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EXHIBIT 10(ddd)
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LOAN AGREEMENT
BY AND BETWEEN
SOURCE ONE MORTGAGE SERVICES CORPORATION
AND
COMERICA BANK
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THIS AGREEMENT is made as of this 10th day of August, 1995, by and
between SOURCE ONE MORTGAGE SERVICES CORPORATION of Farmington Hills, Michigan
(herein called "Company"), and COMERICA BANK, a Michigan banking corporation,
of Detroit, Michigan (herein called "Bank");
WITNESSETH:
ARTICLE 1. THE INDEBTEDNESS: REVOLVING CREDIT
1.1 Subject to the terms and conditions of this Agreement, Bank
agrees to lend to Company at any time and from time to time from the effective
date hereof until the earliest of (i) demand, (ii) the tenth day of the next
month following the occurrence of a Refunding Event, (iii) July 10, 1996, or,
(iv) upon an Event of Default (the "Maturity Date") sums not to exceed the
Commitment Amount. The borrowings hereunder shall be evidenced by a Revolving
Credit Note (herein called "Note") in form similar to that annexed hereto as
Exhibit "A" under which advances, repayments and readvances may be made,
subject to the terms and conditions of this Agreement, provided that Bank shall
only be required to make advances hereunder on the tenth (1Oth) day of a month
or if Bank is not open for commercial banking business on that day then on the
next day Bank is open for commercial banking business (each a "Business Day")
or on any other date agreed to by Company and Bank (each such date being
referred to herein as "Borrowing Date").
1.2 The principal indebtedness represented by the Note shall be
payable on or before the Maturity Date. Company agrees to pay interest on the
unpaid principal balance of the Note from time to time outstanding at a per
annum rate equal to the sum of one half of one percent (0.50%) and the Interest
Rate Margin (as defined below). After the Maturity Date, interest shall accrue
on the unpaid principal balance at the per annum rate of three and one-half
percent (3 1/2%) above Bank's Prime Rate. Interest shall be payable monthly
commencing on September 10, 1995 and on the tenth day of each month thereafter
until the Maturity Date, when the entire unpaid principal balance of the Note
and interest thereon shall be due and payable. Interest shall be computed on a
daily basis using a year of 360 days and assessed for the actual number of days
elapsed and in such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime Rate or Interest Rate Margin
on the date of such change in the Prime Rate or Interest Rate Margin. "Prime
Rate" shall mean the rate of interest established by Bank as its prime rate for
its borrowers as the same may be changed from time to time, which may not
necessarily be Bank's lowest rate for loans.
For purposes of this Agreement, "Interest Rate Margin" shall mean a
margin which varies based on the rating of Company's commercial paper ("CP") by
Standard & Poor's Corporation or its successors ("S&P") and Xxxxx'x Investor
Services, Inc. or its successors ("Moody's") and is determined as follows:
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(a) If (i) the CP is rated A1 by S&P and P1 by Moody's, (ii) the
CP is rated A2 by S&P and P1 by Moody's, or (iii) the
CP is rated A1 by S&P and P2 by Moody's, the Interest Rate
Margin shall be zero.
(b) If the CP is rated A2 by S&P and P2 by Moody's, the Interest
Rate Margin shall be one tenth of one percent (0.10%).
Changes in the Interest Rate Margin shall be effective as of the date of any
change in the rating of the CP by either S&P or Moody's.
1.3 On the tenth day of each month or if such day is not a
Business Day, on the next succeeding Business Day, Company shall deliver to
Bank a forecast of its anticipated average daily Escrow Balances (as defined
below) for the following month (the amount set forth in such forecast being
referred to as the "Availability Amount"); provided however, in no event shall
the Availability Amount exceed $60,000,000. "Escrow Balances" means collected
funds in non-interest bearing accounts maintained by Company with Bank net of
any reserve requirement imposed from time to time by the Board of Governors of
the Federal Reserve Board ("FRB"), which funds represent escrow moneys arising
in connection with Company's mortgage servicing business. For purposes of this
Agreement, reserve requirements shall be determined on the amount of collected
deposits held each day by Bank in each type of escrow deposit account
maintained by Company with Bank at the applicable rate imposed by the FRB. Bank
shall not be obligated to lend to Company under the Note on any Borrowing Date
an amount which exceeds the Availability Amount as set forth in the forecast
delivered to Bank by Company on such date. Bank and Company will consult from
time to time with a view toward allowing Company to maintain its deposit
balances at Bank in types of deposit accounts bearing the lowest legally
permissible reserve requirements practicable consistent with the flexibility
required by the Company to make frequent withdrawals and deposits.
