Exhibit 10.1
STANDBY LOAN AGREEMENT
STANDBY LOAN AGREEMENT dated as of __________, ____, between FGIC
Securities Purchase, Inc., a Delaware corporation (the "Borrower"), and General
Electric Capital Corporation, a New York corporation ("GE Capital").
WHEREAS, the Borrower desires to borrow amounts from GE Capital from
time to time for the purpose of paying the purchase price of Tendered Bonds (as
defined herein) and GE Capital is prepared to make such loans upon the terms
hereof;
NOW THEREFORE, in consideration of the respective agreements contained
herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS. The following terms as used in this Agreement shall have
the following meanings, unless the context otherwise requires:
"AGREEMENT" shall mean this Standby Loan Agreement, as the same may from
time to time be amended or supplemented.
"AVAILABLE COMMITMENT" shall mean, at the time any determination thereof
is to be made, the amount of the Commitment adjusted as follows: (i) downward by
an amount equal to _________% of the aggregate principal amount of all Tendered
Bonds purchased by the Borrower with the proceeds of Loans made under this
Agreement and (ii) upward by an amount equal to __________% of the aggregate
principal amount of Tendered Bonds which have been sold by the Borrower in a
remarketing pursuant to Section 2.04 of the Standby Bond Purchase Agreement, the
proceeds of which have been delivered to GE Capital as a prepayment of Loans as
required by Section 4.2 of this Agreement.
"Base Rate" shall mean for any day the Prime Rate for such day plus 1%;
provided that the Base Rate shall at no time exceed the lesser of (a) 25% per
annum and (b) the maximum rate permitted by applicable law.
"BONDS" shall mean the ______________________________________, Series
_____________, of the Issuer in an aggregate principal amount not to exceed
$_____________.
"BORROWING" shall mean the incurrence of a Loan by the Borrower from GE
Capital pursuant to Section 2.3 hereof.
"BORROWING DATE" shall mean the date on which a Borrowing is, or is to
be, consummated, as the context may indicate; provided that in no event shall
the Borrowing Date be (i) on the same day the Notice of Borrowing is received if
the Notice of Borrowing is received by GE Capital later than 1:00 p.m. (New York
City time), in which case the Borrowing Date shall be the next succeeding
Business Day or (ii) after the last day of the Commitment Period.
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"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other
day on which the New York Stock Exchange or banks are authorized or obligated by
law or executive order to close in New York, New York or any city in which is
located the principal corporate trust officer of the Trustee or the office of
the Borrower at which demands for the payment with respect to Tendered Bonds
will be made.
"COMMITMENT" shall mean, initially $___________, and thereafter, at the
time any determination thereof is to be made, such initial amount reduced by the
amount of any permanent reduction(s) in such amount made pursuant to Section 3.2
hereof.
"COMMITMENT FEE" shall have the meaning assigned to that term in Section
3.1 hereof.
"COMMITMENT PERIOD" shall mean the period commencing with and including
the Effective Date and ending on and including the Commitment Termination Date.
"COMMITMENT TERMINATION DATE" shall mean the date which is five years
from the Effective Date; provided that if such date is not a Business Day, the
Business Day immediately succeeding such date.
"DEFAULT" shall mean an event, act or occurrence which with the giving
of notice or the lapse of time (or both) would become an Event of Default.
"Effective Date" shall have the meaning assigned to such term in Section
7.1 hereof.
"EVENT OF DEFAULT" shall have the meaning assigned to that term in
Section 8.1 hereof.
"ISSUER" shall mean the _________________________, a _______ of the
___________________________________.
"LOAN" or "LOANS" shall have the meaning provided in Section 2.1.
"NOTE" shall have the meaning provided in Section 2.5.
"NOTICE OF BORROWING" shall have the meaning provided in Section 2.3.
"PERSON" shall mean an individual or a corporation, partnership, trust,
firm, incorporated or unincorporated association, joint venture, joint stock
company, unincorporated organization, government (or an agency or political
subdivision thereof) or other entity of any kind.
"PRIME RATE" shall mean the rate of interest publicly announced by
Xxxxxx Guaranty Trust Company of New York from time to time as its Prime Rate.
"REMARKETING AGENT" means the entity designated as such in the Bonds and
its permitted successors and assigns.
"REMARKETING AGREEMENT" shall mean the Remarketing Agreement between the
Issuer and the Remarketing Agent relating to the Bonds.
"STANDBY BOND PURCHASE AGREEMENT" shall mean the Standby Bond Purchase
Agreement, dated as of the date hereof, between the Borrower and the Trustee.
