REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (the "Agreement") is made and
dated as of the 15th day of April, 1998, by and among the lenders signatory
hereto (collectively, the "Lenders"); ROYAL BANK OF CANADA ("RBC"), as lead
administrative agent for the Lenders (in such capacity, the "Lead Administrative
Agent"); THE BANK OF NEW YORK ("BNY"), as co-administrative agent (in such
capacity, the "Co-Administrative Agent"); XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK ("MGTC"), as syndication agent (in such capacity, the "Syndication Agent");
CREDIT LYONNAIS, SAN XXXXXXXXX XXXXXX ("CL"), as documentation agent (in such
capacity, the "Documentation Agent"); RBC, as arranger (in such capacity, the
"Arranger"), BNY, MGTC and CL, as co-arrangers (in such capacity, the
"Co-Arrangers"); the Lenders acting as co-agents, as indicated on the signature
pages hereof (in such capacity, the "Co-Agents"); and COUNTRYWIDE HOME LOANS,
INC., a New York corporation (the "Company").
RECITALS
A. The Company has requested that the Lenders extend credit to
the Company in the form of a short term, unsecured revolving credit facility and
that the Lead Administrative Agent, the Co-Administrative Agent, the Syndication
Agent, the Documentation Agent, the Arranger, the Co-Arrangers and the Co-Agents
agree to act in such capacities with respect thereto.
B. The Lenders and such other Persons have agreed to do so on
the terms and subject to the conditions set forth more particularly herein.
NOW, THEREFORE, in consideration of the above Recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Credit Facilities.
1(a) Primary Facility. On the terms and subject to the conditions set forth
herein, each of the Lenders severally agrees that it shall, from time to time to
but not including the Maturity Date, advance its respective Primary Percentage
Share of loans (the "Primary Loans" or a "Primary Loan") to the Company in
amounts not to exceed in the aggregate at any date outstanding the Aggregate
Credit Limit minus the aggregate dollar amount of Swing Loans outstanding on
such date (including Swing Loans to be funded on such date but excluding Swing
Loans to be repaid on
such date).
1(b) Swing Loan Facility. On the terms and subject to the conditions set forth
herein, each of the Swing Line Lenders severally agrees that it shall, from time
to time to but not including the Maturity Date, advance its respective Swing
Line Percentage Share of loans (the "Swing Loans" or a "Swing Loan") to the
Company in amounts such that the aggregate amount of Swing Loans outstanding
does not exceed at any date the lesser of:
(1) The Aggregate Swing Line Commitment; and (2) The Aggregate Credit Limit
minus the aggregate dollar amount of Primary Loans outstanding on such date
(including Primary Loans to be funded on such date and excluding Primary Loans
to be repaid on such date).
At the request of any Swing Line Lender, made through the Lead Administrative
Agent at any time and from time to time, including, without limitation,
following the occurrence of an Event of Default, each Lender (including each of
the Swing Line Lenders) absolutely and unconditionally agrees to refund Swing
Loans held by the Swing Line Lenders by advancing its Primary Percentage Share
thereof to the Lead Administrative Agent for disbursement to the Swing Line
Lenders pro rata, in accordance with their respective Swing Line Percentage
Shares. Such fundings shall be made no later than 12:00 noon (Los Angeles time)
on the date request therefor is made if such request is made on or before 11:00
a.m. (Los Angeles time) on such date, and no later than 12:00 noon (Los Angeles
time) on the next succeeding Business Day if request therefor is made after
11:00 a.m. (Los Angeles time). Advances made by the Lenders hereunder for the
purpose of refunding Swing Loans shall, for all purposes of the Credit
Documents: (i) constitute Primary Loans to the extent of such Lender's Primary
Percentage Share thereof, and (ii) be advanced as Alternate Base Rate Loans. In
the event, for whatever reason, the Lenders are not able to advance their
respective Primary Percentage Shares for the purpose of refunding Swing Loans as
required hereunder, then each of the Lenders (including each of the Swing Line
Lenders) absolutely and unconditionally agrees to purchase and take from the
Swing Line Lenders on demand an undivided participation interest in Swing Loans
outstanding in an amount equal to their respective Primary Percentage Shares of
such Swing Loans. Notwithstanding anything contained herein, in no event shall
any Lender be required to advance its Primary Percentage Share of any Swing Loan
or to purchase any undivided participation interest in any Swing Loan: a. unless
such Swing Loan was initially made in accordance with the requirements of this
Agreement (as such requirements may be amended or waived from time to time as
permitted hereunder) or b. if upon such advance or purchase the aggregate dollar
amount of Primary Loans and Swing Loans held by such Lender would exceed such
Lender's Maximum Commitment.
2. Requests for Loans; Funding.
2(a) Requests for Loans. Subject to the advance notice required with respect to
Eurodollar Loans pursuant to Paragraph 4(a) below, on any Business Day that the
Company desires to borrow Loans, it shall deliver a Loan Request, Interest Rate
Election and Payoff Notice to the Lead Administrative Agent no later than: (1)
in the case of Primary Loans, 10:00 a.m. (Los Angeles time) on such date, and
(2) in the case of Swing Loans, 11:00 a.m. (Los Angeles time) on such date;
provided, however, that in the event the Lead Administrative Agent receives a
request for a Swing Loan after 11:00 a.m. (Los Angeles time) on a Business Day,
the Lead Administrative Agent shall work with the Swing Line Lenders on a best
efforts basis with a view toward funding the requested Swing Loans no later than
1:00 p.m. (Los Angeles time) on such date, the Company expressly acknowledging
and agreeing that there is no assurance that any such funding can be provided.
Only one Loan Request, Interest Rate Election and Payoff Notice requesting
Primary Loans and only one Loan Request, Interest Rate Election and Payoff
Notice requesting Swing Loans shall be submitted to the Lead Administrative
Agent on any date. Any request for Primary Loans shall be in such amount that
the aggregate dollar amount of Primary Loans which the Lenders are required to
actually newly fund with respect thereto is not less than $5,000,000.00, and any
request for Swing Loans shall be in an amount not less than $1,000,000.00. On
each Business Day on which a Loan Request, Interest Rate Election and Payoff
Notice is delivered to the Lead Administrative Agent, the Lead Administrative
Agent shall notify the applicable Lenders (which notification may be telephonic
and, if telephonic, shall be promptly confirmed in writing) no later than 11:00
a.m. (Los Angeles time) or in the case of a Swing Loan, 11:30 a.m. (Los Angeles
time)) of the aggregate amount of Loans which will be funded on such date. 2(b)
Funding of Loans. Loans requested pursuant to any Loan Request, Interest Rate
Election and Payoff Notice shall be funded as follows: (1) Each Lender shall
make its Primary Percentage Share of Primary Loans available by wiring the
amount thereof in immediately available same day (including Federal) funds, to
the Funding Account no later than 12:30 p.m. (Los Angeles time) on the proposed
funding date; and (2) Each Swing Line Lender shall make its Swing Line
Percentage Share of each Swing Loan available by wiring the amount thereof in
immediately available same day (including Federal) funds to the Funding Account
no later than 2:00 p.m. (Los Angeles time) on the proposed funding date. 2(c)
Funding Method. Each Lender shall be entitled to fund all or any portion of its
Primary Percentage Share of Primary Loans and refund its Primary Percentage
Share of Swing Loans, and each Swing Lender shall be entitled to fund all or any
portion of its Swing Line Percentage Share of Swing Loans in any manner it may
determine in its sole discretion, including, without limitation, in the Grand
Cayman inter-bank market, the eurocurrency inter-bank market and within the
United States, but all calculations and transactions hereunder shall be
conducted as though all Lenders actually fund Eurodollar Loans funded by them
hereunder through the purchase of offshore dollar deposits in such amounts with
maturities corresponding to the applicable Interest Periods. 3. Payment of
Principal; Prepayments. 3(a) Required Principal Payments. Subject to the
provisions of Paragraph 3(b) below, the Company shall pay to the Lead
Administrative Agent for the account of the Lenders, the unpaid principal
balance of each Eurodollar Loan on the last day of the applicable Interest
Period and the unpaid principal balance of each Primary Loan which is an
Alternate Base Rate Loan and each Swing Loan on the Maturity Date. 3(b)
Prepayments. The Company: (1) May voluntarily prepay Loans in whole or in part
at any time; provided, however, that any prepayment shall be accompanied by
accrued but unpaid interest on the Loan or portion thereof being prepaid. (2)
Shall pay in connection with any prepayment hereunder any amount payable on
account thereof pursuant to Paragraph 4(e) below concurrently with such
prepayment. 4. Calculation and Payment of Interest; Related Provisions. 4(a)
Interest on Primary Loans. (1) The Company shall pay interest to each Lender on
such Lender's Primary Percentage Share of Primary Loans outstanding calculated,
at the election of the Company made from time to time as permitted herein and
set forth on a duly executed Loan Request, Interest Rate Election and Payoff
Notice, at either: (i) the Alternate Base Rate, and/or (ii) the Applicable
Eurodollar Rate. Primary Loans bearing interest at the Alternate Base Rate shall
be referred to herein as "Alternate Base Rate Loans"; and Primary Loans bearing
interest at the Applicable Eurodollar Rate shall be referred to herein as
"Eurodollar Loans". (2) The Company may elect from time to time to convert
Primary Loans from Eurodollar Loans to Alternate Base Rate Loans or to have
Primary Loans funded as Alternate Base Rate Loans by giving the Lead
Administrative Agent irrevocable notice of such election as set forth on a duly
executed Loan Request, Interest Rate Election and Payoff Notice delivered on the
proposed conversion or funding date; provided, however, that any conversion of
Eurodollar Loans may only be made on the last day of the applicable Eurodollar
Interest Period. The Company may elect from time to time to convert Primary
Loans from Alternate Base Rate Loans to Eurodollar Loans or to have Primary
Loans funded as Eurodollar Loans by giving the Lead Administrative Agent at
least three Eurodollar Business Days' prior irrevocable notice of such election
by delivery of a duly executed Loan Request, Interest Rate Election and Payoff
Notice. Upon receipt of any such notice, the Lead Administrative Agent shall
promptly notify each of the Lenders thereof. No Primary Loan shall be funded as
or converted into a Eurodollar Loan if an Event of Default or Potential Default
has occurred and is continuing on the day occurring two Business Days prior to
the date of the funding or conversion requested by the Company. (3) Any
Eurodollar Loan may be continued as such upon the expiration of the Interest
Period applicable thereto by giving the Lead Administrative Agent (which shall
notify the Lenders) at least three Eurodollar Business Days' prior irrevocable
notice of such election as set forth on a duly executed Loan Request, Interest
Rate Election and Payoff Notice; provided, however, that no Eurodollar Loan may
be continued as such when any Event of Default or Potential Default has occurred
and is continuing, but shall be automatically converted to an Alternate Base
Rate Loan on the last day of the then current Interest Period applicable
thereto. The Lead Administrative Agent shall notify the Lenders and the Company
promptly that such automatic conversion will occur. If the Company shall fail to
give notice as provided above, the Company shall be deemed to have elected to
convert the affected Eurodollar Loan to an Alternate Base Rate Loan on the last
day of the Interest Period applicable thereto. (4) The Lead Administrative Agent
shall give prompt written notice (or notice by telephone immediately confirmed
in writing) to the Company and the Lenders of the applicable interest rate
determined by the Lead Administrative Agent. (5) Under no circumstances shall
the Lenders be required to make or maintain Eurodollar Loans under this
Agreement with more than an aggregate number of eight (8) different Interest
Periods. 4(b) Interest on Swing Loans. The Company shall pay interest to each
Swing Line Lender on such Swing Line Lender's Swing Line Percentage Share of
Swing Loans outstanding from the date advanced to but not including the date of
payment thereof at the Applicable Fed Funds Rate. 4(c) Payment of Interest. The
Company shall pay interest, in each case as more specifically provided in
Paragraph 5(d) below: (1) On Alternate Base Rate Loans and Swing Loans, monthly,
in arrears, on the fifth day of each month for the period from and including the
first day of the immediately preceding month to and including the last day of
such month; and (2) On Eurodollar Loans on the last day of the applicable
Eurodollar Interest Period relating thereto. 4(d) Inability to Determine Rate.
