has the meaning defined in the Recitals of this Agreement.


 


“Business Day” means any day other than a Saturday, a Sunday,
a public holiday under the laws of the Commonwealth of Pennsylvania or of the
State of North Carolina or another day on which banking institutions in such
jurisdictions are authorized or obligated to close.


 


“Capital Lease” means all leases that have been or should be
capitalized on the books of the lessee in accordance with GAAP.


 


“Capital
Stock” means the capital stock of or other equity
interests in a Person.


 


“Cash” means money, currency or a credit balance in an
unrestricted deposit account or a securities account controlled by a Borrower
or Guarantor.


 


“Cash Equivalents” means (i) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one (1) year
from the date of acquisition, (ii) time deposits, certificates of deposit
or bankers’ acceptances of any Approved Bank, with such deposits, acceptances
or certificates having maturities of not more than one (1) year from the
date of acquisition, (iii) repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types described in
clauses (i) and (ii) above entered into with any Approved Bank, (iv) commercial
paper or finance company paper issued by any Person incorporated under the laws
of the United States or any state thereof and rated at least A-1 or the
equivalent thereof by Standard & Poor’s Corporation or at least P-1 or
the equivalent thereof by Moody’s Investors Service, Inc., and in each
case maturing not more than one year after the date of acquisition, and (v) investments
in money market funds or mutual funds, at least eighty-five percent (85%) of
whose assets consist of securities and other obligations of the type described
in clauses (i) through (iv) above. 
All such Cash Equivalents must be denominated solely for payment in
Dollars.  Overnight deposits and demand
deposits maintained in the ordinary course of business shall be considered
cash.


 


“Cash Flow
Coverage Ratio” means, as of the last day of any Fiscal Quarter, the
ratio of Guarantor’s CFFO to Debt Service for the Relevant Accounting Period
then ended.


 


4

















 


“Cash Flow from Operations” and “CFFO”
means, with respect to each Relevant Accounting Period, (i) net cash
provided from (or used in) operating activities plus (ii) proceeds
from the disposition of Model Units that are subject to a sale-leaseback
transaction, to the extent that such proceeds are not included in net cash
provided from operating activities, plus (iii) interest expensed in
the cost of goods sold plus (iv) interest expensed from operations,
minus (v) interest income.


 


 “Change in Law”
means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation
or treaty, (ii) any change in any law, rule, regulation or treaty or in
the administration, interpretation or application thereof by any Governmental
Authority or (iii) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental
Authority.


 


“Closing” and “Closing Date”
means the date on which each of the Loan Documents has been executed and
delivered by all of the parties thereto and Borrowers have satisfied all of the
conditions contained in Section 4.1
or such conditions have been waived in accordance with the provisions of Section 4.1.


 


“Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations and published interpretations thereof.


 


“Collateral” means, at any time, (i) all income tax
refunds and proceeds thereof received by Borrowers and Guarantor or payable to
Borrowers and Guarantor after the Closing Date, and (ii) all real,
personal or other property that is encumbered by a Mortgage or is otherwise
subject to a Lien as security for the Indebtedness.


 


“Commitment” means, as to any Lender, the obligation of such
Lender to make Loans to Borrowers hereunder and to honor drawings and demands
under Letters of Credit and Tri-Party Agreements issued or executed hereunder,
in an aggregate principal or face amount at any time outstanding not to exceed
the amount set forth opposite such Lender’s name on Schedule 1.1B hereto, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.


 


“Consolidated Tangible Net
Worth” means (i) Guarantor’s GAAP net worth (excluding the
effects of any other comprehensive income (loss) attributable to any Swap
Contract) minus (ii) goodwill, patents, trademarks, tradenames,
organization expense, unamortized debt discount and expense and other
intangibles as shown in the Financial Statements as of the last day of the Last
Reported Fiscal Quarter plus (iii) the amount of any unfunded
liability attributable to Guarantor’s Supplemental Executive Retirement Plan
(but only to the extent of any intangible asset attributable to such plan) plus
(iv) the amount of any fees paid to Lenders pursuant to Section 2.6.5.


 


“Consolidated Total Assets”
means, as of any date, all assets of Guarantor, as shown on Guarantor’s most
recent Financial Statements.


 


“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 


 


5

















 


voting power, by contract or
otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Covenant Compliance
Certificate” means a certificate in the form attached hereto as Exhibit 8.7.


 


“Cost Incurred”
means, at any time with respect to Lots and Units, the then-current book value
thereof, determined in accordance with GAAP.


 


“Debt” mean, for
any Person as of any date, without duplication, all (i) indebtedness or
liability for borrowed money; (ii) obligations, whether or not for money
borrowed (a) represented by notes payable, or drafts accepted, in each
case representing extensions of credit, (b) evidenced by bonds,
debentures, notes or similar instruments, or (c) constituting purchase
money indebtedness, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are
issued or assumed as full or partial payment for property or services rendered;
(iii) master lease obligations and obligations that are treated as
capitalized leases under GAAP; (iv) reimbursement obligations under surety
bonds, letters of credit and/or tri-party agreements issued with respect to
Improvements (whether or not the same have been presented for payment); (v) reimbursement
obligations under Financial Letters of Credit and surety bonds (regardless of
whether the same have been presented for payment); (vi) obligations,
contingent or otherwise, under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing
arrangement if the transaction giving rise to such obligation (a) is
considered indebtedness for borrowed money for tax purposes but is classified
as an operating lease under GAAP and (b) does not (and is not required
pursuant to GAAP to) appear as a liability on the balance sheet of a
Person; (vii) liabilities arising under any “swap agreement” (as that term
is defined in 11 U.S.C. § 101, as heretofore or hereafter amended; and (viii) without
duplication, all liabilities of third parties of the type described in (i)–(vii),
inclusive, that are guaranteed by or otherwise recourse to a Person, whether or
not the obligations have been assumed. 
Notwithstanding anything to the contrary in this definition of Debt,
Debt shall not include (i) the amount of any Permitted Debt that is
attributable to any Option Agreement, or (ii) any obligation arising out
of the sale and/or sale and leaseback of any model Units, provided that (a) each
such transaction (or series of transactions) with any purchaser or group
of affiliated purchasers shall be with respect to five (5) or fewer model
Units in the aggregate, (b) Agent determines, in its sole discretion, that
if the Borrower, Guarantor or any wholly-owned subsidiary of either that is
party to such transaction defaults thereunder, such entity shall have no
material financial obligation and no material liability as a consequence of
such default, other than the termination of the transaction, and (c) the
maximum aggregate amount that may at any time be excluded from Debt pursuant to
this clause (ii) shall not exceed $10,000,000.


 


“Debt Service”
means, with respect to a Relevant Accounting Period, (i) interest paid
(whether expensed or capitalized) as reported on Guarantor’s Financial
Statements (but excluding interest attributable under GAAP to any Option
Agreement) plus (ii) required principal payments on any Debt
(excluding (a) with, respect to any permitted purchase money mortgage
debt, release prices paid upon the conveyance of any Unit, (b) principal
payments of Loans, Swing Line Loans and Letter of Credit Advances, and (c) any
payments made pursuant to any Option Agreement) plus (iii) mandatory
preferred stock dividends, minus (iv) interest income, minus
(v) to the extent included in the calculation of interest paid in clause (i) above,
any 


 


6

















 


amortized deferred financing
costs related to all amendments to the Existing Credit Agreement, this
Agreement and/or the OHI Financing Subordinated Debt and any future amendments
to any of the foregoing.


 


 “Default Rate” means a rate of interest that is equal to the
applicable Interest Rate otherwise payable with respect to Loans plus four
percent (4%) per annum.


 


“Deposit Account”
means a demand, time, savings, passbook or like account with a federally
insured bank or savings and loan association, other than an account evidenced
by a negotiable certificate of deposit.


 


“Designated Officer”
means Julie Pasceri-Young or any other person designated in writing by Agent as
its representative for the purpose of receiving notice hereunder.


 


“Development Land”
means Approved Land on which the construction of Improvements has been
commenced and is in process.


 


“Dollars” and
the sign “$” mean lawful money of the United
States of America.


 


“Eligible Affiliate”
means an entity that, directly or indirectly, is 100% owned by Guarantor.


 


“Eligible Assignee”
means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an
Approved Fund, and (iv) any other Person (other than a natural person)
approved by (a) Agent and (b) unless an Event of Default has occurred
and is continuing, Master Borrower, on behalf of all Borrowers (each such
approval not to be unreasonably withheld or delayed); provided that,
notwithstanding the foregoing, “Eligible Assignee” shall not include Guarantor
or any of Guarantor’s Affiliates.


 


 “Eligible Project” means a Project that has satisfied the
conditions for inclusion in the Borrowing Base set forth in Section 3.2.2.


 


“Environmental Condition”
means any condition affecting (i) the work place where business operations
take place, or (ii) any natural resource, including without limitation the
air, soil, surface and groundwater which must be reported to a Governmental
Authority or which must be remediated under any of the Environmental Laws.


 


“Environmental Law”
means any presently existing or hereafter enacted or decided federal, state or
local statutory or common law relating to pollution or protection of the
environment, including without limitation, any common law of nuisance or
trespass, and any law or regulation relating to emissions, discharges, releases
or threatened release of pollutants, contaminants or chemicals or industrial,
toxic or hazardous substances or wastes into the environment (including without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants, contaminants
or chemicals, or industrial, toxic or hazardous substances or wastes.


 


7

















 


“Environmental Report”
means a Phase I (and, if recommended by a Phase I, a Phase II) environmental
site assessment that is (i) prepared with respect to Real Estate in
accordance with Agent’s then-current protocol for environmental studies of land
for residential development by a qualified environmental engineer acceptable to
Agent in its reasonable business judgment, (ii) if the Real Estate is not
part of a Borrowing Base Project as of the date hereof, dated not earlier than
twelve (12) months prior to the Project’s admission to the Borrowing Base and (iii) if
not addressed to Agent, as agent for the Lenders, accompanied by a reliance
letter (in form acceptable to Agent in good faith) addressed to Agent as agent
for the Lenders.  Borrowers shall be
responsible for the cost of each such Environmental Assessment.


 


“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations and published interpretations thereof.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated), which together with
any Borrower or Guarantor (or some or all of them) would be treated as a single
employer under Section 4001 of ERISA.


 


“Eurocurrency Reserve
Requirements” means, for any day as applied to a Loan, a Swing Line
Loan or a Letter of Credit Advance, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of
the Board of Governors of the Federal Reserve System) maintained by a member
bank of the Federal Reserve System.


 


“Event of Default”
or “Default” means any of the events
specified in Article IX, and elsewhere in this Agreement, upon the
occurrence of which the Lenders may exercise their rights and remedies
hereunder and/or under the other Loan Documents.


 


“Excluded Taxes”
means, with respect to Agent, any Lender or any other recipient of any payment
to be made by or on account of any obligation of Borrowers hereunder, (i) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, (ii) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which any Borrower is located and (iii) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
Borrowers under Section 13.9.7 hereof), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 2.16.5 hereof, except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from Borrowers with respect to such withholding tax pursuant
to Section 2.16.1 hereof.


 


8

















 


“Existing Credit Agreement”
has the meaning defined in the Recitals to this Agreement.


 


“Facility” means
the credit facility under which (i) Loans may be borrowed, repaid and
reborrowed, in the maximum outstanding amount of the Revolving Sublimit, (ii) Letters
of Credit and Tri-Party Agreements (including those presently existing) may be
issued or executed by an Issuer on behalf of Lenders in the aggregate maximum
undrawn amount not exceeding, at any time, the Letter of Credit Sublimit, and (iii) Swing
Line Loans may be borrowed, repaid and reborrowed in the maximum outstanding
amount of the Swing Line Limit, all as more fully described in Article II.


 


“Facility
Amount” means $440,000,000, or such lower amount resulting from a permanent
reduction in the Facility Amount in accordance with the terms of this
Agreement; provided that (i) from the Closing Date through December 31,
2008, the aggregate amount of outstanding Loans, Swing Line Loans and liability
under Letters of Credit and Tri-Party Agreements shall not exceed $425,000,000,
and (ii) the Facility Amount shall be permanently reduced to $415,000,000
on July 1, 2009 if the Facility Amount has not otherwise been reduced to
or below $415,000,000 in accordance with the terms of this Agreement prior to July 1,
2009.  In each case, the Facility Amount
includes the Revolving Sublimit, the Letter of Credit Sublimit and the Swing
Line Limit.


 


“Federal Funds Rate”
means for any day the rate per annum, based on a year of 360 days and actual
days elapsed, and rounded upward to the nearest 1/100th of one percent (0.01%)
announced by the Federal Reserve Bank of New York (or any successor) on such
day as being the weighted average of the rates on overnight federal funds
transactions arranged by Federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the “Federal Funds Effective
Rate” as of the Closing Date; provided that, if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the “Federal
Funds Effective Rate” for such day shall be the Federal Funds Rate for the last
day on which such rate was announced.


 


“Financial Letters of
Credit” has the meaning defined in Section 2.1.3.


 


“Financial Statements”
mean the reports of financial condition required to be delivered pursuant to
Sections 6.1.1 and 6.1.2.


 


“Fiscal Quarter”
means each of the three (3) month periods that ends on the last day of the
third (3rd), sixth (6th), ninth (9th) and
twelfth (12th) months of a Fiscal Year.


 


“Fiscal Year”
means the period of twelve (12) consecutive calendar months on the basis of
which Guarantor reports its income for GAAP purposes, which twelve (12) month
period currently ends on each June 30.


 


“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than
that in which any Borrower is resident for tax purposes.  For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.


 


9

















 


“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 business.


 


“Funding Date”
means the Business Day on which a Loan or Swing Line Loan is advanced.


 


“GAAP” means
generally accepted accounting principles as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board as in effect on the date hereof or in such other
statements by such other Person as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination and which are applied on a consistent basis.


 


“Governmental Approvals”
means all authorizations, consents, approvals, permits, licenses and exemptions
of, registrations and filings with, and reports to, all Governmental
Authorities.


 


“Governmental Authority”
means the government of the United States of America or any other nation, or of
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Guarantor”
means Orleans Homebuilders, Inc., a Delaware corporation.


 


“Guaranty” means
the guaranty and suretyship agreement executed by the Guarantor pursuant to Section 2.11.1.1.


 


“Improved Land”
means Approved Land that is fully developed with Improvements that have been
completed (other than the finish paving of streets).


 


“Improvements”
means the site improvements required for the development, improvement and sale
of a Project, including, but not limited to, roads, curbs, sidewalks, storm
water drainage lines and facilities and water and sewer lines and facilities.


 


“Indebtedness”
means all obligations owing to the Agent or Lenders, or any of them, under this
Agreement, the Line of Credit Notes, the Swing Line Note and any Swap Contract
(including, but not limited to, the repayment of the Loans, Letter of Credit
Advances, Swing Line Loans and all interest and other charges due thereon and
hereunder), and all other Loan Documents, whether for past, present or future
advances, renewals, extensions, modifications, interest, late charges, costs
and fees of any type or otherwise.


 


“Indemnified Taxes”
means all Taxes other than Excluded Taxes.


 


10

















 


“Interest Rate”
means, on any day, the sum (expressed as a per annum rate of interest) of (i) the
LIBOR Market Index Rate as of such day plus (ii) the Applicable Spread in
effect on such day.


 


“Internal Reorganization”
means (i) any reorganization (a) between or among any Borrower or
Borrowers and Guarantor or (b) between or among any Borrower and one or
more other Borrowers or (c) any combination thereof, by way of liquidations,
mergers, consolidations, conveyances, assignments, sales, transfers and other
dispositions of all or substantially all of the assets of a Borrower (whether
in one transaction or in a series of transactions) or (b) any conversion
from one form of entity to another (e.g., conversion from a corporation to a
limited liability company); provided that (a) the Guarantor shall
preserve and maintain its status as a validly existing corporation, and (b) all
assets, liabilities, obligations and guarantees of any Borrower party to such
reorganization will continue to be held by such Borrower or be assumed by
another Borrower or Guarantor.


 


“Inventory Impairments” means the “after-tax”
(with the after-tax effect determined in accordance with GAAP) dollar amount of
any impairment charges, write-downs, asset write-offs, abandonment charges and
deposit forfeitures or write-offs of other pre-acquisition costs and similar
amounts and the amortization of intangibles arising pursuant to GAAP, and other
similar accruals or expenses, in each case recorded or accrued to or against
any asset (including without limitation owned or controlled Land, Units, works
in progress, option contracts and/or other similar items).


 


“Investment” means (i) any
direct or indirect purchase or other acquisition by Borrowers or Guarantor of,
or of a beneficial interest in, any Securities (other than Cash or Cash
Equivalents) of any other Person (excluding any Borrower or Guarantor), (ii) any
direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Borrower or Guarantor from any Person other than a Borrower or
Guarantor, of any equity Securities of such Person or (iii) any direct or
indirect loan, advance or capital contribution by any Borrower or Guarantor to
any other Person (other than a Borrower or Guarantor), including all
indebtedness and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person in the ordinary
course of business.  The amount of any
Investment shall be the original cost of such Investment plus the cost
of all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment
(other than adjustments for the repayment of, or the refund of capital with
respect to, the original principal amount of any such Investment).


 


“Issuer” means (i) each
Lender that has heretofore issued a Letter of Credit or executed a Tri-Party
Agreement and (ii) Agent.


 


“Joinder” means
a joinder and assumption agreement, in the form attached hereto as Exhibit 1.1C, to be executed by each Eligible
Affiliate that hereafter becomes a Borrower and to be attached to each Note,
whereby such Eligible Affiliate shall assume and agree to pay, jointly and
severally with all other Borrowers, the Indebtedness.


 


“Joint Venture”
means an entity that is engaged principally in the business of for-sale
residential real estate and in which Guarantor, directly or indirectly, owns at
least a 30% interest.


 


11

















 


“Land” means, at
any time, Raw Land, Approved Land, Development Land and Improved Land,
excluding Lots (i) that are subject to Qualifying Agreement of Sale or (ii) on
which Units are then being constructed.


 


“Land Sales Impairments” means the “after
tax” (with the after-tax effect determined in accordance with GAAP) dollar
amount of losses (including without limitation any loss on sale), impairment
charges, write-downs, asset write-offs and other similar impairments, accruals
or expenses that are attributable to the settlement of the sale of any Land
and/or Units and that are accrued or recorded.


 


“Last Reported Fiscal
Quarter” means, on any date, the later of (i) the Fiscal
Quarter most recently concluded that ended at least 50 days before such date or
(ii) the most recent Fiscal Quarter with respect to which Borrower has
delivered to Agent a report as required by Section 6.1.2.


 


“Lender” means
each Person executing this Agreement as a Lender, as set forth on the signature
pages hereto, and each Person that hereafter becomes a party to this
Agreement as a Lender pursuant to Section 13.9.


 


 “Lending Office” means with respect to a Lender, the office,
branch, subsidiary or affiliate of such Lender identified in the questionnaire
delivered by such Lender to Agent or otherwise selected by such Lender pursuant
to Section 2.18 hereof.


 


“Letter of Credit”
means (a) each letter of credit identified on Schedule 1.1D  which has heretofore been issued with respect to a Borrowing
Base Project or to developments previously completed by a Borrower or which is
a Financial Letter of Credit, (b) each letter of credit issued by Agent on
behalf of the Lenders for the benefit of Borrower that are to be issued by
Agent to be for the purpose of providing security for (i) the construction
by a Borrower of Improvements and other municipal and public facilities related
to Borrowing Base Projects deemed to be financed under the Revolving Sublimit
by their inclusion in the Borrowing Base, (ii) maintenance by a Borrower
of Improvements and other municipal and public facilities related to the
Borrowing Base Projects financed under the Revolving Sublimit, (iii) deposits
under purchase contracts for residential land to which a Borrower is a party,
as permitted by Section 8.5, but excluding deposits for Real Estate
subject to a purchase money mortgage constituting a Permitted Lien, and (iv) general
working capital and corporate purposes that are necessary for the operation of
the Business of any Borrower, including for maintenance by a Borrower or by an
Eligible Affiliate of public improvements with respect to a residential
development that is not, and has not been, a Borrowing Base Project, and (c) any
letter of credit issued by Agent in favor of any bank that is not a Lender to
secure any Borrower’s reimbursement obligations on account of letters of credit
and tri-party agreements issued by such bank of the type described in clause (b) (i) or
(b) (ii) of this definition or in the definition of “Tri-Party”
Agreement contained herein, as identified on Schedule 1.1.D.  Notwithstanding the foregoing, no Letter of
Credit may be issued in connection with any Joint Venture or any Person that is
not a Borrower or a Guarantor, except that Issuer may issue Letters of Credit
solely to the extent required to comply with the reserve requirements under the
OHI Financing Subordinated Debt in an aggregate amount not to exceed
$7,500,000.


 


“Letter of Credit Advance”
has the meaning defined in Section 2.1.4.4.


 


12














 


“Letter of Credit Sublimit” means
$60,000,000.


 


“LIBOR Market Index Rate” means, for any
day, a rate per annum determined in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):


 


                     1-month
LIBOR Rate               


1.0  – 
Eurocurrency Reserve Requirements


 


“Lien” means any mortgage, deed of
trust, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority,
or other security agreement or preferential arrangement, charge, or encumbrance
of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction to evidence any of the foregoing).


 


“Line of Credit” means the commitment of
Lenders to make Loans to Borrowers from time to time in the maximum aggregate
amount equal to the lesser of (i) the Revolving Sublimit or (ii) the
amount of then-current Borrowing Base Availability.


 


“Line of Credit Note” means each of the
promissory notes made by Master Borrower and each Eligible Affiliate that is
party to this Agreement as of the date hereof, payable to the order of each
Lender and substantially in the form of Exhibit 1.1E hereto, evidencing the Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.


 


“Liquidity” means, at any time, the sum
of all (i) Cash, cash from the sale of settled Units due from title
companies, and Cash Equivalents of Guarantor and all Borrowers, each on a
consolidated basis plus (ii) the amount by which the then-current
Borrowing Base Availability exceeds the then-outstanding principal balance of
the Loans.


 


“Loan” or “Loan(s)”
means, individually or collectively, the Line of Credit and any Advances thereunder.


 


“Loan Document(s)” means this Agreement,
the Notes, the Mortgages, the Guaranty, the Security Agreement, Letters of
Credit and all documents executed in connection with the Loans evidenced by
this Agreement and the Notes, and may include, without limitation, all
certificates issued with respect to any of the foregoing and any renewals or
modifications thereof.


 


“Loan Fees” means the various fees
payable by Borrowers from time to time pursuant to Section 2.6.


 


“London Business Day” means any Business
Day on which commercial banks are open for international business (including
dealings in Dollar deposits) in London and in Charlotte, North Carolina.


 


“Lot” or “Lots”
shall mean the portions of Real Estate that have been approved for construction
thereon of a single family Unit.


 


13

















 


“Master Borrower” has the meaning
defined in the Introductory Paragraph to this Agreement.


 


“Material Adverse Effect” means, with
respect to Borrower, Guarantor, or any of them, a material and adverse effect
upon the business, properties, assets, operations or condition (financial or
otherwise) of Guarantor and Borrower and their respective subsidiaries taken as
a whole, or upon their ability to perform their respective obligations under
the Loan Documents in accordance with their respective terms.


 


“Maturity Date” means December 20,
2009.


 


“Mortgage” or “Mortgages”
means the mortgages or deeds of trust (as appropriate for the jurisdiction in
which the Project subject thereto is located) granted to Agent (for the ratable
benefit of the Lenders) or to a wholly-owned subsidiary of Agent as trustee for
Agent (including master consolidations and restatements of the Assigned
Security Instruments) (for the ratable benefit of the Lenders), which shall be
security for the repayment of the Indebtedness, and shall constitute first lien(s) upon
the Project(s).  The Mortgages shall be
in a form prepared by and acceptable to Agent.


 


“Multiemployer Plan” means a Plan
described in Section 4001(a)(3) of ERISA that covers employees of
either of a Borrower or any ERISA Affiliate.