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"TENDER AGENT" shall mean the entity designated as such in the Bonds and
its permitted successors and assigns.
"TENDERED BONDS" shall mean Bonds tendered or deemed tendered to the
Tender Agent for purchase pursuant to the terms of the Bonds and for which the
Borrower has received a notice of purchase pursuant to Section 2.02 of the
Standby Bond Purchase Agreement.
"TRANSFER NOTICE" shall have the meaning provided in Section 4.3.
"TRUSTEE" shall mean Chase Manhattan Trust Company, National
Association, and its permitted successors and assigns.
ARTICLE II
LOAN PROVISIONS
SECTION 2.1 COMMITMENT. Upon the terms and subject to the conditions
of this Agreement, GE Capital will make loans (each a "Loan" and, collectively,
the "Loans") to the Borrower during the Commitment Period, in an aggregate
principal amount outstanding at any time up to but not exceeding the Commitment.
SECTION 2.2 AMOUNT AND PURPOSE OF LOANS. Each Loan shall be in an
amount not exceeding the purchase price for Tendered Bonds which represents the
outstanding principal amount of such Tendered Bonds together with accrued
interest thereon to but excluding the Borrowing Date, and each Loan shall mature
on the Commitment Termination Date. The proceeds of each Loan shall be used only
for the purpose of paying such purchase price for Tendered Bonds.
SECTION 2.3 BORROWING PROCEDURES. Whenever the Borrower desires to
make a Borrowing hereunder, its duly authorized representative shall give GE
Capital at its office located at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000; Attention: Senior Vice President - Corporate Treasury and Global Funding
Operation, Telecopy: 000-000-0000, prior written notice of such Borrowing by at
least 11:45 a.m., New York City time, on the proposed Borrowing Date. Each such
notice (each a "Notice of Borrowing") shall be substantially in the form of
Exhibit A attached hereto, and shall specify the aggregate principal amount the
Borrower desires to borrow hereunder, the aggregate principal amount of Tendered
Bonds being purchased with the proceeds of such Borrowing, the proposed
Borrowing Date (which shall be a Business Day), the place where the proceeds of
such Borrowing shall be made available and whether the Borrowing is to be made
available in immediately available or next-day funds.
SECTION 2.4 DISBURSEMENT OF FUNDS. No later than 2:15 p.m. (New York
City time) on each Borrowing Date (if the related Notice of Borrowing has been
received by 11:45 a.m. (New York City time) on such date), GE Capital will make
available the amount of the Borrowing requested to be made on such date in U.S.
dollars, in the funds specified in the Notice of Borrowing and pursuant to the
instructions specified in the Notice of Borrowing.
SECTION 2.5 NOTE. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans shall be evidenced by a single promissory note
(the "Note") substantially in the form of Exhibit B hereto with the blanks
appropriately completed in conformity herewith. The Note shall (i) be payable to
the order of GE Capital (ii) be dated the date of this Agreement, (iii) be in a
stated
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principal amount equal to the Commitment on the date of issuance, (iv) be
payable in the principal amount of the Loans evidenced thereby, (v) mature on
the Commitment Termination Date, (vi) bear interest as provided in Section 2.6
in respect of the Loans evidenced thereby, and (vii) be entitled to the benefits
of this Agreement.
(b) The date and amount of each Loan made by GE Capital and
of each repayment of principal thereon received by GE Capital shall be recorded
by GE Capital on the Loan and Repayment Schedule attached to the Note, and the
aggregate unpaid principal amount shown on such Schedule shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on such Note. The
failure to record or any error in recording any such amount on such Schedule
shall not, however, limit, increase or otherwise affect the obligations of the
Borrower hereunder or under the Note to repay the outstanding principal amount
of the Loans together with all interest accruing thereon.
SECTION 2.6 INTEREST. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Loan at a rate per annum which
shall be the Base Rate in effect from time to time.
(b) Interest shall be calculated on the basis of a year of
365 days (or on 366 days in a leap year) and paid for the actual number of days
elapsed to the day of payment.
(c) Overdue principal and overdue interest in respect of
each Loan shall bear interest at a rate per annum equal to the lesser of (i) 2%
in excess of the Base Rate in effect from time to time, (ii) 25% and (iii) the
maximum rate permitted by applicable law.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable on the first day of each calendar month and on any prepayment or at
maturity (whether by acceleration or otherwise), and after such maturity, on
demand.