In addition, Bank shall not be obligated to lend under the Note unless
Company shall have first filed with Bank a Request for Draw and Certificate of
Compliance (as of the date of the borrowing) in form similar to that annexed
hereto as Exhibit "B", executed by an authorized officer of Company. Bank may,
at its option, lend under the Note upon the telephone request of an authorized
officer of Company and, in the event Bank makes any such advance upon a
telephone request, the requesting officer shall immediately fax and then
promptly mail to Bank, an executed Request for Draw and Certificate of
Compliance in the form attached as Exhibit "B". Advances upon telephone request
are for the convenience of Company and Bank shall have no liability to Company
in connection with making any advance based upon the telephone request of a
person Bank in good faith believes to be a person authorized to request
advances hereunder.
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1.4(a) If the average daily Escrow Balances for any Loan Period (as
defined below) shall be less than the average daily balance of the principal
outstanding under this Agreement and the Note for such period (an "Escrow
Balance Shortage"), then the Availability Amount as of the next succeeding
Borrowing Date shall be reduced by the amount of the Escrow Balance Shortage.
For purposes of this Section 1.4(a), "Loan Period" shall mean that
period of time beginning on the day the first advance hereunder is made and
ending on the day next preceding the applicable Borrowing Date.
(b) If the average daily Escrow Balances for any Escrow Balance
Measuring Period (as defined below) shall exceed the sum of (i) the average
daily balance of the principal outstanding under this Agreement and the Note
for such period and (ii) the amount of the Escrow Balance Shortage determined
on the first day preceding such Escrow Balance Measuring Period ("Escrow
Balance Overage"), then the Availability Amount as of the next succeeding
Borrowing Date shall be increased by the amount of the Escrow Balance Overage;
provided however, in no event shall the Availability Amount exceed $60,000,000.
"Escrow Balance Measuring Period" shall mean the period of time beginning on a
Borrowing Date and ending on the first day prior to the next succeeding
Borrowing Date.
1.5 On each Settlement Date (as defined below), Company shall pay
to Bank as additional interest, an amount equal to the product of the daily
average Federal Funds Rate for the period beginning with the last Settlement
Date (or if no Settlement Date has occurred, beginning with the date of the
first advance under this Agreement and the Note) and ending on such Settlement
Date (each a "Settlement Period") multiplied by an amount determined by
subtracting from the average daily balance of the principal outstanding under
this Agreement and the Note for the applicable Settlement Period an amount
equal to average daily Escrow Balances for the applicable Settlement Period.
"Settlement Date" shall mean the Maturity Date and any other date or dates
selected by Bank following the date on which all outstanding indebtedness
hereunder and under the Note shall become due and payable (whether by
acceleration, mandatory prepayment or otherwise). "Federal Funds Rate" shall
mean, for any day, a fluctuating interest rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by Bank from three Federal funds
brokers of recognized standing selected by it. Following any Settlement Date,
the Availability Amount shall no longer be affected by any Escrow Balance
Shortage existing prior to such Settlement Date.
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1.6 Company acknowledges and agrees that the principal amount
outstanding under this Agreement and the Note as of any date shall never exceed
an amount equal to One Hundred Ten percent (110%) of aggregate Escrow Balances
on such date. Company agrees upon request of Bank promptly to make all payments
necessary to comply with this provision.
1.7 Company may prepay the Note in whole or in part without
penalty or premium on the tenth (1Oth) day of each month or if that day is not
a Business Day on the next succeeding Business Day; provided, however, each
such prepayment shall be in an amount not less than $250,000. In addition, in
the event the aggregate Escrow Balances shall be less than $20,000,000 for
ninety (90) consecutive Business Days, Company shall, not later than (1)
Business day following demand therefor by Bank, prepay the indebtedness
outstanding hereunder and the Note in full and effective on the date of such
demand, Bank's commitments under this Agreement shall terminate.
ARTICLE 2. CONDITIONS.