 


“Net Asset Sale Proceeds”, with respect to any sale
of any Real Estate, Lot or Unit, means Cash payments (including any Cash
received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) received from such
sale, net of any bona fide direct costs incurred in connection with such sale,
including (i) transfer taxes or similar taxes customarily paid by seller, (ii) income
taxes reasonably estimated to be actually payable within two years of the date
of such sale as a result of any gain recognized in connection with such sale
and (iii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Debt (other than the Indebtedness) that is
(a) secured by a purchase money mortgage on the Lot or Unit in question
and that is required to be repaid under the terms thereof as a result of such
sale and (b) actually paid at the time of receipt of such cash payment to
a Person that is not an Affiliate of any Borrower or Guarantor, and (iv) such
other normal and customary charges and costs paid or credited by Borrower or
Guarantor as seller (including, but not limited to, sales commissions,
settlement charges, real estate taxes, sales incentives and credits, recording
fees, escrows for uncompleted items, and title company charges).


 


“Net Securities Proceeds” means the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and
expenses) from the (i) issuance of Capital Stock of any Borrower or
Guarantor or Eligible Affiliate to a Person that is not a Borrower or Guarantor
and (ii) capital contributions made by a holder of Capital Stock of any
Borrower or Guarantor or Eligible Affiliate if such holder is not a Borrower or
a Guarantor (in each case, exclusive of equity issued and stock options granted
to employees or directors under compensation plans).


 


“New York Mortgage” means each Mortgage
that encumbers a Project located in the State of New York.


 


14

















 


“Notes” means the Line of Credit Notes
and the Swing Line Note; “Note” means any of such Notes.


 


“Notice of Borrowing” means a written
notice from a Borrower to Agent, in the appropriate form that is attached
hereto as Exhibit 1.1G,
requesting that a Loan or a Swing Line Loan in a specified amount be advanced
to such Borrower on a specified Funding Date.


 


“1-month LIBOR Rate” means, with respect
to each day, the rate for Dollar deposits of one-month maturity as reported on
Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such
day or if such day is not a London Business Day, then the immediately preceding
London Business Day (or if not so reported, then as determined by the Agent
from another recognized source or interbank quotation).


 


 “OHI
Financing Subordinated Debt” means the Debt incurred pursuant to (i) that
certain Junior Subordinated Indenture dated as of November 23, 2005,
between OHI Financing, Inc. and JPMorgan Chase Bank National Association,
as amended by the Supplemental Indenture and (ii) that certain Junior
Subordinated Indenture dated as of September 20, 2005, among OHI Financing, Inc.,
Guarantor and Wilmington Trust Company, including in each case without
limitation any guaranty of such Debt by Guarantor together with any
refinancing, renewal, replacement Debt, defeasance or refund thereof in
accordance with the provisions of Section 7.7.


 


“Option Agreement” means an agreement of
sale or purchase, option agreement, or any similar agreement executed by a
Borrower or Guarantor, or a subsidiary of either, whereby such entity has the
right to purchase Land or Units previously owned by a Borrower, Guarantor or a
wholly-owned subsidiary of either, or portions thereof (except any such
agreement giving rise to any liability recorded or reflected (or which would
typically be recorded or reflected) on Guarantor’s balance sheet pursuant to
GAAP as “Inventory not owned - Variable Interest Entities” and “Inventory not
owned — Other Financial Interests”); and provided further that any such
agreement shall be deemed to be an “Option Agreement” only if Agent determines,
in its sole discretion, that, in the event of any default by such entity under
such agreement such entity shall have no material financial obligations and no
material liability as a consequence of such entity’s default thereunder (other
than the termination of such agreement and/or forfeiture of any deposit made or
other amounts paid in connection with such agreement).


 


“Organizational Documents” means, with
respect to any entity, its articles of incorporation, by-laws, partnership
agreement, certificate of limited partnership, limited liability company
organization or formation agreement, limited liability company certificate or
articles of formation and trust indenture, as appropriate to the entity.


 


“Original Credit Agreement” has the
meaning defined in the Recitals to this Agreement.


 


“Other Taxes” means all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.


 


15

















 


“Participant” has the meaning set forth
in Section 13.9.4 hereof.


 


“PBGC” means the Pension Benefit
Guaranty Corporation or any entity succeeding to any or all of its functions
under ERISA.


 


“Permitted Debt” means:


 


(i)                                     the Indebtedness;


 


(ii)                                  normal operating liabilities
such as trade accounts payable, taxes payable, lease obligations and customer
deposits and unsecured notes given as deposits under agreements of sale for the
purchase of Real Estate, Units or Lots in the ordinary course of business;


 


(iii)                               reimbursement obligations
under surety bonds, Letters of Credit or Tri-Party Agreements (whether or not
the same have been presented for payment);


 


(iv)                              purchase money mortgages in
existence on the Closing Date with respect to Projects not in the Borrowing
Base as of the Closing Date and set forth of Schedule 1.1G, each as in
effect, and in the principal amount outstanding on the Closing Date;


 


(v)                                 purchase money mortgage
loans borrowed in connection with the acquisition of Real Estate, Units or Lots
permitted under Section 8.5; provided that such purchase money loan
is non-recourse to any asset other than the asset being acquired and so long as
no payments of interest or principal are, or are required to be paid in respect
thereof prior to the Maturity Date;


 


(vi)                              the guaranty, as in effect
on the Closing Date, or as thereafter modified, amended or replaced with Agent’s
consent in accordance with Section 7.7, by Guarantor of the OHI Financing
Subordinated Debt;


 


(vii)                           obligations constituting
deposits under agreements of sale for Units;


 


(viii)                        Debt for GAAP purposes
attributable to Option Agreements, but only to the extent that the original
notional principal amount of such Debt does not exceed $35,000,000; and


 


(ix)                                any Debt arising out of any
loan from one Borrower to another Borrower or Guarantor or any loan from
Guarantor to any Borrower.


 


 “Permitted
Liens” shall mean:


 


(i)                                     Liens for
taxes, assessments, or similar charges, incurred in the ordinary course of
business and which are not yet due and payable;


 


(ii)                                  Encumbrances
consisting of zoning restrictions, easements or other restrictions on the use
of real property, none of which materially impairs the use of such property by
Borrower in for construction thereon and of Units, and none of which is
violated in any material respect by existing or proposed structures or land
use;


 


16

















 


(iii)                               Liens, security
interests or mortgages in favor of Agent for the benefit of the Lenders to
secure the Indebtedness;


 


(iv)                              Liens securing
Permitted Debt set forth on Schedule 1.1G;


 


(v)                                 Liens on Real
Estate, Units or Lots that secure purchase money loans made by the sellers of
such Real Estate that are Permitted Debt and which, except for purchase money
mortgages permitted pursuant to Section 8.5, are subordinate, in lien,
priority and, during the pendency of an Event of Default, payment of the
Mortgage that encumbers such Project; and


 


(vi)                              Liens shown on
title insurance policies accepted by Agent.


 


“Person” means an individual,
partnership, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority, or other
entity of whatever nature.


 


“Plan” means any plan established,
maintained, or to which contributions have been made by either of the Borrower
or any ERISA Affiliate.


 


“Prescribed Laws” means, collectively, (a) the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA
PATRIOT ACT), (b) Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, and relating to Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, (c) the International Emergency Economic Power Act, 50
U.S.C. §1701 et. seq. and (d) all other statutes and laws relating to
money laundering or terrorism.


 


“Prohibited Transaction” means any
transaction set forth in Section 4006 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended from time to time.


 


“Project” means, at any time, a tract of
Real Estate or Lots in an Approved Jurisdiction, including all Units and/or
Improvements constructed or to be constructed thereon and that is then owned by
a Borrower or Guarantor.


 


“Pro Rata Share” means, as to any Lender
at any time, the ratio of (i) the amount of the Commitment of such Lender
to (ii) the aggregate Commitment of all of the Lenders.  The Pro Rata Share of each Lender as of the
date of this Agreement is shown on Schedule 1.1B.


 


“Qualifying Agreement of Sale” means a
valid, bona-fide agreement of sale for a Unit with an unrelated third-party
purchaser who is not an Affiliate of Guarantor or of any Borrower, for fair
market value, subject to the following conditions and limitations:


 


(i)                                     provides for a
cash deposit of at least 5% of the purchase price, except that the cash deposit
with respect to agreements of sale for Units in the Richmond, Virginia, MSA may
be $10,000 in lieu of 5% of the purchase price; and


 


(ii)                                  contains no
contingency other than for a mortgage commitment which does not exceed 95% (97%
if the required mortgage is to be FHA-insured) of the gross sales price of the
Unit and which is not contingent upon the sale or lease of any other real
estate (and


 


17

















 


which contingency provision (unless the subject Unit
is in the Richmond, Virginia, MSA) specifically provides that if the financing
commitment does include such a sale or lease contingency, such contingency will
not affect the purchaser’s obligation to close under the agreement of sale).


 


“Raw Land” means land located in an Approved Jurisdiction
that is neither Approved Land nor Improved Land.


 


“Real Estate” means all Raw Land, Approved Land, Development
Land and Improved Land, fee simple title to which is now or hereafter owned by
a Borrower and upon which it intends to construct (or has constructed)
Improvements and Units.


 


“Reduction Date” has the meaning defined in Section 2.6.5.


 


“Regulated Substances” means any substance the manufacture,
storage, use, generation, treatment, disposal, transportation or other
management of which is regulated by any of the Environmental Laws.


 


“Relevant Accounting Period” means, at any time, the period
of four (4) consecutive Fiscal Quarters, the last of which is the Last
Reported Fiscal Quarter.


 


“Reportable Event” means any of the events set forth in Section 4043
of ERISA.


 


“Requisite Lenders” means, at any date, any combination of
Lenders whose Pro Rata Shares aggregate at least sixty six and two-thirds
percent (66-2/3%).


 


“Revolving
Sublimit” means $440,000,000; provided that (i) from the
Closing Date through December 31, 2008, the aggregate amount of
outstanding Loans shall not exceed $425,000,000, and (ii) the Revolving
Sublimit shall be permanently reduced to $415,000,000 on July 1, 2009.


 


“RICO” means the Racketeer Influenced and Corrupt
Organization Act, as amended by the Comprehensive Crime Control Act of 1984, 18
USC §§1961-68, as amended from time to time.


 


“Securities” means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of
the foregoing.


 


“Security Agreement” means the security
agreement executed by Borrowers and Guarantor pursuant to Section 2.11.1.3.


 


“Solvent”,  with respect
to any Person, means that as of the date of determination both (i)(a) the then
fair saleable value of the property of such Person is (1) greater than the
total amount of liabilities (including contingent liabilities) of such Person
and (2) not less than the amount that will be required to pay the probable
liabilities on such Person’s then existing debts as they become absolute and
due considering all financing alternatives and potential asset sales reasonably
available to such Person; (b) such Person’s capital is not unreasonably small
in relation to its business or any contemplated or undertaken transaction; and
(c) such Person does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such debts as they
become due; and (ii) such Person is “solvent” within the meaning given that
term and similar terms under applicable laws relating to fraudulent transfers
and conveyances. For purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that, in light of all of
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.


 


“Subordinated Debt” means Debt for
borrowed money, the repayment of which by its terms is subordinated to the
Indebtedness on terms and conditions satisfactory to Agent.


 


18

















 


“Swap Contract” means any “swap
agreement” (as that term is defined in 11 U.S.C. § 101, as heretofore or
hereafter amended, including, without limitation, an interest rate exchange, collar, cap, adjustable strike cap, adjustable
strike corridor or similar agreement) entered into by any Borrower or Guarantor
with any individual Lender, or a party that was a Lender at the time such swap
agreement was entered into, in order to provide protection to, or minimize the
impact upon, any Borrower and/or the Guarantor of increasing floating rates of
interest applicable to some or all of the Loans.


 


“Swing Line Lender”
means Wachovia Bank, National Association.


 


“Swing Line Limit” means $10,000,000.


 


“Swing Line Loan” means a loan made by Swing Line Lender to a
Borrower pursuant to Section 2.1.2.


 


“Swing Line Note” means the $10,000,000 promissory note dated
the date hereof, executed by Borrowers in favor of Swing Line Lender to
evidence Swing Line Loans, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or
extensions thereof, in whole or in part.


 


“Taxes” means
all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.


 


“Tri-Party Agreement” means (a) an agreement executed by
Agent pursuant to this Agreement, pursuant to which Agent assures to a
Governmental Authority the availability of funds (up to a stated amount) to a
Borrower or to such Governmental Authority for the purpose of completing
construction of Improvements on a Project and (b) each agreement executed
by an Issuer for the foregoing purposes and currently in effect, as identified
on Schedule 1.1D
attached hereto.


 


“2008 Maturity Date Lenders”  has the meaning assigned to such term in
Section 2.6.1.


 


“Unit” or “Units” means an
attached or detached for-sale single-family residential housing facility or an
individual condominium dwelling in an Approved Jurisdiction.


 


“Unused Fee” means the fee payable by Borrowers pursuant to Section 2.6.3.


 


1.2           Construction of Terms. 
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole and “or” has the inclusive meaning represented by the phrase
“and/or.”  References in this Agreement to
“determination” by Agent or Lenders include good faith estimates by Agent or
Lenders (in the case of quantitative determinations) and good faith beliefs by
the Agent or Lenders (in the case of qualitative determinations). The words
“hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this
Agreement.  The Section and other
headings contained in this Agreement preceding this Agreement are for reference
purposes only and shall not control or affect the construction of this
Agreement or the interpretation thereof in any respect.  Reference to any Article, Section, Schedule
and Exhibit are to this Agreement, unless otherwise specified.  All definitions of, and references to, any
Loan Document mean the Loan Document that is identified


 


19

















 


herein, as the same may from time to time be amended in accordance with
the provisions of this Agreement and the subject Loan Document.


 


1.3           Accounting Reports and Principles. 
The character or amount of any asset, liability, account or reserve and
of any item of income or expense to be determined, and any consolidation or
other accounting computation to be made, and the construction of any definition
containing a financial term, pursuant to this Agreement or any other Loan
Document, shall be construed, determined or made, as the case may be, in
accordance with GAAP, consistently applied, unless such principles are
inconsistent with any express provision of this Agreement.


 


1.4           Business Day; Time. 
Whenever any payment or other obligation hereunder, whether under a Note
or under another Loan Document, is due on a day other than a Business Day, such
shall be paid or performed on the Business Day next following the prescribed
due date, except as otherwise specifically provided for herein to the contrary,
and such extension of time shall be included in the computation of interest and
charges.  Any reference made herein or in
any other Loan Document to an hour of day shall refer to the then prevailing
Eastern time, unless specifically provided herein to the contrary.


 


1.5           Charging
Accounts.  Whenever Borrowers are
obligated, pursuant to Article II hereof, or pursuant to the Notes or any other
Loan Document, to make payments of any nature to Agent or Lenders, Agent shall
be entitled, and each Borrower, by its execution of the Notes or a Joinder
thereto, authorizes Agent, to draw against any Deposit Account owned by such
Borrower at Agent on account of such fees and expenses or payments due.  Agent shall deliver to the subject Borrower a
notice setting forth, in reasonable detail, the amount of the fees, expenses
and/or payments to be satisfied by such draw, and the name or number of the
account or accounts from which the draw was made. Any such charge shall be
subject to the provisions of Section 11.14 hereof relating to the sharing of
recoveries among Lenders.


 


ARTICLE
II.


AMOUNT
AND TERMS OF THE FACILITY;


SECURITY
FOR THE FACILITY


 


2.1           The Facility.


 


2.1.1        Amount and Availability of
Line of Credit.


 


2.1.1.1     Provided that no Event of
Default has occurred and is continuing, and subject to the terms and conditions
set forth herein, commencing on the Closing Date and expiring on the Business
Day immediately preceding the Maturity Date, Lenders severally, in accordance
with their respective Pro Rata Shares, shall extend to Borrowers the Line of
Credit, pursuant to which each Lender severally shall make advances of Loans to
Borrowers in accordance with such Lender’s Pro Rata Share up to an aggregate for
all Lenders of the Revolving Sublimit, provided that at no time shall Lenders
be obligated to make any Loan if, as a result thereof, (i) the aggregate
outstanding principal balance of all Loans and Swing Line Loans would exceed
the then-current Borrowing Base Availability or (ii) the sum of (x) aggregate
outstanding principal balance of all Loans and Swing Line Loans plus (y) the
aggregate maximum liability of Lenders pursuant to then-outstanding Letters of
Credit and Tri-Party Agreements would exceed the Facility Amount.  Borrowers may request Loans for the


 


20

















 


purpose of financing the acquisition,
development and improvement of Real Estate and the construction thereon of
Units and Improvements, for general working capital and corporate purposes, and
for such other appropriate purposes to which the Requisite Lenders consent
(which consent shall not be unreasonably withheld or delayed).  Borrowers may borrow, repay and re-borrow
Loans at any time and from time to time prior to the Maturity Date.


 


2.1.1.2     [Intentionally Omitted].


 


2.1.1.3     Upon (i) the execution
by Master Borrower and by an Eligible Affiliate that is not then a Borrower of
a Joinder for each Lender, (ii) delivery to Agent of such Joinders and of
each of the items referred to in Sections 4.1.3, 4.1.5, 4.1.6, 4.1.7 and 4.1.8 that
pertains to such Eligible Affiliate, (iii) execution of each such Joinder
by Agent and the appropriate Lender and (iv) delivery to such Eligible
Affiliate of a fully executed Joinder by Agent and by each Lender, such
Eligible Affiliate shall become, and thereafter be for purposes of this
Agreement, a Borrower.


 


2.1.1.4     Master Borrower shall have
the right, at any time after the Closing Date, to terminate, upon not less than
thirty (30) days’ prior written notice to Agent, or to reduce, upon not less
than three (3) Business Days’ prior written notice to Agent, the
Commitments of Lenders regarding the Facility, provided that the Facility
Amount may not be so reduced by Master Borrower to an amount that is less than
the sum of the aggregate principal balance of all Loans and Swing Line Loans
then outstanding plus the aggregate amount of liabilities under all outstanding
Letters of Credit and Tri-Party Agreements. 
Any voluntary termination or reduction in the Facility Amount shall
permanently reduce the Facility Amount with corresponding reductions in the
Commitments.  If Borrowers desire to
reduce the Facility Amount as aforesaid, Borrowers shall execute and deliver to
Agent such documents and instruments as Agent shall reasonably require.  Each such reduction of the Facility Amount
shall result in a reduction of the Revolving Sublimit in the same amount but
not a reduction of the Letter of Credit Sublimit.


 


2.1.2        Amount and Availability of
Swing Line Loans.  Provided
that no Event of Default has occurred and is continuing, and subject to the
terms and conditions set forth herein, commencing on the Closing Date and
expiring on the Business Day immediately preceding the Maturity Date, Swing
Line Lender shall extend to Borrowers Swing Line Loans up to, in the aggregate
at any time, the Swing Line Limit; provided that at no time shall Swing
Line Lender be obligated to make any Swing Line Loan if as a result thereof, (i) the
sum of (a) the aggregate outstanding principal balances of all Loans,
Swing Line Loans and Letter of Credit Advances plus (b) the aggregate
maximum liability of all Issuers under outstanding Letters of Credit or
Tri-Party Agreements would exceed the Revolving Sublimit or (ii) the
aggregate outstanding principal balances of all Loans, Letter of Credit
Advances and Swing Line Loans would exceed the then-current Borrowing Base
Availability.  The Borrowers may request
Swing Line Loans for the purpose of the acquisition of Real Estate and the
construction thereon of Units and Improvements and for general corporate
purposes.  Borrowers may borrow, repay
and re-borrow Swing Line Loans at any time and from time to time prior to the
Maturity Date.  If a Swing Line Loan is
requested at a time when any Lender is a Defaulting Lender or has given notice
to Agent of its intent to be a Defaulting Lender, the amount of the Swing Line
Loan advanced shall be reduced by such Defaulting Lender’s Pro-Rata Share
thereof.


 


21

















 


2.1.3                        Amount and
Availability of Letters of Credit and Tri-Party Agreements.  Provided that no Event of Default has
occurred and is continuing, and subject to the terms and conditions set forth
herein, Borrowers may request, and Agent, pursuant to this Section 2.1.2
shall issue or execute on behalf of the Lenders, (i) Letters of Credit or
Tri-Party Agreements to assure Governmental Authorities of the completion of
Improvements that are to be constructed in Projects and financed with the
proceeds of Loans, but only if in each instance Agent’s liability under such
Letter of Credit or Tri-Party Agreement is subject to periodic reduction by the
beneficiary thereof as construction of the subject Improvements is completed, (ii) Letters
of Credit to assure Governmental Authorities that Borrowers will perform their
maintenance obligations with respect to Improvements financed with the proceeds
of Loans, (iii) Letters of Credit that are in lieu of cash deposits under
agreements of sale for the purchase of Real Estate, Lots or Units by Borrowers
permitted pursuant to Section 8.5 and not subject to purchase money
mortgage other than those securing the Indebtedness; and (iv) Letters of
Credit for general working capital and corporate purposes of Borrowers that are
necessary to the operation of their Business. 
Letters of Credit of the types described in clauses (iii) and (iv) are
sometimes referred to in this Agreement as “Financial
Letters of Credit.”  Each
Letter of Credit identified on Schedule 1.1D also shall be deemed
to have been issued on behalf of the Lenders. 
No Letter of Credit or Tri-Party Agreement shall be issued or executed
by Agent if, as a result thereof, (x) the aggregate liability of Agent and
all other Issuers under all Letters of Credit and Tri-Party Agreements then
outstanding or in effect would exceed the Letter of Credit Sublimit or (y) the
aggregate liability of Agent under all outstanding Financial Letters of Credit
would exceed $25,000,000.


 


2.1.4                        Letters of
Credit and Tri-Party Agreements Generally.


 


2.1.4.1     The terms of all Letters of
Credit and Tri-Party Agreements, and all documents ancillary thereto, shall be
subject to Agent’s prior approval.


 


2.1.4.2     At least five (5) Business
Days prior to the date any Borrower desires Agent to issue a Letter of Credit,
such Borrower shall deliver to Agent a completed and executed Application and
Agreement for Irrevocable Standby Letter of Credit (each a “Letter of Credit Application”) in the form attached hereto
as Exhibit 2.1.4.2.


 


2.1.4.3     No Letter of Credit shall be
issued or Tri-Party Agreement executed or maintained for a term that extends
beyond the Maturity Date (as the same may be postponed pursuant to the terms of
this Agreement), except if (a) all Lenders so agree in their sole
discretion and (b) at the Maturity Date, Borrowers shall deliver to Agent
good funds equal to 105% of Issuer’s maximum liability under all outstanding
Letters of Credit and Tri-Party Agreements with an expiration date after the
Maturity Date, to be held as cash Collateral for Borrowers’ reimbursement
obligations and other Indebtedness, or (c) at the Maturity Date, with
respect to any such Letter of Credit or Tri-Party Agreement, Borrowers deliver
a back-to-back letter of credit issued by an Approved Bank with a face amount
of 105% of the Issuer’s maximum liability under all outstanding Letters of
Credit and Tri-Party Agreements with an expiration date after the Maturity
Date.


 


2.1.4.4     Any payment made by any
Issuer pursuant to a Letter of Credit or Tri-Party Agreement that is not
reimbursed within three (3) Business Days of such payment date shall be
deemed to be a Loan (or, as provided in this Section 2.1.4.4 a Letter of
Credit Advance)


 


22

















 


that was requested by Borrowers pursuant to Section 2.1.1,
notwithstanding that Borrowers did not provide Agent with a Notice of
Borrowing.  If the making of a Loan as
the result of a drawing under a Letter of Credit or a demand for payment under
a Tri-Party Agreement would cause the aggregate amount of all outstanding Loans
to exceed the then-current Borrowing Base Availability, the amount of such
excess shall be deemed to be a “Letter of Credit Advance.”