In the event that the Lead Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that by reason
of circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for any given
Eurodollar Interest Period, the Lead Administrative Agent shall forthwith give
notice (which may be telephonic and promptly confirmed in writing or by
facsimile transmission) of such determination to each Lender and to the Company
at least two Eurodollar Business Days prior to, as the case may be, the
conversion date of an Alternate Base Rate Loan to a Eurodollar Loan or the
proposed funding or continuation date of a Primary Loan as a Eurodollar Loan. If
such notice is given: (1) any Primary Loan that was to have been converted to or
funded as a Eurodollar Loan shall, subject to the provisions hereof, be
continued or funded as an Alternate Base Rate Loan, and (2) any outstanding
Eurodollar Loan shall be converted, on the last day of the then current Interest
Period with respect thereto, to an Alternate Base Rate Loan. Until such notice
has been withdrawn by the Lead Administrative Agent, the Company shall not have
the right to convert a Primary Loan to or fund or continue a Primary Loan as a
Eurodollar Loan. 4(e) Funding Indemnification. In addition to all other payment
obligations hereunder, in the event: (1) any Eurodollar Loan is prepaid prior to
the last day of the applicable Eurodollar Interest Period, whether following
acceleration upon the occurrence of an Event of Default or otherwise, including,
without limitation, pursuant to Paragraphs 14(a), 14(b) and 14(c) below, or (2)
the Company shall fail to make a conversion into or a borrowing as a Eurodollar
Loan after the Company has given notice thereof as provided in Paragraph 4(a)(2)
above, or (3) the Company shall fail to continue any Eurodollar Loan which it
has elected to have continued as a Eurodollar Loan, or (4) the Company shall
fail to make any payment of principal or interest on any Loan when due, then the
Company shall immediately pay to each of the affected Lenders, through the Lead
Administrative Agent, an additional amount compensating such Lender for all
losses, costs and expenses incurred by such Lender in connection therewith,
including, without limitation, such as may arise out of the re-employment of
funds obtained by such Lender or from fees payable to terminate the deposits
from which such funds were obtained, such losses, costs and expenses and the
method of calculation thereof being set forth in reasonable detail in a
statement delivered to the Company by such Lender, such statement to be
conclusive in the absence of manifest error. Under no circumstances shall any
Lender have any obligation to remit monies to the Company upon prepayment of any
Eurodollar Loan, even under circumstances which do not result in the necessity
for the payment by the Company of any amount hereunder. The provisions hereof
shall survive termination of this Agreement and payment of the outstanding Loans
and all other Obligations. 4(f) Illegality; Impracticality. Notwithstanding any
other provisions herein, if any law, regulation, treaty or directive or any
change therein or in the interpretation or application thereof shall or may in
the opinion of any Lender make it unlawful or impractical for such Lender to
make or maintain Eurodollar Loans: (1) the commitment of such Lender hereunder
to make, continue or convert into Eurodollar Loans shall forthwith be cancelled
and (2) such Lender's Primary Percentage Share of Loans outstanding as
Eurodollar Loans, if any, shall be converted automatically to Alternate Base
Rate Loans at the end of their respective Eurodollar Interest Periods or within
such earlier period as required by law. In the event of a conversion of any
Eurodollar Loan prior to the end of its applicable Eurodollar Interest Period
the Company hereby agrees promptly to pay each Lender, upon its written demand,
the amounts required pursuant to Paragraph 4(e) above, it being agreed and
understood that such conversion shall constitute a prepayment for all purposes
hereof. The provisions hereof shall survive the termination of this Agreement
and payment of the outstanding Loans and all other Obligations. 4(g)
Requirements of Law; Increased Costs. In the event that a change subsequent to
the date hereof in any applicable law, regulation, treaty or directive or in the
governmental or judicial interpretation or application thereof, or compliance by
any Lender with any request or directive (whether or not having the force of
law) issued subsequent to the date hereof by any central bank or other
governmental authority, agency or instrumentality: (1) Does or shall subject any
Lender to any tax of any kind whatsoever with respect to this Agreement or any
Loans purchased or made hereunder, or changes the basis of taxation of payments
to such Lender of principal, fees, interest or any other amount payable
hereunder (except for changes in the rate of tax on the overall net income of
such Lender); (2) Does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, advances or loans by,
or other credit extended by, or any other acquisition of funds by, any office of
such Lender which are not otherwise included in the determination of the
Alternate Base Rate or the Applicable Eurodollar Rate; or (3) Does or shall
impose on such Lender any other condition; and the result of any of the
foregoing is to increase the cost to such Lender of purchasing, making, agreeing
to make, renewing or maintaining or issuing any Loan or to reduce any amount
receivable in respect thereof then, in any such case, the Company shall promptly
pay to such Lender, upon its written demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amounts receivable as
determined by such Lender with respect to this Agreement or such credit
extensions. If a Lender becomes entitled to claim any additional amounts
pursuant to this Paragraph 4(g), it shall promptly notify the Company of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by a
Lender to the Company shall be conclusive in the absence of manifest error. The
obligations of the Company under this Paragraph 4(g) shall survive the
termination of this Agreement and the payment of all other Obligations. 4(h)
Taxes. (1) All payments made by the Company, the Lead Administrative Agent and
the Lenders on account of the Obligations shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the Lenders,
net income taxes and franchise taxes (imposed in lieu of net income taxes),
imposed on the Lenders, as the case may be, as a result of a present or former
connection between the jurisdiction of the government or taxing authority
imposing such tax, or any political subdivision or taxing authority thereof or
therein, and such Lender (other than a connection arising solely from such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, the Credit Documents) (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to any Lender under the Credit Documents, the amounts so payable
by the Company to the Lead Administrative Agent for the benefit of such Lender
shall be increased to the extent necessary to yield to such Lender (after
payment of all Taxes) interest or any such other amounts payable thereunder at
the rates or in the amounts specified in the Credit Documents. Whenever any
Taxes are payable by the Company or on behalf of the Company, as promptly as
possible thereafter the Company shall send to the Lead Administrative Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Company showing
payment thereof. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Lead Administrative Agent
the required receipts or other required documentary evidence, the Company shall
indemnify the Lead Administrative Agent and such Lender for any incremental
taxes, interest or penalties that may become payable by the Lead Administrative
Agent and the Lenders as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
all other Obligations. Each Lender by executing this Agreement represents and
warrants to the Company and the Lead Administrative Agent that at the date of
this Agreement no Taxes are imposed upon such Lender which would result in
increased liability of the Company to such Lender pursuant to this Paragraph
4(h)(1). (2) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to the Company
and the Lead Administrative Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the
case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Lender also agrees to deliver to the Company and the
Lead Administrative Agent two further copies of the said Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms or other manner of certification,
as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company, and such extensions or
renewals thereof as may reasonably be requested by the Company or the Lead
Administrative Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Company and the Lead Administrative Agent. Such Lender shall certify (y) in the
case of a Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes and (z) in the case of a Form W-8 or W-9, that it is entitled to an
exemption from United States backup withholding tax. 4(i) Buy-Down Provisions.
Notwithstanding anything contained in this Agreement, the Company and any
individual Lender (as used in this Paragraph 4(i), a "Buy-Down Lender") may
notify the Lead Administrative Agent in writing that the Company and such
Buy-Down Lender have entered into a Buy-Down Agreement with respect to all or a
portion of the Loans from time to time outstanding held by such Buy-Down Lender
(the Loans held by such Buy-Down Lender which are subject to a Buy-Down
Agreement being referred to herein as "Buy-Down Rate Loans"), and that, pursuant
to said Buy-Down Agreement, the interest rate otherwise applicable to the
Buy-Down Rate Loans during any interest calculation period shall be reduced to
the Buy-Down Rate and the interest otherwise payable by the Company to such
Buy-Down Lender during such interest calculation period shall be reduced
accordingly. Interest payable to such Buy-Down Lender with respect to Buy-Down
Rate Loans shall be billed as provided in Paragraph 5(d) below. In no event
shall the Lead Administrative Agent have any obligation or duty to verify the
amount of any Buy-Down Deposits supporting the pricing of Buy-Down Rate Loans
held by any Buy-Down Lender or the amount of any interest billing with respect
thereto. Any deficiency fees payable to such Buy-Down Lender by the Company
under the applicable Buy-Down Agreement shall be billed by such Buy-Down Lender
to the Company directly. Any Buy-Down Lender may elect not to make demand for
the payment of deficiency fees accruing in respect of Buy-Down Deposits from
time to time and it is expressly agreed and understood that: (1) any such
deficiency fee shall not, by reason of such failure of such Buy-Down Lender or
otherwise, be deemed to have been waived by such Buy-Down Lender (except as such
waiver is expressly acknowledged in writing by such Buy-Down Lender from time to
time), and (2) all deficiency fees accrued and unpaid hereunder and not so
expressly waived, whether or not previously declared due and owing by any such
Buy-Down Lender, shall automatically be due and payable in full upon the
Maturity Date. 4(j) Obligation of Lenders to Mitigate; Replacement of Lenders.
Each Lender agrees that: (1) As promptly as practicable after the officer of
such Lender responsible for administering the Loans of such Lender becomes aware
of any event or condition that would entitle such Lender to receive payments
under Paragraph 4(g) above or to cease making Eurodollar Loans pursuant to
Paragraph 4(f) above, such Lender will use reasonable efforts (i) to make,
issue, fund or maintain the affected Loans of such Lender through another
lending office of such Lender or (ii) take such other measures as such Lender
may deem reasonable, if as a result thereof the additional amounts which would
otherwise be required to be paid to such Lender pursuant to Paragraph 4(g) above
would be materially reduced or eliminated or the conditions rendering such
Lender incapable of making Eurodollar Loans under Paragraph 4(f) above no longer
would be applicable, and if, as determined by such Lender in its sole
discretion, the making, issuing, funding or maintaining such Loans through such
other lending office or in accordance with such other measures, as the case may
be, would not otherwise materially adversely affect such Loans or the interests
of such Lender. (2) If the Company receives a notice pursuant to Paragraph 4(g)
above or a notice pursuant to Paragraph 4(f) above stating that a Lender is
unable to extend Eurodollar Loans (for reasons not generally applicable to the
Majority Lenders), so long as (i) no Potential Default or Event of Default shall
have occurred and be continuing, (ii) the Company has obtained a commitment from
another Lender or another financial institution reasonably acceptable to the
Lead Administrative Agent to purchase at par such Lender's Loans, Maximum
Commitment and accrued interest and fees and to assume all obligations of the
Lender to be replaced under the Credit Documents, and (iii) such Lender to be
replaced is unwilling to withdraw the notice delivered to the Company, upon
thirty (30) days' prior written notice to such Lender and the Lead
Administrative Agent and payment of any amounts due under Paragraph 4(g) above,
the Company may require, at the Company's expense and subject to Paragraph 4(e)
above, the Lender giving such notice to assign, without recourse, all of its
Loans, Maximum Commitment and accrued interest and fees to such other Lender or
financial institution pursuant to the provisions of Paragraph 14 below. 5.