Company agrees to furnish Bank, prior to the initial borrowing
hereunder, in form to be satisfactory to Bank, with (i) an opinion of Company's
counsel; (ii) certified copies of resolutions of the Board of Directors of
Company evidencing approval of the borrowings hereunder, (iii) certified copies
of Company's Articles of Incorporation and Bylaws, and (iv) a certificate of
good standing from the State of Company's incorporation and from each
jurisdiction in which it is required to be qualified to do business.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
Company represents and warrants and such representations and
warranties shall be deemed to be continuing representations and warranties
during the entire life of this Agreement:
3.1 Company is a corporation duly organized and existing in good
standing under the laws of the State of Delaware; Company is in good standing
in each jurisdiction in which it is required to be qualified to do business;
execution, delivery and performance of this Agreement and other documents and
instruments required under this Agreement, and the issuance of the Note by
Company are within its corporate powers, have been duly authorized, are not in
contravention of law or the terms of Company's Certificate of Incorporation or
Bylaws, and do not require the consent or approval of any governmental body,
agency or authority; and this Agreement and other documents and instruments
required under this Agreement and Note, when issued, and delivered, will be
valid and binding on Company and enforceable against Company in accordance with
their terms except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement or creditors' rights in general.
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3.2 The execution, delivery and performance of this Agreement and
any other documents and instruments required under this Agreement, and the
issuance of the Note by Company are not in contravention of the unwaived terms
of any indenture, agreement or undertaking to which Company is a party or by
which it is bound.
3.3 No litigation or other proceeding before any court or
administrative agency is pending, or to the knowledge of the officers of
Company is threatened against Company, the outcome of which could materially
impair the financial condition of Company or business of Company.
3.4 Company has fulfilled its obligations under the minimum
funding standards of the Employment Retirement Income Security Act of 1974, as
amended ("ERISA") and the Internal Revenue Code of 1986, as amended, (the
"Code") with respect to each of its employee pension benefit plans subject to
ERISA (the "Pension Plans"), and is in compliance in all material respects with
the presently applicable provisions of ERISA and the Code with respect to each
of its Pension Plans, and has not incurred any liability to the Pension
Guaranty Corporation. As of the date of this Agreement, the Company does not
have any obligation or liability with respect to any multiemployer Plan.
3.5 The balance sheet of Company dated March 31, 1995, previously
furnished Bank, is materially complete and correct and fairly presents the
financial condition of Company as of the date thereof; since said date there
has been no material adverse change in the financial condition of Company; to
the best of the knowledge of Company's officers, Company does not have any
contingent obligations (including any liability for taxes) not disclosed by or
reserved against in said balance sheet, and at the present time there are not
material unrealized or anticipated losses from any present commitment of
Company.
3.6 All tax returns and tax reports of Company required by law to
be filed have been duly filed or extensions obtained, and all taxes,
assessments and other governmental charges or levies (other than those
presently payable without penalty and those currently being contested in good
faith for which adequate reserves have been established) upon Company (or any
of its properties) which are due and payable have been paid. The charges,
accruals and reserves on the books of Company in respect of the Federal income
tax for all periods are adequate in the opinion of Company.
3.7 Company is, in the conduct of its business, in compliance in
all material respects with all federal, state or local laws, statutes,
ordinances and regulations applicable to it, the enforcement of which, if
Company were not in compliance, would have a material adverse effect on the
business or financial condition of Company. Company has all approvals,
authorizations, consents, licenses, orders and other permits of all
governmental agencies and authorities, whether federal, state or local,
required to permit the operation of its business as presently conducted, except
such
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approvals, authorizations, consents, licenses, orders and other permits with
respect to which the failure to have can be cured without having an adverse
effect on the operation of such business.
3.8 No representation or warranty by Company in this Agreement, or
in the Revolving Credit Agreement nor any statement or certificate (including
financial statements) furnished or to be furnished to Bank pursuant hereto
contains or will contain any untrue statement of any material fact or omits or
will omit to state any material fact necessary to make such representation,
warranty, statement or certificate not misleading.
3.9 Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. No part of the proceeds of any
loan hereunder will be used for any purpose which violates the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
as now or from time to time hereafter in effect.
ARTICLE 4. AFFIRMATIVE COVENANTS.