 


2.2                                 Term of Facility.


 


2.2.1        Line of Credit.


 


2.2.1.1     The Line of Credit shall
terminate on the Maturity Date, unless renewed or extended by Lenders in
writing upon such terms as are then satisfactory to all Lenders.


 


2.2.1.2     Termination of the Line of
Credit shall not in any way affect or diminish the obligations of the Borrowers
to repay any or all of the Loans or to otherwise comply with all of the terms
of this Agreement and all other Loan Documents.


 


2.2.2        Letters of Credit and
Tri-Party Agreements.  The Letter
of Credit Sublimit shall terminate on the Maturity Date.  Such termination shall end any obligation of
Agent and the Lenders under this Agreement in regard to the issuance of any new
Letters of Credit or execution of new Tri-Party Agreements, but such termination
shall not in any way affect or diminish the obligations of the Borrowers to
repay any or all Advances and Letter of Credit Advances made on account of a
Letter of Credit or Tri-Party Agreement or to otherwise comply with all of the
terms of this Agreement and all other Loan Documents.


 


2.2.3        Swing Line.  The Swing Line shall terminate on the
Maturity Date, unless renewed or extended by Lenders in writing upon such terms
as are then satisfactory to all Lenders. 
Termination of the Swing Line shall not in any way affect or diminish
the obligations of the Borrower to repay any or all of the Swing Line Loans or
to otherwise comply with all of the terms of this Agreement and all other Loan
Documents.


 


2.3                                 Repayment Terms.


 


2.3.1        Loans.


 


2.3.1.1     The entire outstanding
principal balance of all Loans, together with all accrued interest thereon and
other amounts payable by Borrowers pursuant to this Agreement, shall be due and
payable without notice or demand on the Maturity Date.


 


2.3.1.2     Commencing on October 15,
2008, and continuing on the 15th day of each succeeding month thereafter until
to and including the month in which the Maturity Date occurs, the Borrowers
shall pay to the Agent interest at the applicable Interest Rate, in arrears
through (and including) the last day of the immediately preceding calendar
month, on the aggregate outstanding principal balance of the Loans.


 


2.3.1.3     At any time that the unpaid
principal balance of outstanding Loans shall exceed the Borrowing Base
Availability as shown on the most recently delivered


 


23














 


Borrowing Base Certificate,
Borrowers (without notice from Agent or any Lender) shall within five (5) Business
Days after the date the Borrowing Base Certificate was delivered make a
principal payment on account of the Loans in an amount that reduces the outstanding
principal balance of all Loans to such Borrowing Base Availability.  The grace period provided in this Section 2.3.1.3
is in lieu of any other notice and grace periods contained in this Agreement or
any other Loan Document.  No new Loans
will be advanced at any time that the aggregate outstanding principal balance
of Loans exceeds the then-current Borrowing Base Availability.


 


2.3.1.4     At any time that the unpaid
principal balance of outstanding Loans and Swing Line Loans plus all liability
under Letters of Credit and Tri-Party Agreements shall exceed the Facility
Amount, Borrowers (without notice from Agent or any Lender) shall within five (5) days
thereafter make a principal payment on account of the Loans in an amount that
reduces the outstanding principal balance of all Loans and Swing Line Loans
plus all liability under Letters of Credit and Tri-Party Agreements to such
Facility Amount.  The grace period
provided in this Section 2.3.1.4 is in lieu of any other notice and grace
periods contained in this Agreement or any other Loan Documents.  No new Loans will be advanced at any time
that the aggregate outstanding principal balance of Loans and Swing Line Loans
plus all liability under Letters of Credit and Tri-Party Agreements exceeds the
Facility Amount.


 


2.3.1.5     On the date of receipt of any
Net Securities Proceeds after the Closing Date, (a) Company shall prepay
the Loans in an aggregate amount equal to 50% of such Net Securities Proceeds
and (b) the Facility Amount shall be permanently reduced in an aggregate
amount equal to 50% of such Net Securities Proceeds (rounded to the nearest
$100,000) with corresponding reductions in the Commitments.


 


2.3.1.6     To the extent any Borrower or
Guarantor receives any Net Asset Sale Proceeds, no later than two (2) Business
Days after receipt by any Borrower or Guarantor of any Net Asset Sale Proceeds
Borrowers shall prepay the Loans in an aggregate amount equal to such Net Asset
Sale Proceeds.  The grace period provided
in this Section 2.3.1.6 is in lieu of any other notice and grace periods
contained in this Agreement or any other Loan Document.


 


2.3.1.7     Any amount required to be
applied as a mandatory prepayment of the Loans and/or a reduction of the
Revolving Loan Commitment Amount pursuant to Section 2.3, or in
connection with a sale of Real Estate, Lots or Units pursuant to Section 2.11.2,
shall be applied first to prepay the Swing Line Loans to the full extent
thereof and second, to the extent of any remaining portion of such
amount, to prepay the Advances to the full extent thereof.


 


2.3.2        Letter of Credit
Advances.


 


2.3.2.1     Each Letter of Credit Advance
must be repaid on the first to occur of (i) 90 days after the Letter of
Credit Advance was made, (ii) the Maturity Date or (iii) the date
when the Borrowing Base Availability next exceeds the aggregate outstanding
principal balance of all Loans (whether as a result of an increase in Borrowing
Base Availability or repayment of a prior Loan), in which event the outstanding
Letter of Credit Advances shall be repaid with the proceeds of a Loan to the
extent then available under the Line of Credit, such Loan to be applied to
outstanding Letter of Credit Advances in the order in which they were
made.  Each such Loan, to the extent a
new Loan may then be borrowed pursuant to Section 2.1.1, shall be made
automatically by the Lenders, without receipt of a Notice of Borrowing from
Borrowers, and 


 


24

















 


except as aforesaid no Loan
shall be made at a time when any Letter of Credit Advance is outstanding.


 


2.3.2.2     Letter of Credit Advances
shall bear interest at the applicable Interest Rate and Borrowers shall pay to
Lenders, on the 15th day of each calendar month, accrued interest on all
outstanding Letter of Credit Advances.


 


2.3.3        Swing Line Loans.


 


2.3.3.1     The entire outstanding
principal balance of each Swing Line Loan, together with all accrued interest
thereon, shall be due and payable without notice or demand on the third (3rd)
Business Day after the Business Day on which such Swing Line Loan was
advanced.  If a Swing Line Loan is not
paid in full when due, Lenders shall make a Loan to Borrowers under the Line of
Credit, the proceeds of which shall be used to repay the Swing Line Loan.  Each Loan required to be made pursuant to
this Section 2.3.3.1 to repay a Swing Line Loan shall be made
automatically by Lenders, without a Notice of Borrowing from Borrowers for such
Loan.


 


2.3.3.2     If at a time when there are
outstanding both Letter of Credit Advances and Swing Line Loans and Borrowers
may, pursuant to Section 2.1.1, obtain a Loan under the Line of Credit,
the proceeds of such new Loan shall be applied first as provided in this Section 2.3.3
and then as provided in Section 2.3.2.


 


2.3.3.3     Swing Line Loans shall bear interest
at the applicable Interest Rate and Borrowers shall pay to Swing Line Lender,
on the 15th day of each calendar month, accrued interest on all outstanding
Swing Line Loans.


 


2.3.3.4     Upon the making of a Swing
Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender
a participation interest therein, in an amount equal to such Lender’s Pro Rata
Share times the amount of the Swing Line Loan. 
Upon demand by Swing Line Lender at any time if the Swing Line Loan for
any reason is not paid when due, each Lender shall promptly provide to Swing
Line Lender such Lender’s purchase price for its participation interest in such
Swing Line Loan, calculated as aforesaid. 
The obligation of each Lender so to provide such purchase price to Swing
Line Lender shall be absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or of any other occurrence or event.


 


2.4           Interest Rate.


 


2.4.1        Each Loan, Letter of
Credit Advance and Swing Line Loan shall bear interest at the applicable
Interest Rate then in effect.  The
Interest Rate shall change (i) automatically from time to time effective
as of the effective date of each change in the LIBOR Market Index Rate, and (ii) to
the extent allowed by law, on the effective date of any change in the highest
lawful rate.


 


2.4.2        Interest payable under the
Notes shall be calculated on the basis of a 360 day year but charged for each
year or portion thereof that any Loan, Letter of Credit Advance or Swing Line
Loan outstanding.


 


25

















 


2.5           Default Rate.  Any principal amount not paid when due (at
the Maturity Date, by acceleration or otherwise) shall bear interest thereafter
until paid in full (before or after judgment), payable on demand, at the
Default Rate.


 


2.6           Fees Payable by Borrowers. 
Borrowers agree to pay to the Agent, for the account of Lenders, as
consideration for the agreement of the Lenders to make available the Facility,
the following Loan Fees:


 


2.6.1        Amendment Fees.  On the Closing Date, Borrowers shall pay to
Administrative Agent for the account of Lenders the following amendment fees
(each an “Amendment Fee” and collectively, the “Amendment Fees”): (a) for the account of those Lenders
extending their maturity date from December 20, 2008 to the Maturity Date
(the “2008 Maturity Date Lenders”) and
executing this Agreement, a fee equal to 0.45% of the aggregate amount of such
2008 Maturity Date Lenders’ Commitments, as such Commitments have been reduced
on the Closing Date; and (b) for the account of those Lenders executing
this Agreement, other than the 2008 Maturity Date Lenders who receive the
Amendment Fee pursuant subsection (a) of this Section 2.6.1, a fee
equal to 0.25% of the aggregate amount of such Lenders’ Commitments, as such
Commitments have been reduced on the Closing Date.


 


2.6.2        [Intentionally Omitted].


 


2.6.3        Unused Fee.


 


2.6.3.1     Borrowers shall pay,
quarterly in arrears at the time each Compliance Certificate is due and on the
Maturity Date, an Unused Fee at the rate of 0.35% per annum (that is, 35 “basis
points”) the average daily unused portion of the Revolving Sublimit during the
Fiscal Quarter most recently ended.


 


2.6.3.2     The Unused Fee shall be
calculated on the basis of a 365-day year. 
Unused Fees shall be allocated to the Lenders in accordance with their
respective Pro Rata Shares at the time payment of each Unused Fee is due.


 


2.6.4        Letters of Credit and
Tri-Party Agreement Fee.  Borrowers
shall pay quarterly, in arrears on the first (1st) day of each Fiscal Quarter
during such time that any Letter of Credit or Tri-Party Agreement remains
outstanding, a fee based (the “Letter of Credit Fee”)
on the amount available to be drawn under such Letter of Credit or Tri-Party
Agreement during the preceding Fiscal Quarter. 
Such fee shall be calculated on the basis of a 360-day year at the per
annum rate equal to the Applicable Spread. 
Each Issuer shall receive, out of all fees payable by Borrowers under
this Section 2.6.4, a Letter of Credit and Tri-Party Agreement issuance
fee calculated at the rate of 0.125% per annum (that is, 12.5 “basis points”)
of the amount of such Issuer’s liability under the Letters of Credit and
Tri-Party agreements executed by such Issuer, and the balance of all such fees
paid by Borrowers shall be allocated to the Lenders in accordance with their
respective Pro Rata Shares at the time payment of such fees is due.  The provisions of this Section 2.6.4
shall supersede all agreements heretofore made with regard to fees pertaining
to Letters of Credit and Tri-Party Agreements identified on Schedule 1.1.D
between any Borrower and the Issuers thereof. 
Borrowers shall also pay to each Issuer, for its own account, such
Issuer’s letter of credit issuance, renewal, amendment, delivery and billing
fees that are such Issuer’s standard at the time a Letter of Credit is issued,
renewed or amended.


 


26

















 


2.6.5        Additional Loan Fees.  Borrowers shall pay two additional fees for
the Facility.  The first additional fee
shall be earned and payable on September 15, 2009 and shall be equal to 8%
per annum of the amount by which the aggregate Commitments (based on the
Facility Amount as it exists from time to time) exceeds $250,000,000,
calculated on a daily basis as such Commitments (based on the Facility Amount
as it exists from time to time) exist between the Closing Date and the earlier
of (i) September 15, 2009 and (ii) the date the Commitments are
permanently reduced to $250,000,000 (the “Reduction Date”);
provided that such first additional fee will be reduced by 80% if the
aggregate Commitments have been permanently reduced to $250,000,000 on or
before September 15, 2009.  The
second additional fee shall be earned and payable on December 20, 2009 if
the Indebtedness are not paid in full by such date and such second additional
fee shall be equal to 8% per annum of the amount that the aggregate Commitments
exceeds $250,000,000 calculated on a daily basis as such Commitments exist from
time to time after the Reduction Date.


 


2.6.6        Loan Fees Generally.  Lenders may, if Borrowers fail to pay the
same when due, disburse to themselves any Loan Fees then due, in whole or in
part, as Loans under the Line of Credit, either on the dates as provided above
or at any time or times thereafter, without the consent of Borrowers and
without receiving a Notice of Borrowing. 
If any such Loan Fee is so advanced to themselves by the Lenders from
the Line of Credit, interest at the Interest Rate as provided herein shall
begin to accrue upon each portion of the Loan Fees as so advanced.


 


2.7           Prepayments.


 


2.7.1        Borrowers may make
prepayments (full or partial) with respect to the Indebtedness from time to
time without penalty or premium.  The
acceptance by Lenders of any prepayment at a time when an Event of Default has
occurred and is continuing shall not constitute a waiver, release or accord and
satisfaction thereof or of any rights in respect thereto by the Lenders.


 


2.7.2        If a Loan or a Swing Line
Loan is made or a drawing is made under any Letter of Credit or Tri-Party
Agreement and any Lender fails to deliver to Agent, as required by the terms of
this Agreement, such Lender’s Pro Rata Share of the Loan, Swing Line Loan or
Letter of Credit Advance that results from such drawing and no other Lender or
Lenders elect to fund the defaulting Lender’s share, Borrowers shall, within
one (1) Business Day after notice from Agent, pay to Agent the amount of
such defaulting Lender’s Pro-Rata Share of the Loan, Swing Line Loan or
drawing, which amount, if related to a Letter of Credit Advance, Agent shall
pay over to the issuer of the subject Letter of Credit or Tri-Party
Agreement.  No such payment by Borrowers
shall be deemed to constitute a cure of the default by the non-funding Lender
of its obligations under this Agreement.


 


2.8           No Setoff or Deduction.  All
payments of principal and interest on the Loans, Letter of Credit Advances,
Swing Loans and other amounts payable by the Borrowers hereunder shall be made
by the Borrowers without setoff or counterclaim, and free and clear of, and
without deduction or withholding for, or on account of, any present or future
taxes or assessments imposed by any governmental authority, or by any
department agency or other political subdivision or taxing authority.


 


27

















 


2.9           Illegality.  Notwithstanding any other provision in this
Agreement, if Agent determines that any applicable law, rule, or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by the
Lenders with any request or directive (whether or not having the force of law)
of any such authority, central bank, or comparable agency shall make it
unlawful or impossible for the Lenders to maintain the Facility, then upon
notice to the Borrowers and Lenders by the Agent the Facility shall terminate
and Borrowers shall immediately repay all Indebtedness.


 


2.10         Notes.


 


2.10.1      The obligation of Borrowers
to repay all Loans and all Letter of Credit Advances, and all interest and
other charges thereon, may be evidenced by the Line of Credit Notes.  If so requested by any Lender by written notice
to Master Borrower (with a copy to Agent) at least two Business Days prior to
the Closing Date or at any time thereafter, Borrowers shall execute and deliver
to each Lender one Line of Credit Note in the principal amount of such Lender’s
Commitment; provided that any such Line of Credit Note shall be deemed to
replace any Line of Credit Note issued pursuant to the Original Credit
Agreement or the Existing Credit Agreement and any such Line of Credit Note
issued pursuant to the Original Credit Agreement or the Existing Credit
Agreement shall be marked “cancelled” and returned promptly to Master Borrower
or a lost note affidavit shall be provided in lieu thereof.


 


2.10.2      The obligation of Borrowers
to repay all Swing Line Loans, and all interest thereon, may be evidenced by
the Swing Line Note.  If so requested by
any Lender by written notice to Master Borrower (with a copy to Agent) at least
two Business Days prior to the Closing Date or at any time thereafter, Borrowers
shall execute and deliver to Swing Line Lender the Swing Line Note; provided
that any such Swing Line Note shall be deemed to replace any Swing Line Note
issued pursuant to the Original Credit Agreement or the Existing Credit
Agreement and any such Swing Line Note issued pursuant to the Original Credit
Agreement or the Existing Credit Agreement shall be marked “cancelled” and
returned promptly to Master Borrower or a lost note affidavit shall be provided
in lieu thereof.


 


2.11         Security.


 


2.11.1      Borrowers
shall deliver to Agent, as security for the Indebtedness:


 


2.11.1.1       An unlimited suretyship
agreement of Guarantor, which shall guaranty payment and not merely collection,
of the Indebtedness now or hereafter owing by Borrowers to the Lenders as
provided herein and the prompt performance of all obligations under the Loan
Documents.


 


2.11.1.2       A first priority Mortgage
lien on all Projects other than (a) Real Estate purchased after the
Closing Date subject to a purchase money mortgage that constitutes a Permitted
Lien and (b) any Project not in the Borrowing Base as of the Closing Date
that is subject to a Permitted Lien.


 


2.11.1.3       One
or more promissory notes, in form and substance satisfactory to Agent,
evidencing each item of Debt arising out of any loan owed by a Guarantor or any
of its subsidiaries to Guarantor or any Borrower and all such security
agreements, documents and instruments that may be necessary or, as reasonably
determined by the Agent, desirable in order to create in favor of Agent, for
the benefit of Lenders, a valid and (upon the delivery to Agent of each such
promissory note) perfected first priority security interest in such promissory
note.


 


2.11.1.4       All such security
agreements, documents and instruments, and duly completed UCC financing
statements and such federal and state forms that may be 


 


28

















 


necessary or, as reasonably
determined by the Agent, desirable in order to create in favor of Agent, for
the benefit of Lenders, a valid and (upon such filing and recording or filing)
perfected first priority security interest in all income tax refunds and
proceeds thereof received by, or payable to, Borrowers or Guarantor after the
Closing Date.


 


2.11.2      Real Estate and the
Individual Lots and the Units thereon shall be released by Agent from the lien
of the applicable Mortgage, after receipt by Agent of Net Asset Sale
Proceeds.  Agent agrees to provide such
releases in a commercially reasonable manner, including the delivery of a
release in escrow to the title company or other closing agent prior to the
closing thereunder.  All sales of Real
Estate, Lots or Units shall be made through a title company or closing agent
and the Net Asset Sale Proceeds shall be paid directly to Agent for application
to the Indebtedness.  If a sale involves
Lots and Units that have an Appraised Value or Cost Incurred of $5,000,000 or
more, Borrowers shall deliver to the Agent in connection with such sale, (i) a
new, current Borrowing Base Certificate evidencing that immediately after such
release Borrowers would be in compliance with the terms of this Agreement (and,
if not, by a payment of principal in an amount sufficient to cause Borrowers to
be in compliance) and, (ii) a certification that there then exists no
continuing Event of Default.  To
facilitate the conveyance of Units in the ordinary course of any Borrower’s
Business, the title insurer involved in such transaction may, by an e-mail
addressed to refs_orleans@wachovia.com, request confirmation that the subject
Lot and Unit will be so released by Agent and, if such is the case, Agent shall
promptly respond to such inquiry by e-mail and the Agent agrees to execute the
release and promptly deliver such release to the title company or closing
agent.


 


2.12         General Provisions.


 


2.12.1      Advances.  Advances of Loans and Letter of Credit
Advances shall be made by Lenders simultaneously and proportionately to their
Pro Rata Shares, it being understood that the obligations of Lenders to advance
funds to Borrowers hereunder are several and independent and that no Lender
shall be responsible for any default by any other Lender in that other Lender’s
obligation to make any such advance, nor shall the Commitment of any other
Lender be increased or decreased as a result of the default of any other Lender
in that other Lender’s obligation to make advances hereunder.  Borrowers may request no more than two (2) Advances
of Loans under the Line of Credit during any calendar week, comprised of one
Advance for construction needs, and a second Advance for general working capital
and corporate purposes (which shall be in addition to Letter of Credit Advances
and Swing Line Loans and shall exclude Loans made automatically as aforesaid to
repay Letter of Credit Advances and Swing Line Loans); provided that
Borrowers may request two (2) additional Advances of Loans under the Line
of Credit during any calendar week (comprised of one Advance for construction
needs, and a second Advance for general working capital and corporate
purposes), if the initial Loans requested during such week were not funded as a
result of a Defaulting Lender’s failure to fund and such additional request may
be in amounts sufficient to fund the amount not so funded under the initial
request, without regard to minimum Loan amounts set forth in Section 2.12.2.  In addition, Borrowers may request from time
to time Advances for asset purchases of Real Estate, Lots or Units to be funded
through a title company pursuant to Section 2.13.


 


2.12.2      Notice of Borrowing.  Subject to the provisions of this Article II,
whenever a Borrower desires to borrow a Loan under this Agreement, such
Borrower shall deliver by telecopy to Agent a properly completed Notice of
Borrowing, executed by an 


 


29

















 


Authorized Signer, no later than
11:00 A.M. at least two (2) Business Days in advance of the proposed
Funding Date.  The Notice of Borrowing
shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of the proposed Loan, (iii) amounts relating to
construction needs and asset purchases with respect to a Project, payee and
type of cost, and (iv) the amount relating to general working capital and
corporate purposes.  Loans shall be in
integral multiples of $500,000 but may not be in an amount less than $500,000.  Each Notice of Borrowing shall be delivered
to Agent at 201 S. College Street, 8th Floor, Charlotte, NC 28288-5708,
Attention: Syndication Agency Services, facsimile 704-383-7989, with a copy to
Agent at 123 S. Broad Street, Philadelphia, Pennsylvania 19109, Attention:  Julie Pasceri-Young, facsimile 215-670-6530
(or to such other addresses or facsimile numbers as Agent may from time-to-time
advise Borrowers by written notice).


 


2.12.3      Funding of Loans.


 


2.12.3.1       By 3:00 P.M. on the
day Agent (i) receives a Notice of Borrowing pursuant to Section 2.12.2
or (ii) has actual knowledge that a drawing or a demand for payment has been or
will be made under a Letter of Credit or Tri-Party Agreement, Agent shall
notify each Lender by facsimile or electronic (e-mail) transmission of the
proposed borrowing, drawing or demand. 
Except as provided in Section 2.12.3.2, not later than noon on the
Funding Date specified in the Notice of Borrowing (or the anticipated date of
the honoring of any such drawing or demand, as specified in Agent’s notice to
the Lenders), each Lender shall wire transfer to such account of Agent as Agent
shall designate an amount in immediately available funds equal to the amount of
each Lender’s Pro Rata Share of the Loan or Letter of Credit Advance to be made
to or for the account of Borrowers on such Funding Date.  Agent shall cause such Loans to be made
available to the requesting Borrower on the Funding Date pertaining thereto by
depositing the amount thereof in the designated account of such Borrower with
Agent; provided, that if the Notice of Borrowing relates to a request
for an Advance to fund the acquisition of Real Estate, Lots or Units, the
amount of the Advance shall be deposited into the escrow account or similar
account for the title company or title clerk conducting the settlement with
respect to the Real Estate, Lots or Units being acquired in compliance with Section 2.13.