ARTICLE III
COMMITMENT
SECTION 3.1 COMMITMENT FEES. (a) In consideration of the commitment
of GE Capital to make Loans to the Borrower under the terms hereof, the Borrower
hereby agrees to pay GE Capital a fee (herein called the "Commitment Fee") which
shall be in the amounts, and shall be payable on the dates, mutually agreed to
by the Borrower and GE Capital.
(b) In addition, the Borrower shall pay GE Capital on the
Effective Date an initial fee in an amount mutually agreed to by the Borrower
and GE Capital.
SECTION 3.2 REDUCTION OR TERMINATION OF THE COMMITMENT. (a) The
Borrower shall have the right at any time and from time to time, to permanently
reduce in part, or to terminate in whole, without penalty or premium, the
Commitment upon not less than one Business Day prior notice (by telex, telegram
or telecopier) received by GE Capital, designating the date (which shall be a
Business Day) of such reduction or termination and the amount of any partial
reduction. Such partial reduction or termination of the Commitment shall be
effective on the date specified in the Borrower's aforesaid notice.
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(b) GE Capital and the Borrower hereby agree that neither of
them will exercise any right to terminate this Agreement pursuant to Section
3.2(a) hereof so long as any obligations pursuant to Section 2.01 of the Standby
Bond Purchase Agreement remain outstanding; provided, that if the Borrower
exercises any termination right under Section 2.03 of the Standby Bond Purchase
Agreement, the result of which is to terminate the Commitment thereunder (and as
defined therein), a termination hereof may be effected.
ARTICLE IV
PAYMENTS
SECTION 4.1 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay the Loans in whole or in part, without premium or penalty, from time
to time upon at least one Business Day prior written notice (or telephonic
notice confirmed in writing).
SECTION 4.2 MANDATORY PREPAYMENTS. In the event any Tendered Bonds
purchased by the Borrower with the proceeds of Loans made available hereunder
are either (i) remarketed in accordance with the terms of the Remarketing
Agreement, (ii) sold by the Borrower (other than pursuant to a remarketing as
described in clause (i) above) to a party or parties other than GE Capital or
(iii) redeemed or otherwise paid by or on behalf of the Issuer, the Borrower
shall immediately (in no event later than the next Business Day) deliver, or
cause to be delivered, to GE Capital the purchase price for such Tendered Bonds.
Upon receipt of such payment GE Capital shall apply such payment as a prepayment
of the Loans, such amount to be applied first to reduce any interest accrued but
unpaid on the Loans and then applied to reduce the principal amount of any Loans
then outstanding. In connection with any prepayment made in accordance with
clause (i) above, the Borrower shall include with such prepayment a notice
specifying the aggregate principal amount of Tendered Bonds which were sold in
the remarketing giving rise to such prepayment.
SECTION 4.3 REPAYMENT OF LOANS BY TRANSFER OF TENDERED BONDS. (a) GE
Capital shall have the right, in its sole discretion, at any time during the
term of this Agreement, to give written notice (each a "Transfer Notice") to the
Borrower requesting that the Borrower transfer to GE Capital, in satisfaction of
the payment of outstanding Loans, Tendered Bonds then held by the Borrower. Upon
receipt of such notice, the Borrower shall immediately (in no event later than
the next Business Day) transfer, or cause to be transferred, to (or at the
direction of) GE Capital such Tendered Bonds at the address specified in the
Transfer Notice. GE Capital shall treat the receipt of the aggregate principal
amount of such Tendered Bonds plus accrued interest thereon as a prepayment of
the Loans, such amount to be applied first to reduce any interest accrued but
unpaid on the Loans and then applied to reduce the principal amount of any Loans
then outstanding.
(b) On the Commitment Termination Date, the Borrower shall
have the right to deliver, or cause to be delivered, to (or at the direction of)
GE Capital all Tendered Bonds then held by the Borrower in payment for all or
any portion of the Loans outstanding on such date. GE Capital shall treat the
receipt of the aggregate principal amount of such Tendered Bonds plus accrued
interest thereon as a repayment of the Loans, such amount to be applied first to
reduce any interest accrued but unpaid on the Loans and then applied to reduce
the principal amount of the Loans then outstanding.
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(c) GE Capital expressly reserves the right to sell Tendered
Bonds received by it pursuant to this Section 4.3. Any Tendered Bonds sold by GE
Capital pursuant to this Section 4.3 shall bear interest at the same rate and be
subject to the same terms and conditions as applied prior to such Bonds'
becoming Tendered Bonds; provided, however, that Tendered Bonds shall not be
entitled to the benefits of tender and purchase under Sections 2.01 and 2.02 of
the Standby Bond Purchase Agreement.