Company hereby agrees that, so long as Bank is committed to make any
advance under this Agreement and thereafter so long as any indebtedness remains
outstanding under this Agreement, Company shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:
4.1 Financial Statements. Furnish to Bank:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of Company, a copy of the consolidated balance
sheet of Company and its consolidated Subsidiaries as at the end of such year
and the related consolidated statements of common stockholders' equity and cash
flows and the consolidated statements of income and retained earnings of
Company and its consolidated Subsidiaries for such year, setting forth in each
case in comparative form the figures for the previous year, reported on,
without a "going concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such
independent certified public accountants to certify such financial statements
without such qualification, by Ernst & Young or other firm of independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of Company, the unaudited consolidated balance sheet of Company and its
consolidated Subsidiaries as at the end of each such quarter and the related
unaudited consolidated statements of common stockholders' equity and cash flows
and the unaudited consolidated statements of income and retained earnings of
Company and its consolidated Subsidiaries for such quarter and the portion of
the fiscal year through such date, setting forth in each case,
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commencing with the quarterly period ending on June 30, 1995, in comparative
form the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects when considered in relation to the
consolidated financial statements of Company and its consolidated Subsidiaries
(subject to normal year-end audit adjustments); and
(c) all financial statements required to be delivered by Company
under the Revolving Credit Agreement,
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or Responsible Officer, as the
case may be, and disclosed therein).
4.2 Certificates: Other Information. Furnish to Bank:
(a) concurrently with the delivery of the financial statements
referred to in Section 4.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 4.1(a) and 4.1(b), a certificate of a Responsible
Officer (i) stating that, to the best of such Responsible Officer's knowledge,
Company during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition contained in this Agreement and
in the Note to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, and (ii) in the case of the
financial statements of Company referred to in Sections 4.1(a) and (b), showing
in detail the calculations supporting such statements in Sections 5.2, 5.3 and
5.5;
(c) within fifteen days after the same are filed, copies of all
financial statements and reports relating to Company, FAC or FAE in general
which Company, FAC or FAE may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority; and
(d) promptly, such additional financial and other information as
Bank, may from time to time reasonably request.
4.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
of its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity
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with GAAP with respect thereto have been provided on the books of Company or
its Subsidiaries, as the case may be.
4.4 Conduct of Business and Maintenance of Existence. (i)
Continue to engage in business of the same general type as now conducted by it,
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its businesses,
including preservation and maintenance of Company's and such Subsidiary's
status and eligibility under the regulations of each of the Agencies, (iii)
preserve, renew and keep in full force and effect its corporate existence, and
(iv) comply with all Contractual Obligations and Requirements of Law applicable
to it (except, with respect solely to clauses (iii) and (iv), (a) to the extent
that failure to do so would not, in the aggregate, have a Material Adverse
Effect, and (b) to the extent contested in good faith by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of Company or such Subsidiary, as the case may be, in accordance with
GAAP).
4.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its businesses in good working order and condition; and
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks as
are usually insured against in the same general area by companies engaged in
the same or a similar business (except, in each case, to the extent that
failure to do so would not, in the aggregate, have a Material Adverse Effect;
provided, that Company and its Subsidiaries may (so long as Company deems it
prudent in its business judgment to do so) maintain programs of self-insurance
to the same extent and in the same manner as in effect on the date of this
Agreement.
4.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records 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 Bank to visit and inspect any of its properties and examine
and make abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired (subject to reasonable requests for
confidential treatment), and to discuss the business, operations, property,
condition (financial or otherwise) or prospects of Company and its Subsidiaries
with officers and employees of Company and its Subsidiaries and with its
independent certified public accountants.
4.7 Notices. Promptly give notice to Bank of:
(a) the occurrence of any Refunding Event, Default or
Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of Company or any of its Subsidiaries which,
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if not cured, would reasonably be expected to have a Material Adverse Effect,
or (ii) litigation, investigation or proceeding which may exist at any time
between Company or any of its Subsidiaries and any Governmental Authority
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect:
(c) any litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority affecting Company or any of its
Subsidiaries or any of its or their respective properties or revenues (i) with
respect to this Agreement or the Notes or any of the transactions contemplated
hereby, or (ii) which, if adversely determined, would have a Material Adverse
Effect, other than any such litigation, investigation or proceeding in respect
of which Company has determined in good faith, after advice from or
consultation with its counsel, that the likelihood that such litigation,
investigation or proceeding will be resolved in a manner which would have a
Material Adverse Effect is remote:
(d) the following events, as soon as practicable, and in
any event within 30 days, after it knows or has reason to know of the following
events: (i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any other action by the PBGC, Company or any Commonly
Controlled Entity, or any Multiemployer Plan with respect to the withdrawal
from, or the termination, Reorganization or Insolvency of, any Single Employer
Plan or Multiemployer Plan, and in addition to such notice, shall deliver to
Bank a certificate of its chief financial officer setting forth the details
thereof and the action that Company or the Commonly Controlled Entity proposes
to take with respect thereto: and
(e) any development or event that would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Company proposes to take with respect thereto.