 


2.12.3.2       Each Lender shall make the
amount of its Pro Rata Share of the Loan or Letter of Credit Advance available
to Agent, in same day funds, not later than noon on the Funding Date, by wire
transfer to Syndication Agency Services, 201 S. College Street, Charlotte,
North Carolina, ABA #053 000 219, Account #5000000061196, Ref. Orleans
Homebuilders, Inc. (or to such other account as Agent may from time to
time advise the Lenders by written notice). 
Unless Agent shall have been notified by any Lender prior to any Funding
Date in respect of any requested Loan or of such Letter of Credit Advance that
such Lender does not intend to make available to Agent such Lender’s Pro Rata
Share of the requested Loan or of such Letter of Credit Advance on such Funding
Date, Agent may assume that such Lender has made such amount available to the
requesting Borrower on such Funding Date and Agent in its sole discretion may,
but shall not be obligated to, make available to the requesting Borrower a
corresponding amount on such Funding Date by depositing the proceeds thereof in
the designated Deposit Account of the requesting Borrower with Agent.  In such event, if a Lender has not in fact
made its Pro Rata Share of the requested Loan or of such Letter of Credit
Advance, available to Agent, then the applicable Lender and Borrowers severally
agree to pay to 


 


30

















 


Agent forthwith on demand such
corresponding amount, with interest thereon, for each day from and including
the date such amount is made available to Borrowers to but excluding the date
of payment to Agent, at (i) in the case of a payment to be made by such
Lender, the Federal Funds Rate and (ii) in the case of a payment to be
made by Borrowers, the Alternate Interest Rate. 
If Borrowers and such Lender shall pay such interest to Agent for the
same or an overlapping period, Agent shall promptly remit to Master Borrower
the amount of such interest paid by Borrowers for such period.  If such Lender pays its Pro Rata Share of
such Loan or Letter of Credit Advance to Agent, then the amount so paid shall
constitute such Lender’s Loan or Letter of Credit Advance.  Any payment by Borrowers shall be without
prejudice to any claim Borrowers may have against a Lender that shall have
failed to make such payment to Agent.


 


2.12.4      Request for and Funding
of Swing Line Loans.  Borrowers may
request a Swing Line Loan by delivering to Agent an appropriate Notice of
Borrowing not later than 2:00 P.M. on any Business Day.  Swing Line Loans must be in an integral
multiple of $100,000, but in no event less than $500,000.  Swing Line Lender will fund Swing Line Loans
on the Business Day on which a Notice of Borrowing with respect thereto is
received by depositing the amount thereof into the designated account of the
requesting Borrower with Agent.


 


2.12.5      Manner, Time and
Application of Payment.  All payments
of principal, interest and fees hereunder and under the Notes shall be made by
Borrowers without notice, set-off or counterclaim and in immediately available
same day funds and delivered to Agent not later than 1:00 P.M., on the
date due for the account of Lenders; funds received by Agent after that time
shall be deemed to have been paid by Borrowers on the next succeeding Business
Day.  All such payments shall be made by
wire transfer to the account identified in Section 2.12.3.2, or to such
other account as Agent may from time to time specify by written notice to
Borrowers.  Payments received for the
account of Lenders shall be applied first, on account of accrued interest and
then on account of outstanding principal. 
Unless Agent shall have received notice from Master Borrower prior to
the date on which any payment is due to Agent for the account of the Lenders
hereunder that Borrowers will not make such payment, Agent may assume that
Borrowers have made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders the amount
due.  In such event, if Borrowers have
not in fact made such payment, then each of the Lenders severally agrees to
repay to Agent forthwith on demand the amount so distributed to such Lender,
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to Agent, at the Federal
Funds Rate.


 


2.12.6      Apportionment of Payments.  Aggregate principal and interest payments
made by Borrowers in respect of Loans and Letter of Credit Advances (but not of
Swing Line Loans) shall be apportioned proportionately to each Lender’s
respective Pro Rata Share. Agent shall, within one (1) Business Day,
distribute to each Lender its share of all payments received by Agent for the
benefit of Lenders, and if any such payment is not so distributed, Agent shall
pay to the intended recipient thereof interest on the unpaid amount thereof at
the Federal Funds rate until paid.  All payments
on account of such Swing Line Loans shall be distributed only to Swing Line
Lender.


 


2.12.7      Conditional Payment.  Borrowers agree that checks and other
instruments received by Agent on behalf of Lenders or by any Lender in payment
or on account of the 


 


31

















 


Indebtedness constitute only
conditional payment until such items are actually paid to Agent or such Lender.


 


2.12.8      Advances Attributable to
New York Projects.  Following the
recording of a Mortgage that encumbers a Project in the State of New York (each
a “New York Mortgage”) the amount of each
Advance thereafter made (but only until the aggregate amount of such Advances
equals the “Secured Amount” (as defined in
such Mortgage) shall be deemed to have been advanced under, and secured by,
such New York Mortgage.  The portion of
the Indebtedness secured by such New York Mortgage shall be reduced only by the
last and final sums that Borrowers repay with respect to the Indebtedness (as
provided in this Section 2.12.8) and, from and after that date on which
the aggregate amount of such Advances equals the Secured Amount, the portion of
the Indebtedness secured by such New York Mortgage shall not be reduced by any
intervening repayments of the Indebtedness by Borrowers.  So long as the outstanding balance of the
Indebtedness exceeds the Secured Amount of a New York Mortgage, any payments
and repayments of the Indebtedness shall not be deemed applied against, or to
reduce, the portion of the Indebtedness secured by such New York Mortgage and
such payments shall be deemed to reduce only such portions of the Indebtedness
as are secured by Mortgages encumbering real property located outside of the
State of New York, except as provided in the next sentence of this Section 2.12.8.  If at any time when more than one New York
Mortgage is in effect a payment of the Indebtedness is made such that the
outstanding principal amount of the Indebtedness would be less than the Secured
Amount of any New York Mortgage, the amount of such payment shall be deemed
applied in reduction of the Secured Amount of such New York Mortgage as shall
be specified by Agent by written notice to Master Borrower.


 


2.13         Advances Made Through
Title Company.  Any purchases of Real
Estate, Lots or Units must be made (i) in compliance with Section 8.5,
(ii) through a title company using Advances under the Line of Credit, and (iii) after
or concurrently with the satisfaction of the conditions set forth in Section 4.1.11
with respect to such Real Estate, Lots and Units.


 


2.14         Swap Contracts.  In the event that any Borrower enters into
any Swap Contract, such Swap Contract shall be secured by the Collateral and
all amounts owed by Borrowers under such Swap Contracts (including, without
limitation, all termination payments, if any) shall be secured by, and paid out
of, the Collateral “pari passu” with the other Indebtedness.


 


2.15         Alternate Interest
Rate.


 


2.15.1      If at any time Agent or the
Requisite Lenders shall have reasonably determined (which determination shall
be conclusive and binding upon Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the 1-month LIBOR Rate, Agent shall give telecopy, telephonic or
written notice thereof to Master Borrower and the Lenders as soon as
practicable thereafter. If such notice is given, and until such notice has been
withdrawn by Agent, all Loans, Swing Line Loans and Letter of Credit Advances
shall bear interest at the Alternate Interest Rate rather than by reference to
the LIBOR Market Index Rate.


 


2.15.2      If any Lender reasonably
determines that maintenance of its Loans on which interest is charged at a rate
based on the LIBOR Market Index Rate at a Lending Office would violate any applicable
law, rule, regulation, or directive, whether or not having the force 


 


32

















 


of law, then Agent shall give
telecopy, telephonic or written notice thereof to Master Borrower and the
Lenders as soon as practicable thereafter. If such notice is given, and until
such notice has been withdrawn by Agent, all Loans, Swing Line Loans and Letter
of Credit Advances shall bear interest at the Alternate Interest Rate rather
than by reference to the LIBOR Market Index Rate.


 


2.16         Taxes.


 


2.16.1      Any and all payments by or
on account of any obligation of Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if Borrowers shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), Agent or the
applicable Lender, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) Borrowers shall
make such deductions and (iii) Borrowers shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


 


2.16.2      Without limiting the
provisions of Section 2.16, Borrowers shall timely pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.


 


2.16.3      Borrowers shall indemnify
Agent and each Lender, within ten (10) days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section 2.16) paid by Agent or such Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to Master Borrower by a Lender (with
a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.


 


2.16.4      As soon as practicable after
any payment of Indemnified Taxes or Other Taxes by Borrowers to a Governmental
Authority, Borrowers shall deliver to Agent the original or a certified copy of
a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to Agent.


 


2.16.5      Any Foreign Lender that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which any Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to Master Borrower
(with a copy to Agent), at the time or times prescribed by applicable law or
reasonably requested by Master Borrower or Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by Master Borrower or Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by Master Borrower or
Agent as will enable Borrowers or Agent to determine whether or not such Lender
is subject to 


 


33

















 


backup withholding or
information reporting requirements. 
Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States of America, any
Foreign Lender shall deliver to Master Borrower and Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of Master Borrower or Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United
States of America is a party, (ii) duly completed copies of Internal Revenue
Service Form W-8ECI, (iii) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under Section 881I of
the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of Master Borrower or any Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN,
or (iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit Borrowers to determine the withholding
or deduction required to be made.


 


2.16.6      If Agent or a Lender
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by Borrowers or with respect
to which Borrowers have paid additional amounts pursuant to this Section, it
shall pay to Master Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by Borrowers
under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of Agent or such Lender, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that Borrowers,
upon the request of Agent or such Lender, agree to repay the amount so paid
over to Master Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to Agent or such Lender in the event
Agent or such Lender is required to repay such refund to such Governmental
Authority.  This Section 2.16 shall
not be construed to require Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems
confidential) to Master Borrower, any Borrower or any other Person.


 


2.17         Increased Costs.


 


2.17.1      If any Change in Law shall: (i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
the Eurocurrency Reserve Requirements); (ii) subject any Lender to any tax
of any kind whatsoever with respect to this Agreement, any participation in any
Loan made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.16
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender); or (iii) impose on any Lender or the London interbank
market any other condition, cost or expense affecting this Agreement or Loans
made by such Lender or participation therein; and the result of any of the
foregoing shall be to increase the cost 


 


34

















 


to such Lender of making or
maintaining any Loan (or of maintaining its obligation to make any such Loan),
or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender, Borrowers will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.


 


2.17.2      If any Lender determines
that any Change in Law affecting such Lender or any Lending Office of such
Lender or such Lender’s holding company, if any, regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s
capital or on the capital of such Lender’s holding company, if any, as a
consequence of this Agreement, the Commitment of such Lender or the Loans made
by such Lender to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time Borrowers
will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.


 


2.17.3      A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in Section 2.17.1 or
2.17.2 and delivered to Master Borrower shall be conclusive absent demonstrable
error.  Borrowers shall pay such Lender
the amount shown as due on any such certificate within thirty (30) days
after receipt thereof.


 


2.17.4      Failure or delay on the part
of any Lender to demand compensation pursuant to this Section 2.17 shall
not constitute a waiver of such Lender’s right to demand such compensation; provided
that Borrowers shall not be required to compensate a Lender pursuant to this Section for
any increased costs incurred or reductions suffered more than nine (9) months
prior to the date that such Lender notifies Master Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine
(9) month period referred to above shall be extended to include the period
of retroactive effect thereof).


 


2.18         Designation of a
Different Lending Office.  If any
Lender requests compensation under Section 2.17, or requires Borrowers to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, then such Lender, unless
directed by Master Borrower not to do so, shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.16
or Section 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. 
Borrowers hereby agree to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.


 


2.19         Survival of Indemnity.  The obligations of Borrower under
Sections 2.16 and 2.17 shall survive payment of the Indebtedness and
termination of the Agreement.


 


35














 


2.20         Replacement of Lenders.  If any Lender requests compensation under
Section 2.17, or if Borrowers are required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then Borrowers may, at their sole expense and effort, upon notice
by Master Borrower to such Lender and Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 13.9 hereof), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an Eligible Assignee that shall assume such obligations (which
Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided
that: (i) Borrowers shall have paid to Agent the assignment fee specified in
Section 13.9 of the Agreement; (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Loan Documents from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or Borrowers (in the case of all other
amounts); (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.16 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation
or payments thereafter; and (iv) such assignment does not conflict with
applicable law.  A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
Borrowers to require such assignment and delegation cease to apply.


 


2.21         Lending Office.  Each Lender may book its Pro Rata Share of
Loans and Letter of Credit Advances at any Lending Office selected by such
Lender and may change its Lending Office from time to time. All terms of this
Agreement shall apply to any such Lending Office and the Loans, Letter of
Credit Advances and Notes issued hereunder shall be deemed held by each Lender
for the benefit of any such Lending Office. 
Each Lender may, by written notice to Agent and Master Borrower,
designate replacement or additional Lending Offices through which Loans and
Letter of Credit Advances will be made by it and for whose account Loan
payments or a payment with respect to Letter of Credit Advances are to be made.


 


ARTICLE III.

NOTICE OF BORROWING; BORROWING BASE; 

BORROWING BASE AVAILABILITY


 


3.1           Notice of Borrowing.


 


3.1.1        Request for Advances
under Line of Credit and Swing Line. 
Borrowers shall give Agent written notice (effective upon receipt) of a
Borrower’s request for advances under the Line of Credit or Swing Line by
delivering to Agent a fully completed Notice of Borrowing as provided in Section 2.12.2
or Section 2.12.4, as appropriate.


 


3.1.2        Request for Letters of
Credit and Tri-Party Agreements. 
Borrowers shall give Agent written notice (effective upon receipt) of a
Borrower’s request for issuance of a Letter of Credit or execution of a
Tri-Party Agreement hereunder, specifying the purpose of the Letter of Credit
or Tri-Party Agreement, the amount thereof and the date such Borrower desires it
be issued or executed.  Each such request
shall be delivered to Agent only at Agent’s office identified in Section 13.10
(or to such other address as Agent may from time-to-time advise Master Borrower
by written notice), accompanied by a draft of the proposed Letter of Credit or 


 


36

















 


Tri-Party Agreement (which must be acceptable
to Agent in good faith) and the other documents required pursuant to Section 4.2.3
and shall be delivered to Agent at least five (5) Business Days in advance
of the date Borrower desires the Letter of Credit or Tri-Party Agreement to be
issued or executed.  Each Letter of
Credit or Tri-Party Agreement shall be subject to the limitations as provided
in this Agreement.


 


3.2           Admission of
Projects to Borrowing Base.


 


3.2.1        The Borrowing Base
Projects identified on the Borrowing Base Certificate delivered to Agent
concurrently with the execution of this Agreement shall constitute the
Borrowing Base Projects that comprise the Borrowing Base as of the date hereof.


 


3.2.2        Eligible Projects shall
from time to time be admitted to the Borrowing Base, provided that the fee
owner of such Eligible Project, at the time the Eligible Project is so
admitted, either is an existing Borrower or concurrently therewith becomes a
Borrower.  Master Borrower shall give
Agent written notice that Master Borrower desires that an Eligible Project be
added to the Borrowing Base, such notice to be delivered to Agent sixty (60)
days prior to the desired admission date. 
Borrowers shall, also, before any Eligible Project is deemed admitted to
the Borrowing Base, deliver to Agent with respect to such Project the documents
set forth in Section 4.1.11.  The
items referred to in Sections 4.1.11.5, 4.1.11.7, 4.1.11.9, 4.1.11.10 and
4.1.11.11 and a commitment for a policy of title insurance with respect to the
subject Eligible Project shall be delivered to Agent at least twenty (20)
calendar days before the date that Borrowers desire such Eligible Project be
admitted to the Borrowing Base.


 


3.3           Borrowing Base
Availability.


 


3.3.1        The aggregate amount of
Loans that may be outstanding at any time shall not exceed the lesser of (i) the
then-current Borrowing Base Availability or (ii) the Revolving
Sublimit.  Borrowing Base Availability
shall be determined at any time on the basis of the Borrowing Base Certificate
most recently delivered to Agent, by applying to each of the following classes
of assets of Borrowers that are part of Borrowing Base Projects the applicable “Advance
Rate,” determined in accordance with Section 3.3.2:


 


	
  Asset Class

  	
   

  	
  LTV 

  Advance 

  Rate

  	
   

  	
  LTC 

  Advance 

  Rate

  	
   

  
	
  (i)

  	
   

  	
  Units subject to a Qualifying Agreement of
  Sale

  	
   

  	
  85

  	
  %

  	
  95

  	
  %

  
	
  (ii)

  	
   

  	
  Units not subject to a Qualifying Agreement
  of Sale

  	
   

  	
  80

  	
  %

  	
  80

  	
  %

  
	
  (iii)

  	
   

  	
  Lots part of Improved Land and not subject
  to a Qualifying Agreement of Sale

  	
   

  	
  75

  	
  %

  	
  75

  	
  %

  
	
  (iv)

  	
   

  	
  Lots part of Development Land

  	
   

  	
  75

  	
  %

  	
  75

  	
  %

  
	
  (v)

  	
   

  	
  Lots part of Approved Land

  	
   

  	
  50

  	
  %

  	
  50

  	
  %

  



 


3.3.2        The maximum aggregate
amount of Borrowing Base Availability attributable to each of the asset classes
that are part of Borrowing Base Projects identified in Section 3.3.1 on
any Borrowing Base Certificate (each an “Asset Class”)
shall be determined as follows:


 


37

















 


3.3.2.1     For Asset Classes (i) and
(ii), the least of (a) the applicable LTV Advance Rate multiplied by the
most recently determined Appraised Value of the subject Unit, (b) the
applicable LTV Advance Rate multiplied by the price set forth in the Qualifying
Agreement of Sale, if any, to which the Unit is subject and (c) the
applicable LTC Advance Rate multiplied by the Cost Incurred with respect to
such Unit.


 


3.3.2.2     For Asset Classes (iii) and
(iv), the lesser of (a) the applicable LTV Advance Rate multiplied by the
most recently determined Appraised Value of the subject Lot and (b) the
applicable LTC Advance Rate multiplied by the Cost Incurred with respect to
such Lot.


 


3.3.2.3     For Asset Class (v), the
lesser of (a) the applicable LTV Advance Rate multiplied by the most recently
determined Appraised Value of the subject Lot and (b) the applicable LTC
Advance Rate multiplied by the Cost Incurred with respect to such Lot.


 


3.3.2.4     The maximum Borrowing Base
Availability attributable to Asset Class (ii), including model Units,
determined on the basis of any Borrowing Base Certificate that is delivered on
or after September 25, 2008 in accordance with Section 3.4 shall not
exceed 45% of the aggregate Borrowing Base Availability attributable to Asset
Classes (i) and (ii) (including model Units) as shown on any such
Borrowing Base Certificate.


 


3.3.2.5     The maximum percentage of
Borrowing Base Availability attributable to Asset Classes (iii), (iv) and
(v), based on Borrowing Base Certificates (a) delivered on or before September 30,
2008, shall be 57%, and (b) delivered after September 30, 2008 shall
be 55%, in each case of the total Borrowing Base Availability as shown thereon;
provided that at no time shall Borrowing Base Availability attributable
to Asset Classes (iii), (iv) and (v) exceed the following (with such
limitations to be reduced dollar for dollar at the time and in the amounts of
any impairments with respect to assets in Asset Classes (iii), (iv) and (v) and
included in the Borrowing Base taken by Borrowers):


 


(i)            Beginning with the
Borrowing Base Certificate delivered on or after September 30, 2008:
$230,000,000 (provided that, before October 15, 2008, Borrower may deliver
a restatement of its Borrowing Base Certificate dated as of August 31,
2008 and such restatement shall not be subject to this Section 3.3.2.5(i));


 


(ii)           Beginning with the
Borrowing Base Certificate delivered after December 31, 2008:
$225,000,000;


 


(iii)          Beginning with the
Borrowing Base Certificate delivered after March 31, 2009: $210,000,000;


 


(iv)          Beginning with the
Borrowing Base Certificate delivered after June 30, 2009: $200,000,000;
and


 


(v)           Beginning with the
Borrowing Base Certificate delivered after September 30, 2009:
$190,000,000.


 


38

















 


3.3.2.6     The maximum Borrowing Base
Availability attributable to Asset Class (v) based on a Borrowing
Base Certificate shall not exceed 7.5% of the total Borrowing Base Availability
as shown thereon.


 


3.3.2.7     Once a Lot is the subject of
a Qualifying Agreement of Sale, the land value of such Lot shall be transferred
to Asset Class (i) and once vertical construction of a Unit is
commenced on any Lot, the land value of such Lot shall (if not theretofore
pursuant to this Section 3.3.2.5) be transferred from Asset Class (iii) or
(iv) to Asset Class (i) or (ii), as appropriate.


 


3.3.3        Borrowers acknowledge that
the Agent may make changes or adjustments to the values set forth in any
Appraisal as may be required by the Agent’s appraisal department in the
exercise of its good faith business judgment, and that the Agent is not bound
by the value set forth in any Appraisal performed pursuant to this Agreement
and does not make any representations or warranties with respect to any
Appraisal.  Borrowers further agree that
Lenders shall have no liability as a result of or in connection with any such
Appraisal for statements contained in such Appraisal, including without
limitation, the accuracy and completeness of information, estimates,
conclusions and opinions contained in such Appraisal, or variance of such
Appraisal from the fair value.


 


3.3.4        Re-Appraisals.  Appraisals must be current within one year on
all Projects, except for any Project that has a GAAP book value of less than
$4,000,000.  Notwithstanding the
foregoing, after the Closing Date, Agent shall order Appraisals on one-third of
the Projects without a current Appraisal on a quarterly basis until all
Appraisals are current, which shall be not later than June 30, 2009 (or
such later date as agreed to by Agent, but in no event later than September 30,
2009).  Each new Appraisal shall be
ordered and reviewed by the Agent, with a copy furnished to Master Borrower for
review. Master Borrower shall have ten (10) Business Days to respond to
the Agent with comments to any Appraisal; however, the final Appraisal amount
shall be determined by the Agent in its sole discretion after consideration of
such comments.  Following the receipt and
review of any new Appraisal, commencing with the next monthly Borrowing Base
Certificate delivered, the appraised values from such Appraisal will be used in
the calculation of the Borrowing Base in compliance with Sections 3.3.2.1,
3.3.2.2 and 3.3.2.3.  Notwithstanding the
foregoing, Agent, at its discretion, shall have the right to obtain new Appraisals
of all or any portion of the Projects (a) whenever an Event of Default has
occurred and is continuing, (b) as required by the then current regulatory
requirements generally applicable to real estate loans of the categories made
under this Agreement, as reasonably interpreted by the Agent, (c) at any
time following a condemnation of more than an immaterial portion of a Project,
as determined in good faith by the Agent and (d) upon any material adverse
change with respect to a Project, as determined in good faith by the
Agent.  All Appraisal costs shall be at
the expense of Borrowers.  For the
avoidance of doubt, the one year period applicable to this Section 3.3.4
shall commence the day immediately following the date of the first Borrowing
Base Certificate that includes a new Appraisal in its calculations.


 


3.3.5        Specific Jurisdictions.


 


3.3.5.1     Generally.  The amount of Borrowing Base Availability
attributable to Projects in any Approved Jurisdiction in which the liens of
Mortgages are limited to a stated amount that is less than the Facility Amount
shall at no time exceed such stated 


 


39

















 


amount (which shall not be an aggregate
amount) contained in each of the then-outstanding Mortgages in such Approved
Jurisdiction (that is, for example, if there are five (5) Mortgages
encumbering Projects in Florida, each with a stated principal amount of
$75,000,000, the maximum Borrowing Base Availability, at any time, on account
of Florida Projects would be $75,000,000).


 


3.3.5.2     New York.  The amount of Borrowing Base Availability
attributable to any Project in the State of New York shall at no time exceed
the stated amount of the Mortgage that encumbers such Project.


 


3.3.6        Purchase Money
Mortgages.  The aggregate amount of
Borrowing Base Availability shall at all times be reduced by the
then-outstanding aggregate principal balance of all purchase money mortgages
encumbering Borrowing Base Projects that are Permitted Liens and that do not
secure the Indebtedness.


 


3.4           Submission of
Borrowing Base Certificate.  In
addition to any other requirement to do so as provided in this Agreement, (i)
Borrowers shall submit to Agent a current Borrowing Base Certificate by the
fifteenth (15th) day of each calendar month, and (ii) may submit a total of two
(2) Borrowing Base Certificates during any calendar month, in each instance
accompanied by such additional supporting information as may be reasonably
requested by Agent.  Any such Borrowing
Base Certificate delivered to Agent shall be deemed certified by Borrowers as
to its completeness and its accuracy (including that each Lot and Unit
identified thereon are encumbered by a Mortgage).  If approved by Agent, such Borrowing Base
Certificate shall be determinative of the then-current Borrowing Base
Availability.