(d) For purposes of this Section 4.3, the aggregate
principal amount of Tendered Bonds shall mean the aggregate face amount of such
Tendered Bonds.
SECTION 4.4 PAYMENTS. All payments to be made by or on behalf of the
Borrower to GE Capital hereunder (other than as contemplated under Section 4.3
above), whether on account of principal or interest on the Loans, the Commitment
Fee or other amounts at any time owing hereunder or in connection herewith,
shall be made to GE Capital at Bankers Trust Company - New York, Account Number
00-000-000, in immediately available funds. All such payments shall be made to
GE Capital not later than noon, New York City time, on the date due; and funds
received by GE Capital as aforesaid after that hour shall be deemed to have been
received by GE Capital on the next succeeding Business Day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants to GE Capital as follows:
(a) Corporate Status. The Borrower is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Borrower is duly qualified to transact business and is in good
standing in the jurisdictions in which the conduct of its business or the
ownership of its property requires such qualification.
(b) Power and Authorization. The Borrower has the corporate
power and authority (i) to execute, deliver and perform this Agreement and the
Note, (ii) to issue the Note in the manner and for the purpose contemplated by
this Agreement, and (iii) to execute, deliver and perform all other agreements
and instruments to be executed and delivered by the Borrower pursuant to or in
connection with this Agreement.
(c) No Violation. The execution, delivery and performance by
the Borrower of this Agreement, the issuance of the Note in the manner and for
the purpose contemplated by this Agreement and the execution, delivery and
performance by the Borrower of all other agreements and instruments to be
executed and delivered by the Borrower pursuant hereto or thereto or in
connection herewith or therewith (i) will not violate any provision of the
Certificate of Incorporation or By-Laws of the Borrower or any applicable law or
regulation or any order, writ, judgment or decree of any court, arbitrator or
governmental authority, and (ii) will not violate any provision of, constitute a
default under, or result in the creation or imposition of any lien on any of the
assets of the Borrower pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which the Borrower is a party or
which purports to be binding upon the Borrower or upon any of its assets.
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(d) Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as will have been obtained or made prior to the Effective Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance by the Borrower of this Agreement or the
Note or (ii) the legality, validity, binding effect or enforceability against
the Borrower of this Agreement or the Note.
(e) Enforceability. This Agreement has been duly authorized,
executed and delivered by the Borrower. This Agreement constitutes, and each
other agreement or instrument executed and delivered by the Borrower pursuant
hereto or in connection herewith will constitute, and the Note, when executed by
the Borrower, will be duly issued and will constitute, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its respective terms, except as the enforcement thereof may be
limited by bankruptcy and other similar laws of general application relating to
creditors' rights or general principles of equity.
SECTION 5.2 REPRESENTATIONS AND WARRANTIES OF GE CAPITAL. GE Capital
represents and warrants to the Borrower as follows:
(a) Corporate Status. GE Capital is a corporation duly
organized and validly existing in good standing under the laws of the State of
New York.
(b) Power and Authorization. GE Capital has the corporate
power and authority (i) to execute, deliver and perform this Agreement and (ii)
to execute, deliver and perform all other agreements and instruments to be
executed and delivered by GE Capital pursuant to or in connection with this
Agreement.
(c) No Violation. The execution, delivery and performance by
GE Capital of this Agreement and the execution, delivery and performance by GE
Capital of all other agreements and instruments to be executed and delivered by
GE Capital pursuant hereto or in connection herewith, (i) will not violate any
provision of the Organization Certificate or By-Laws of GE Capital or any
applicable law or regulation or any order, writ, judgment or decree of any
court, arbitrator or governmental authority, and (ii) will not violate any
provision of, or constitute a default under, any mortgage, indenture, contract,
agreement or other undertaking to which GE Capital is a party or which purports
to be binding upon GE Capital or upon any of its assets.
(d) Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made prior to the Effective Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Agreement by GE Capital or (ii) the
legality, validity, binding effect or enforceability of this Agreement against
GE Capital.
(e) Enforceability. This Agreement has been duly authorized,
executed and delivered by GE Capital. This Agreement constitutes, and each other
agreement or instrument executed and delivered by GE Capital pursuant hereto or
in connection herewith will constitute, the legal, valid and binding obligation
of GE Capital enforceable against GE Capital in accordance with its respective
terms, except as the enforcement thereof may be limited by bankruptcy and other
similar laws of general application relating to creditors' rights or general
principles of equity.