4.8 Maintenance of Forward Commitments. Maintain at all times in
accordance with Company's practices on the date hereof, hedging contracts,
forward purchase contracts or other forward commitments in an aggregate amount
at least equal to the amount of mortgage loans receivable held by Company and
its Subsidiaries at such time.
ARTICLE 5. NEGATIVE COVENANTS.
Company hereby agrees that, so long as Bank is committed to make any
advance under this Agreement and thereafter so long as any indebtedness remains
outstanding under this Agreement shall not,
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nor shall it permit any of its Subsidiaries to, directly or indirectly:
5.1 Breach any covenant under the Revolving Credit Agreement, if
such breach results in the occurrence of an Event of Default under the
Revolving Credit Agreement.
5.2 Consolidated Tangible Net Worth. Permit Consolidated Tangible
Net Worth at any time to be less than $180,000,000.
5.3 Leverage. Permit the ratio of Consolidated Indebtedness to
Consolidated Tangible Net Worth at the end of any month to be greater
than 4 to 1.
5.4 Margin Stock. Permit more than 25 percent of the value of the
assets either of Company only or of Company and its Subsidiaries on a
consolidated basis subject to any restriction under this Agreement to consist
of "margin stock" (within the meaning of Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System).
5.5 Permit Debt (as defined in the Revolving Credit Agreement) to
exceed an amount which is $10,000,000 less than the sum of values as set forth
in section 8.5(a) through (f) of the Revolving Credit Agreement (assuming that
Facility is unsecured).
ARTICLE 6. DEFINITIONS.
For the purposes of Article 4 of this Agreement entitled "Affirmative
Covenants" and Article 5 entitled "Negative Covenants" the following terms
shall have the definitions set forth in this Article 6.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Agencies": collectively, the Federal National Mortgage Association,
Federal Home Loan Mortgage Corporation and Government National Mortgage
Association.
"Code": The Internal Revenue Code of 1986, as amended from time to
time.
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"Commitment Amount": The lesser of (i) $60,000,000, or (ii) an amount
equal to the amount then available to be drawn by Company under the Revolving
Credit Agreement.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with Company within the meaning of Section 4001
of ERISA or is part of a group which includes Company and which is treated as a
single employer under Section 414 of the Code.
"Consolidated Indebtedness": at a particular date, all amounts which
would, in conformity with GAAP, be included as Indebtedness on a consolidated
balance sheet of Company and its Subsidiaries as at such date; provided, that
Consolidated Indebtedness shall in any event exclude Non-Recourse and Defeased
Debt.
"Consolidated Intangibles": at a particular date, all assets of
Company and its Subsidiaries, determined on a consolidated basis, that would,
in conformity with GAAP, be classified as intangible assets, including, without
limitation, unamortized debt discount and expense in respect of debt issued by
Company and its Subsidiaries net of unamortized premiums in respect of debt
issued by Company and its Subsidiaries, unamortized organization and
reorganization expense, patents, trade or service marks, franchises, trade
names and goodwill, but Consolidated Intangibles shall not include the amount
capitalized as mortgage purchase servicing costs.
"Consolidated Net Income": for a particular period, the amount set
forth as consolidated net income on the consolidated statement of income of
Company and its Subsidiaries calculated in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would, in conformity with GAAP, be included under shareholders' equity on a
consolidated balance sheet of Company and its Subsidiaries as at such date,
including up to $50,000,000 of redeemable common stock of Company owned by the
management or any employee stock ownership plan of Company.
"Consolidated Tangible Net Worth": at a particular date, the excess,
if any, of (a) Consolidated Net Worth as at such date, over (b) Consolidated
Intangibles as at such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Article 7 of this Agreement
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
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"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Article 7 of this
Agreement provided, that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"FAC": The Fund American Companies, Inc., a Delaware corporation.