 


3.5           Inspection of
Projects.  Borrowers shall permit
Agent, by its employees and independent contractors, to enter upon and inspect,
at any time and from time to time, all Projects that are then in the Borrowing
Base, such inspections shall be made at a pace such that approximately 25% of
all Projects in the Borrowing Base are so inspected during each Fiscal
Quarter.  The costs of such inspections,
as reasonably agreed upon by Master Borrower and Agent at the time a Project is
admitted to the Borrowing Base, shall be Lender’s Costs.


 


ARTICLE IV.

CONDITIONS OF LENDING


 


4.1           Agreement to Make
Available the Facility.  The effectiveness
of this Agreement is subject to the conditions precedent that Agent and Lenders
shall have received (or, at Agent’s sole discretion with respect to any of the
Section 4.1.11 requirements as they pertain to a Project or Projects, and with
respect to the Section 4.1.12 requirements, waived) on or before the date
hereof (which may include, at Agent’s discretion, documents delivered in
connection with the Existing Credit Facility) all of the following collateral
documents, each in form and substance satisfactory to the Agent:


 


4.1.1        If requested pursuant to Section 2.10.1,
the Line of Credit Notes, duly executed by the Master Borrower and by each
other Borrower.


 


4.1.2        The Guaranty, duly
executed by Guarantor in favor of Agent for the ratable benefit of the Lenders.


 


40

















 


4.1.3        The Security Agreement,
duly executed by Guarantor in favor of Agent for the ratable benefit of the
Lenders and, not later than 30 days after the Closing Date (or such later date
as agreed to by Agent), such federal and state forms that may be necessary or,
in the opinion of Agent, desirable in order to create in favor of Agent, for
the benefit of Lenders, a valid and (upon such filing and recording or filing)
perfected first priority security interest in all tax refunds and proceeds
thereof received by, or payable to, Borrowers or Guarantor after the Closing
Date.


 


4.1.4        If requested pursuant to Section 2.10.2,
the Swing Line Note, duly executed by the Master Borrower and by each other
Borrower.


 


4.1.5        Certified copies of all
corporate, limited partnership and limited liability company action (as
appropriate) taken by Borrowers and Guarantor, including resolutions of their
respective Boards of Directors, authorizing the execution, delivery and
performance of the Loan Documents to which each is a party.


 


4.1.6        An incumbency and
signature certificate (dated as the date of this Agreement) of the Secretaries,
general partners, managers or members (as appropriate) of each Borrower and
Guarantor, certifying the names and true signatures of the officers or other
authorized Persons of Borrower and Guarantor authorized to sign the Loan
Documents to which it is a party.


 


4.1.7        A copy of the
Organizational Documents of each Borrower and Guarantor, certified as true and
correct by its respective Secretary, general partner, manager or members.


 


4.1.8        A Subsistence Certificate
for each Borrower and Guarantor, issued within thirty (30) days prior to the
date hereof, from the state of such entity’s formation and all jurisdictions in
which such Borrower or Guarantor is required to register as a foreign corporation,
limited partnership or limited liability company.


 


4.1.9        An Opinion directed to
Agent and the Lenders and issued by the counsel to the Borrowers and Guarantor
(who must be an independent attorney-at-law licensed to practice in
Pennsylvania) that (i) Borrowers and Guarantor are duly organized, validly
existing, and in good standing in the state of such entity’s formation and the
Borrowers are authorized to do business in all jurisdictions where such
authorization is required, (ii) each Borrower and Guarantor has the power
to enter into the transactions contemplated by this Agreement and by the Loan
Documents; (iii) the transactions contemplated by this Agreement and the
Loan Documents do not violate any provision of any Organizational Document, or
any other document known to such counsel, affecting any Borrower or Guarantor; (iv) the
Loan Documents have been executed and delivered by, and constitute the valid
and binding obligations of, Borrowers and Guarantor (to the extent executed
thereby), enforceable in accordance with their terms, except as limited by
applicable bankruptcy or other laws affecting creditor’s rights generally;; and
(v) such other matters relating to the transactions contemplated herein as
Agent or Agent’s counsel may reasonably request.


 


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4.1.10      The most recent Financial
Statements of Guarantor.


 


4.1.11      On or before the Closing
Date with respect to Borrowing Base Projects and not later than 90 days after
the Closing Date (or such later date as agreed to by Agent) with respect to
Projects not in the Borrowing Base as of the Closing Date, with respect to any
Project (other than Real Estate subject to a purchase money mortgage
constituting a Permitted Lien), Borrowers shall deliver or cause to be
delivered to Agent (or, if required by any applicable rule or regulation
by which Lenders are governed, Agent shall obtain) each of the following (and,
in the case of any Project that is not a Eligible Project or has not otherwise
been admitted to the Borrowing Base, shall provide updates thereof, as
appropriate, when such Project is admitted to the Borrowing Base):


 


4.1.11.1         A Mortgage, or an
amendment thereto, for the ratable benefit of the Lenders, for such Project,
executed and acknowledged by the Borrower that is the owner thereof, which
shall be a first lien (subject only to Permitted Liens) on the Project in the
Facility Amount, plus any interest and other charges due thereon; provided
that if the Project is located in Florida, New York, Virginia or another
Approved Jurisdiction that imposes taxes upon the recording of, or requires
documentary stamps to be affixed to, Mortgages, the amount of the Mortgages in
such Approval Jurisdictions may be limited in amount as from time to time
designated by Master Borrower and approved by Agent, and such Mortgages may be
effected by the subject Borrower and Agent executing a mortgage modification,
spreader and reaffirmation agreement, in form acceptable to Agent, whereby the
lien of an existing Mortgage is spread to encumber such Project.


 


4.1.11.2         A collateral assignment
to Agent, for the ratable benefit of the Lenders, of all Governmental Approvals
(to the extent assignable), contracts and agreements to which the Project is
subject, in form acceptable to Agent in good faith, executed by the Borrower
that is the owner of such Project.


 


4.1.11.3         Evidence as required by
applicable banking regulations that no part of the Project on which any Unit is
to be constructed is located in a flood plain or, if such evidence is not
provided, a policy and certificate of flood insurance covering the Project,
naming the Agent as insured.


 


4.1.11.4         A marked-up title
commitment of First American Title Insurance Company or another title insurance
company satisfactory to the Agent, representing the title insurance company’s
commitment to issue in favor of the Agent, for the ratable benefit of the
Lenders, but at the Borrower’s expense, a standard form of mortgagee title
insurance policy, or appropriate endorsements to any existing title policy,
insuring the Mortgage on the Project, in an amount determined by Borrowers and
Agent in good faith, as a first lien on the Real Estate included in the
Project, free and clear of all prior Liens and encumbrances (other than Liens
and encumbrances in favor of the Agent), subject only to such title conditions
and Permitted Liens as may have been approved by the Agent.  The title commitment shall also provide that
the policy of title insurance shall include such endorsements or additional
coverage as determined by Agent to be necessary (which may include (if
available) Pennsylvania Endorsements 100, 300, 710, 1010 and 1110 or their
equivalents from other jurisdictions).


 


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4.1.11.5         If requested by Agent,
copies of any subdivision or land development plans applicable to such Project,
evidence of the final approval of such plans and, if the recording of such plan
has not been demonstrated to Agent, evidence reasonably acceptable to Agent
that such plans will be recorded promptly upon the delivery of any required
Letter of Credit or Tri-Party Agreement, and in any event not later than 60
days after the later of (i) the date such Project is admitted into the
Borrowing Base or (ii) with respect to Projects admitted to the Borrowing
Base after the Closing Date, the Borrower’s receipt of all state- or
federally-issued Governmental Approvals that are prerequisite to the recording
of the plans, but in the latter event no more than 155 days after the date the
Project is admitted into the Borrowing Base.


 


4.1.11.6         Evidence that the
Borrower has procured insurance policies as required by the terms of this
Agreement.  The evidence of insurance
shall contain the agreement of the insurer to give not less than thirty (30)
days’ notice to the Agent prior to cancellation of such policies or material
change in the coverage thereof or ten (10) days’ notice for non-payment of
premium and shall be on a form ACORD 27 (with respect to property insurance),
ACORD 25 (with respect to liability insurance), or such similar form as is
acceptable to Agent.


 


4.1.11.7         If requested by Agent, a
survey or other plan reasonably acceptable to Agent of the Real Estate included
in the Project, showing any encroachments by or on the Real Estate and the
location of all easements and rights-of-way affecting such Real Estate, all
present and proposed utility lines, encroachments and building set-back lines.


 


4.1.11.8         An environmental
indemnity agreement with respect to the Project, executed by the Borrower and
Guarantor, in form reasonably acceptable to Agent.


 


4.1.11.9         An Appraisal of the
Project, which Appraisal will be subject to Section 3.3.3.


 


4.1.11.10       A Phase I environmental
study for such Project, dated not earlier than twelve (12) months before the
date that the Project is admitted to the Borrowing Base and that complies with (i) ASTM
Standard E1527-00 if the Project is admitted to the Borrower Base prior to November 1,
2006 or (ii) ASTM Standard E1527-05 if the Project is admitted to the Borrowing
Base on or after November 1, 2006, which study indicates that the Real
Estate is not subject to any Environmental Conditions, is in compliance with
all applicable Environmental Laws, that no Regulated Substances have been
disposed of in, on or under the Real Estate, and that there are no underground
storage tanks in the Real Estate.


 


4.1.11.11       If requested by Agent, (i) copies
of all Governmental Approvals theretofore issued with respect to the Project,
permits, use registrations and approvals required under any law (including,
without limitation thereto, planning, zoning, subdivision and building laws)
for construction of the Units and Improvements and use thereof by the Borrower
or by the purchasers thereof, and such other evidence as the Agent may require
that the Units and use thereof contemplated by the Borrower, are permitted by
and comply with all applicable laws including, without limitation thereto,
zoning ordinances, and (ii) with respect to the addition of Approved or
Improved Land to the Borrowing Base, a certification by the appropriate
Borrower that all Governmental Approvals required for the lawful commencement
of construction of Units thereon (other than building permits for such Units)
have been issued and continue to be in full 


 


43

















 


force and effect and available to the
appropriate Borrower (or, with respect to Approved Land, the same will be
issued within 120 days).


 


4.1.11.12       Such other information and
documents that the Agent may reasonably request.  The failure of the Agent to demand a certain
type of information or document in regard to a Project will not constitute a
waiver by the Agent of its right to demand that type of information or document
in the future.


 


4.1.12      Not
later than 30 days after the Closing Date, duly completed UCC financing
statements and fixture filings, with respect to all personal and mixed property
Collateral of the Borrowers and Guarantor, for filing in all jurisdictions as
may be necessary or, in the opinion of Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Mortgages and Security
Agreement;


 


4.1.13      This
Agreement, duly executed by Guarantor, Borrowers, Agent, each 2008 Maturity
Date Lender and Requisite Lenders.


 


4.1.14      A
certificate duly executed by Guarantor and each Borrower certifying that, as of
the Closing Date, after giving effect to the consummation of the transactions
contemplated by the Loan Documents, each Borrower and Guarantor individually,
and Guarantor on a consolidated basis, will be Solvent.


 


4.1.15      Such other and further
documents as may be required reasonably by the Agent or Lenders in order to
consummate the transactions contemplated hereunder.


 


4.2           Availability of
Letters of Credit and Tri-Party Agreements. 
The agreement of the Lenders to cause Agent to issue any Letter of
Credit or Tri-Party Agreement is subject to the following conditions precedent,
any of which may be waived by the Agent, at its sole discretion:


 


4.2.1        The requesting Borrower
shall have delivered to Agent executed (and, if necessary, notarized) copies of
the following (all of which shall be in a form and contain such terms as shall
be acceptable to the Lender, in its sole discretion):


 


4.2.1.1     A Letter of Credit
Application, if required.


 


4.2.1.2     Copies of all financial
security agreements, development agreements or similar documents, under which
the obligations of the requesting Borrower are to be secured by the requested
Letter of Credit or Tri-Party Agreement. 
Such documents must be in a form satisfactory to the Agent.


 


4.2.1.3     Such other information and
documents that Agent may reasonably request. 
It is understood that the failure of Agent to demand a certain type of
information or document in regard to the issuance of a Letter of Credit or
Tri-Party Agreement will not constitute a waiver by Agent of its right to
demand that type of information or document in the future.


 


4.2.2        The Project for which the
Letter of Credit or Tri-Party Agreement has been requested is in an Approved
Jurisdiction.


 


4.2.3        On the date of issuance of
such Letter of Credit or Tri-Party Agreement, all conditions precedent
described in subsection 4.3 shall be satisfied to the same extent as if
the issuance of such Letter of Credit or Tri-Party Agreement were the making of
a Loan and the date of issuance of such Letter of Credit or Tri-Party Agreement
were a Funding Date.


 


4.3           Conditions Precedent
to Loans.  The obligation of any
Lender to make any Loan, or of Swing Line Lender to make any Swing Line Loan,
shall be subject to the further conditions precedent that, on the Funding Date:


 


4.3.1        All of the conditions,
agreements and covenants set forth in this Agreement to be satisfied on or
before the Funding Date by any Borrower or any Guarantor have been satisfied.


 


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4.3.2        No Event of Default
specified herein or in any other Loan Document shall have occurred and be
continuing.


 


4.3.3        The representations and
warranties of the Borrowers and Guarantor herein or in any of the Loan
Documents shall be true on and as of the date of the Loan or Swing Line Loan
with the same force and effect as if made on and as of such date, except for
those that relate to a specific date or those which cannot be made due to changes
in circumstances of which Borrowers have given notice to Agent and which would
not, but for delivery of notice or passage of time, or both, constitute an
Event of Default, and the Borrowers shall so certify to Agent.


 


4.3.4        No litigation (including,
without limitation, derivative actions), arbitration proceedings or
governmental proceedings not disclosed in writing by Borrowers to the Agent
shall be pending or known to be threatened against any Borrower or Guarantor,
and no material development not so disclosed shall have occurred in any
litigation (including, without limitation, derivative actions), arbitration
proceedings or governmental proceedings so disclosed, which in any of the
foregoing cases is likely to have a Material Adverse Effect on Borrowers or
Guarantor.


 


4.3.5        Neither immediately prior
to such Loan or Swing Line Loan nor after giving effect thereto, Borrowers and
Guarantor shall not have Investments in Cash and Cash Equivalents in excess of
$32,500,000 on a consolidated basis.


 


4.3.6        Agent shall have received
such other approvals, opinions, or documents as the Agent may in good faith
request.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


In addition to
the representations and warranties contained in any other Loan Documents,
Borrowers hereby make the following representations and warranties to Agent and
the Lenders which, to the knowledge of Borrowers, are true and correct on the
date hereof:


 


5.1           Use of Proceeds.  The proceeds of the Facility shall be used by
Borrowers only for Business purposes.


 


5.2           Incorporation, Good
Standing, and Due Qualification.


 


5.2.1        Master Borrower and
Guarantor are each a corporation duly incorporated, validly existing, and in
good standing under the laws of the state of its incorporation, has the
corporate power and authority to own its assets and to transact the business in
which it is now engaged or proposed to be engaged in, and is duly qualified as
a foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required, except where the failure
to be so qualified will not have a material and adverse effect on the business
and operations of the subject corporation. 
Schedule 5.1 correctly sets forth the ownership interest of
Guarantor and each of its Joint Ventures, subsidiaries and Eligible Affiliates
and the jurisdiction of organization of Guarantor and each of its Joint
Ventures, subsidiaries and Eligible Affiliates.


 


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5.2.2        Each Borrower is either a
corporation, limited partnership or limited liability company, duly
incorporated or organized, validly existing, and in good standing under the
laws of the state of its formation, has the power and authority to own its
assets and to transact the business in which it is now engaged or proposed to
be engaged in, and is duly qualified as a foreign corporation, limited
partnership or limited liability company and in good standing under the laws of
each other jurisdiction in which such qualification is required.


 


5.3           Power and Authority.  The execution, delivery, and performance by
Borrowers and Guarantor of the Loan Documents to which they are parties have
been duly authorized by all necessary corporate, partnership or limited
liability company action, as appropriate, and do not and will not (i) require
any consent or approval of the shareholders, partners or members of any such
entity; (ii) contravene such entity’s Organizational Documents; (iii) violate
any provision of or cause or result in a breach of or constitute a default
under any law, rule, regulation (including, without limitation, Regulation U of
the Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to such entity; (iv) cause or result in a breach of or constitute
a default under any indenture or loan or credit agreement or any other
agreement, lease, or instrument to which such entity is a party or by which it
or its properties may be bound or affected or; (v) cause or result in or
require the creation or imposition of any Lien upon or with respect to any of
the properties now owned or hereafter acquired by such Guarantor or Borrower
except as contemplated by this Agreement.


 


5.4           Legally Enforceable
Agreement.  This Agreement is, and
each of the other Loan Documents executed by Borrowers or Guarantor when
delivered under this Agreement will be, legal, valid, and binding obligations
of Borrowers or Guarantor, enforceable against it or them in accordance with
the respective terms thereof, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, and other similar laws affecting
creditors’ rights generally.


 


5.5           Financial
Statements; Accuracy of Information.


 


5.5.1        The Financial Statements
of Borrowers and Guarantor for the period ending March 31, 2008 delivered
to Agent and Lenders are true and correct and represent fairly their financial
positions as of the date thereof and the results of their operations or affairs
for the period indicated, and show (including the footnotes) all known
liabilities, direct or contingent, of Borrowers or Guarantor as of the date
thereof, all in accordance with GAAP consistently applied. Since the date of
such Financial Statements, there has been no material adverse change in
condition, financial or otherwise, of Borrowers or Guarantor or in its or their
business and properties and, since such date, neither Borrowers nor Guarantor
has incurred, other than in the ordinary course of business, any indebtedness,
liabilities, obligations or commitments, contingent or otherwise. No
information, exhibit, or report furnished by Borrowers or Guarantor to Agent or
the Lenders in connection with the negotiation of this Agreement contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statement contained therein not materially misleading.
All projections delivered by Borrowers to Agent were made on a reasonable basis
and in good faith.  Except as disclosed
to Agent in writing, neither any Borrower nor Guarantor has any material
contingent liabilities (including liabilities for taxes), unusual forward or
long-term commitments or unrealized or anticipated losses from unfavorable
commitments.


 


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5.5.2        All information, financial
statements, exhibits, and reports furnished by Borrowers or Guarantor to Agent
or the Lenders in connection with this Agreement and the borrowings
contemplated hereby are, and all such information, financial statements,
exhibits and reports hereafter furnished by Borrowers or Guarantor to Agent or
the Lenders will be, true and correct in every material respect on the date so
furnished for the periods covered thereby, and no such information, financial
statements, exhibit or report contains or will contain any material
misstatement of fact or omits or will omit to state a material fact or any fact
necessary to make the statement contained therein not materially misleading.


 


5.6           Conflicts.  The execution, delivery and performance of
this Agreement and the Loan Documents will not violate any provision of any
indenture, agreement, or other instrument to which any Borrower, Guarantor, or
any of their respective properties or assets are bound, and will not be in
conflict with, result in a breach of, or constitute (with due notice and/or
lapse of time) a default under any such indenture, agreement, or other
instrument, or result in the creation or imposition of any lien, charge, or
encumbrance of any nature whatsoever upon any of said properties or assets.


 


5.7           Consents.  No authorization, consent, approval, license
or exemption of, and no registration, qualification, designation, declaration
or a filing with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign is necessary to the
valid execution and delivery by Borrowers or Guarantor of this Agreement and
the other Loan Documents to which each is a party.


 


5.8           Litigation.  Except as disclosed on Schedule 5.8,
there is no pending or threatened action or proceeding against or affecting any
Borrower or Guarantor before any court, governmental agency, or arbitrator
which may, in any one case or in the aggregate, have a Material Adverse Effect
on Borrowers or the Guarantor.


 


5.9           Other Agreements.  Neither any Borrower nor Guarantor is a party
to any indenture, loan, or credit agreement, or to any lease or other agreement
or instrument, or subject to any charter or corporate restriction which could
have a Material Adverse Effect on the Borrowers or Guarantor.  Neither any Borrower nor Guarantor is in
default in any respect in the performance, observance, or fulfillment of any of
the obligations, covenants, or conditions contained in any agreement or
instrument material to its business to which it is a party and which default
would have a Material Adverse Effect on the Borrowers and Guarantor.


 


5.10         No Defaults and
Outstanding Judgments or Orders. 
Each Borrower and Guarantor have satisfied, and none is in default with
respect to, any final, unappealed and unstayed judgment, writ, injunction or
decree of any court or arbitrator, and none of them is in default of any rule
or regulation (if such default would have a Material Adverse Effect on Borrowers
or Guarantor) of any federal, state, municipal, or other governmental
authority, commission, board, bureau, agency or instrumentality, domestic or
foreign by which it is bound.


 


5.11         Taxes.  Borrowers and Guarantor (i) have filed all
tax returns (federal, state, and local) required to be filed and (ii) have paid
all taxes, assessments, and governmental charges and levies due thereon,
including interest and penalties, except such as are being contested in good
faith and with respect to which non-payment will not have a Material Adverse
Effect upon Borrowers or Guarantor.


 


47














 


5.12         Debt.  Neither any Borrower nor Guarantor has any
Debt, except Permitted Debt that is disclosed in their Financial Statements or
which arose or accrued after the date of the most recent Financial Statements
and has been disclosed in writing to Agent.


 


5.13         Ownership and Liens.  Borrowers, Guarantor and each subsidiary of
Guarantor has title to in all of its properties and assets, real and personal,
free and clear of all liens other than Permitted Liens.  A list of all real estate assets owned by any
Borrower or Guarantor is set forth on Schedule 5.13 hereto, including
whether such real estate assets are included in the Borrowing Base or not.  Borrowers and Guarantor may update Schedule
5.13 from time to time by delivery to Agent of updates or amendments thereto.


 


5.14         ERISA.  Borrowers, Guarantor and each Subsidiary of
Guarantor is in compliance in all material respects with all applicable
provisions of ERISA. Neither a Reportable Event nor a Prohibited Transaction
has occurred and is continuing with respect to any Plan; no notice of intent to
terminate a Plan has been filed nor has any Plan been terminated; to the best
of Borrower’s knowledge after due inquiry, no circumstances exist which
constitute grounds under Section 4042 of ERISA entitling the PBGC to
institute proceedings to terminate, or appoint a trustee to administer, a Plan,
nor has the PBGC instituted any such proceedings; neither of the any Borrower
nor Guarantor nor any ERISA Affiliate has completely or partially withdrawn
under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; Borrowers,
Guarantor and each ERISA Affiliate have met their minimum funding requirements
under ERISA with respect to all of their Plans and the present fair market
value of all Plan assets exceeds the present value of all vested benefits under
each Plan, as determined on the most recent valuation date of the Plan and in
accordance with the provisions of ERISA and the regulations thereunder for
calculating the potential liability of the Borrower or any ERISA Affiliate to
the PBGC or the Plan under Title IV of ERISA; and neither any Borrower nor
Guarantor nor any ERISA Affiliate has incurred any liability to the PBGC under
ERISA.


 


5.15         Representations and Warranties as to
Real Estate.  As to Real Estate:


 


5.15.1      No Violations Relating to the Real
Estate.  Borrowers have no knowledge
of any violation, nor is there any notice or other record of violation of any
zoning, subdivision, environmental, building or other statute, ordinance,
regulation, restrictive covenant or other restriction applicable to the Real
Estate, except for violations, if any, which Borrowers have disclosed in
writing to Agent and are proceeding in good faith to remove or correct or which
is subject to contest by applicable proceedings timely commenced and diligently
pursued to conclusion and which non-compliance will not have a Material Adverse
Effect on Borrowers.


 


5.15.2      Liens.  There exist no liens, encumbrances or other
charges against the Real Estate, or any portion thereof, or any property relating
thereto, including statutory and other liens of mechanics, workmen,
contractors, subcontractors, suppliers, taxing authorities and others, except
for Permitted Liens.