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ARTICLE VI
COVENANTS
SECTION 6.1 COVENANTS OF THE BORROWER. The Borrower covenants and
agrees that so long as any Loans shall remain unpaid or GE Capital shall have
any Commitment hereunder:
(a) USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans solely for the purposes set forth in Section 2.2.
(b) DIVIDEND LIMITATION. The Borrower will not declare or
pay any dividend in respect of, or make any distribution in respect of, or
redemption of, any shares of its capital stock.
(c) LIENS. The Borrower will not contract for, create,
incur, assume or suffer to exist any lien, security interest, charge or other
encumbrance of any nature upon any of its property or assets, whether now owned
or hereafter acquired.
(d) OTHER DEBT. The Borrower will not, without the prior
written consent of GE Capital, create, incur, assume or suffer to exist any
indebtedness, whether current or funded, or any other liability except
indebtedness owed to GE Capital.
(e) GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by the Standby Bond Purchase Agreement, the Borrower will
not, without the prior written consent of GE Capital, make any loan or advance
or credit to, or guarantee (directly or indirectly or by an instrument having
the effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently to
do so) any stock, obligations, assets or securities of, or any other interest
in, or make any capital contribution to, any other Person.
(f) CONSOLIDATION, MERGER AND SALE OF ASSETS. The Borrower
will not enter into any merger, consolidation, joint venture, syndicate or other
form of combination with any Person, or sell, lease or transfer or otherwise
dispose of any of its assets (other than the sale of Tendered Bonds in a
remarketing permitted by Section 2.04(b) of the Standby Bond Purchase Agreement)
or engage in any other transaction which would result in a change of control of
the Borrower.
(g) CAPITAL EXPENDITURES. The Borrower will not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(both realty and personalty).
(h) OTHER BUSINESS. The Borrower will not, without the prior
written consent of GE Capital, engage in any business or enterprise or enter
into any material transaction which is of a type different than that which is
contemplated by this Agreement and the Standby Bond Purchase Agreement.
(i) AMENDMENT OF CERTIFICATE OF INCORPORATION OR BY-LAWS.
The Borrower will not amend its Certificate of Incorporation or By-Laws without
the prior written consent of GE Capital.
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(j) GOOD STANDING. The Borrower will maintain its corporate
existence as a corporation validly existing and in good standing under the laws
of the State of Delaware.
(k) NO CHANGES IN DOCUMENTS. The Borrower will not amend,
supplement, modify or waive any of the provisions of the Standby Bond Purchase
Agreement or consent to any amendment, supplement, modification or waiver of any
Related Document (as defined in the Standby Bond Purchase Agreement), unless the
Borrower shall have obtained the prior written consent of GE Capital.
SECTION 6.2 COVENANTS OF GE CAPITAL. GE Capital covenants and agrees
that, prior to the date which is one year and one day after the Commitment
hereunder has been terminated, GE Capital will not institute against, or join
any other Person in instituting against, the Borrower any bankruptcy,
reorganization arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States of America or any state
of the United States of America.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement
shall become effective on the earliest date (the "Effective Date") on which each
of the following conditions shall have been satisfied; provided that the
Effective Date shall occur no later than _______________;
(a) AGREEMENT. GE Capital and the Borrower each shall have
signed and delivered a counterpart of this Agreement.
(b) THE NOTE. The Borrower shall have executed and delivered
to GE Capital a Note in the form set forth in Exhibit B.
(c) OPINION OF BORROWER'S COUNSEL. GE Capital shall have
received an opinion of Managing Counsel of Financial Guaranty Insurance Company,
an affiliate of the Borrower, dated the Effective Date, to the effect set forth
in Exhibit C attached hereto.
(d) OPINION OF GE CAPITAL'S COUNSEL. The Borrower shall have
received an opinion of either the Senior Vice President, General Counsel and
Secretary of GE Capital or the Associate General Counsel, Treasury Operations
and Assistant Secretary of GE Capital, dated the Effective Date, to the effect
set forth in Exhibit D attached hereto.