"FAE": Fund American Enterprises, Inc., a Delaware corporation.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including without limitation, the Agencies.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all obligations of such Person
under Financing Leases, (c) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, and (d) all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof; provided, that Indebtedness of Company and its Subsidiaries shall in
any event exclude Mortgage-Related Indebtedness.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Financing Lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction in respect of
any of the foregoing).
"Long-Term Liabilities": that portion of Total Liabilities which are
determined to be long term in accordance with GAAP.
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"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of Company
and its Subsidiaries taken as a whole, (b) the ability of Company to perform
its obligations under this Agreement or the Note, or (c) the validity or
enforceability of this Agreement or the Note or of the rights or remedies of
Bank hereunder or thereunder.
"Maturity Date": as defined in Section 1.1 of this Agreement.
"Moody's": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) or ERISA.
"Note": as defined in Section 1.1 of this Agreement.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an 'employer' as defined in Section 3(5) of
ERISA.
"Refunding Event" shall mean that Company shall breach a covenant
contained in sections 5.2, 5.3 or 5.5 of this Agreement.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System.
"Regulations": the regulations of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty- day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. S 2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each cased applicable
to or binding upon such Person
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or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": with respect to Company, the Chairman, the
President, the Chief Financial Officer or any Executive Vice President of
Company.
"Revolving Credit Agreement" shall mean that Amended and Restated
Revolving Credit Agreement dated March 24, 1995, to which Company is a party,
as amended from time to time.
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, (i) a corporation of which shares of
stock having ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person and (ii) any partnership of
which such Person or any Subsidiary is a general partner or any partnership
more than 50% of the equity interests of which are owned, directly or
indirectly, by such Person or by one or more other Subsidiaries, or by such
Person and one or more other Subsidiaries. Notwithstanding the foregoing,
except as applied to Section 4.1 of this Agreement, the term "Subsidiary" shall
not be deemed to include any special purpose corporation, partnership or trust
created for the purpose of, and the sole business and activities of which
(other than activities incidental to its organization and normal operations)
relate to, the issuance of Mortgage-Related Indebtedness.
"Total Liabilities": at any date, the total liabilities of Company and
its consolidated Subsidiaries as at such date, determined in accordance with
GAAP.
ARTICLE 7. EVENTS OF DEFAULT.
7.1 Upon non-payment of any installment of the principal or
interest on the Note when due in accordance with the terms thereof, or upon
non-payment of any other outstanding indebtedness of Company to Bank hereunder
or under any other instrument or evidence of indebtedness when due in
accordance with the terms thereof, the Note shall automatically become
immediately due and payable and Bank shall not be obligated to make any further
advances hereunder.
7.2 Upon occurrence of any of the following events of default:
(a) default in the observance or performance of any of the
conditions, covenants or agreements of Company set forth in
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Articles 4 or 5 herein (except for the covenants in Sections 5.2, 5.3 and 5.5);
(b) default in observance or performance of any of the other
conditions, covenants (except for the covenants in sections 5.2, 5.3 and 5.5)
or agreements of Company herein set forth, and continuance thereof for thirty
(30) days after notice to Company by Bank;
(c) any representation or warranty made or deemed made by Company
herein or which is contained in any certificate, document or financial or other
statement furnished at any time under this Agreement shall prove to have been
incorrect, false or misleading in any respect material to Company or its
ability to perform its obligations under this Agreement on or as of the date
made or deemed made unless Company shall have caused the facts or circumstances
in respect of which such representation or warranty was incorrect, false or
misleading to be changed to conform to such representation or warranty so that
such representation or warranty ceases to be incorrect, false or misleading;
(d) default in the observance or performance of any of the
conditions, covenants or agreements of Company set forth in any document
related to or connected with this Agreement or the indebtedness hereunder, and
continuation of such default beyond any period of grace specified in any such
document;
(e) Company shall (i) default in any payment of principal of or
interest on any indebtedness (other than the Note) in an aggregate principal
amount of $25,000,000 or in the payment of any matured contingent obligation in
an aggregate principal amount outstanding of at least $25,000,000 beyond the
period of grace, if any, and after the giving of required notice, if any,
provided that the instrument or agreement under which such indebtedness or
contingent obligation of at least $25,000,000 was created; or (ii) default in
the observance of performance of any other agreement or condition relating to
any such indebtedness or contingent obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such indebtedness
or beneficiary or beneficiaries of such contingent obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such indebtedness to become due
prior to its stated maturity or such contingent obligation to become payable;
(f) one or more judgments or decrees shall be entered against
Company involving in the aggregate a liability (not covered by insurance and
not paid) of $25,000,000 or more and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof;
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(g) the occurrence of any "reportable event", as defined in the
Employee Retirement Income Security Act of 1974 and any amendments thereto,
which is determined to constitute grounds for termination by the Pension
Benefit Guaranty Corporation of any employee pension benefit plan maintained by
or on behalf of Company for the benefit of any of its employees or for the
appointment by the appropriate United States District Court of a trustee to
administer such plan and such reportable event is not corrected and such
determination is not revoked within thirty (30) days after notice thereof has
been given to the plan administrator or Company; or the institution of
proceedings by the Pension Benefit Guaranty Corporation to terminate any such
employee benefit pension plan or to appoint a trustee to administer such plan;
or the appointment of a trustee by the appropriate United States District Court
to administer any such employee benefit pension plan;
then, or at any time thereafter, unless such default is remedied, Bank may give
notice to Company declaring all outstanding indebtedness hereunder and under
the Note to be due and payable, whereupon all indebtedness then outstanding
hereunder and under the Note shall immediately become due and payable without
further notice and demand, and Bank shall not be obligated to make further
advances hereunder.