Miscellaneous Lending Provisions. 5(a) Use of Proceeds. The proceeds of Loans
shall be utilized by the Company for general corporate purposes, including,
without limitation, repayment of Indebtedness of the Company to the Parent
permitted to be repaid by the Company to the Parent pursuant to the terms of the
Credit Documents and including CPNs. 5(b) Assumption of Funding/Purchase. The
Lead Administrative Agent may (but shall not be obligated to) assume that each
Lender has advanced its Primary Percentage Share of Primary Loans and that each
Swing Line Lender has advanced its Swing Line Percentage Share of Swing Loans
required to be funded by such Lender hereunder on the funding date therefor and
may, in reliance upon such assumption, make available to the Company on such
date a corresponding amount. If and to the extent any Lender shall not have so
made such amounts available, such Lender and the Company jointly and severally
agree to repay to the Lead Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Lead Administrative Agent, at, in the case of the Company, the
interest rate applicable at the time to the subject Loan and, in the case of the
Lenders, the Federal Funds Effective Rate. If such Lender shall repay to the
Lead Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Primary Percentage Share or Swing Line Percentage
Share, as applicable, of the subject Loan, as applicable for all purposes of the
Credit Documents. Nothing contained herein shall affect the liability of any
Lender for its failure to make its Primary Percentage Share of Primary Loans or
its Swing Line Percentage Share of Swing Loans available to the Company as
required pursuant to this Agreement and the other Credit Documents. 5(c)
Evidence of Indebtedness. The obligation of the Company to repay Loans shall be
evidenced by notations on the books and records of the Lead Administrative Agent
and the Lenders. Such accounts shall be conclusive absent manifest error. Any
failure to record the advance of any Loan, the interest rate applicable thereto
or any other information regarding the Obligations, or any error in doing so,
shall not limit or otherwise affect the obligation of the Company with respect
to any of the Obligations. Upon the request of any Lender, the Company shall
promptly execute a promissory note or promissory notes in favor of such Lender
evidencing the Obligations held by such Lender hereunder. 5(d) Interest and Fee
Billing and Payment. The Lead Administrative Agent shall: (1) On or before the
first Business Day of each month notify the Company (which notification may be
telephonic) of the estimated amount of interest payable with respect to
Alternate Base Rate Loans and Swing Loans as of the fifth day of the current
month for the period from and including the first day of the immediately
preceding month to and including the last day of such month, with the actual
amount confirmed by notification by the Lead Administrative Agent to the Company
(which notification may be telephonic and which, if telephonic, shall be
promptly confirmed in writing) given no later than 9:00 a.m. (Los Angeles time)
on the due date of payment thereof; (2) On the last day of the Interest Period
for each Eurodollar Loan notify the Company (which notification may be
telephonic and which, if telephonic, shall be promptly confirmed in writing) of
the amount of interest payable on such date on account thereof; (3) On or before
the first Business Day of the first month of each calendar quarter notify the
Company (which notification may be telephonic) of the amount of facility fees
payable pursuant to the Fee Letter on the fifth day of such month for the period
from and including the first day of the first month of the immediately preceding
calendar quarter to and including the last day of such calendar quarter, with
the actual amount confirmed by notification by the Lead Administrative Agent to
the Company (which notification may be telephonic and which, if telephonic,
shall be promptly confirmed in writing) given no later than 9:00 a.m. (Los
Angeles time) on the due date of payment thereof; and (4) From time to time upon
the request of any Lender, deliver to the Company a funding indemnification
billing for amounts payable to such Lender pursuant to Paragraph 4(e) above or a
billing for amounts payable to such Lender pursuant to Paragraphs 4(g), 4(h) and
4(i) above and Paragraph 5(l) below. The Company shall pay the full amount of
interest and fees of which it has been notified pursuant to subparagraphs (1)
and (3) above on the fifth day of each month, shall pay the full amount of
interest of which it has been notified pursuant to subparagraph (2) above on the
date such notification is given and shall pay the full amount of each billing
delivered to it pursuant to subparagraph (4) above within five Business Days
thereafter. Interest payable with respect to Buy-Down Loans prior to the
occurrence of an Event of Default and acceleration of the Obligations shall be
billed to the Company directly by each Buy-Down Lender in accordance with the
timeframes set forth in subparagraph (1) above, and the Company shall pay the
full amount of interest due on Buy-Down Loans directly to such Buy-Down Lender
on the fifth day of each month. Following the occurrence of an Event of Default
and acceleration of the Obligations, interest payable on all Loans shall be
billed through the Lead Administrative Agent. 5(e) Nature and Place of Payments.
Except as otherwise expressly provided in the Credit Documents, all payments
made on account of the Obligations shall be made to the Lead Administrative
Agent at the Contact Office for distribution to the Lenders, as the Company
shall, subject to Paragraph 5(h) below, direct pursuant to a Loan Request,
Interest Rate Election and Payoff Notice, without set-off or counterclaim in
lawful money of the United States of America in immediately available same day
funds, and must be received by the Lead Administrative Agent accompanied by a
Loan Request, Interest Rate Election and Payoff Notice at the Contact Office by
11:30 a.m. (Los Angeles time) on the day of payment, it being expressly agreed
and understood that if a payment is received after 11:30 a.m. (Los Angeles time)
by the Lead Administrative Agent or the Lead Administrative Agent does not
receive a Loan Request, Interest Rate Election and Payoff Notice therefor, such
payment will be considered to have been made on the next succeeding Business Day
or such later date as the Lead Administrative Agent receives the Loan Request,
Interest Rate Election and Payoff Notice therefor and interest thereon shall be
payable by the Company at the then applicable rate during such extension. If any
payment required to be made by the Company hereunder becomes due and payable on
a day other than a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. The Lead Administrative Agent is hereby
authorized to debit accounts of the Company maintained with the Lead
Administrative Agent for amounts payable by the Company under this Agreement
through the Lead Administrative Agent and the Lead Administrative Agent will
promptly notify the Company of any such debit. 5(f) Post-Default Interest.
Following the occurrence of an Event of Default and until such Event of Default
is cured or waived as provided herein, Obligations shall bear interest at a per
annum rate equal to the Alternate Base Rate plus three percent (3%). 5(g)
Computations. All computations of interest and fees payable hereunder and under
the Fee Letter shall be based upon a year of 360 days for the actual number of
days elapsed. The determination by the Lead Administrative Agent of any interest
rate hereunder shall be conclusive and binding on the Company and the Lenders
absent manifest error. 5(h) Disbursement of Payments Received. (1) All amounts
received by the Lead Administrative Agent on account of the Obligations shall be
disbursed by the Lead Administrative Agent to the Lenders by wire transfer prior
to the cut-off deadline of the Federal Reserve Wire System on the date of
receipt if received by the Lead Administrative Agent before 11:30 a.m. (Los
Angeles time) and accompanied by a Loan Request, Interest Rate Election and
Payoff Notice (or disbursed on the day of receipt although received later than
11:30 a.m. (Los Angeles time) with the agreement of the Lead Administrative
Agent and any Lender) or if received later or if the Lead Administrative Agent
has not received a Loan Request, Interest Rate Election and Payoff Notice
therefor, on the next succeeding Business Day or such later date as the Lead
Administrative Agent receives the Loan Request, Interest Rate Election and
Payoff Notice relating thereto, without interest payable by the Lead
Administrative Agent. (2) Prior to the occurrence of an Event of Default and
acceleration of the Obligations, amounts received by the Lead Administrative
Agent on account of the Obligations shall be disbursed in accordance with the
written direction of the Company, subject only to the requirements that amounts
disbursed to the Lenders on account of Primary Loans be disbursed pro rata in
accordance with the Lenders' respective Primary Percentage Shares and that
amounts disbursed to the Swing Line Lenders on account of Swing Loans be
disbursed pro rata in accordance with the Swing Line Lenders' respective Swing
Line Percentage Shares. (3) Following the occurrence of an Event of Default and
acceleration of the Obligations, amounts received by the Lead Administrative
Agent on account of the Obligations shall be disbursed as follows: (i) first
among the Lenders, pro rata in accordance with their respective Primary
Percentage Shares, on account of the Obligations until the Obligations have been
paid in full, and (ii) then, to the Lead Administrative Agent with respect to
the remaining Obligations held by it in its capacity as Lead Administrative
Agent until such Obligations have been paid in full. 5(i) Fees. The Company
shall pay: (1) To the Lead Administrative Agent, such fees as may from time to
time be agreed upon in writing by the Lead Administrative Agent and the Company;
and (2) To each of the Lenders, the facility fees described in the Fee Letter.
5(j) Wire Transfers of Funds. Notwithstanding anything to the contrary contained
herein and in the other Credit Documents, funds which the Lead Administrative
Agent and the Lenders are transmitting by wire transfer shall be deemed to have
been sent and received upon release by the transmitting party of such funds into
the Federal Reserve Wire System. 5(k) Reduction in Aggregate Credit Limit. Upon
not less than thirty (30) days' prior written notice to the Lead Administrative
Agent, which shall promptly transmit such notice to each of the Lenders, the
Company may permanently reduce the Aggregate Credit Limit in full or in
increments of $5,000,000.00; provided, however, that any such reduction shall be
in a minimum amount of $25,000,000.00; and, provided, further, that upon the
effective date of any such reduction, the aggregate amount of Loans outstanding
shall not exceed the Aggregate Credit Limit as so reduced. 5(l) Capital
Requirements. The Company shall pay from time to time upon demand such amounts
as any Lender may determine to be necessary to compensate such Lender for all
reasonable costs which such Lender determines are attributable to its making,
agreeing to make, purchasing or maintaining its Primary Percentage Share of any
Primary Loan or its Swing Line Percentage Share of any Swing Loan under this
Agreement, including, without limitation, reserve requirements attributed to the
unused portion of the Aggregate Credit Limit, in respect of any amount of
capital required to be maintained by such Lender pursuant to any law or
regulation of any jurisdiction or any interpretation, directive or request
affecting banks, savings and loan institutions and/or financial institutions
generally notwithstanding the creditworthiness of any particular bank, savings
and loan institution or other financial institution (whether or not having the
force of law) of any court or governmental or monetary authority, whether in
effect on the date of this Agreement or thereafter. The obligations of the
Company under this Paragraph 5(l) shall survive the termination of this
Agreement and the payment of all Loans and all other Obligations. 6. Guaranty;
Subordination; Additional Documents. 6(a) Guaranty and Subordination Agreement.
As support for the Obligations, the Company shall execute and deliver and shall
cause to be executed and delivered to the Lead Administrative Agent on behalf of
the Lenders: (1) the Guaranty and (2) the Subordination Agreement. 6(b) Further
Documents. The Company agrees to execute and deliver and to cause to be executed
and delivered to the Lead Administrative Agent or such Persons as the Lead
Administrative Agent may direct from time to time such documents, instruments
and agreements as the Lead Administrative Agent on behalf of the Lenders may
reasonably request, which are in any of the Lenders' judgment necessary or
desirable to obtain for the Lead Administrative Agent, the Co-Administrative
Agent, the Documentation Agent, the Syndication Agent, the Arranger, the
Co-Arrangers, the Co-Agents and the Lenders the benefit of the Credit Documents.