(e) EFFECTIVENESS OF STANDBY BOND PURCHASE AGREEMENT. The
Standby Bond Purchase Agreement shall have become effective.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. If the following events, acts or
occurrences (each herein called an "Event of Default") shall occur:
the Borrower shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code");
or an involuntary case is commenced against the Borrower and the
petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower, or the Borrower
commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to the Borrower, or there is commenced against the
Borrower any such proceeding which remains undismissed for a period of
60 days, or the Borrower is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is
entered; or the Borrower suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Borrower makes
a general assignment for the benefit of creditors; or any corporate
action is taken by the Borrower for the purpose of effecting any of the
foregoing;
then all sums then owing by the Borrower hereunder and under the Note shall
automatically become and be immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay
on the part of GE Capital in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to GE Capital at law or in equity or otherwise. No amendment,
modification, supplement, termination or waiver of or to any provision of this
Agreement, nor consent to any departure by the Borrower therefrom, shall be
effective unless the same shall be in writing and signed by or on behalf of GE
Capital. Any amendment, modification or supplement of or to any provision of
this Agreement, and any consent to any departure by the Borrower from the terms
of any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given. No notice to or
demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
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SECTION 9.2 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to be
made hereunder shall be due on a day which is not a Business Day, then such
payment shall be made on the next succeeding Business Day.
SECTION 9.3 FURTHER ASSURANCES. The Borrower agrees to do such
further acts and things and to execute and deliver to GE Capital such additional
assignments, agreements, powers and instruments, as GE Capital may require or
deem advisable to carry into effect the purposes of this Agreement or to better
assure and confirm unto GE Capital its rights, powers and remedies hereunder.
SECTION 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties made in this Agreement and in any
certificates delivered pursuant hereto shall survive the execution and delivery
of this Agreement and the making of the Loans hereunder, and the agreements
contained in Sections 9.3 and 9.6 hereof shall survive payment of the Note and
the termination of this Agreement.
SECTION 9.5 NOTICES, ETC. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto or any other Person shall be in writing and shall be personally
delivered or sent by registered or certified mail or overnight courier, postage
prepaid, or by telecopy, and shall be deemed to be given for purposes of this
Agreement on the day that such writing is delivered to the intended recipient
thereof in accordance with the provisions of this Section. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section, notices, demands, instructions and other
communications in writing shall be given to or made upon the respective parties
hereto at their respective addresses (or to their respective telecopy numbers)
indicated below, and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party below:
If to the Borrower:
FGIC Securities Purchase, Inc.
c/o Financial Guaranty Insurance Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Senior Counsel - Public Finance
Telecopy No.: 000-000-0000
Tel. No.: 000-000-0000
If to GE Capital:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Senior Vice President - Corporate
Treasury and Global Funding Operation
Telecopy No.: 000-000-0000
Tel. No.: 000-000-0000
Page 12
SECTION 9.6 COSTS, EXPENSES AND TAXES. The Borrower agrees to pay
promptly all costs and expenses in connection with the preparation, issuance,
delivery, filing, recording, and administration of this Agreement, the Note, and
any other documents which may be delivered in connection with this Agreement,
including, without limitation, the reasonable out-of-pocket expenses of GE
Capital and the fees and expenses of its counsel, and all costs and expenses
(including counsel fees and expenses) in connection with (i) the modification,
extension, change in terms, maintenance, renewal or termination of the
Commitment or (ii) the enforcement of this Agreement or the Note.
SECTION 9.7 NO GE CAPITAL LIABILITY. This Agreement is not, and
shall not be construed to be, a guarantee by GE Capital of the Bonds or of the
Borrower's obligations under the Standby Bond Purchase Agreement. GE Capital
shall not have any responsibility for, or incur any liability in respect of, any
act, or any failure to act, by the Borrower which results in the failure of the
Borrower to effect the purchase for the account of the Borrower of Tendered
Bonds with the funds provided pursuant to this Agreement.
SECTION 9.8 TERM OF THIS AGREEMENT. Subject to Section 9.4 hereof,
the term of this Agreement shall be until the termination of the Commitment in
its entirety.
SECTION 9.9 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
SECTION 9.10 BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon, and inure to the benefit of, the Borrower and GE Capital and their
respective successors and assigns; provided, however, that the Borrower may not
assign its rights or obligations hereunder without the prior written consent of
GE Capital. GE Capital may assign its rights or obligations hereunder without
the prior written consent of the Borrower provided that the assignment does not
result in a reduction in the short term credit rating of the liquidity
obligation evidenced and contemplated by under the Standby Bond Purchase
Agreement, the proceeds of drawings under which enable the Borrower to pay the
purchase price of Bonds tendered for purchase. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and permitted assigns.
SECTION 9.11 GOVERNING LAW. This Agreement and the Note shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 9.12 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 9.13 HEADINGS. Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
Page 13
FGIC SECURITIES PURCHASE, INC.