 


5.15.3      Compliance with Laws.  The Real Estate and any Units and
Improvements thereon are being and, to the best of Borrowers’ knowledge and
belief, have been operated in all material respects, in compliance with
applicable federal and state laws and regulations (including but not limited to
environmental laws and regulations) and with local ordinances, and all permits
required thereunder have been obtained and complied with in all material
respects.


 


48

















 


5.15.4      Environment.  Borrowers have duly complied with, and their
businesses, operations, assets, equipment, property, leaseholds, or other
facilities (including, but not limited to, the Real Estate) are in material
compliance with, the provisions of all federal, state, and local Environmental
Laws, and all health, and safety laws, codes and ordinances, and all rules and
regulations applicable to Projects promulgated thereunder.  Except as set forth in the Environmental
Reports heretofore delivered to Agent, no Borrower has received notice of, or
knows of, or suspects the existence of any Environmental Condition which might
constitute a violation of, any Environmental Law or any other federal, state,
or local health or safety laws, codes or ordinances, and any rules or
regulations promulgated thereunder with respect to its businesses, operations,
assets, equipment, property, leaseholds, or other facilities (including, but
not limited to, the Real Estate) with which it has not complied (subject to the
prosecution of a good faith contest of any such notice that has not heretofore
been determined adversely to such Borrower).


 


5.16         No Violation.  Neither any Borrower nor Guarantor has
engaged in any conduct or taken or omitted any act in violation of RICO or of
any Prescribed Law.


 


5.17         Accurate and Complete Disclosure.  No representation or warranty made by
Borrowers under this Agreement or any other Loan Document is false or
misleading in any material respect (including by omission of material
information necessary to make such representation, warranty of statement not
misleading).  Borrowers or the Guarantor
have disclosed to Agent in writing every fact which would have a Material
Adverse Effect, or which so far as Borrowers can now foresee is reasonably
possible in the future and would have a Material Adverse Effect, on the
business, operations or financial condition of Borrowers or the Guarantor or
the ability of Borrowers or the Guarantor to perform their respective
obligations under this Agreement or any other Loan Document.


 


5.18         Compliance with Covenants.  As of the date this representation is made or
deemed made, Borrowers are in compliance with applicable covenants contained in
Article VIII hereof.


 


The delivery
to Agent of each Notice of Borrowing and request for the issuance of a Letter
of Credit or Tri-Party Agreement shall constitute the representation and
warranty of Borrowers that the conditions contained in Sections 4.1 and 4.2 are
satisfied as of such date, except for those that relate to a specific date or
those which cannot be made due to changes in circumstances of which Borrowers
have given notice to Agent and which would not, but for delivery of notice or
passage of time, or both, constitute an Event of Default, each of the
representations and warranties contained in this Article V is true and
correct as if made on such date.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


In addition to
the covenants contained in the Loan Documents, Borrowers hereby covenant and
agree that, so long as Lenders have any obligation to make Loans or issue
Letters of Credit or Tri-Party Agreements hereunder, or any Loan, Letter of
Credit Advance or Swing Line Loan is outstanding, except as the Agent may
otherwise advise Master Borrower in writing with the consent of Lenders in
accordance with Section 11.10:


 


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6.1                               Reporting
Requirements.  Borrowers and
Guarantor shall furnish, or cause to be furnished, to Agent and either Agent or
Master Borrower shall furnish to Lenders:


 


6.1.1        For the Fiscal Year ended June 30,
2008, not later than October 15, 2008, and for each Fiscal Year
thereafter, as soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year, audited Financial Statements of Guarantor
(which shall include a consolidated balance sheet and a consolidated statement
of operations) through the end of such Fiscal Year, and a consolidated
statement of cash flow for such Fiscal Year, all in reasonable detail and
stating in comparative form the respective figures for the corresponding date
and period in the prior Fiscal Year and all prepared in accordance with GAAP
consistently applied and accompanied by an unqualified opinion thereon, on a
basis acceptable to Agent, by PricewaterhouseCoopers LLP or by another national
firm of independent certified public accountants selected by Guarantor and
acceptable to Agent in good faith.  In
the event Guarantor files its Annual Report on Form 10-K on the ninetieth
(90th) day, the audited Financial Statements of Guarantor shall be delivered on
the day after filing the final Annual Report on Form 10-K with the SEC.


 


6.1.2        As soon as available, and in any event
within forty five (45) days after the close of each of the first three Fiscal
Quarters and eighty (80) days after the close of each fourth Fiscal Quarter (or
within five (5) Business Days after Guarantor files its Annual Report on Form 10-K
for such Fiscal Year, if earlier), unaudited management-prepared quarterly
Financial Statements of Guarantor (which shall include a Consolidated Balance
Sheet and a Consolidated Statement of Operations) as of the end of each Fiscal
Quarter, all in reasonable detail and prepared in conformity with GAAP, applied
on a basis consistent with that of the preceding Fiscal Year. Such statements
shall be certified as to their correctness by the chief financial officer of
Guarantor.  With respect to the first
three Fiscal Quarters in any Fiscal Year, in the event Guarantor files a
Quarterly Report on Form 10-Q on the forty-fifth (45th) day, the unaudited
management-prepared quarterly Financial Statements of Guarantor shall be
delivered on the day after filing the final Quarterly Report on Form 10-Q
with the SEC for such Fiscal Quarter.


 


6.1.3        As soon as available, and in any event
within forty (40) days after the close of each month, unaudited
management-prepared monthly and year-to-date consolidated financial statements
of Guarantor (which shall include a consolidated balance sheet and a
consolidated statement of operations) as of the end of each month, all in
reasonable detail and prepared in conformity with the Guarantor’s prior
internal monthly reporting practices, all of which shall be provided for
informational purposes only and not for determining compliance with any
covenants in this Agreement.


 


6.1.4        On each Tuesday after the Closing Date,
a report reflecting the balances of Cash and Cash Equivalents in all accounts
of the Borrowers and Guarantor for each day of the previous week.


 


6.1.5        Within sixty (60) days after the end of
each Fiscal Year, a management-prepared business plan and budget of Guarantor,
Borrowers, and Guarantor’s other subsidiaries for the then-current Fiscal Year.


 


50

















 


6.1.6        Within sixty (60) days after the end of
each Fiscal Year, a comparison of the Borrowers’ and Guarantor’s actual results
during the preceding Fiscal Year with the budgeted results for such period.


 


6.1.7        Within ten (10) days of the end of
each month, a detailed sales activity report prepared by Borrowers for each
Project.


 


6.1.8        Within twenty (20) days of the last day
of each month, a 13-week cash flow statement (reflecting the 13-week cash flow
from the date of delivery of such statement) and reconciliation of variances
from the previous month’s 13-week cash flow statement.


 


6.1.9        Within fifteen (15) days after the end
of each Fiscal Quarter, an aging report of all Lots owned by any Borrower.


 


6.1.10      Prompt notification of (i) the
institution of any material litigation or the commencement of any material
administrative proceedings against a Borrower or Guarantor, (ii) the entry
of any judgment against any Borrower or Guarantor in an amount in excess of
$250,000, (iii) the occurrence of any default with respect to any OHI
Financing Subordinated Debt or Subordinated Debt or (iv) the happening of
any other event which would have a Material Adverse Effect upon Borrowers or
Guarantor.


 


6.1.11      Upon the occurrence of an Event of
Default, a written notice setting forth the details of such Event of Default
and the action which is proposed to be taken by Borrowers with respect thereto.


 


6.1.12      As soon as possible and in any event
within five (5) days after any Borrower or Guarantor knows or has reason
to know that any Reportable Event or Prohibited Transaction has occurred with
respect to any Plan or that the PBGC, any Borrower or Guarantor has instituted
or will institute proceedings under Title IV of ERISA to terminate any Plan,
Borrowers will deliver to Agent a certificate of the chief financial officer of
Guarantor setting forth details as to such Reportable Event or Prohibited
Transaction or Plan termination and the action such Borrower or Guarantor
proposes to take with respect thereto.


 


6.1.13      Such other information respecting the
condition or operations, financial or otherwise, of Borrowers or Guarantor as
the Agent (or any Lender acting through Agent) may from time to time reasonably
request.


 


6.2                               Payment
of Taxes.  Borrowers and Guarantor
shall each duly pay and discharge all taxes, assessments and governmental
charges levied upon or assessed against it, its properties, or its income prior
to the date on which penalties are attached thereto and, within thirty (30)
days after any request therefor by Agent (if Agent reasonably believes any such
taxes, etc., have not been paid when due), deliver to Agent a receipt from the
applicable governmental authority evidencing said payment, unless and except to
the extent only that such taxes, assessments and charges shall be contested in
good faith by appropriate proceedings diligently conducted by Borrowers (unless
and until foreclosure, distraint, sale or other similar proceedings shall have
been commenced) or the Guarantor and provided that such reserves as shall be
required by GAAP shall have been made and maintained therefor.


 


51

















 


6.3                               Access
to Properties, Books and Records. 
Borrowers shall, and shall cause Guarantor to, (i) permit any of
the officers, employees or representatives of Agent or (if accompanied by an
officer, employee or representative of Agent) of any Lender to visit and
inspect any of the Real Estate of Borrowers and (ii) permit any officers,
employees or representatives of Agent to examine Borrowers’ and Guarantor’s
books and records and make extracts therefrom and discuss the affairs,
finances, and accounts of Borrowers and Guarantor with representatives thereof,
during normal business hours, and as often as Agent may reasonably request upon
prior telephone notice.


 


6.4                               Maintenance
of Records.  Borrowers shall, and
shall cause Guarantor to, keep adequate records and books of account, in which
complete entries were made in accordance with generally accepted accounting
principals consistently applied, reflecting all financial transactions of
Borrowers and Guarantor.


 


6.5                               Maintenance
of Existence.  Each Borrower (except
for a Borrower that ceases to maintain its existence solely as a result of an
Internal Reorganization) shall, and shall cause Guarantor to, preserve and
maintain its existence and good standing in the jurisdiction of its formation,
and qualify and remain qualified as a foreign entity in each jurisdiction in
which such qualification is required.


 


6.6                               Insurance.  Borrowers shall (and with respect to the
insurance described in Section 6.6.7 shall cause Guarantor to) take out,
maintain and keep in force, throughout the term of the Facility, policies of
insurance on the following terms:


 


6.6.1                        Insurance
against loss to each Project on a “Special Perils” policy form, covering
insurance risks no less broad than those covered under a Standard Multi Peril
(SMP) policy form, which contains the most recent Commercial ISO “Causes of
Loss-Special Form,” in commercially reasonable amounts and with endorsements as
heretofore customarily maintained by subsidiaries of Guarantor, issued by
insurers licensed in the jurisdiction in which each Project is located and that
satisfy Agent’s then-current standards for property insurers and complying with
the requirements of the Mortgages.


 


6.6.2                        Commercial
general liability insurance against death, bodily injury and property damage
arising on, about or in connection with each Project, with limits not less than
those heretofore maintained by subsidiaries of Guarantor and written on the
most recent Standard “ISO” occurrence basis form or equivalent form, excess
umbrella liability coverage with limits not less than those heretofore
maintained by subsidiaries of Guarantor and completed operations coverage for a
period of one year after construction of Units, issued by insurers licensed in
the jurisdiction in which each Project is located and that satisfy Agent’s
then-current standards for liability insurers.


 


6.6.3                        Worker’s
compensation insurance in an amount not less than those that are statutorily
required in each jurisdiction in which Borrowers operate.


 


6.6.4                        During the
making of any alterations or improvements to any Project, insurance covering
claims based on the owner’s or employer’s contingent liability not covered by
the insurance provided in Section 6.6.2 above.


 


52

















 


6.6.5        Insurance against loss or damage by
flood or mud slide in compliance with the Flood Disaster Protection Act of
1973, as amended from time to time, covering each Project that is now, or at
any time while the Indebtedness remains outstanding shall be, situated in any
area which an appropriate governmental authority designates as a special flood
hazard area, in amounts equal to the full replacement value of all above grade
structures located or to be constructed in such special flood hazard area.


 


6.6.6        Such other insurance relating to the
Projects and the uses and operation thereof as Agent may, from time to time,
reasonably require, including, but not limited to products liability and
workers’ compensation insurance.


 


6.6.7        Directors’ and officers’ liability
insurance in the forms, and in amounts not less than that which is now carried
by Borrowers and Guarantor.


 


6.6.8        All insurance shall:  (i) be carried in companies with a
Rating of A- or better and a Financial Size Category of Class IX or
higher, as set forth in the most recently published Best’s Key Rating Guide, or
otherwise acceptable to Agent; (ii) in form and content acceptable to
Agent; and (iii) provide thirty (30) days’ (ten (10) days’ for
non-payment of any premium) advance written notice to Agent before any
cancellation, material modification or notice of non-renewal.  All physical damage policies and renewals
shall contain a mortgage clause acceptable to Agent, naming Agent as mortgagee,
which clause shall expressly state that any breach of any condition or warranty
by any Borrower shall not prejudice the rights of Agent under such insurance,
and a loss payable clause in favor of Agent for personal property, contents,
inventory, equipment, loss of rents and business interruption.  All liability policies and renewals shall
name Agent and each Lender as an additional insured.  No additional parties shall appear in the
mortgage or loss payable clause without Agent’s prior written consent.  All deductibles shall be in amounts
acceptable to Agent.  In the event of the
foreclosure of any Mortgage or any other transfer of title to any Borrower in
full or partial satisfaction of the Indebtedness, all right, title and interest
of each Borrower in and to all insurance policies and renewals thereof then in
force shall pass to such purchaser or grantee. 
If the insurance, or any part thereof, shall expire, or be withdrawn, or
become void or unsafe by reason of any Borrower’s breach of any condition
thereof, or become void or unsafe by reason of the value or impairment of the
capital of any company in which the insurance may then be carried, or if for
any reason whatever the insurance shall be unsatisfactory to Agent, Borrowers
shall place new insurance that satisfies the requirements of this Section 6.6.


 


6.6.9        Any notice pertaining to insurance and
required pursuant to this Section 6.6 shall be given in the manner
provided in this Agreement at the address from time to time directed by Agent
by notice to Master Borrower.  The
insurance shall be evidenced by the original policy or a true and certified
copy of the original policy, or in the case of liability insurance, a
Certificate of Liability Insurance. 
Borrowers shall use their best efforts to deliver originals of all
policies and renewals (or certificates evidencing the same), marked “paid,” to
Agent at least thirty (30) days before the expiration of existing policies and,
in any event, Borrowers shall deliver originals of such policies or
certificates to Agent at least fifteen (15) days before the expiration of
existing policies.  If Agent has not
received satisfactory evidence of such renewal or substitute insurance in the
time frame specified herein, Agent shall have the right, but not the
obligation, to purchase such insurance for Lender’s interest only.  Any amounts so disbursed pursuant to this Section 6.6.9
shall be paid by Borrowers.  Nothing
contained in this 


 


53

















 


Section 6.6 shall require
Agent or any Lender to incur any expense or take any action hereunder, and
inaction by Agent and Lenders shall never be considered a waiver of any right
accruing to Mortgagee on account of this Section 6.6.


 


6.6.10      No Borrower shall carry any separate
insurance on any Project concurrent in kind or form with any insurance required
hereunder or contributing in the event of loss without Agent’s prior written
consent and any such policy shall have attached a standard non-contributing
mortgagee clause, with loss payable to Agent, and shall meet all other
requirements set forth herein.


 


6.7                               ERISA.  Borrowers shall, and shall cause Guarantor
to, comply in all material respects with the requirements of ERISA applicable
to any employee pension benefit plan (within the meaning of Section 3(2) of
ERISA), sponsored by any Borrower or Guarantor.


 


6.8                               Accounts.  Borrowers and Guarantor shall maintain one or
more demand deposit accounts with Agent into which the proceeds of each Loan
and Swing Line Loan shall be deposited.


 


6.9                               Compliance
with Laws.  Borrowers shall, and
shall cause Guarantor to, comply with all applicable laws (including but not
limited to any applicable tax law, product safety law, occupational safety or
health law, environmental protection or pollution control law, hazardous waste
or toxic substances management, handling or disposal law and Prescribed Laws)
in all respects; provided that Borrowers shall not be deemed to be in
violation of this Section as a result of any failures to comply which
would not result in fines, penalties, injunctive relief or other civil or
criminal liabilities which, in the aggregate, would have a Material Adverse
Effect.


 


6.10                         Payment
of Debt.  Borrowers shall, and shall
cause Guarantor to, promptly pay and discharge (i) all of its Debt in
accordance with the terms thereof; (ii) all taxes, assessments, and
governmental charges or levies imposed upon it or upon its income and profits,
upon any of its property, real, personal or mixed, or upon any part thereof,
before the same shall become in default; (iii) all lawful claims for
labor, materials and supplies or otherwise, which, if unpaid, might become a
lien or charge upon any Real Estate or, if the same would have a Material
Adverse Effect, against any other property or any part thereof; provided
that so long as Borrowers notify Agent in writing of their intention to do so,
Borrowers and Guarantor shall not be required to pay and discharge any such
Debt, tax, assessment, charge, levy or claim so long as the failure to so pay
or discharge does not constitute or result in an Event of Default and so long
as the validity thereof shall be contested in good faith by appropriate
proceedings diligently pursued and it shall have set aside on its books
adequate reserves with respect thereto.


 


6.11                         [Intentionally
Omitted].


 


6.12                         Further
Assurances.  Borrowers agree to, and
to cause Guarantor to, do such further acts and things and to execute and
deliver to Agent such additional assignments, agreements, powers and
instruments, as Agent may reasonably require or reasonably deem advisable to
carry into effect the purposes of this Agreement or to better assure and
confirm unto Agent and the Lenders their respective rights, powers and remedies
hereunder.


 


54

















 


ARTICLE VII.

NEGATIVE COVENANTS


 


In addition to
the covenants contained in the Loan Documents, Borrowers hereby covenant and
agree that, so long as the Lenders have any obligation to make Loans or issue
Letters of Credit hereunder, or any Loan, Letter of Credit Advance or Swing
Line Loan is outstanding, Borrowers shall not, except as Agent may otherwise
advise Master Borrower in writing with the consent of Lenders in accordance
with Section 11.10:


 


7.1                             Creation
of Debt.  Create, incur, assume or
suffer to exist, or permit Guarantor to create, incur, assume or suffer to
exist, any Debt except Permitted Debt.


 


7.2                             Grant
of Liens.  Grant, or permit to exist,
any lien on any Project or on any other asset (whether real or personal) of a
Borrower or Guarantor, other than Permitted Liens.


 


7.3                               Mergers
and Acquisitions.


 


7.3.1                        Merge or
consolidate with, or acquire all or substantially all of the assets or the
business of, any Person (or permit Guarantor so to merge, consolidate or
acquire), unless (a) such merger or consolidation is an Internal
Reorganization, or (b) (i), if such merger or consolidation is a stock
acquisition, those Persons who are shareholders of Guarantor immediately prior
to such transaction directly or indirectly have, immediately after the
consummation of the transaction, at least 51% of the voting control of the
surviving entity, (ii) Borrowers remain in compliance with all covenants
in this Agreement upon such merger, consolidation or acquisition, and (iii) Master
Borrower delivers to Agent, at least ten (10) days before the consummation
of the proposed transaction, a certificate signed by Guarantor’s chief
financial officer certifying such continued compliance.


 


7.3.2                        Sell,
assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person or permit Guarantor to do any of the
foregoing, except (a) for (i) the sale or other disposition of Land,
Lots and/or Units in the ordinary course of business; (2) the sale or
other disposition of assets no longer used or useful in the conduct of its
business; and (3) the sale and/or sale and leaseback of model Units; and (b) sales,
leases, assignments or other dispositions made solely pursuant to an Internal
Reorganization.


 


7.4                               Transaction
With Affiliates.  Enter into any transaction,
or cause Guarantor to enter into any transaction including, without limitation,
the purchase, sale, or exchange of property or the rendering of any service,
with any Affiliate which is not a Borrower, Guarantor, or a subsidiary of
either, including, without limitation, the purchase, sale, or exchange of
property or the rendering of any service, except (a) in the ordinary
course of or pursuant to the reasonable requirements of Borrowers’ Business on
terms that are no less favorable to Borrower or Guarantor, as the case may be,
than those that might be obtained at the time from persons who are not such an
Affiliate, and (b) after giving effect to such transaction, Borrowers
remain in compliance with all covenants in this Agreement.


 


7.5                               Use
of Proceeds.  Directly or indirectly,
use any part of such proceeds for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System or to extend credit to any person for the 


 


55

















 


purpose of purchasing or
carrying any such margin stock, or for any purpose which violates, or is
inconsistent with, Regulation X of the Board of Governors of the Federal
Reserve System.


 


7.6                               Restricted
Payments.  Permit Guarantor or any
Borrower to, directly or indirectly, declare, order, pay, make or set apart any
sum for (w) any dividend or other distribution, direct or indirect, on
account of any shares of any class of Capital Stock of any Borrower or Guarantor
now or hereafter outstanding, (x) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of any Borrower or
Guarantor now or hereafter outstanding, (y) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of Capital Stock of any Borrower or Guarantor
now or hereafter outstanding and (z) providing the funds for or the making
of any payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, any
purchase money mortgages, Subordinated Debt or the OHI Financing Subordinated
Debt, except for:


 


(i)         dividends payable solely in shares, or
rights to acquire shares, of a class of Capital Stock of any Borrower or
Guarantor to the holders of such class;


 


(ii)        scheduled payments of interest on the
OHI Financing Subordinated Debt;


 


(iii)       payments, distributions, purchases,
acquisitions, providing of funds, pre-payments, redemptions, retirements,
sinking fund or similar payments or any other actions to the extent taking place
between or among one or more Borrowers or among one or more Borrowers and
Guarantor or pursuant to an Internal Reorganization;


 


(iv)       the acquisition of securities pursuant to
any cashless or net exercise of options held by any present or former employee,
officer or director of Guarantor or any subsidiary of Guarantor, provided that
such options were acquired pursuant to an employee benefit plan; and


 


(v)        any extension, refinancing, renewal,
repayment, replacement, defeasance or refund with respect to the OHI Financing
Subordinated Debt to the extent approved by Agent in accordance with Section 7.7.


 


7.7                               Amendments
of Documents Relating to Subordinated Debt. 
Borrowers shall not, and shall not permit Guarantor to, amend or
otherwise change, or consent to any amendment or change to, the terms of the
OHI Financing Subordinated Debt or any Subordinated Debt, or any extension,
refinancing, renewal, repayment, replacement, defeasance or refund of the OHI
Financing Subordinated Debt or any Subordinated Debt, or make any payment
consistent with such an amendment thereof or change thereto, or any extension,
refinancing, renewal, repayment, replacement, defeasance or refund thereof,
without the consent of the Agent.  The
Agent may provide its consent hereunder to a proposed amendment or change, to
the terms of the OHI Financing Subordinated Debt (including any such amendment
or change proposed in connection with an extension, refinancing, renewal,
repayment, replacement, defeasance or refund thereof), if:


 


56

















 


(i)            A summary of all of
the material terms of the proposed amendment or change is submitted to the
Agent for its review and approval at least thirty (30) days prior to issuance
of the Debt;


 


(ii)           The maturity of such
debt is no earlier than 179 days after the then-current Maturity Date at the
time of issuance;


 


(iii)          The OHI Financing
Subordinated Debt, after such amendment or change, contains subordination
provisions (including without limitation provisions with respect to payment
blockages during the continuance of an Event of Default) as are satisfactory to
Agent in its sole discretion;


 


(iv)          Agent shall have
determined in its sole discretion that the covenants, restrictions,
representations and warranties contained in or associated with such debt are no
more burdensome, onerous or restrictive than those contained in the existing
OHI Financing Subordinated Debt or the Loan Documents;


 


(v)           The aggregate
outstanding principal amount of the OHI Financing Subordinated Debt does not
exceed $108,248,000 (plus, in the event of a refinancing described below, all
accrued and unpaid interest thereon and such reasonable expenses incurred in
connection therewith).