7. Conditions Precedent. 7(a) First Loan. As conditions precedent to the
Effective Date and the funding of the first Loan hereunder: (1) There shall have
been delivered to the Lead Administrative Agent, in form and substance and in
quantities reasonably satisfactory to the Lenders and their counsel, each of the
following: (i) A duly executed copy of this Agreement; (ii) A duly executed copy
of each of the Guaranty and the Subordination Agreement; (iii) A duly executed
copy of the Fee Letter; (iv) Such credit applications, financial statements, pro
forma financial statements, authorizations and information concerning the
Company and its business, operations and condition (financial and otherwise) as
the Lead Administrative Agent or any Lender may reasonably request; (v)
Certified copies of resolutions of the Boards of Directors of the Company and
the Parent approving the execution and delivery of all documents required to be
delivered by the Company and the Parent hereunder; (vi) Certificates of the
Secretary or an Assistant Secretary of each of the Company and the Parent
certifying the names, incumbency and true signatures of the officers of the
Company and the Parent authorized to sign the documents required to be executed
and delivered by the Company and the Parent hereunder; (vii) An opinion of
counsel for the Company and the Parent (which counsel may be in-house counsel)
in form and substance satisfactory to the Lenders and covering such matters as
the Lenders may reasonably request; (viii) A certificate of an executive officer
of each of the Company and the Parent in the form of that attached hereto as
Exhibit A dated as of the date of this Agreement; and (ix) A Covenant Compliance
Certificate, dated as of February 28, 1998, for each of the Company and the
Parent demonstrating in detail satisfactory to the Lenders the Company's
compliance with the covenants set forth in Paragraphs 10(g), 10(i) and 10(j)
below, and the Parent's compliance with the financial covenants set forth in
Paragraphs 11(d) and 11(e) of the Guaranty. (2) All acts and conditions
(including, without limitation, the obtaining of all necessary regulatory
approvals and the making of all required filings, recordings and registrations)
required to be done and performed and to have happened precedent to the
execution, delivery and performance of the Credit Documents and to constitute
the same legal, valid and binding obligations, enforceable in accordance with
their respective terms, shall have been done and performed and shall have
happened in due and strict compliance with all applicable laws. (3) All
documentation, including, without limitation, documentation for corporate and
legal proceedings in connection with the transactions contemplated by the Credit
Documents, shall be satisfactory in form and substance to the Lenders and their
counsel. (4) The Company shall have delivered to the Arranger a letter
acceptable to the Arranger regarding the payment by the Company to the Arranger
of fees, and the Company shall have paid all fees required under such letter to
have been paid prior to the funding of the first Loan hereunder. (5) No material
adverse change in the business, operations, assets or financial or other
condition of the Company or the Company and its consolidated Subsidiaries taken
as a whole shall have occurred since the Statement Date and the Company by
presenting the initial Loan Request, Interest Rate Election and Payoff Notice
shall be deemed to have so represented and warranted hereunder. 7(b) All Loans.
As conditions precedent to the funding of each Loan hereunder, including the
first Loan, at and as of the date of, and after giving effect to, the funding of
such Loan: (1) The representations and warranties of the Company and the Parent
contained in the Credit Documents shall be accurate and complete in all respects
as of such date; (2) If there has occurred a Potential Default or an
Event of Default (other than under Paragraph 11(a) below or under Paragraph
11(e) below resulting from a breach or potential breach of Paragraph 10(i) or
10(j) below), the Majority Lenders have not elected in writing to cease funding
Loans hereunder; (3) If there has occurred an Event of Default under Paragraph
11(a) below, one hundred percent (100%) of the Lenders have elected in writing
to waive such Event of Default; (4) If there has occurred an Event of Default or
Potential Default under Paragraph 11(e) below resulting from a breach or
potential breach of Paragraph 10(i) or 10(j) below, the Majority Lenders have
elected in writing to waive such Event of Default or Potential Default; (5)
Following such Credit Event, the aggregate principal amount of Loans outstanding
shall not exceed the applicable limitations of Paragraphs 1(a) and 1(b) above
nor shall the aggregate principal amount of Primary Loans held by any Lender
plus such Lender's Percentage Share of Swing Loans outstanding exceed such
Lender's Maximum Commitment; and (6) The Company shall have delivered to the
Lead Administrative Agent a duly executed Loan Request, Interest Rate Election
and Payoff Notice requesting such Credit Event. By delivering a Loan Request,
Interest Rate Election and Payoff Notice to the Lead Administrative Agent, the
Company shall be deemed to have represented and warranted the accuracy and
completeness of the statements set forth in subparagraphs (b)(1) through (b)(6)
above and all information set forth in such Loan Request, Interest Rate Election
and Payoff Notice. 8. Representations and Warranties of the Company. As an
inducement to the Lead Administrative Agent, the Co-Administrative Agent, the
Documentation Agent, the Syndication Agent, the Arranger, the Co-Arrangers, the
Co-Agents and each Lender to enter into this Agreement, the Company represents
and warrants to the Lead Administrative Agent, the Co-Administrative Agent, the
Documentation Agent, the Syndication Agent, the Arranger, the Co-Arrangers, the
Co-Agents and each Lender that: 8(a) Financial Condition. The financial
statements dated the Statement Date, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly in
accordance with GAAP the consolidated and consolidating financial condition of
the Company and its consolidated Subsidiaries at such date and the consolidated
and consolidating results of their operations and changes in financial position
for the fiscal period then ended. 8(b) Corporate Existence; Compliance with Law.
Each of the Company and its Subsidiaries: (1) is duly organized, validly
existing and in good standing as a corporation under the laws of the state of
its incorporation, and is in good standing as a foreign corporation in each
jurisdiction where its ownership of property or conduct of business requires
such qualification and where failure to be in good standing could have a
material adverse effect on the Company, any of its Subsidiaries, or their
respective property and/or business or on the ability of the Company or
the Parent to pay or perform the Credit Documents; (2) has the corporate power
and authority and the legal right to own and operate its property and to conduct
business in the manner in which it does and proposes so to do; and (3) is in
compliance with all Requirements of Law and Contractual Obligations except to
the extent that failure to comply could not have a material adverse effect on
the Company, any of its Subsidiaries, or their respective property and/or
business or on the ability of the Company or the Parent to pay or perform the
Credit Documents. 8(c) Corporate Power; Authorization; Enforceable Obligations.
Each of the Company and the Parent has the corporate power and authority and the
legal right to execute, deliver and perform the Credit Documents to which it is
a party and has taken all necessary corporate action to authorize the execution,
delivery and performance of the Credit Documents. The Credit Documents have been
duly executed and delivered on behalf of each of the Company and the Parent and
constitute legal, valid and binding obligations of such party enforceable
against such party in accordance with their respective terms. 8(d) No Legal Bar.
The execution, delivery and performance of the Credit Documents, the borrowing
thereunder and the use of the proceeds thereof, will not violate any Requirement
of Law or any Contractual Obligation of the Company or the Parent to the extent
that failure to comply therewith could have a material adverse effect on the
Company or its property and/or business or on the ability of the Company or the
Parent to pay or perform the Credit Documents. 8(e) No Material Litigation.
Except as disclosed on Exhibit B attached hereto, no litigation, investigation
or proceeding of or before any court, arbitrator or Governmental Authority is
pending or, to the knowledge of the Company, threatened by or against the
Company or any of its Subsidiaries or against any of such parties' properties or
revenues involving amounts, in the case of any such individual litigation,
investigation or proceeding, in excess of $10,000,000.00 or which, regardless of
the amount in controversy, is likely to be adversely determined and which, if
adversely determined, could have a material adverse effect on the business,
operations, property or financial or other condition of the Company or any of
its Subsidiaries. 8(f) Taxes. The Company and each of its Subsidiaries have
filed or caused to be filed all tax returns that are required to be filed and
have paid all taxes (other than incidental local business and other municipal
taxes which are not material to the operation of the Company and its
Subsidiaries) shown to be due and payable on said returns or on any assessments
made against them or any of their property other than taxes which are being
contested in good faith by appropriate proceedings and as to which the Company
or the applicable Subsidiary has established adequate reserves in conformity
with GAAP. 8(g) Investment Company Act. The Company is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended. 8(h) Subsidiaries. Exhibit C
attached hereto sets forth an accurate and complete list of all presently
existing Subsidiaries of the Company, their respective jurisdictions of
incorporation and the percentage of their capital stock owned by the Company or
other Subsidiaries of the Company. All of the issued and outstanding shares of
capital stock of the Subsidiaries of the Company have been duly authorized and
issued and are fully paid and non-assessable. 8(i) Federal Reserve Board
Regulations. Neither the Company nor any of its Subsidiaries is engaged or will
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of such terms under Regulation U. No part
of the proceeds of any Loan made hereunder will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of the Regulations of the Board
of Governors of the Federal Reserve System. 8(j) ERISA. The Company and each of
its Subsidiaries are in compliance in all material respects with the
requirements of ERISA and no Reportable Event has occurred under any Plan
maintained by the Parent, the Company or any of its or their Subsidiaries which
is likely to result in the termination of such Plan for purposes of Title IV of
ERISA. 8(k) Assets. The Company and each of its Subsidiaries have good and
marketable title to all property and assets reflected in the financial
statements referred to in Paragraph 8(a) above, except property and assets sold
or otherwise disposed of in the ordinary course of business subsequent to that
date. Neither the Company nor any of its Subsidiaries has outstanding Liens on
any of its properties or assets nor are there any security agreements to which
the Company or any of its Subsidiaries is a party, or title retention
agreements, whether in the form of leases or otherwise, of any personal property
except as reflected in said financial statements referred to in Paragraph 8(a)
above or as permitted under Paragraph 10(a) below. 9. Affirmative Covenants. The
Company hereby covenants and agrees with the Lead Administrative Agent and each
Lender that, as long as any Obligations remain unpaid or any Lender has any
obligation to make all or any portion of any Loans, the Company shall: 9(a)
Financial Statements. Furnish or cause to be furnished directly to the Lead
Administrative Agent and each Lender: (1) Within ninety (90) days after the last
day of each fiscal year of the Parent, consolidated statements of income and
statements of changes in cash flow of the Parent and its Subsidiaries for such
year and a balance sheet as of the end of such year (including therein as
supplemental information, consolidating statements of income and statements of
changes in cash flow and balance sheets as of the end of such year) in each case
presented fairly in accordance with GAAP and, in the case of the Company, the
requirements of HUD Handbook IG 4000.3 REV and accompanied, in all cases, by an
unqualified report of a firm of independent certified public accountants