7.3 If a creditors' committee shall have been appointed for the
business of Company; or if Company shall have made a general assignment for the
benefit of creditors or shall have been adjudicated bankrupt, or shall have
filed a voluntary petition in bankruptcy or for reorganization or to effect a
plan or arrangement with creditors; or shall file an answer to a creditor's
petition or other petition filed against it, admitting the material allegations
thereof for an adjudication in bankruptcy or for reorganization; or shall have
applied for or permitted the appointment of a receiver, or trustee or custodian
for any of its property or assets; or such receiver, trustee or custodian shall
have been appointed for any of its property or assets (otherwise than upon
application or consent of Company) and such receiver, trustee or custodian so
appointed shall not have been discharged within forty-five (45) days after the
date of his appointment or if an order shall be entered and shall not be
dismissed or stayed within forty-five (45) days from its entry, approving any
petition for reorganization of Company; then the Note and all indebtedness then
outstanding hereunder shall automatically become immediately due and payable
and Bank shall not be obligated to make further advances under this Agreement.
ARTICLE 8. INDEMNITY.
Company agrees to release, hold harmless and indemnify Bank from and
against any and all claims of any kind which may at any time be brought by any
private party, administrative agency or any other person with respect to the
deposit by Company with Bank of any escrow funds, the non-interest bearing
nature of any deposits, and/or the use of the deposits by Company as
compensating balances. This indemnification extends not only to any judgments
or
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settlements against Bank, but also to full recovery of Bank's associated legal
expenses (whether out-of-pocket or incurred internally) and costs and expenses
including without limitation all costs and expenses incurred by Bank in
complying with any discovery requests or orders, administrative or other,
received in connection with such deposits.
It is expressly agreed and understood that the provisions of this
Section 8 shall and are intended to be continuing and shall survive the
repayment of any indebtedness of Company to Bank under this Agreement and the
Note and the termination of this Agreement.
ARTICLE 9. MISCELLANEOUS.
9.1 This Agreement shall be binding upon and shall inure to the
benefit of Company and Bank and their respective successors and assigns.
9.2 No delay or failure of Bank in exercising any right, power or
privilege hereunder shall affect such right, power or privilege, nor shall any
single or partial exercise thereof preclude any further exercise thereof, or
the exercise of any other power, right or privilege. The rights of Bank under
this Agreement are cumulative and not exclusive of any right or remedies which
Bank would otherwise have.
9.3 Where the character or amount of any asset or liability or
item of income or expense is required to be determined or any consolidated or
other accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with generally accepted accounting
principles consistently applied.