 


For
purposes of this Section 7.7, any proposed amendment or refinancing of the
OHI Financing Subordinated Debt that has the effect of (a) increasing the
principal balance, (b) increasing the interest rate, (c) shortening
the maturity date, (d) increasing the cash payments under, (e) purporting
to modify the terms imposed by this Section 7.7 or (f) imposing more
restrictive or onerous terms upon any Borrower or Guarantor, in each case, as
compared to the existing OHI Financing Subordinated Debt and the Loan Documents
shall be deemed to be an amendment or refinancing of such Debt and must satisfy
the conditions contained in this Section 7.7.


 


By
its approval of any change or amendment to the OHI Financing Subordinated Debt,
Agent makes no representation or warranty to Borrowers or Lenders that the
terms thereof are not, or may not be construed as being, more onerous,
burdensome or restrictive than the terms of the existing OHI Financing
Subordinated Debt or the Loan Documents, or that the subordination provisions
may not be construed to have been “customary” at the time the subject Debt was
issued, and Agent shall have no liability or obligation to Borrowers or the
Lenders in any such event.  To the extent
any term of any Debt so approved by Agent as is in fact interpreted or construed
to be more onerous, burdensome or restrictive than the terms of the Loan
Documents, then in such event, and notwithstanding the provisions of Section 13.1
hereof, the Loan Documents, in the discretion of Agent or at the request of the
Requisite Lenders, shall be deemed to incorporate and include such more
onerous, burdensome or restrictive terms, without the necessity of any written
amendment or modification to the Loan Documents, and Agent may enforce such
terms as though originally written and contained in the Loan Documents..


 


7.8           Second Lien Indebtedness.  Permission for second lien indebtedness will
be considered by Agent and subject to approval by the Requisite Lenders and
upon such approval shall be deemed to be Permitted Debt.  Any second Lien facility will be subject to
an Intercreditor Agreement which shall include, but not be limited to, payment
and lien priority 


 


57

















 


provisions, procedures
governing enforcement which will permit Lenders to exercise remedies with
respect to the Collateral and other reasonable usual and customary terms
included in intercreditor arrangements between senior debt and second lien debt
holders.  One hundred percent (100%) of
the net proceeds of any permitted second lien facility must be paid to the
Lenders and applied as a permanent reduction against the Loans and
Commitments.,


 


7.9                               Investments.  Guarantor and Borrowers shall not directly or
indirectly, make or own any Investment in any Person, including any Joint
Venture, except:


 


(i)                                 In
addition to any amounts that may be invested pursuant to Section 7.9(ii),
Borrowers and Guarantor may make new Investments in Joint Ventures that are
non-recourse to the Guarantor and any Affiliates in an amount not to exceed
$5,000,000.


 


(ii)                              In
addition to any amounts that may be invested pursuant to Section 7.9(i),
Borrowers and Guarantor may make Investments in Joint Ventures that are
non-recourse to the Guarantor and any Affiliates in amounts equal to 50% of any
Net Securities Proceeds raised by Guarantor after March 31, 2008, with the
remaining 50% of any net equity proceeds being used to permanently reduce
Indebtedness pursuant to Section 2.3.1.5;


 


(iii)                           Guarantor
and Borrowers may maintain its current Investments in cost-sharing arrangements
or partnerships already in existence in the amounts set forth on Schedule 7.9,
and make further Investments in such cost-sharing arrangements or partnerships
identified on Schedule 7.9 consistent with the current activities of
such cost-sharing arrangement;


 


(iv)                          Guarantor
may make Investments in Alambry Funding, Inc., A.P. Orleans, Incorporated
and Community Management Services Group of up to an aggregate of $600,000, in
each case, consistent with the current activities of such entities;


 


(v)                               Borrowers
and Guarantor may make Investments in Real Estate, Lots or Units and
improvements thereon owned by a Borrower or Guarantor, subject to the
limitations in Section 8.5;


 


(vi)                            Borrowers
and Guarantor may make Investments in equipment or other assets reasonably
necessary for the ordinary conduct of the Business;


 


(vii)                         Borrowers
and Guarantor may make lease, utility and other similar deposits in the
ordinary course of business;


 


(viii)                      Borrowers
and Guarantor may make Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers or customers and
in settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;


 


(ix)                              Borrowers
and Guarantor may make Investments in securities acquired in connection with
the satisfaction or enforcement of indebtedness or claims due or owing or as
security for any such indebtedness or claim;


 


(x)                                 Borrowers
and Guarantor may make Investments in interest rate hedging arrangements
entered into with respect to Permitted Debt,


 


58

















 


(xi)                              Borrowers
may make advances to customers or suppliers in the ordinary course of business
that are, in conformity with GAAP, recorded as accounts receivable, prepaid
expenses or deposits;


 


(xii)                           Borrowers
and Guarantor may make commission, payroll, Business-related expenses and
similar advances to officers and employees;


 


(xiii)                        Borrowers
and Guarantor may make Investments in securities acquired pursuant to any
cashless or net exercise of options held by any present or former employee,
officer or director of Guarantor or any subsidiary of Guarantor, provided that
such options were acquired pursuant to an employee benefit plan; and


 


(xiv)                       Borrowers
and Guarantor may continue to own existing Investments in the entities
identified on Schedule 5.1, in the amount of such Investment as of the
Closing Date.


 


7.10                         Limitation
on Holdings of Cash and Cash Equivalents.. 
Guarantor may hold and/or own Cash and Cash Equivalents determined on a
consolidated basis in an amount not to exceed $32,500,000 with respect to
unrestricted Cash and Cash Equivalents; provided that Guarantor may hold
and/or own Cash and Cash Equivalents in excess of $32,500,000 on a consolidated
basis for no longer than consecutive five (5) Business Days so long as
Borrowers reduce such amount during such period by repaying the Loans or
otherwise reducing such amount in a manner permitted by this Agreement.


 


ARTICLE VIII.

FINANCIAL COVENANTS


 


So long as the
Indebtedness shall remain unpaid or Lenders have any obligation to make Loans
or issue Letters of Credit hereunder, Borrowers shall comply with the following
covenants.  For purposes of all
calculations made for purposes of determining compliance with the financial covenants
contained in this Article VIII and the interpretation of any defined terms
used in this Article VIII, assets and liabilities associated with (i) any
Option Agreement or (ii) option or land bank arrangements of any Borrower
or Affiliate of Guarantor that are required to be included in the balance sheet
of Guarantor, solely due to Interpretation Number 46, as issued by the
Financial Accounting Standards Board in January 2003 (as revised), shall
not be included within the calculation performed to determine compliance with
the covenants contained in Sections 8.2, 8.7 or 8.8 hereof.  Compliance with the covenants contained in
this Article VIII shall, as appropriate, be determined on the combined
Financial Statements of Guarantor (which shall include all Borrowers, Guarantor
and all consolidated subsidiaries of any Borrower or Guarantor).


 


8.1                               [Intentionally
Omitted].


 


8.2                               Consolidated
Tangible Net Worth.  As of the last
day of any Fiscal Quarter, Guarantor shall maintain a minimum Consolidated
Tangible Net Worth that is equal to an amount that is not less than
$75,000,000; provided that such covenant amount will be (I) reduced
by the sum of, without duplication (a) inventory impairments under GAAP on
assets in the Borrowing Base taken by the Guarantor and recorded after March 31,
2008 plus (b) the amount of any interest expense incurred less the
amount of interest capitalized under Statement of 


 


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Financial Accounting Standard No. 34   and recorded after March 31, 2008  plus (c) any additional deferred
tax asset valuation reserves recorded after March 31, 2008 (provided that
clauses (a) and (c) shall be limited to an aggregate amount not to
exceed $30,000,000) plus (d) any impairments or write-offs relating
to tangible assets or pre-acquisition costs not contained in the Borrowing Base
recorded after March 31, 2008, and (II) increased by the sum of,
without duplication, (x) any favorable adjustment recorded after March 31,
2008 to the Deferred Tax Asset valuation allowance as reported in Footnote 1 of
the Guarantor’s filed 10-Q Statement on March 31, 2008 plus (y) of
50% of positive quarterly net income after March 31, 2008 plus (c) of
50% of any Net Securities Proceeds received by the Borrowers and Guarantor after
March 31, 2008.  Notwithstanding the
foregoing, at no time shall Consolidated Tangible Net Worth, after taking into
account the reductions and increases above, be less than $35,000,000.


 


8.3           [Intentionally Omitted].


 


8.4           [Intentionally Omitted.].


 


8.5           Real Estate Acquisitions.  No Borrower or Guarantor shall purchase any
Real Estate, Lots or Units after the Closing Date, except for (a) up to
$8,000,000 of Real Estate, Lots or Units (whether purchase money or otherwise)
purchased by the Borrower in the normal course of business, consistent with the
projections provided to the Lenders and (b) Improved Land (i.e., finished
Lot takedowns and/or controlled rolling Lot options) purchased by the Borrower
in the normal course of business, consistent with the projections provided to
the Lenders.


 


8.6           [Intentionally Omitted].


 


8.7           Cash Flow From Operations.  Commencing on September 30, 2008, as of
the last day of each of the following Fiscal Quarters, the Cash Flow Coverage
Ratio shall be greater than or equal to:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Applicable Ratio

  
	
   

  	
   

  	
   

  
	
  September 30,
  2008

  	
   

  	
  1.25:1.00

  
	
  December 31,
  2008

  	
   

  	
  1.25:1.00

  
	
  March 31,
  2009

  	
   

  	
  0.40:1.00

  
	
  June 30,
  2009

  	
   

  	
  1.00:1.00

  
	
  September 30,
  2009 and thereafter

  	
   

  	
  1.25:1.00

  



 


8.8           Liquidity.  The Liquidity at all times shall be not less
than $15,000,000.


 


8.9           Reports Regarding Financial
Covenants.  Together with each
delivery of Financial Statements (or within five (5) Business Days after
Guarantor files its Annual Report on Form 10-K for such Fiscal Year, if
earlier), Borrowers shall submit to Agent a Covenant Compliance Certificate, in
the form attached hereto as Exhibit 8.7 and executed by the chief
financial officer of Guarantor, confirming that the Borrower is in compliance
with the financial covenants of this Article VIII as of the dates provided
herein for compliance.


 


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ARTICLE IX.

EVENTS OF DEFAULT


 


The occurrence
of any of the following shall constitute an Event of Default hereunder:


 


9.1           The failure of Agent to receive from
Borrowers payment of any sum as required pursuant to this Agreement or any
other Loan Document within five (5) days after the same is payable; provided
that the failure of Borrowers to pay the entire Indebtedness to Agent on the
Maturity Date shall be an immediate Event of Default, without notice.


 


9.2           The failure of Borrowers to observe
or perform any promise, covenant, warranty, obligation, representation or
agreement in this Agreement or in any other Loan Document, or in any other
document evidencing or securing any of the Indebtedness or the repayment
thereof (and not specifically addressed in the other Sections of this Article IX),
within fifteen (15) days after written notice from Agent; provided that
the notice and cure period contained in this Section 9.2 shall not apply
to the breach of any covenant or obligation contained in Sections 3.4, 6.5,
7.1, 7.2, 7.3, 7.6, 7.9 or 7.10 or in Article VIII, or to any other
failure that, by its nature, is not susceptible to being cured by Borrowers or
Guarantor.


 


9.3           Any assignment for the benefit of the
creditors of Borrower, the filing of any other proceedings by Borrower or by
any other person or entity rendering Borrower or any of the Real Estate subject
to a proceeding in insolvency or in bankruptcy, either for liquidation or for
reorganization (and in the case of an involuntary proceeding under the Bankruptcy
Code, the failure to have same dismissed prior to the entry of an Order for
Relief), or if Borrower shall become insolvent or unable to pay debts as they
mature.


 


9.4           The dissolution or reorganization of
a Borrower, other than a dissolution or reorganization of a Borrower solely as
a result of an Internal Reorganization.


 


9.5           The (i) entry of a judgment or
judgments against Borrower at any time (a) in an aggregate amount that is
at least $500,000 in excess of insurance proceeds available to Borrower with
respect to such judgment or judgments, if such judgment or judgments are not
dismissed or bonded within thirty (30) days or (b) that prevents Borrower
from conveying Lots and Units in the ordinary course of business if such
judgment or judgments are not dismissed or bonded within thirty (30) days, or (ii) issuance
of any writs of attachment, execution or garnishment against Borrower.


 


9.6           The furnishing to Agent or any
Lender, heretofore or hereafter, by or on behalf of Borrower of materially
false information, or the refusal by Borrower to hereafter provide material
information to Agent upon request.


 


9.7           If any signature, certificate,
opinion, financial statement or other information heretofore or hereafter
furnished or made by Borrower to Agent or the Lenders shall prove to be false,
incorrect, incomplete or misleading in any material respect on or as of the
date furnished, made or deemed made.


 


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9.8                               Any
material adverse change in the financial condition of Borrower which causes
Requisite Lenders, in good faith, to believe that performance of any of the
Indebtedness herein is impaired or doubtful for any reason whatsoever.


 


9.9                               Any
warranty or representation by Borrower contained in this Agreement or in any
other Loan Document is now or hereafter materially false or incorrect when made
or deemed made.


 


9.10                         Subject
to any applicable grace or cure period therein contained, the occurrence of any
“Event of Default” as defined in or occurring under any Loan Document.


 


9.11                         The
occurrence of any default under the terms of any note or other instrument that
evidences Debt of Guarantor or any Borrower, or OHI Financing Subordinated
Debt, which default continues beyond any applicable cure period contained therein.


 


9.12                         At any
time after the execution and delivery thereof, (i) any Loan Document or
any provision thereof, for any reason other than the satisfaction in full of
all Indebtedness, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii) Agent
or any Lender shall not have or shall cease to have a valid and perfected first
priority Lien in any Collateral to the extent such Lien is required under this
Agreement, in each case for any reason other than the failure of Agent or any
Lender to take any action within its control, or (iii) any Borrower or
Guarantor shall contest the validity or enforceability of any Loan Document or
any provision thereof in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Loan
Document or any provision thereof to which it is a party.


 


For purposes
of this Article IX, the term “Borrower” shall include (i) each Person
that is then included in the definition of “Borrower” contained in this
Agreement and (ii) for purposes of Sections 9.2 through 9.9, inclusive,
also Guarantor.


 


ARTICLE X.

REMEDIES


 


10.1                         Remedies of Lenders.  Upon
the occurrence of an Event of Default hereunder and the completion of any
applicable grace or cure period, and during continuance of such Event of
Default, (i) with the consent of Requisite Lenders Agent may and (ii) upon
the request of Requisite Lenders Agent shall, by notice to Master Borrower on
behalf of the Lenders, and with respect to Section 10.1.3 each individual
Lender may, exercise all or any of the following remedies, all of which rights
and remedies shall be cumulative:


 


10.1.1      Demand immediate payment in full of all
Indebtedness, whereupon the same shall be immediately due and payable.


 


10.1.2      Immediately terminate Lenders’ obligations
to make any Loans or to issue any Letters of Credit or Tri-Party Agreements
hereunder and Swing Line Lender’s obligation to make Swing Line Loans.


 


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10.1.3      Set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by
any Lender to or for the credit or the account of any Borrower, irrespective of
whether Agent or Lenders shall have made any demand under this Agreement, the
Line of Credit Notes, the Swing Line Note or any other Loan Document and
although such obligations may be unmatured (which rights of the Lenders are in
addition to other rights and remedies, including, without limitation, other
rights of setoff, which the Lenders may have). 
All net funds recovered under the rights provided in this Section 10.1.3
shall be recovered by Lenders as agent for the other Lenders and shall be
distributed among Lenders according to their Pro Rata Share.  Each Lender shall be an agent of all other
Lenders for purposes of rights of set-off.


 


10.1.4      Exercise its rights or remedies granted
herein, or under applicable law, or which it may otherwise have under any other
Loan Document, against Borrowers or against Guarantor.


 


10.1.5      Notwithstanding anything to the contrary
contained in this Section 10.1, upon the occurrence with respect to
Guarantor of any event describe in Section 9.3, the entire Indebtedness
shall be immediately due and payable and Lenders’ obligations to make Loans or
to issue Letters of Credit or Tri-Party Agreements and Swing Line Lender’s
obligation to make Swing Line Loans, shall automatically and immediately
terminate, without notice from Agent or any Lender.


 


10.2                         Effect of Delay. 
Neither failure nor delay on the part of Agent or the Lenders to
exercise any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.


 


10.3                         Acceptance of Partial Payment.  The
acceptance by the Lenders of any partial payments of Loans, Letter of Credit
Advances or Swing Line Loans made by any Borrower after the occurrence of an
Event of Default hereunder, or the advance of any additional funds or the
issuance of a Letter of Credit or execution of a Tri-Party Agreement at any
such time, shall not be deemed a waiver by the Lenders of such Event of Default
unless expressly agreed in writing by the Agent.


 


10.4                         Other Available Remedies.  The
enumeration of the rights and remedies of the Agent and the Lenders set forth
in this Agreement is not intended to be exhaustive and the exercise by the
Agent and the Lenders of any right or remedy shall not preclude the exercise of
any other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under any other Loan
Documents or that may now or hereafter exist in law or in equity or by suit or
otherwise.


 


10.5                         Waiver of Marshalling of Assets.  To
the fullest extent permitted by law, each Borrower, for itself and its
successors and assigns, waives all rights to a marshalling of the assets of
Borrowers and others with interests in any Borrower, and of the Projects, or to
a sale in inverse order of alienation in the event of foreclosure of all or any
of the Mortgages, and agrees not to assert any right under any laws pertaining
to the marshalling of assets, the sale in inverse order of alienation,
homestead exemption, the administration of estates of decedents, or any other
matters whatsoever to defeat, reduce or affect the right of Agent or Lenders
under the Loan 


 


63

















 


Documents to a
sale of the Projects for the collection of the Indebtedness without any prior
or different resort for collection or of the right of Lenders to the payment of
the Indebtedness out of the net proceeds of the Projects in preference to every
other claimant whatsoever.  In addition
(but subject to any applicable statute or law governing deficiencies remaining
after the sale of any collateral), each Borrower, for itself and its successors
and assigns, waives in the event of foreclosure of any or all of the Mortgages,
any equitable right otherwise available to any Borrower which would require the
separate sale of the Projects or require Agent to exhaust its remedies against
any individual or any combination of the Projects before proceeding against any
other Project or combination of Projects; and further in the event of such
foreclosure each Borrower hereby expressly consents to and authorizes, at the
option of Agent, the foreclosure and sale either separately or together of any
combination of the Projects, to the extent permitted by any applicable statute
or law.


 


10.6         Waiver of Counterclaim.  Each Borrower hereby waives the right to
assert a counterclaim, other than a mandatory or compulsory counterclaim, in
any action or proceeding brought against it by Agent or Lenders.


 


ARTICLE XI.

THE AGENT


 


11.1         Appointment. 
Each of the Lenders hereby irrevocably designates and appoints Agent as
agent of such Lender under this Agreement and the other Loan Documents for the
term hereof and each such Lender irrevocably authorizes Agent, as agent for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the other Loan Documents or otherwise exist against the
Agent.  Any reference to the Agent in
this Article XI shall be deemed to refer to the Agent solely in its
capacity as Agent and not in its capacity as a Lender.


 


11.2         Delegation of Duties. 
Agent may execute any of its respective duties under this Agreement and
the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely on advice of counsel concerning all matters pertaining to such
duties.  Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
Agent with reasonable care.


 


11.3         Exculpatory Provisions.  Neither Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, subsidiaries or affiliates
shall be (i) liable for any action taken or omitted to be taken by it or
such Person under or in connection with this Agreement or the other Loan
Documents (except for actions occasioned solely by its or such Person’s own gross
negligence or willful misconduct), or (ii) responsible in any manner to
any of the Lenders for (a) any recitals, statements, representations or
warranties made by Borrowers or any officer thereof contained in this Agreement
or the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent under or in 


 


64

















 


connection with, this Agreement
or the other Loan Documents or, (b) the satisfaction of any condition
specified herein, other than receipt of items required to be delivered to
Agent, or (c) for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents, or
(d) for any failure of Borrowers or Guarantor to perform their obligations
hereunder or thereunder.  Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of Borrowers
or Guarantor.  Agent shall have no duty
to disclose to Lenders information that is not required to be furnished by
Borrowers or Guarantor to Agent at such time, but is voluntarily furnished by
any Borrower or Guarantor to Agent in its individual capacity.


 


11.4         Reliance by Agent. 
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrowers), independent accountants and other experts selected
by Agent.  Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless such Note shall have
been transferred in accordance with Section 13.9 hereof.  Agent shall be fully justified in failing or
refusing to take any action under this Agreement and the other Loan Documents
unless it shall first receive such advice or concurrence of the Requisite
Lenders (or, when expressly required hereby or by the relevant other Loan
Document, all the Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful
misconduct.  Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the Notes in accordance with a request of the Requisite Lenders (or, when
expressly required hereby, all the Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.


 


11.5         Non-Reliance on Agent and Other Lenders.  Each Lender expressly acknowledges that
neither Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, subsidiaries or affiliates has made any representations or
warranties to it and that no act by Agent hereinafter taken, including any
review of the affairs of the Borrowers, Guarantor or any of their respective
Affiliates, shall be deemed to constitute any representation or warranty by
Agent to any Lender.  Each Lender
represents to Agent that it has, independently and without reliance upon Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of Borrowers, Guarantor and their respective Affiliates and
made its own decision to make Loans and Line of Credit Advances, to participate
in Swing Line Loans and to enter into this Agreement.  Each Lender also represents that it will,
independently and without reliance upon Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of Borrowers, Guarantor and their respective Affiliates.  Except for notices, reports and other 


 


65

















 


documents expressly required to
be furnished to the Lenders by Agent hereunder or by the other Loan Documents,
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrowers, Guarantor
or any of their respective Affiliates which may come into the possession of
Agent or any of its respective officers, directors, employees, agents,
attorneys-in-fact, subsidiaries or affiliates.


 


11.6         Indemnification. 
Lenders agree to reimburse and indemnify Agent (in its capacity as Agent
but not as a Lender) ratably in proportion to their respective Commitments (i) for
any amounts (but excluding syndication expenses) not reimbursed by Borrowers
for which Agent is entitled to reimbursement by Borrowers under the Loan
Documents (and without limiting the obligation of Borrowers to pay such
reimbursement), including reasonable out-of-pocket expenses in connection with
the preparation, execution, delivery of the Loan Documents, (ii) for any
other reasonable out-of-pocket expenses incurred by Agent, on behalf of
Lenders, in connection with the administration and enforcement of the Loan
Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against Agent in any way relating to or arising out of
this Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for any of the foregoing
to the extent they arise from (a) the gross negligence or willful
misconduct of Agent or (b) a dispute which is solely between Agent and one
or more Lenders in which the other Lender prevails, or (c) an action taken
or not taken by Agent contrary to the express requirements contained herein
pertaining to the requisite number of Lenders required to approve or direct
certain actions or contrary to the instructions received from such
Lenders.  The obligations of Lenders
under this Section 11.6 shall survive payment of the Indebtedness and
termination of this Agreement.  Each
Lender shall, within ten (10) Business Days after a written demand
therefor accompanied with a description of the amounts payable, contribute its
respective Pro-Rata Share of the out-of-pocket costs and expenses incurred by
Agent in accordance with the terms of this Agreement, including, but not
limited to, fees of receivers or trustees, court costs, title company charges,
filing and recording fees, appraisers’ fees and reasonable fees and expenses of
attorneys.


 


11.7         Consequential Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN OR IN ANY OF THE LOAN DOCUMENTS, NEITHER AGENT NOR ANY LENDER SHALL BE
RESPONSIBLE OR LIABLE TO ANY LENDER OR TO AGENT FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL
DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


11.8         Agent in Its Individual Capacity.  Agent and its respective subsidiaries and
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Borrowers as though Agent were not an Agent
hereunder.  With respect to any Loans,
Letter of Credit Advances and Swing Line Loans made or renewed by it and any
Line of Credit Note or Swing Line Note issued to it, the Agent shall have the
same rights and powers under this 


 


66

















 


Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include Agent in its
individual capacity.