acceptable to the Majority Lenders; (2) Within forty-five (45) days after the
last day of each fiscal quarter, consolidated and consolidating statements of
income and statements of changes in cash flow of the Parent and its Subsidiaries
for such fiscal quarter or calendar month, as applicable, and balance sheets of
the Parent and its Subsidiaries as of the last day of such fiscal quarter,
presented fairly in accordance with GAAP, in each case certified in writing as
to fairness of presentation by the chief financial officer or treasurer of the
Company and the Parent; (3) Within forty-five (45) days following each
Applicable Financial Test Date, a Covenant Compliance Certificate from the chief
financial officer or treasurer of each of the Company and the Parent, certifying
that there does not exist an Event of Default or Potential Default and, in
addition, demonstrating in detail satisfactory to the Majority Lenders the
Company's compliance with the covenants set forth in Paragraphs 10(g), 10(i) and
10(j) below as of and at such Applicable Financial Test Date, and the Parent's
compliance with the covenants set forth in Paragraphs 11(d) and 11(e) of the
Guaranty, as of and at such Applicable Financial Test Date; (4) As soon as is
available any written report pertaining to material items in respect of the
internal control matters of the Parent or the Company submitted to any of such
Persons by their respective independent accountants in connection with each
annual or interim special audit of the financial condition of such Persons made
by such independent public accountants; and (5) Copies of all proxy statements,
financial statements, and reports which the Parent sends to its stockholders,
and copies of all regular, periodic and special reports, and all registration
statements under the Securities Act of 1933, as amended (the "Act"), which the
Parent or the Company files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or with any national
securities exchange; provided, however, that there shall not be required to be
delivered hereunder to the Lead Administrative Agent such copies for any Lender
of prospectuses relating to future series of offerings under registration
statements filed under Rule 415 of the Act or other items which such Lender has
indicated in writing to the Parent or the Company from time to time need not be
delivered to such Lender. 9(b) Certificates; Reports; Other Information. Furnish
or cause to be furnished directly to the Lead Administrative Agent and each
Lender: (1) Within forty-five (45) days following each Applicable Financial Test
Date, prepared as of such Applicable Financial Test Date and certified by an
appropriate officer of the Company, a report covering the servicing portfolio of
the Company covering such matters as the Majority Lenders, through the Lead
Administrative Agent, may reasonably request (but which shall in any event list
the aggregate principal amount of mortgage notes serviced and the number and
types of loans evidenced by such notes, and show all loans in the servicing
portfolio more than thirty (30) days past due the due dates set forth in such
notes). (2) Promptly, such additional financial and other information,
including, without limitation, financial statements of the Company, the Parent,
any Affiliate of the Company or the Parent, as any Lender, through the Lead
Administrative Agent, may from time to time reasonably request, including,
without limitation, such information as is necessary for any Lender to
participate out any of its interests in Loans hereunder or to enable another
financial institution to become a signatory hereto. (3) Promptly upon receipt
thereof by the Company, copies of all audit reports prepared by or on behalf of
FNMA, FHLMC and GNMA. 9(c) Payment of Indebtedness. Pay, discharge or otherwise
satisfy at or before maturity or before it becomes delinquent, defaulted or
accelerated, as the case may be, all its Indebtedness, except: (1) Indebtedness
(other than Indebtedness with respect to CPNs) being contested in good faith and
for which provision is made to the satisfaction of the Majority Lenders for the
payment thereof in the event the Company is found to be obligated to pay such
Indebtedness and which Indebtedness is thereupon promptly paid by the Company,
and (2) additional Indebtedness (other than Indebtedness with respect to CPNs)
in the aggregate not to exceed $100,000.00. 9(d) Maintenance of Existence and
Properties. Maintain all rights, privileges, licenses, approvals, franchises,
properties and assets necessary in the normal conduct of its business, and
comply with all Contractual Obligations and Requirements of Law. The Company
will at all times be a FNMA, FHLMC and GNMA-approved Seller/ Servicer and a
wholly-owned Subsidiary of the Parent. 9(e) Inspection of Property; Books and
Records; Discussions. Keep proper books of record and account in which full,
true and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities, and permit representatives of each Lender (at no cost or expense to
the Company unless there shall have occurred and be continuing an Event of
Default) to visit and inspect those of its properties and examine and make
abstracts from those of its books and records as are reasonably necessary to
enable such Lender to conduct appropriate credit due diligence in connection
with customary credit approval practices for credit facilities of this type, at
any reasonable time and as often as may reasonably be desired by any of the
Lenders, and to discuss the business, operations, properties and financial and
other condition of the Company and any of its Subsidiaries with officers and
employees of such parties, and with their independent certified public
accountants. 9(f) Notices. Promptly give written notice to the Lead
Administrative Agent (who shall promptly notify each of the Lenders thereof) of:
(1) The occurrence of any Potential Default or Event of Default; (2) Any
litigation or proceeding affecting the Company or any of its Subsidiaries
involving amounts, in the case of any such individual litigation, investigation
or proceeding, in excess of $10,000,000.00 or which, regardless of the amount in
controversy, is likely to be adversely determined and which, if adversely
determined, could have a material adverse effect on the business, operations,
property, or financial or other condition of the Company or the ability of the
Company to pay and perform the Obligations; (3) Receipt by the Company or the
Parent of notice from any rating agency concerning a potential change in any
credit rating previously accorded the Company or the Parent by such rating
agency; and (4) A material adverse change in the business, operations, property
or financial or other condition of the Parent, the Company or any of their
Subsidiaries. 9(g) Expenses. Pay all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) of the Lead Administrative Agent,
the Arranger and the Co-Arrangers incident to the preparation, negotiation,
administration and amendment of the Credit Documents and, following the
occurrence of an Event of Default, of the Lead Administrative Agent and each of
the Lenders incident to the protection of the rights of the Lenders, the
Arranger, the Co-Arrangers and the Lead Administrative Agent under the Credit
Documents, and incident to the enforcement of payment of the Obligations,
whether by judicial proceedings or otherwise, including, without limitation, in
connection with bankruptcy, insolvency, liquidation, reorganization, moratorium
or other similar proceedings involving the Parent or the Company or a "workout"
of the Obligations. The obligations of the Company under this Paragraph 9(g)
shall be effective and enforceable whether or not any Loan is advanced by any
Lender hereunder and shall survive payment of all other Obligations. 9(h) Credit
Documents. Comply with and observe all terms and conditions of the Credit
Documents. 9(i) Insurance. Obtain and maintain insurance with responsible
companies in such amounts and against such risks as are usually carried by
corporations engaged in similar businesses similarly situated, including,
without limitation, errors and omissions coverage and fidelity coverage in form
and substance acceptable under FNMA or FHLMC guidelines, and furnish the Lenders
on request full information as to all such insurance. 9(j) CPN Program. Obtain
the written approval of the Majority Lenders to any modification of the
documentation relating to the issuance of CPNs of the Company as in effect on
the date of this Agreement. 9(k) Hedging Program. Maintain at all times a
Hedging Program consistent with the Hedging Program in effect at and as of the
Effective Date. 10. Negative Covenants. The Company hereby agrees that, as long
as any Obligations remain unpaid or any Lender has any obligation to make all or
any portion of any Loans, the Company shall not, directly or indirectly:
10(a)Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property and assets (including servicing rights) other than: (1) Liens or
charges for current taxes, assessments or other governmental charges which are
not delinquent or which remain payable without penalty, or the validity of which
are contested in good faith by appropriate proceedings upon stay of execution of
the enforcement thereof, provided the Company shall have set aside on its books
and shall maintain adequate reserves for the payment of same in conformity with
GAAP; (2) Liens, deposits or pledges made to secure statutory obligations,
surety or appeal bonds, or bonds for the release of attachments or for stay of
execution, or to secure the performance of bids, tenders, contracts (other than
for the payment of borrowed money), leases or margin call requirements or for
purposes of like general nature in the ordinary course of the Company's
business; (3) Liens on Mortgage Loans and Mortgage-Backed Securities which are
the subject of repurchase agreements; (4) Liens on real property (including
fixtures and improvements thereon) securing Indebtedness in an amount not to
exceed $50,000,000.00 in the aggregate at any time outstanding; (5) Liens on
property and assets of the Company securing short term Indebtedness of the
Company (Indebtedness with a maturity of one year or less and not automatically
renewable by the Company at its sole option) in an amount not to exceed at any
date twenty five percent (25%) of Mortgage Loans and MBS Held for Sale; and (6)
Liens on servicing rights of the Company securing Indebtedness in an amount not
to exceed at any date ten percent (10%) of Mortgage Servicing Rights.
10(b)Indebtedness. Create, incur, assume or suffer to exist, or otherwise become
or be liable in respect of any Indebtedness if upon such creation, incurrence or
assumption there would exist an Event of Default or the Company would fail to be
in compliance with the requirements of Paragraphs 10(i) or 10(j) below (assuming
such compliance were tested at such date immediately following such creation,
incurrence or assumption). 10(c)Consolidation and Merger. Liquidate or dissolve
or enter into any consolidation, merger, partnership, joint venture, syndicate
or other combination, except that the Company may be consolidated with or merged
with any corporation provided that (1) in any such merger or consolidation the
Company shall be the surviving or resulting corporation and (2) at the time of
and immediately after the effectiveness of such merger or consolidation there
shall not have occurred and be continuing an Event of Default or Potential
Default. 10(d)Acquisitions. Purchase or acquire or incur liability for the
purchase or acquisition of any or all of the assets or business of any Person
other than in the normal course of a mortgage banking-related business (it being
expressly agreed and understood that the acquisition of servicing is a normal
course of business activity); provided, however, that the Company may acquire
all or a portion of the stock or assets of another mortgage company or companies
so long as no Event of Default or Potential Default shall exist immediately
following the consummation of such acquisition, and, provided, further, that the
Company shall be in compliance with the financial covenants set forth in
Paragraphs 10(i) and 10(j) below, assuming for purposes of this Paragraph 10(d)
that the "Applicable Financial Test Date" referenced in such covenants is the
day immediately following the consummation of such acquisition. 10(e)Payment of
Dividends. Declare or pay any dividends upon any shares of the Company's stock
now or hereafter outstanding, except dividends payable in the capital stock of
the Company, or make any distribution of assets to its stockholders as such,
whether in cash, property or securities, if at the date of payment or
distribution (either before or after giving effect thereto) there should exist
an Event of Default or Potential Default. 10(f)Purchase or Retirement of Stock.