By
----------------------------------
Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By
----------------------------------
Name:
Senior Vice President - Corporate
Treasury and Global Funding Operation
EXHIBIT A
FORM OF NOTICE OF BORROWING
_______________, ____
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Gentlemen:
Pursuant to Section 2.3 of the Standby Loan Agreement dated as of
January 20, 2000 (the "Standby Loan Agreement") between FGIC Securities
Purchase, Inc. (the "Borrower") and General Electric Capital Corporation ("GE
Capital"), the Borrower hereby confirms that on ________ __, 20__ it requested
that GE Capital make a Loan in the principal amount of $_______________ on
________ __, 20__, which is a Business Day.
The Loan requested hereby is for the sole purpose of paying the purchase
price for Tendered Bonds which represents the aggregate outstanding principal
amount of such Tendered Bonds in the amount of $__________ together with accrued
interest thereon.
You are hereby requested to disburse the Loan requested hereby to
account #__________ maintained at the office of [__________________________] in
immediately available funds.
Each capitalized term used herein shall have the meaning ascribed
thereto in the Standby Loan Agreement.
Very truly yours,
FGIC SECURITIES PURCHASE, INC.
By
---------------------------------
Title
-----------------------------
EXHIBIT B
FORM OF NOTE
$______________ _____________, 20__
FOR VALUE RECEIVED, FGIC SECURITIES PURCHASE, INC., a corporation
organized under the laws of the State of Delaware (the "Borrower"), hereby
promises to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION ("GE
Capital"), in lawful money of the United States of America in immediately
available funds on [COMMITMENT TERMINATION DATE] (or, if such date is not a
Business Day, the Business Day immediately succeeding such date), the principal
sum of ________________________________, or, if less, the unpaid principal
amount of all Loans made by GE Capital pursuant to, and as defined in, the
Standby Loan Agreement referred to below. (All capitalized terms used herein
shall have the meanings set forth in such Standby Loan Agreement.)
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money from the date hereof until paid at the rates and at
the times provided in the Standby Loan Agreement.
This Note is the Note referred to in the Standby Loan Agreement dated as
of ____________, 20__ between the Borrower and GE Capital (as the same may from
time to time be amended or supplemented, the "Standby Loan Agreement") and is
entitled to the benefits thereof and shall be subject to the provisions thereof.
As provided in the Standby Loan Agreement, this Note is subject to prepayment in
whole or in part.
In case an Event of Default (as defined in the Standby Loan Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Standby Loan Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
EXHIBIT B
Page 2
This Note shall be construed in accordance with and be governed by the
laws of the State of New York.
FGIC SECURITIES PURCHASE, INC.
By
------------------------------
EXHIBIT B
Page 3
Schedule attached to the Note, dated _____________, 20__, of
FGIC Securities Purchase, Inc.
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LOAN AND REPAYMENT SCHEDULE
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Date Amount of Loan Amount of Unpaid Principal Name of Person
Made Principal Repaid Balance Making Notation
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======================================================================================================================
EXHIBIT C
[FORM OF BORROWER'S OPINION OF COUNSEL]
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
I am [counsel] for FGIC Securities Purchase, Inc. (the "Borrower") and
in such capacity I have acted for the Borrower in connection with the Standby
Loan Agreement (the "Loan Agreement") dated as of January 20, 2000, between the
Borrower and General Electric Capital Corporation. Terms defined in the Loan
Agreement are used herein as therein defined. This opinion is being rendered to
you pursuant to Section 7.1(c) of the Loan Agreement.
I have examined such documents, certificates, orders and proceedings and
have made such investigation as I have deemed necessary or appropriate for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Delaware. The Borrower is duly qualified to transact business and is in
good standing in the jurisdictions in which the conduct of its business
or the ownership of its property requires such qualification.
2. The execution, delivery and performance by the
Borrower of the Loan Agreement and the Note are within the Borrower's
corporate powers and have been duly authorized by all necessary
corporate action. The execution, delivery and performance of the Loan
Agreement and the Note by the Borrower will not contravene the
Certificate of Incorporation or by-laws of the Borrower or result in any
violation of any of the terms or provisions of any law or regulation or
of any indenture, mortgage or other agreement or instrument known to me
by which the Borrower is bound or, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Borrower.
3. Each of the Loan Agreement and the Note
constitutes a legal, valid and binding agreement of the Borrower
enforceable against the Borrower in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally against (or affecting) the Borrower and by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
EXHIBIT C
Page 2
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against or affecting,
the Borrower before any court or administrator or any governmental body,
agency or official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the financial
position of the Borrower or which in any manner draws into question the
validity of the Loan Agreement or the Note.
I am a member of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America.