 


11.9         Resignation or Removal of Agent as Administrative Agent.  Subject to the appointment and acceptance of
a successor administrative agent as provided below, (i) Agent may resign
at any time by giving sixty (60) days’ written notice thereof to Lenders and
Master Borrower, and (ii) Agent may be removed at any time by Requisite
Lenders with cause, if it is reasonably determined by Requisite Lenders that
Agent has failed, and continues to fail, in the administration of the Facility
in accordance with customary practices for similar credit facilities.  Upon any such resignation or removal,
Requisite Lenders shall have the right to appoint a successor Agent, subject to
the approval of Borrowers, which approval shall not be unreasonably withheld or
delayed; provided, however, that no such approval of Borrowers shall be
required if an Event of Default is in existence.  If no successor administrative agent shall
have been so appointed by Requisite Lenders and shall have accepted such
appointment within sixty (60) days after the retiring Agent’s notice of
resignation or the Requisite Lenders’ removal of the retiring Agent, then the
retiring Agent may, on behalf of Lenders, appoint a successor administrative
agent, subject to the approval of Borrowers, which approval shall not be
unreasonably withheld or delayed; provided, however, that no such approval of
Borrowers shall be required if an Event of Default is in existence.  Any successor administrative agent shall be a
Lender which has a combined capital and surplus of at least
$250,000,000.00.  Upon the acceptance of
any appointment as Agent hereunder by a successor administrative agent, such
successor administrative agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder.  After any retiring Agent’s
resignation or removal hereunder as Agent, the provisions of this Article XI
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent hereunder.


 


11.10       Amendments, Waivers and Consents.  Except as set forth below, any term,
covenant, agreement or condition of this Agreement or any of the other Loan
Documents may be amended or waived by the Lenders, and any consent given by the
Lenders, if, but only if, such amendment, waiver or consent is in writing signed
by the Requisite Lenders (or by Agent with the consent of the Requisite
Lenders) and delivered to Agent and, in the case of an amendment, signed by the
Borrowers; provided, that without the prior written consent of each Lender no
amendment, waiver or consent shall: (i) increase the Facility Amount, the
Revolving Sublimit or the Letter of Credit Sublimit, (ii) postpone the
Maturity Date or change the date on which any monthly payment of interest is
due; (iii) reduce the Interest Rate payable on any Loan or Letter of
Credit Advance, or any Loan Fee; (iv) amend the “Advance Rate” percentage
set forth in the chart that is part of Section 3.3; (v) permit any
assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the Borrowers’ rights and obligations hereunder; (vi) release
Guarantor; (vii) release any Collateral or consent to the transfer,
pledge, mortgage or assignment of any Collateral, other than as specifically
provided in this Agreement; or (viii) amend the provisions of this Section 11.10,
the definition of Requisite Lenders or any other provision of this Agreement
specifying the number or percentage of Lenders required to (a) amend,
waive or otherwise modify any rights of Lenders hereunder, (b) make any
determination that is to be made by Lenders or (c) grant any consent that
is required to be obtained from Lenders. 
In addition, no amendment or waiver of the provisions of this Article XI
shall be made 


 


67

















 


without the written consent of
Agent and no Lender’s Commitment may be increased without such Lender’s
consent.


 


11.11                   Authority.


 


11.11.1    Agent, as described herein, shall have all
rights with respect to collection and administration of the Indebtedness, the
security therefor and the exercise of remedies with respect thereto, except, to
the extent otherwise expressly set forth herein.  Lenders agree that Agent shall make all
determinations as to whether to grant or withhold approvals or consents under
the Loan Documents and as to compliance with the terms and conditions of the
Loan Documents, except to the extent otherwise expressly set forth therein or
herein.  Agent will simultaneously
deliver to Lenders copies of any default notice sent to Borrowers under the
terms of the Loan Documents and will promptly provide to Lenders copies of any
other material notices.


 


11.11.2    As to any matters which are subject to the
consent of any or all of Lenders, as set forth in this Agreement, Agent shall
not be permitted or required to exercise any discretion or to take any action
except upon the receipt of the written consent to such action by Lenders
holding the required Pro Rata Shares, which written instructions shall be
binding upon Lenders.  Notwithstanding
anything contained herein to the contrary, it is understood and agreed that
Lenders’ right to consent to or disapprove any particular matter shall be
limited to the extent that Lenders’ or Agent’s rights to consent to or
disapprove of such matter are limited in the Loan Documents.  Subject to the foregoing limitations, each
Lender hereby appoints and constitutes Agent as its agent with full power and
authority to exercise on behalf of such Lender any and all rights and remedies
which such Lender may have with respect to, and to the extent necessary under
applicable law for, the enforcement of the Loan Documents, including the right
to exercise, or to refrain from exercising, any and all remedies afforded to
such Lender by the Loan Documents or which such Lender may have as a matter of
law.


 


11.12                   Borrower Default. 
Agent shall not be deemed to have knowledge of the occurrence of a
default or an Event of Default (other than the nonpayment of principal of or
interest on the Loans, Letter of Credit Advances or Swing Line Loans) unless Agent
has received notice from a Lender, a Borrower or Guarantor specifying such
default or Event of Default and stating that such notice is a “Notice of
Default”.  In the event that Agent
receives such a notice of the occurrence of a default or an Event of Default,
Agent shall give prompt notice thereof to Lenders.  Agent shall give each Lender prompt notice of
each nonpayment of principal of or interest on the Loans, Letter of Credit
Advances or Swing Line Loans, whether or not Agent has received any notice of
the occurrence of such nonpayment.  Agent
shall (subject to Section 11.10) take such action hereunder with respect
to such default or Event of Default as shall be directed by Requisite Lenders,
provided that, unless and until Agent shall have received such directions,
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such default or Event of Default as it
shall deem advisable in the best interests of Lenders, including, without
limitation, continuing to make Loans.


 


11.13                   Lender Default.  If
any Lender (a “Defaulting Lender”) (i) fails
to fund its Pro Rata Share of any Loan or Letter of Credit Advance on or before
the time required pursuant to this Agreement, (ii) fails to pay Agent,
within twenty (20) days of demand (which demand shall be accompanied by
invoices or other reasonable back up information demonstrating the amount 


 


68

















 


owed) for such Lender’s Pro
Rata Share of any out-of-pocket costs, expenses or disbursements incurred or
made by Agent pursuant to the terms of this Agreement (the aggregate amount
described in the foregoing clauses (i) and (ii) which the Defaulting
Lender fails to pay or fund is referred to as the “Defaulted
Amount”), (iii) has given notice to Agent or any Borrower that
it will not make, or that it has disaffirmed or repudiated any obligation to
make, any Loan hereunder (unless such notice is given by all Lenders), or (iv) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding, then, in addition to the rights and remedies that may be available
to the other Lenders (the “Non-Defaulting Lenders”)
at law and in equity:


 


11.13.1    The Defaulting Lender’s right to participate
in the administration of the Loan and the Loan Documents, including without
limitation, any rights to vote upon, consent to or direct any action of Agent
or Lenders shall be suspended and such rights shall not be reinstated unless
and until such default is cured (and all decisions, except the decision to
remove Agent, which are subject to receiving a vote of a required percentage of
Lenders shall be approved if voted in favor of by the required percentage of
the Non-Defaulting Lenders); that if Agent is a Defaulting Lender, Agent shall
continue to have all rights provided for in this Agreement with respect to the
administration of the Loan, unless Requisite Lenders vote to remove and replace
such Agent as provided in Section 11.9.


 


11.13.2    Any or all of the Non-Defaulting Lenders
shall be entitled (but shall not be obligated) to fund the Defaulted Amount,
and collect interest at the Default Rate on the Defaulted Amount from the
Defaulting Lender (after crediting all interest actually paid by Borrower on
the Defaulted Amount from time to time) from amounts otherwise payable to the
Defaulting Lender for the period from the date on which the payment was due
until the date on which payment is made.


 


11.13.3    In the event the Defaulted Amount is funded
by any Non-Defaulting Lenders pursuant to Section 11.13.2, the Defaulting
Lender’s interest in the Loans and Letter of Credit Advances and the Loan
Documents and proceeds thereof shall be subordinated to any Defaulted Amount
funded by any Non-Defaulting Lenders pursuant to Section 11.13.2 plus
interest which may be due in accordance with Section 11.13.2, to be
applied pari passu among the Non-Defaulting Lenders funding the Defaulted
Amount), without necessity for executing any further documents, provided that
such Defaulting Lender’s interest in the Loans and the Loan Documents and the
proceeds thereof shall no longer be so subordinated if the Defaulted Amount
funded by the Non-Defaulting Lenders (and all interest which has accrued
pursuant to Section 11.13.2) shall be repaid in full.


 


11.13.4    To achieve such subordination, (i) Agent
shall deduct from the interest due to the Defaulting Lender on its subordinated
interest in the Loans and Letter of Credit Advances the excess of interest on
the Defaulted Amount at the rate specified in Section 11.13.2 over the
interest actually received from Borrower by the Non-Defaulting Lenders which
funded the Defaulted Amount on account of their portion of the Defaulted Amount
for the same time period and (ii) all amounts received by Agent on account
of principal (or reimbursement for amounts otherwise advanced) which would
otherwise be payable to the Defaulting Lender shall be paid pari passu to the
Non-Defaulting Lenders until the Defaulted Amount and all interest thereon has
been repaid in full.


 


69

















 


11.13.5    Agent or any Lender shall have the right,
with Agent’s consent and in Agent’s sole discretion (but shall have no
obligation) to purchase from any Defaulting Lender, and such Defaulting Lender
agrees that it shall, upon Agent’s request, sell and assign to Agent or such
Lender or Lenders, all of the Commitment of such Defaulting Lender for an
amount equal to the principal balance of the Note held by the Defaulting Lender
and all accrued interest and fees, less any amounts due from the Defaulting
Lender with respect thereto through the date of sale, such purchase and sale to
be consummated pursuant to an executed Assignment and Assumption Agreement.


 


Nothing
contained in this Section 11.13 shall be deemed or construed to waive,
diminish or limit, or prevent or stop any Lender from exercising or enforcing,
any rights or remedies which may be available at law or in equity as a result
of or in connection with any default under this Agreement by a Lender.  In addition, no Lender shall be deemed to be
a Defaulting Lender if such Lender refuses to fund its Pro Rata Share of any
Loan or Letter of Credit Advance being made after any bankruptcy related Event
of Default hereof due to the lack of bankruptcy court approval for such
Advance.


 


11.14                   Ratable Sharing.  The
Lenders, by acceptance of a Note, agree among themselves that with respect to
all amounts received by them which are applicable to the payment of or
reduction of a proportion of the aggregate amount of principal and interest due
with respect to the Notes held by any Lender (whether as a result of the
enforcement of any Loan Document or on foreclosure of any banker’s or other
lien or any setoff or other claim on or against any deposit or other balance of
any Borrower or Guarantor held by any Lender) which is greater than the
proportion received by any other holder of a Note in respect to the aggregate
amount of principal and interest due with respect to the Notes held by it, or
any other amount payable hereunder, such Lender or such holder of a Note
receiving such proportionately greater payments shall notify each other Lender
and Agent of such receipt and remit to them such amounts as are necessary so
that all such recoveries of principal and interest with respect to the Notes
shall be proportionate to the Lenders’ respective Pro Rata Shares.  If any Lender or holder of a Note receiving
such proportionately greater payments is required to return such
proportionately greater payment to any trustee, receiver or other
representative of or for any Borrower upon or by reason of the bankruptcy,
insolvency, reorganization or dissolution of such Borrower, then such other
Lender(s) which received its or their Pro Rata Share of such
proportionately greater payment must also return such amounts to the
appropriate Borrower as if such payment or payments from the Lender receiving
such proportionately greater payments had not been made.  If at the time that the provisions of this Section 11.14
are applied there is any Swing Line Loan outstanding, each Lender’s Pro Rata
Share shall be appropriately adjusted to reflect the existence of such Swing
Line Loan and shall be based on such Lender’s proportionate share of all
then-outstanding Indebtedness.


 


11.15                   Documentation. 
Agent shall deliver to any Lender, in addition to the information
required to be delivered by Agent to Lenders pursuant to this Agreement, copies
of such Loan Documents now or hereafter executed by Borrowers or Guarantor and
other documents delivered by Borrowers to Agent, promptly after receipt of a
written request therefor.


 


ARTICLE XII.

INTENTIONALLY OMITTED.


 


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ARTICLE XIII.

MISCELLANEOUS


 


13.1         Modifications. 
Modifications, waivers or amendments of or to the provisions of this
Agreement or any other Loan Document shall be effective only if set forth in a
written instrument signed by each of the parties to the subject document.


 


13.2         Binding Nature. 
The rights and privileges of Agent and Lenders contained in this
Agreement shall inure to the benefit of their respective successors and
permitted assigns, and the duties of the Borrowers shall bind all successors
and permitted assigns.  All agreements,
representations, warranties and covenants made by the Borrowers herein or in
any of the other Loan Documents shall survive the execution and delivery of
this Agreement and all other documents referred to herein and shall be
continuing as long as any portion of any Indebtedness owed to Lenders hereunder
shall remain outstanding and unpaid.


 


13.3         Governing Law. 
This Agreement shall in all respects be governed by the laws of the
Commonwealth of Pennsylvania.  This
Agreement and all of the other Loan Documents shall be construed as if drafted
equally by all parties hereto.


 


13.4         Time of Performance. 
Time of performance hereunder is of the essence of this Agreement.


 


13.5         Severability. 
If any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this Agreement
shall be construed as if the invalid or unenforceable provision had never been
a part of it.


 


13.6         Captions.  The
descriptive headings hereof are for convenience only and shall not in any way
affect the meaning or construction of any provision hereof.


 


13.7         Computations. 
Except as otherwise expressly stated herein, all computations required
herein shall be made by the application of generally accepted accounting
principles and practices applied on a consistent basis.


 


13.8         Continuing Obligation.  If any claim is ever made upon any Lender for
the repayment or return of any money or property received by such Lender from
any Borrower in payment of the Loan or any other Obligation and such Lender
repays or returns all or part of said money or property by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such Lender or any of its property or (ii) any
settlement or compromise of any such claim accomplished by such Lender with
such claimant, then in such event Borrowers agree that any such judgment,
decree, settlement or compromise shall be binding upon Borrowers,
notwithstanding any termination hereof or the cancellation of any note or other
instrument evidencing any liability to such Lender, and the Borrowers shall be
and shall remain liable to such Lender hereunder for the amount so repaid or
the value of the property returned to the same extent as if such had never
originally been received by such Lender. 
Borrowers agree that no Lender shall have any duty or affirmative
obligation to defend against such claim and may object to or pay such claim in
its sole discretion without impairing or relinquishing the obligations of
Borrowers hereunder.  This Section 13.8
shall survive the termination of this Agreement.


 


71

















 


13.9                           Assignment
and Participation.


 


13.9.1                Successors and
Assigns Generally.  The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that no Borrower or Guarantor may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of Section 13.9.2, (ii) by
way of participation in accordance with the provisions of paragraph (d) of
Section 13.9.4 or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 13.9.6 (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 13.9.4 and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


13.9.2                Assignments by
Lenders.  Any Lender may at any time
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided that any such assignment shall
be subject to the following conditions:


 


13.9.2.1                                       Minimum
Amounts.


 


(i)                       in the case
of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans and Letter of Credit Advances at the time owing to it
or in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and


 


(ii)                    in any case
not described in Section 13.9.2.1(i), the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the applicable Commitment is not then in effect, the principal outstanding
balance of the Loans or Letter of Credit Advances of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of
the Trade Date) shall not be less than $10,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).


 


13.9.2.2                                         Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loan,
Letter of Credit Advances or the Commitment assigned.


 


13.9.2.3                                         Required
Consents.  No consent shall be
required for any assignment except to the extent required by Section 13.9.2.1
or this Section 13.9.2.3 and, in addition:


 


72

















 


(i)        the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless (x) an
Event of Default has occurred and is continuing at the time of such assignment
or (y) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;


 


(ii)       the consent of the Administrative Agent
(such consent not to be unreasonably withheld or delayed) shall be required for
assignments in respect of a Loan, Letter of Credit Advance or Commitment if
such assignment is to a Person that is not a Lender with a Commitment, an
Affiliate of such Lender or an Approved Fund with respect to such Lender; and


 


(iii)      the consent of the Issuer (such consent
not to be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then outstanding).


 


13.9.2.4                                         Assignment
and Assumption.  The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500, and
the assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.


 


13.9.2.5                                         No
Assignment to Borrower.  No such
assignment shall be made to any Borrower or Guarantor or any of the Borrowers’
or Guarantor’s Affiliates.


 


13.9.2.6                                         No
Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


 


Subject to acceptance and recording thereof
by Agent pursuant to Section 13.9.1, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 2.16, 2.17 and 13.15 hereof
with respect to facts and circumstances occurring prior to the effective date
of such assignment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with Section 13.9.4.


 


13.9.3                Register.  Agent, acting solely for this purpose as an
agent of Borrowers, shall maintain at its office in Charlotte, North Carolina,
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and Letter of Credit Advances owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and Borrowers, Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender 


 


73

















 


hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


13.9.4      Participations.  Any Lender may at any time, without the
consent of, or notice to, Borrowers or Agent, sell participations to any Person
(other than a natural person or Guarantor, a Borrower or any of Guarantor’s
Affiliates) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans and
Letter of Credit Advances owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) Borrowers, Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of Participant, agree to any amendment, modification or waiver
described in Section 11.10 that requires the consent of all Lenders, that
affects such Participant.  Subject to Section 13.9.5,
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17 and 13.15 hereof to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 13.9.1.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.14 as
though it were a Lender, provided such Participant agrees to be subject to Section 11.14
as though it were a Lender.


 


13.9.5      A Participant shall not be entitled to
receive any greater payment under Sections 2.16 or 2.17 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with Master Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16
unless Master Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of Borrowers, to
comply with Section 2.16 as though it were a Lender.


 


13.9.6      Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a
party hereto.


 


13.10                   Notices.


 


13.10.1    Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in Section 13.10.4), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier to the addresses set forth below:


 


74














 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Bank of America, NA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Sean
  Finnegan

  
	
   

  	
   

  	
  Name:
  Sean Finnegan

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  4 Sentry
  Parkway, Suite 200

  
	
   

  	
  Blue
  Bell, PA 19422

  
	
   

  	
  Attn:
  Sean Finnegan, Senior Vice President

  
	
   

  	
  Fax:
  610-825-3328

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Sovereign Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Ernest
  J. Kociban

  
	
   

  	
   

  	
  Name:
  Ernest J. Kociban

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  Sovereign
  Bank

  
	
   

  	
  Two
  Aldwyn Center

  
	
   

  	
  Route
  320 and Lancaster Ave.

  
	
   

  	
  Villanova,
  PA 19085

  
	
   

  	
  Fax:
  610-526-6201

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANUFACTURERS AND TRADERS TRUST

  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bernard
  T. Shields

  
	
   

  	
   

  	
  Name:
  Bernard T. Shields

  
	
   

  	
   

  	
  Title:
  Vice President

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [LEGAL NAME OF BANK ENTITY WITH

  COMMITMENT] FIRSTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Gary S.
  Kinn

  
	
   

  	
   

  	
  Name:
  Gary S. Kinn

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  15 East
  Ridge Pike

  
	
   

  	
  Conshohocken,
  PA 19428

  
	
   

  	
  Attn: G.
  Kinn

  
	
   

  	
  Fax:
  610-238-5065

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Guaranty Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Linda
  Garcia

  
	
   

  	
   

  	
  Name:
  Linda Garcia

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  8333
  Douglas Avenue

  
	
   

  	
  Dallas,
  Texas 75225

  
	
   

  	
   

  
	
   

  	
  Attn:
  Linda Garcia

  
	
   

  	
  Fax:
  (214) 360-2624

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIZENS BANK OF PENNSYLVANIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bruce G.
  Shearer

  
	
   

  	
   

  	
  Name:
  Bruce G. Shearer

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  525
  William Penn Place, Suite 153-2720

  
	
   

  	
  Pittsburgh,
  PA 15219-1727

  
	
   

  	
  Attn:
  Bruce G. Shearer

  
	
   

  	
  Fax:
  412-867-2463

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TD Bank, N.A.

  
	
   

  	
  as
  successor to Commerce Bank, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Robert
  E. Delany

  
	
   

  	
   

  	
  Name:
  Robert E. Delany

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  1701
  Route 70 East

  
	
   

  	
  Cherry
  Hill, New Jersey 08034

  
	
   

  	
   

  
	
   

  	
  Attn:
  Robert E. Delany

  
	
   

  	
  Fax:
  (856) 533-2046

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SunTrust Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Lauren
  P. Carrigan

  
	
   

  	
   

  	
  Name:
  Lauren P. Carrigan

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  303
  Peachtree Street, NE

  
	
   

  	
  9th
  Floor

  
	
   

  	
  Atlanta,
  GA 30308

  
	
   

  	
  Attn:
  Lauren P. Carrigan

  
	
   

  	
  Fax:
  (404) 374-3875

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Regions Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Daniel
  McClurkin

  
	
   

  	
   

  	
  Name:
  Daniel McClurkin

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  1900 5th
  Avenue North, RC-15

  
	
   

  	
  Birmingham,
  Alabama

  
	
   

  	
  35203

  
	
   

  	
   

  
	
   

  	
  Attn:
  Daniel McClurkin

  
	
   

  	
  Fax:
  205-801-0138

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Laura L.
  Benson

  
	
   

  	
   

  	
  Name:
  Laura L. Benson

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  500
  Woodward Avenue, MC 3205

  
	
   

  	
  Detroit,
  MI 48226

  
	
   

  	
  Attn:
  Laura L. Benson

  
	
   

  	
  Fax:
  313-222-5706

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPASS BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Johanna
  Duke Paley

  
	
   

  	
   

  	
  Name:
  Johanna Duke Paley

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  15 South
  20th Street, 15th Floor

  
	
   

  	
  Birmingham,
  AL 35223

  
	
   

  	
  Attn: Jo
  Paley

  
	
   

  	
  Fax:
  (205) 297-7212

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. Morgan Chase Bank, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Randall
  B Durant

  
	
   

  	
   

  	
  Name:
  Randall B Durant

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  PO Box
  660197

  
	
   

  	
  Dallas,
  Texas 75266-0197

  
	
   

  	
  Overnite
  – 700 North Pearl, Suite 801,

  
	
   

  	
  Dallas,
  Texas 75201

  
	
   

  	
  Attn:
  Randall B Durant

  
	
   

  	
  Fax:
  214-965-2087

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Sean
  Finnegan

  
	
   

  	
   

  	
  Name:
  Sean Finnegan

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
  4 Sentry
  Parkway, Suite 200 Blue Bell, PA 19422

  
	
   

  	
  Attn: Sean
  Finnegan, Senior Vice President

  
	
   

  	
  Fax:
  610-825-3328

  



 

















 


	
   

  	
  LENDER SIGNATURE PAGE TO SECOND

  AMENDED AND RESTATED REVOLVING

  CREDIT LOAN AGREEMENT WITH

  GREENWOOD FINANCIAL, INC. AS

  MASTER BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  
	
   

  	
  AMERICAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  David J
  Bell

  	
   

  	
  Silvia
  L. Spear

  
	
   

  	
   

  	
  Name: David
  J Bell

  	
   

  	
  Silvia
  L. Spear

  
	
   

  	
   

  	
  Title:
  Managing Director

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Deutsche
  Bank Trust Company Americas

  
	
   

  	
  60 Wall
  Street – MS: NYC60 – 1120

  
	
   

  	
  New
  York, New York 10005

  
	
   

  	
  Attn:
  David J Bell

  
	
   

  	
  Fax:
  (212) 797-5695

  
	
   

  	
  E-mail: david.j.bell@db.com