Acquire, purchase, redeem or retire any shares of its capital stock now or
hereafter outstanding for value. 10(g)Investments; Advances; Receivables. Make
or commit to make any advance, loan or extension of credit ("Advances") to, or
hold any receivable ("Receivable") of, or make or commit to make any capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities ("Investments") of, or make any other investment in, any Person,
except: (1) Advances constituting Mortgage Loans made in the ordinary course of
the Company's business and (2) Investments in, unsecured and secured Advances
to, and Receivables of, any Affiliate (and Servicing Pass-Through Ventures which
are not otherwise Affiliates) in an aggregate amount not to exceed ten percent
(10%) of the net worth of the Company determined in accordance with GAAP, it
being agreed and understood that any unsecured Advances made by the Company to
any Affiliate must be funded with equity of the Company and that any secured
Advances made by the Company to any Affiliate must be fully secured on a first
priority, perfected basis, by readily marketable securities pledged by such
Affiliate. 10(h)Sale of Assets. Sell, lease, assign, transfer or otherwise
dispose of any of its assets (other than obsolete or worn out property), whether
now owned or hereafter acquired, other than in the ordinary course of business
as presently conducted and at fair market value (it being expressly agreed and
understood that the sale or other disposition of Mortgage Loans with or without
servicing released and the sale or other disposition of servicing rights are in
the ordinary course of business); provided, however, that in no event shall the
Company enter into any sale and leaseback transaction involving any of its
assets without the prior written consent of the Majority Lenders; and, provided
further, that the Company may sell, lease, assign, transfer or otherwise dispose
of any of its assets to a Subsidiary of the Company (which, for the purpose of
this proviso shall include any limited partnership the general and limited
partners of which are Subsidiaries of the Company) so long as: (1) all classes
of stock of, or partnership interests in, such Subsidiary are owned, directly or
indirectly, by the Company, (2) such Subsidiary incurs no obligations for third
party indebtedness except such obligations to employees and vendors as are
necessary or desirable in the normal conduct of the business of servicing 1-4
unit single family mortgage loans and in managing an office building owned by
such Subsidiary, and (3) any such unpaid obligations as are described in
subsection (2) above (other than payroll and benefits obligations to employees)
shall not exceed at any time $50,000,000.00 in the aggregate. 10(i)Minimum Net
Worth. Permit its net worth determined in accordance with GAAP on and as of each
Applicable Financial Test Date to be less than $1,200,000,000.00. 10(j)Maximum
Total Debt. Permit Total Debt on and as of each Applicable Financial Test Date
to exceed the sum of: (1) One hundred percent (100%) of Cash, plus (2) Ninety
percent (90%) of Margins, plus (3) Ninety-seven percent (97%) of the amount of
Mortgage Loans and MBS Held for Sale (including Mortgage Loans and
Mortgage-Backed Securities subject to a Lien under a repurchase agreement but
excluding all other Mortgage Loans and Mortgage-Backed Securities which are
excluded from "Eligible Mortgage Assets" pursuant to subparagraphs (a), (b) and
(c) of the definition of such term), plus (4) Ninety percent (90%) of Pool Loan
Purchases and Mortgage Claims Receivable to the extent such assets represent VA
and FHA Mortgage Loans repurchased by the Company from pools supporting GNMA
Mortgage-Backed Securities, plus (5) Fifty percent (50%) of Deferred Commitment
Fees, plus (6) Fifty percent (50%) of Property and Equipment, plus (7)
Seventy-five percent (75%) of Mortgage Servicing Rights, plus (8) Fifty percent
(50%) of Other Assets, excluding any unsecured Advances made to Affiliates
permitted under Paragraph 10(g)(2) above. 11. Events of Default. Upon the
occurrence of any of the following events (an "Event of Default"): 11(a)The
Company shall fail to make any payment on account of that portion of the
Obligations consisting of principal or interest on Loans on the date when due;
or 11(b)Any representation or warranty made or deemed made by the Company or the
Parent in any Credit Document or in connection with any Credit Document shall be
materially inaccurate or incomplete in any respect on or as of the date made or
deemed made; or 11(c)The Company shall default in the observance or performance
of any covenant or agreement contained in Paragraph 10 above (other than those
contained in Paragraphs 10(i) and 10(j) above); or 11(d)The Parent shall fail to
observe or comply with any term or provision contained in the Guaranty (other
than those contained in Paragraph 11(d) thereof); or 11(e)The Company or the
Parent shall fail to observe or perform any other term or provision contained in
the Credit Documents and such failure shall continue for thirty (30) days; or
11(f)The Company, any of its Subsidiaries or the Parent shall default in any
payment of any Indebtedness (other than the Obligations or as permitted under
Paragraph 9(c) above) in an aggregate amount of more than $10,000,000.00 or any
other event shall occur and, as a result, the holder or holders thereof, or any
trustee or agent for such holders, either: (1) cause such Indebtedness to become
due and payable prior to its stated maturity, or (2) elect not to cause such
Indebtedness to become so due and payable, but such event continues for a period
of thirty (30) days and is not cured or waived; or 11(g)(1) The Parent, the
Company or any of its Subsidiaries shall commence any case, proceeding or other
action (i) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (ii) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Parent, the Company or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (2) there shall be commenced against the Parent, the Company or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (1) above which (i) results in the entry of an order for relief or any
such adjudication or appointment, or (ii) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (3) there shall be commenced
against the Parent, the Company or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within sixty (60)
days from the entry thereof; or (4) the Parent, the Company or any of its
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause (1),
(2) or (3) above; or (5) the Parent, the Company or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or 11(h)(1) Any Person shall
engage in any "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (2) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or nor waived, shall
exist with respect to any Plan, (3) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or institution of proceedings is, in the reasonable
opinion of the Lead Administrative Agent, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, and, in the case of a Reportable
Event, the continuance of such Reportable Event unremedied for ten days after
notice of such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA
is given or the continuance of such proceedings for ten days after commencement
thereof, as the case may be, (4) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (5) any withdrawal liability to a Multiemployer
Plan shall be incurred by the Company or the Parent or any Commonly Controlled
Entity, or (6) any other event or condition shall occur or exist; and in each
case in clauses (1) through (6) above, such event or condition, together with
all other such events or conditions, if any, could subject the Parent, the
Company or any of its Subsidiaries to any tax, penalty or other liabilities in
the aggregate material in relation to the business, operations, property or
financial or other condition of the Parent, the Company or any of its
Subsidiaries; or 11(i)One or more judgments or decrees in amounts aggregating
$1,000,000.00 or more not fully covered by insurance (exclusive of
self-insurance (not to exceed $5,000,000.00) and deductibles) during any
consecutive twelve (12) month period shall be entered against the Company or any
of its Subsidiaries and all such judgments or decrees shall not have been
vacated, discharged or satisfied, or stayed or bonded pending appeal, within
sixty (60) days from the entry thereof unless counsel to the Company reasonably
acceptable to the Majority Lenders has delivered to the Lenders within such
sixty (60) day period an opinion that the Company has the legal right to have
such judgment or decree vacated without the expenditure of funds (other than for
costs of proceedings) and the Company is diligently proceeding to accomplish
such vacation; or 11(j)The Parent shall notify the Lead Administrative Agent or
any Lender of its intention to rescind or revoke the Guaranty or the
Subordination Agreement, in whole or in part, with respect to future
transactions or otherwise; or 11(k)The Parent shall cease to own one hundred
percent (100%) of the outstanding capital stock of the Company; THEN: (1)
Automatically upon the occurrence of an Event of Default under Paragraph 11(g)
above, (2) At the option of any Lender upon the occurrence of an Event of
Default under Paragraph 11(a) above unless such Event of Default is expressly
waived in writing by one hundred percent (100%) of the Lenders, and (3) In all
other cases, at the option of the Majority Lenders, each Lender's obligation to
make Loans shall terminate and the principal balance of outstanding Loans and
interest accrued but unpaid thereon and all other Obligations shall become
immediately due and payable, without demand upon or notice or presentment to the
Company, all of which are hereby waived. 12. Agency Provisions.
12(a)Appointment. Each Lender hereby irrevocably designates and appoints each
Agent as the agent of such Lender under the Credit Documents and each Lender
hereby irrevocably authorizes each Agent, as the agent for such Lender, to take
such action on its behalf under the provisions of the Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to such
Agent by the terms of the Credit Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in the Credit Documents, no Agent shall have any duties or
responsibilities, except those expressly set forth herein or therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Credit Documents or otherwise exist against any Agent. 12(b)Delegation of
Duties. The Lead Administrative Agent may execute any of its duties under the
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Lead
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
12(c)Exculpatory Provisions. No Agent nor any of its respective officers,
directors, employees, agents, counsel, attorneys-in-fact or Affiliates shall be
(1) liable to any Lender, any other Agent, the holder of any CPN or the Company
for any action taken or omitted to be taken by it or such Person under or in
connection with the Credit Documents (except for its or such Person's own gross
negligence or willful misconduct), or (2) responsible in any manner to any of
the Lenders, any other Agent, the holder of any CPN or the Company for: (i) any
recitals, statements, representations or warranties made by the Company or any
officer thereof contained in the Credit Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by such
Agent under or in connection with, the Credit Documents (except such as are
prepared by such Agent and, then, only to the extent such Agent is responsible
for verification of the accuracy and completeness of the information contained
therein or the facts upon which such information is based as expressly provided
herein) or for the value, validity, effectiveness, genuineness, enforceability,
collectability or sufficiency of the Credit Documents or for any failure of the
Company to perform its obligations thereunder or (ii) assuring compliance of the
Credit Documents and/or the transactions contemplated by the Credit Documents
with any law or regulation binding upon such Person, it being expressly
acknowledged, agreed and understood that each such Person has obtained
independent advice satisfactory to it in all such regards. No Agent shall 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, the Credit Documents (other than agreements required to be complied with by
such Agent thereunder and subject to the standards of care set forth herein with
respect thereto) or to inspect the properties, books or records of the Company.
Each Agent shall be entitled to refrain from exercising any discretionary powers
or actions under this Agreement or any other Credit Document until it shall have
received the prior written consent of one hundred percent (100%) of the Lenders
to such action. 12(d)Reliance by Agent. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certification, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document or
conversation reasonably 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
Company), independent accountants and other experts selected by such Agent. The
Lead Administrative Agent may deem and treat each Lender designated on the
current Commitment Schedule as a Lender hereunder for all purposes of the Credit
Documents unless a written notice of assignment, negotiation or transfer of such
Lender's interests hereunder and thereunder as permitted pursuant to Paragraph
14 below shall have been filed with the Lead Administrative Agent. Each Agent
shall be fully justified in failing or refusing to take any action under the
Credit Documents unless it shall first receive such advice or concurrence of the
Majority Lenders (or all Lenders, as required under the Credit Documents) 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 action (other than liability and/or expense arising out
of such Agent's gross negligence or willful misconduct). Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under the
Credit Documents in accordance with a request of the Majority Lenders (or all
Lenders, if applicable) absent gross negligence and willful misconduct on the
part of such Agent in the method in which it acts or refrains from acting in
accordance therewith, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders. 12(e)Notice of Default;
Agreement to Advance. No Agent shall be deemed to have knowledge or notice of
the occurrence of any Event of Default or Potential Default unless such Agent
has received notice from a Lender or the Company referring to the Credit
Documents, describing such Event of Default or Potential Default and stating
that such notice is a "notice of default". In the event that any Agent receives
such a notice, such Agent shall give notice thereof to the Lenders and the other
Agents. 12(f)Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that no Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by such Agent hereafter taken, including any
review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to each Agent that it has, independently and without reliance upon such Agent or
any other Lender or their respective counsel, 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 the Company and made its own decision to
extend credit hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or
any other Lender or their respective counsel, and based on such documents,
information and legal advice (including, without limitation, advice of
regulatory counsel to it) as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in entering into the
Credit Documents and taking or not taking action thereunder, 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 the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by an Agent hereunder, such Agent shall not have any
duty or responsibility to provide any Lender with any legal advice or credit or
other information concerning the business, operations, property, financial and
other condition or creditworthiness of the Company which may come into the
possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates. 12(g)Indemnification. The Company agrees to
indemnify, defend and hold harmless each Agent in its capacity as such from and
against any and all claims, obligations, penalties, actions, suits, judgments,
costs, disbursements, losses, liabilities and/or damages (including, without
limitation, attorneys' fees) of any kind whatsoever which may at any time be
imposed on, assessed against or incurred by such Agent in any way (1) relating
to or arising out of the Credit Documents or any documents contemplated by or
referred to therein or the transactions contemplated thereby or any action taken
or omitted to be taken by such Agent in connection with the foregoing; provided,
the Company shall not be liable for any portion of any such claims, obligations,
etc., arising out of or resulting from the gross negligence or willful
misconduct of such Agent or (2) resulting from any action taken or omitted to be
taken by such Agent in accordance with written instructions given as provided in
the Credit Documents or (3) relating to any one or more of the matters covered
by Paragraph 12(c) above. The Lenders agree to indemnify and hold harmless each
Agent in its capacity as such ratably in accordance with their Primary
Percentage Shares to the extent required by the Company hereunder if any Agent
is not reimbursed by the Company hereunder and without limiting the obligation
of the Company to do so. To the extent indemnification payments made by the
Lenders pursuant to this Paragraph 12(g) are subsequently recovered by any Agent
from, or for the account of, the Company, such Agent will promptly refund such
previously paid indemnity payments to the Lenders. The indemnification
obligations of the Company and Lenders under this Paragraph 12(g) shall survive
termination of this Agreement and payment in full of the Obligations. 12(h)Agent
in Its Individual Capacity. Any Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Company as though such Agent were not an Agent hereunder. With respect to such
loans made or renewed by them and any note issued to them hereunder, each Agent
shall have the same rights and powers under the Credit Documents as any Lender
thereunder and may exercise the same as though it were not an Agent, and the
terms "Lender" and "Lenders" shall include Agents in their individual
capacities. 12(i)Successor Agents. Any Agent may resign as such under the Credit
Documents upon ninety (90) days' prior written notice to the Lenders and the
Company and the Lead Administrative Agent shall resign in the event its Maximum
Commitment shall be less than $25,000,000.00. In addition, in the event any
Agent fails to perform its obligations under the Credit Documents in any
material manner and fails to correct its performance within thirty (30) days of
written notice of such failure of performance given by not less than the
Majority Lenders, then such Agent may be removed upon thirty (30) days notice
given by not less than the Majority Lenders. If an Agent shall resign or be so
removed, then, on or before the effective date of such resignation or removal,
the Majority Lenders shall appoint a successor agent reasonably acceptable to
the Company or, if the Majority Lenders are unable to agree on the appointment
of a successor agent, such Agent shall appoint a successor agent for the
Lenders, which successor agent shall be reasonably acceptable to the Company,
whereupon such successor agent shall succeed to the rights, powers and duties of
such Agent, and the term "Documentation Agent," "Syndication Agent," "Lead
Administrative Agent," "Co-Administrative Agent," "Arranger", "Co-Arranger" or
"Co-Agents," as applicable, shall mean such successor agent effective upon its
appointment, and the former Agent's rights, powers and duties shall be
terminated without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any of the other Credit
Documents or successors thereto. After any Agent's resignation or removal
hereunder, the provisions of this Paragraph 12 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under the
Credit Documents. 12(j)Sharing of Set-Offs. If following the occurrence and
during the continuance of an Event of Default any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of the Obligations held by
it or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
such other Lender's portion of the Obligations, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Obligations, or shall provide such other Lenders with
the benefits of such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery but without
interest. The Company agrees that each Lender so purchasing a portion of another
Lender's Obligations may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion. 13. Miscellaneous Provisions.