I understand that copies of this opinion are being delivered to Standard
& Poor's Corporation in connection with the issuance of the Bonds. Such entities
are authorized to rely upon this opinion as though this opinion were addressed
to them.
Very truly yours,
EXHIBIT D
[FORM OF GE CAPITAL'S OPINION OF COUNSEL]
_____________, 20__
FGIC Securities Purchase, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I am Associate General Counsel, Treasury Operations for General Electric
Capital Corporation ("GE Capital") and in such capacity I have acted for GE
Capital in connection with the Standby Loan Agreement (the "Loan Agreement")
dated as of _________, ____, between GE Capital and FGIC Securities Purchase,
Inc. Terms defined in the Loan Agreement are used herein as therein defined.
This opinion is being rendered to you pursuant to Section 7.1(d) of the Loan
Agreement.
I have examined such documents, certificates, orders and proceedings and
have made such investigation as I have deemed necessary or appropriate for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. GE Capital has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York. GE
Capital is duly qualified to transact business and is in good
standing in the jurisdictions in which the conduct of its
business or the ownership of its property requires such
qualification.
2. The execution, delivery and performance by GE Capital of the
Loan Agreement are within GE Capital's corporate powers and have
been duly authorized by all necessary corporate action on the
part of GE Capital. The execution, delivery and performance of
the Loan Agreement by GE Capital will not contravene the
Organization Certificate or by-laws of GE Capital or result in
any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement or
instrument known to me by which GE Capital is bound or,
EXHIBIT D
Page 2
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over GE Capital.
3. The Loan Agreement constitutes a legal, valid and binding
agreement of GE Capital enforceable against GE Capital in
accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights as
they would apply to the bankruptcy, insolvency or reorganization
of GE Capital and by general equitable principles (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law).
My opinion is limited to the law of the State of New York and the federal laws
of the United States of America.
Very truly yours,
=========================
FGIC SECURITIES PURCHASE, INC.
AND
GENERAL ELECTRIC CAPITAL CORPORATION
STANDBY LOAN AGREEMENT
DATED AS OF __________, _____
=========================
ARTICLE I DEFINITIONS.......................................................................1
SECTION 1.1 Definitions..................................................................1
ARTICLE II LOAN PROVISIONS...................................................................3
SECTION 2.1 Commitment...................................................................3
SECTION 2.2 Amount and Purpose of Loans..................................................3
SECTION 2.3 Borrowing Procedures.........................................................3
SECTION 2.4 Disbursement of Funds........................................................3
ARTICLE III COMMITMENT........................................................................4
SECTION 3.1 Commitment Fees..............................................................4
SECTION 3.2 Reduction or Termination of the Commitment...................................5
ARTICLE IV PAYMENTS..........................................................................5
SECTION 4.1 Voluntary Prepayments........................................................5
SECTION 4.2 Mandatory Prepayments........................................................5
SECTION 4.3 Repayment of Loans by Transfer of Tendered Bonds.............................5
SECTION 4.4 Payments.....................................................................6
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................................6
SECTION 5.1 Representations and Warranties of the Borrower...............................6
SECTION 5.2 Representations and Warranties of GE Capital.................................7
ARTICLE VI COVENANTS.........................................................................8
SECTION 6.1 Covenants of the Borrower....................................................8
SECTION 6.2 Covenants of GE Capital......................................................9
ARTICLE VII CONDITIONS PRECEDENT..............................................................9
SECTION 7.1 Conditions Precedent to Effectiveness........................................9
ARTICLE VIII EVENTS OF DEFAULT................................................................10
SECTION 8.1 Events of Default...........................................................10
ARTICLE IX MISCELLANEOUS....................................................................11
SECTION 9.1 No Waiver; Modifications in Writing.........................................11
SECTION 9.2 Payment on Non-Business Days................................................11
SECTION 9.3 Further Assurances..........................................................11
SECTION 9.4 Survival of Representations and Warranties..................................11
SECTION 9.5 Notices, etc................................................................11
SECTION 9.6 Costs, Expenses and Taxes...................................................12
SECTION 9.7 No GE Capital Liability.....................................................12
SECTION 9.8 Term of this Agreement......................................................12
SECTION 9.9 Execution in Counterparts...................................................12
SECTION 9.10 Binding Effect; Assignment..................................................12
SECTION 9.11 Governing Law...............................................................13
SECTION 9.12 Severability of Provisions..................................................13
SECTION 9.13 Headings....................................................................13
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B - Form of Note
EXHIBIT C - Borrower's Opinion of Counsel
EXHIBIT D - GE Capital's Opinion of Counsel