9.4 All notices to Company with respect to this Agreement shall be
deemed to be completed upon mailing by certified mail as follows:
To Company: Source One Mortgage Services Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx, Vice President
To Bank: Comerica Bank
Xxx Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Michigan Corporate Division I
9.5 Company agrees to reimburse Bank for all reasonable
out-of-pocket expenses (including reasonable fees, time charges and expenses of
attorneys for Bank, which may be employees of the Bank) incurred in connection
with the preparation, negotiation and execution of this Agreement and any other
documentation contemplated hereby and the consummation and closing of the
transactions contemplated by this Agreement and such other
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documentation; provided however that the maximum amount of fees, time charges
and expenses of attorneys for Bank payable by Company pursuant to this sentence
be twenty-five thousand dollars ($25,000.00) plus the amount of disbursements
actually incurred by such attorneys. All reasonable costs, including reasonable
attorney fees, actually incurred by Bank in reviewing, revising, protecting or
enforcing any of its rights against Company or defending Bank from any claims
or liabilities by any party or otherwise incurred by Bank in connection with an
event of default or the enforcement of this Agreement or the related documents
shall also by paid by Company.
9.6 This Agreement shall become effective upon the execution
hereof by Bank and Company.
9.7 No amendments or waiver of any provision of this Agreement nor
consent to any departure by Company therefrom shall in any event be effective
unless the same shall be in writing and signed by the Bank, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No amendment, waiver or consent
with respect to any provision of this Agreement shall affect any other
provision of this Agreement.
9.8 This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Michigan.
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK SOURCE ONE MORTGAGE SERVICES
CORPORATION
By: /s/ By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Its: Vice President Its: EVP and CFO
---------------------------- -----------------------------
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EXHIBIT "A"
REVOLVING CREDIT NOTE
$60,000,000 Detroit, Michigan
As of August 10, 1995
On or before the Maturity Date, FOR VALUE RECEIVED, the undersigned,
Source One Mortgage Services Corporation, a Michigan corporation (herein called
"Company") promises to pay to the order of COMERICA BANK (herein called "Bank")
at: Xxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, or such other place as Bank may
designate, the indebtedness or so much of the sum of Sixty Million Dollars
($60,000,000) as may from time to time have been advanced and then be
outstanding hereunder and under a certain Loan Agreement by and between Company
and Bank dated as of August 10, 1995 (herein called the Loan Agreement").
The indebtedness outstanding under this Note from time to time shall
bear interest as set forth in the Loan Agreement. This Note may be prepaid as
set forth in the Loan Agreement.
This Note evidences borrowing under, is subject to, shall be prepaid
in accordance with, and may be matured under the terms of the Loan Agreement,
to which reference is hereby made.
All agreements between Company and Bank pertaining to the indebtedness
described herein are expressly limited so that in no event whatsoever shall the
amount of interest paid or agreed to be paid to Bank exceed the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of the Loan Agreement, this Note or
any other instrument securing this Note or all or any part of the indebtedness
secured thereby, at the time performance of such provision shall be due, shall
involve exceeding the interest limitation validly prescribed by law which a
court of competent jurisdiction may deem applicable hereto, then, the
obligation to be fulfilled shall be reduced to an amount computed at the
highest rate of interest permissible under such applicable law, and if, for any
reason whatsoever, Bank shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of the principal amount described herein or otherwise
owed by Company to Bank, (whether or not then due and payable) and not to the
payment of interest.
Notwithstanding anything herein to the contrary, nothing shall limit
any rights granted Bank by other instruments or by law.
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21
This Note shall be governed by and interpreted in accordance with the
laws of the State of Michigan.
SOURCE ONE MORTGAGE SERVICES
CORPORATION
By: _________________________________
Its: ________________________________
X-0
00
XXXXXXX "X"
REQUEST FOR DRAW AND
CERTIFICATE OF COMPLIANCE
TO: COMERICA BANK (the "Bank")
The undersigned hereby request(s) an advance in the amount of
________________________________________ DOLLARS ($______________) against the
Revolving Credit Note dated ___________________, 1995, of undersigned to the
Bank in the face amount of Sixty Million Dollars ($60,000,000).
The proceeds of this advance shall be deposited to the Account No.
_______________ of the undersigned with the Bank or as follows:
____________________________________________________________________________
___________________________.
Undersigned warrants and certifies to the Bank that (i) the amount of
the advance requested herein does not exceed the amount which the undersigned
estimates to be its anticipated average daily escrow balances for the month
following the date of such advance under that certain Loan Agreement (the "Loan
Agreement") dated as of August 10, 1995, by and between undersigned and the
Bank and (ii) no condition exists or event has occurred which constitutes or,
with the running of time would constitute a default under the Loan Agreement.
Dated this ______ day of ___________________, 19__.
SOURCE ONE MORTGAGE SERVICES
CORPORATION
By: _________________________________
Its: ________________________________
B-1