13(a)No Assignment. The Company may not assign its rights or obligations under
the Credit Documents without the prior written consent of one hundred percent
(100%) of the Lenders. Subject to the foregoing, all provisions contained in
this Agreement or any document or agreement referred to herein or relating
hereto shall inure to the benefit of each Lender, its successors and assigns,
and shall be binding upon the Company, its successors and assigns.
13(b)Amendment. The Credit Documents may not be amended or terms or provisions
hereof waived unless such amendment or waiver is in writing and signed by the
Majority Lenders and the Company; provided, however, that without the prior
written consent of one hundred percent (100%) of the Lenders, no amendment or
waiver shall: (1) Waive or amend any term or provision of Paragraph 4(e), 4(f)
or 4(g) above, or this Paragraph 13(b); (2) Reduce the principal of, or interest
on, the Obligations or any amount of fees payable under this Agreement (other
than fees payable pursuant to the Fee Letter), or extend the required payment
date of principal or interest on the Obligations or any fees; (3) Increase the
Aggregate Credit Limit above $2,000,000,000.00; (4) Modify any Lender's Primary
Percentage Share or Swing Line Percentage Share except modifications resulting
from an increase, permanent or temporary, in a Lender's Maximum Commitment or
Swing Line Commitment made as permitted under this Agreement; (5) Modify the
definition of "Majority Lenders"; (6) Include any Person other than the Lenders
signatory hereto as a "Lender" hereunder except as expressly permitted pursuant
to Paragraph 14(a) below; (7) Cancel or terminate the Guaranty or permit the
revocation of the Subordination Agreement; or (8) Extend the Maturity Date;
provided, however, that nothing contained herein shall in any manner or to any
extent be deemed to supersede any provision of the Credit Documents which
expressly designates which Lenders are empowered to modify such provision,
including, without limitation, any provision of the Credit Documents which
expressly requires the consent of one hundred percent (100%) of the Lenders to
any modification thereof. No amendment or waiver shall, unless agreed to in
writing by the affected Agent, modify the rights or duties of such Agent. The
Lead Administrative Agent shall provide notice and a copy of all amendments to
the Credit Documents to all parties to the Credit Documents. 13(c)Cumulative
Rights; No Waiver. The rights, powers and remedies of the Lenders hereunder are
cumulative and in addition to all rights, powers and remedies provided under any
and all agreements between the Company and the Lenders relating hereto, at law,
in equity or otherwise. Any delay or failure by the Lenders to exercise any
right, power or remedy shall not constitute a waiver thereof by the Lenders, and
no single or partial exercise by the Lenders of any right, power or remedy shall
preclude any other or further exercise thereof or any exercise of any other
rights, powers or remedies. 13(d)Entire Agreement; Severability. This Agreement
and the documents and agreements referred to herein embody the entire agreement
and understanding between the parties hereto and supersede all prior agreements
and understandings relating to the subject matter hereof and thereof. All
waivers by the Company provided for in the Credit Documents have been
specifically negotiated by the parties with full cognizance and understanding of
their rights. If any of the provisions of the Credit Documents shall be held
invalid or unenforceable, the Credit Documents shall be construed as if not
containing such provisions, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly. 13(e)Survival. All representations,
warranties, covenants and agreements herein contained on the part of the Company
shall survive the termination of this Agreement and shall be effective until the
Obligations are paid and performed in full or longer as expressly provided
herein. 13(f)Notices. All notices given by any party to any of the others shall
be in writing (which may be by facsimile transmission), delivered personally, by
commercial courier service or by depositing the same in the United States mail,
registered, with postage prepaid, addressed to such party at the address set
forth on Annex II attached hereto. Any party may change the address to which
notices are to be sent by notice of such change to the other party or parties
given as provided herein. 13(g)Governing Law. This Agreement shall be deemed to
be a contract made under the laws of the State of California, and for all
purposes shall be construed in accordance with the laws of said State, without
regard to principles of conflicts of law. 13(h)Counterparts. This Agreement may
be executed in counterparts each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement. 14. Additional Lenders; Assignments and Participations;
Increases in Availability. 14(a)Addition of New Lender. (1) Subject to the
limitation on the Aggregate Credit Limit set forth in the definition of such
term, the Company or any Lender may at any time propose that one or more
financial institutions (each, an "Applicant Financial Institution") become an
additional Lender hereunder. At such time, the Company or such Lender, as
applicable, shall notify the other parties hereto, including the Lead
Administrative Agent, of the identity of such Applicant Financial Institution
and such Applicant Financial Institution's proposed Maximum Commitment and, as
applicable, Swing Line Commitment. The addition of any Applicant Financial
Institution shall be subject to: (i) If such Applicant Financial Institution is
proposed for inclusion as a Lender hereunder by a Lender, the prior written
consent of the Company and the Lead Administrative Agent, and if such Applicant
Financial Institution is proposed for inclusion as a Lender hereunder by the
Company, the prior written consent of the Lead Administrative Agent, none of
which consents shall be unreasonably withheld and which, if given, shall be
given in writing to the other parties hereto no later than the tenth day
following receipt by the Company of a written request for the inclusion of such
Applicant Financial Institution as a Lender hereunder; and (ii) Delivery of each
of the items and the occurrence of each of the events described in subparagraph
(2) below. (2) Assuming delivery of the consent of the Company and/or Lead
Administrative Agent as required pursuant to subparagraph (1)(i) above, the Lead
Administrative Agent, the Company and, if such Applicant Financial Institution
will be acquiring a portion of an existing Lender's Maximum Commitment by way of
assignment from such existing Lender, such existing Lender, shall mutually agree
on the Adjustment Date on which such Applicant Financial Institution shall
become a party hereto and a Lender hereunder. On such Adjustment Date: (i) The
Lead Administrative Agent shall deliver to the Company and each of the Lenders a
Commitment Schedule to be effective as of such Adjustment Date, reflecting the
inclusion of such Applicant Financial Institution as a party hereto and a Lender
hereunder. (ii) No later than 12:30 p.m. (Los Angeles time) on such Adjustment
Date, such Applicant Financial Institution shall pay to the Lead Administrative
Agent an amount equal to such Applicant Financial Institution's Primary
Percentage Share of Primary Loans outstanding and, as applicable, Swing Line
Percentage Share of Swing Loans outstanding. If such Applicant Financial
Institution is becoming a Lender hereunder as a result of an increase in the
Aggregate Credit Limit, the Lead Administrative Agent shall thereupon remit to
the Lenders, as applicable, their shares of such funds. If such Applicant
Financial Institution is acquiring a portion of an existing Lender's outstanding
Primary Loans, the Lead Administrative Agent shall thereupon remit such funds to
the assigning Lender. Following such Adjustment Date, fees and interest accrued
on the Obligations to but not including such Adjustment Date shall be payable to
the Lenders in accordance with their respective Primary Percentage Shares and
Swing Line Percentage Shares prior to such Adjustment Date before giving effect
to the readjustment thereof pursuant to the Commitment Schedule provided by the
Company on such Adjustment Date. (iii) If such Applicant Financial Institution
is acquiring a portion of an existing Lender's Maximum Commitment by way of
assignment from such existing Lender, the Lead Administrative Agent, the
Company, the assigning Lender and the Applicant Financial Institution shall
execute and deliver an Assignment Agreement, or if such Applicant Financial
Institution is becoming a Lender hereunder as a result of an increase in the
Aggregate Credit Limit, the Lead Administrative Agent, the Company and the
Applicant Financial Institution shall execute and deliver an Additional Lender
Agreement, either of which Assignment Agreement or Additional Lender Agreement
shall constitute an amendment to this Agreement to the extent necessary to
reflect the inclusion of the Applicant Financial Institution as a Lender
hereunder. (iv) The Applicant Financial Institution shall pay to the Lead
Administrative Agent a registration fee of $3,500.00. Subject to the
requirements described above, the Applicant Financial Institution shall become a
party hereto and a Lender hereunder and shall be entitled to all rights,
benefits and privileges accorded a Lender under the Credit Documents and shall
be subject to all obligations of a Lender under the Credit Documents.
14(b)Assignments Among Existing Lenders. Any Lender may at any time agree to
assign a portion of such Lender's Maximum Commitment to a Transferee Lender. In
such event the Lender and the Transferee Lender shall so notify the Lead
Administrative Agent and the Company of the Adjustment Date on which such
assignment is to be effective. On such Adjustment Date: (1) The Company shall
deliver to the Lead Administrative Agent and each of the Lenders a Commitment
Schedule to be effective as of such Adjustment Date reflecting the assignment.
(2) The Lead Administrative Agent, the Company, the assigning Lender and the
Transferee Lender shall execute and deliver an Assignment Agreement, which shall
constitute an amendment to this Agreement to the extent necessary to reflect
such transfer. (3) No later than 12:30 p.m. (Los Angeles time) on such
Adjustment Date, the Transferee Lender shall pay to the Lead Administrative
Agent an amount equal to, as applicable, such Transferee Lender's Primary
Percentage Share of Primary Loans and Swing Line Percentage Share of Swing Loans
outstanding in excess of such Transferee Lender's previous Primary Percentage
Share and, as applicable, Swing Line Percentage Share thereof. The Lead
Administrative Agent shall thereupon remit to the transferring Lender the amount
thereof. 14(c)Minimum Loan Commitment. Notwithstanding anything to the contrary
contained herein, the inclusion of any Applicant Financial Institution as a
Lender hereunder pursuant to Paragraph 14(a) above and the assignment by a
Lender of a portion of such Lender's Maximum Commitment to a Transferee Lender
pursuant to Paragraph 14(b) above shall be subject to the following
restrictions: (1) If an Applicant Financial Institution is acquiring a portion
of an existing Lender's Maximum Commitment by way of an assignment from such
existing Lender, then: (i) such assignment of Maximum Commitment must be in the
minimum amount of $5,000,000.00 (or if in a higher amount, in integral multiples
of $5,000,000.00 in excess thereof), and (ii) following the consummation of the
contemplated assignment and after giving effect to any other assignments
occurring on the related Adjustment Date, such existing Lender must continue to
hold an Maximum Commitment of not less than $25,000,000.00 and such Applicant
Financial Institution must hold a Maximum Commitment of not less than
$25,000,000.00; (2) If an existing Lender is assigning a portion of its Maximum
Commitment to a Transferee Lender, such assignment of Maximum Commitment is in
the minimum amount of $5,000,000.00 (or if in a higher amount, in integral
multiples of $5,000,000.00 in excess thereof) and such existing Lender shall
continue to hold an Maximum Commitment of not less than $25,000,000.00 following
the consummation of the contemplated assignment. There shall be no minimum hold
requirement in the event that an existing Lender is assigning one hundred
percent (100%) of its Maximum Commitment. 14(d)Sub-Participations by Lenders.
Any Lender may at any time sell participating interests in any of the
Obligations held by such Lender and its commitments hereunder; provided,
however, that: (1) No participation contemplated by this Paragraph 14(d) shall
relieve such Lender from its obligations hereunder or under any other Credit
Document; (2) Such Lender shall remain solely responsible for the performance of
such obligations; (3) The Company, the Lead Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Credit Documents;
(4) The participation agreement between such Lender and the Person purchasing
such participation interest (a "Participant") shall provide that: (i) the
participation interest of the Participant is an undivided interest in such
Lender's Maximum Commitment, and (ii) the sole voting rights of the Participant
are with respect to those items on which such Lender is entitled to vote
pursuant to Paragraphs 13(b)(2) and 13(b)(7) above; and (5) Such Lender shall
not enter into participation agreements with more than two Participants for each
$25,000,000.00 of Maximum Commitment held by such Lender. The Company
acknowledges and agrees that each Participant shall be considered a Lender for
purposes of Paragraphs 4(e), 4(f), 4(g) and 5(l) above; provided, however, that
in no event shall any Participant be entitled to receive any payment or
compensation in excess of that to which such Participant's selling Lender would
be entitled with respect to the participation interest held by such Participant
if such Lender had not sold any participation interest to such Participant.
14(e)Federal Reserve Bank. Notwithstanding the provisions of Paragraphs 14(a)
and 14(b) above, any Lender may at any time pledge or assign all or any portion
of such Lender's rights under this Agreement and the other Credit Documents to a
Federal Reserve Bank. 14(f)Increases in Availability. From time to time the
Company and any Lender (an "Increasing Lender") may agree, with the prior
written consent of the Lead Administrative Agent, to permanently or temporarily
increase such Lender's Maximum Commitment and Primary Percentage Share, the
dollar amount of any such increase to be, subject to the Aggregate Credit Limit
limitation, in the minimum dollar amount of $5,000,000.00 and integral multiples
of $5,000,000.00 in excess thereof. The Company and the Increasing Lender shall
agree on the Adjustment Date for said increase and, if the increase is a
temporary rather than permanent increase, the date on which said increase shall
terminate (the "Temporary Increase Termination Date"). The Lead Administrative
Agent shall deliver to the Company and each of the Lenders a Commitment Schedule
to be effective as of such Adjustment Date. On the Temporary Increase
Termination Date the aggregate amount of such Increasing Lender's Primary
Percentage Share of outstanding Primary Loans in excess of its Maximum
Commitment after giving effect to the termination of the subject increase shall,
if but only if at such Temporary Increase Termination Date there does not exist
an Event of Default, be payable in full. If at the Temporary Increase
Termination Date there exists an Event of Default, the temporary increase of the
Increasing Lender shall continue in effect and, unless otherwise agreed by one
hundred percent (100%) of the Lenders, shall be treated thereafter as a
permanent increase in said Increasing Lender's Maximum Commitment.
14(g)Provision of Information; Confidentiality. The Company hereby acknowledges
and agrees that in connection with the proposed assignment or subparticipation
by a Lender of its interest in the Obligations, such Lender may disclose to
prospective assignees and Participants any and all information provided to such
Lender hereunder; provided, however, that such information shall be furnished to
such prospective assignees and Participants on a confidential basis. 14(h)Waiver
of Jury Trial. EACH OF THE PARTIES HERETO WAIVES ITS RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER CREDTI DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES
HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
PARAGRAPH 14(h) AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS,
IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
COUNTRYWIDE HOME LOANS, INC.,
a New York corporation
By
Name
Title
ROYAL BANK OF CANADA, as Lead Administrative Agent, Arranger and a
Lender
By
Name
Title
THE BANK OF NEW YORK, as Co-Administrative Agent, a Co-Arranger, a
Co-Agent and a Lender
By
Name
Title
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Syndication Agent, a
Co-Arranger, a Co-Agent and a
Lender
By
Name
Title
CREDIT LYONNAIS, SAN XXXXXXXXX XXXXXX, as Documentation Agent, a
Co-Arranger, a Co-Agent and a Lender
By
Name
Title
ABN AMRO BANK, N.V., as a Co-Agent and a Lender
By
Name
Title
By
Name
Title
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a
Co-Agent and a Lender Agent
By
Name
Title
BARCLAYS BANK PLC, as a Co-Agent and a Lender
By
Name
Title
THE CHASE MANHATTAN BANK, as a Co-Agent and a Lender
By
Name
Title
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES, as a
Co-Agent and a Lender
By
Name
Title
By
Name
Title
NATIONSBANK OF TEXAS, N.A., as a Co-Agent and a Lender
By ________________________________________________________
Name ______________________________________________________
Title _____________________________________________________
BANQUE NATIONALE DE PARIS, as a Lender
By
Name
Title
By
Name
Title
CANADIAN IMPERIAL BANK OF COMMERCE, as a Lender
By
Name
Title
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, as a Lender
By
Name
Title
BANQUE PARIBAS, as a Lender
By
Name
Title
By
Name
Title
BANK ONE, TEXAS, N.A., as a Lender
By
Name
Title
BANK OF HAWAII, as a Lender
By
Name
Title
ACKNOWLEDGED AND AGREED TO as of the day and year first above written:
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By ___________________________________
Name ________________________________
Title _________________________________
SCHEDULE OF EXHIBITS TO CREDIT AGREEMENT
EXHIBIT DOCUMENT
A Form of Officer's Certificate
B Litigation Schedule
C Schedule of Existing Subsidiaries
Annex I: Glossary
Annex II: Schedule of Notice Addresses
la-195654
REVOLVING CREDIT AGREEMENT
By and Among
COUNTRYWIDE HOME LOANS, INC.
and
ROYAL BANK OF CANADA
as Lead Administrative Agent and Arranger
THE BANK OF NEW YORK ("BNY")
as Co-Administrative Agent
XXXXXX GUARANTY AND TRUST COMPANY OF NEW YORK ("MGTC")
as Syndication Agent
CREDIT LYONNAIS, SAN XXXXXXXXX XXXXXX ("CL")
as Documentation Agent
BNY, MGTC and CL
as Co-Arrangers
and
THE LENDERS PARTY THERETO
April 15, 1998
TABLE OF CONTENTS
Page
RECITALS 1
AGREEMENT......................................................................1
1. Credit Facilities............................................1
1(a) Primary Facility...............................................1
1(b) Swing Loan Facility...........................................1
2. Requests for Loans; Funding..................................1
2(a) Requests for Loans.............................................1
2(b) Funding of Loans..............................................1
2(c) Funding Method.................................................1
3. Payment of Principal; Prepayments............................1
3(a) Required Principal Payments....................................1
3(b) Prepayments....................................................1
4. Calculation and Payment of Interest; Related Provisions......1
4(a) Interest on Primary Loans......................................1
4(b) Interest on Swing Loans........................................1
4(c) Payment of Interest............................................1
4(d) Inability to Determine Rate....................................1
4(e) Funding Indemnification........................................1
4(f) Illegality; Impracticality....................................1
4(g) Requirements of Law; Increased Costs...........................1
4(h) Taxes..........................................................7
4(i) Buy-Down Provisions............................................8
4(j) Obligation of Lenders to Mitigate; Replacement of Lenders......1
5. Miscellaneous Lending Provisions.............................1
5(a) Use of Proceeds.....................................................1
5(b) Assumption of Funding/Purchase.................................1
5(c) Evidence of Indebtedness.......................................1
5(d) Interest and Fee Billing and Payment...........................1
5(e) Nature and Place of Payments...................................1
5(f) Post-Default Interest..........................................1
5(g) Computations.................................................1
5(h) Disbursement of Payments Received..............................1
5(i) Fees...........................................................1
5(j) Wire Transfers of Funds........................................1
5(k) Reduction in Aggregate Credit Limit............................1
5(l) Capital Requirements...........................................1
6. Security Agreement; Guaranty; Subordination; Additional Documents..1
6(a) Guaranty and Subordination Agreement...........................1
6(b) Further Documents..............................................1
7. Conditions Precedent.........................................1
7(a) First Loan.....................................................1
7(b) All Loans......................................................1
8. Representations and Warranties of the Company................1
8(a) Financial Condition............................................1
8(b) Corporate Existence; Compliance with Law.......................1
8(c) Corporate Power; Authorization; Enforceable....................1
8(d) No Legal Bar...................................................1
8(e) No Material Litigation.........................................1
8(f) Taxes..........................................................1
8(g) Investment Company Act.........................................1
8(h) Subsidiaries...................................................1
8(i) Federal Reserve Board Regulations..............................1
8(j) ERISA..........................................................1
8(k) Assets.........................................................1
9. Affirmative Covenants........................................1
9(a) Financial Statements...........................................1
9(b) Certificates; Reports; Other Information.......................1
9(c) Payment of Indebtedness........................................1
9(d) Maintenance of Existence and Properties........................1
9(e) Inspection of Property; Books and Records;....................1
9(f) Notices........................................................1
9(g) Expenses.......................................................1
9(h) Credit Documents...............................................1
9(i) Insurance......................................................1
9(j) CPN Program....................................................1
9(k) Hedging Program................................................1
10. Negative Covenants...........................................1
10(a) Liens........................................................1
10(b) Indebtedness.................................................1
10(c) Consolidation and Merger.....................................1
10(d) Acquisitions.................................................1
10(e) Payment of Dividends.........................................1
10(f) Purchase or Retirement of Stock..............................1
10(g) Investments; Advances; Receivables...........................1
10(h) Sale of Assets...............................................1
10(i) Minimum Net Worth...........................................1
10(j) Maximum Total Debt...........................................1
11. Events of Default............................................1
12. Agency Provisions............................................1
12(a) Appointment.................................................1
12(b) Delegation of Duties........................................1
12(c) Exculpatory Provisions.................................1
12(d) Reliance by Agent......................................1
12(e) Notice of Default; Agreement to Advance.....................1
12(f) Non-Reliance on Agent and Other Lenders.....................1
12(g) Indemnification.............................................1
12(h) Agent in Its Individual Capacity............................1
12(i) Successor Agents............................................1
12(j) Sharing of Set-Offs.........................................1
13. Miscellaneous Provisions.....................................1
13(a) No Assignment................................................1
13(b) Amendment....................................................1
13(c) Cumulative Rights; No Waiver.................................1
13(d) Entire Agreement; Severability...............................1
13(e) Survival.....................................................1
13(f) Notices......................................................1
13(g) Governing Law................................................1
13(h) Counterparts.................................................1
14. Additional Lenders; Assignments and Participations; Increases in
Availability;..............1
14(a) Addition of New Lender.....................................1
14(b) Assignments Among Existing Lenders........................1
14(c) Minimum Loan Commitment...................................1
14(d) Sub-Participations by Lenders.............................1
14(e) Federal Reserve Bank......................................1
14(f) Increases in Availability.................................1
14(g) Provision of Information; Confidentiality.................1
14(h) Waiver of Jury Trial......................................36
