FIRST AMENDMENT
Dated as of September 9, 1996
This FIRST AMENDMENT among Marvel IV Holdings Inc., a
Delaware corporation (the "Borrower"), Mafco Holdings Inc., a Delaware
corporation ("Mafco"), First Gibraltar Holdings Inc., a Delaware corporation
("First Gibraltar"), the lenders party to the Credit Agreement referred to
below (the "Lenders") and Citibank, N.A., as agent (the "Agent") for the
Lenders Parties thereunder.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into
a Credit Agreement dated as of June 3, 1996 (as heretofore amended, modified or
otherwise supplemented, the "Credit Agreement"; the terms defined therein being
used herein as therein defined unless otherwise defined herein).
(2) FN Holdings intends to acquire (the "Transaction") Cal
Fed Bancorp Inc. ("Cal Fed"), a savings and loan holding company, and its
wholly-owned Subsidiary, California Federal Bank, A Federal Savings Bank
("California Federal"), pursuant to the terms of an Agreement and Plan of
Merger, dated as of July 27, 1996 (the "Merger Agreement"), among FN Holdings,
Cal Fed and California Federal.
(3) In connection with the Transaction, Mafco will have
established two indirect Subsidiaries, (i) First Gibraltar Guarantor Corp., a
Delaware corporation ("FG Guarantor"), which will own directly 100% of the
common stock of First Gibraltar, and (ii) First Nationwide Escrow Corp., a
Delaware corporation ("FN Escrow"), which will issue $575,000,000 of Senior
Subordinated Notes due 2003 (the "New Debt"). First Gibraltar owns directly
100% of the common stock of FN Parent, which owns 100% of the Class A Common
Stock of FN Holdings, which in turn owns 100% of the common stock of the Bank.
(4) To finance the Transaction, (i) FN Escrow will merge with
and into FN Holdings, with FN Holdings being the surviving corporation, as a
result of which FN Holdings will assume the New Debt and acquire the Net Cash
Proceeds from the issuance thereof, and (ii) FN Holdings will issue
$150,000,000 liquidation value of Cumulative Perpetual Preferred Stock (the "FN
Holdings Preferred Stock"). FN Holdings will use the Net Cash Proceeds from the
sale and issuance of the New Debt and the FN Holdings
2
Preferred Stock to, among other things, pay the purchase price for the
Transaction, and upon consummation of the Transaction, FN Holdings will
contribute the capital stock of Cal Fed to the Bank, Cal Fed will be liquidated
and the Bank will be merged with and into California Federal, with California
Federal being the surviving bank.
(5) First Gibraltar intends to borrow up to $150,000,000
under a new bank credit agreement (the "First Gibraltar Credit Agreement") and
to use the proceeds from such borrowing to make an advance to a newly-formed
special purpose vehicle ("Newco") the common stock of which will be held by
Xxxxxx X. Xxxx or another non-Affiliate of Mafco. In turn, Newco will use the
proceeds of such advance to purchase the FN Holdings Preferred Stock.
(6) The Borrower has requested that the Lenders agree to
amend the Credit Agreement, the Mafco Guaranty and the First Gibraltar Loan
Agreement to permit the Transaction and the other transactions related thereto.
(7) The Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower, and the Borrower, Mafco,
First Gibraltar and the Lenders have agreed to amend the Credit Agreement, the
Mafco Guaranty and the First Gibraltar Loan Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date on which all of the conditions precedent
set forth in Section 4 hereof have been satisfied or waived, hereby amended as
follows:
(a) Section 1.01 is amended by adding the following definitions in
the correct alphabetical order:
"'California Federal' means California Federal Bank, A
Federal Savings Bank."
"'First Amendment' means the First Amendment dated as of
September 9, 1996 to this Agreement among the Borrower, Mafco,
First Gibraltar, the Agent and the Required Lenders."
"'First Gibraltar Credit Agreement' means the $150,000,000
Credit Agreement to be entered into by First Gibraltar, FG
Guarantor, the banks and other financial institutions party
thereto, NationsBank, N.A., as administrative agent,
NationsBanc Capital Markets, Inc., as syndication agent and
Citibank,
3
as documentation agent, as the same may be amended,
modified or otherwise supplemented from time to time."
"'FG Guarantor' means First Gibraltar Guarantor
Corp., a Delaware corporation."
"'FN Escrow' means First Nationwide Escrow Corp., a
Delaware corporation."
"'FN Holdings Preferred Stock' means the $150,000,000
liquidation value of Cumulative Perpetual Preferred Stock
to be issued by FN Holdings and any shares of Cumulative
Perpetual Preferred Stock to be issued in lieu of cash
dividends payable on the FN Holdings Preferred Stock."
"'Newco' means the special purpose vehicle the common
stock of which will be held by Xxxxxx X. Xxxx or another
non-Affiliate of Mafco and which will be organized under
the laws of the State of Delaware solely to purchase the
FN Holdings Preferred Stock."
"'Newco Loan' mean the loan by First Gibraltar to
Newco in an aggregate principal amount not to exceed
$150,000,000 for the sole purpose of purchasing the FN
Holdings Preferred Stock."
"'Second New FN Holdings Debt' means the Senior
Subordinated Notes due 2003 issued by FN Escrow in an
aggregate principal amount equal to $575,000,000, which will
be assumed by FN Holdings upon the merger of FN Escrow with
and into FN Holdings."
"'Second New FN Holdings Debt Document' means the
Indenture to be entered into by FN Escrow and The Bank of New
York, as trustee, in connection with the Second New FN
Holdings Debt and any other agreement or instrument which
governs the terms of the Second New FN Holdings Debt."
(b) The definition of "Bank" in Section 1.01 is amended by
adding at the end thereof the words "and any successor thereto,
including the surviving bank of the merger of the Bank with and into
California Federal."
4
(c) The definition of "FN Documents" in Section 1.01 is
amended by adding immediately after the words "the FN Holdings New
Debt Document" the words ", the Second New FN Holdings Debt Document."
(d) Section 2.05(b)(ii)(A) is amended by adding at the end
thereof the phrase "(other than the FN Holdings Preferred Stock and
other than the preferred stock to be issued by FN Holdings in exchange
for the preferred stock of FN Escrow upon consummation of the merger
of FN Escrow with and into FN Holdings which preferred stock will be
redeemed in full concurrently with or immediately after the
consummation of such merger)."
(e) Section 2.05(ii)(B) is amended by adding at the end
thereof just before the close parenthetical the phrase "and other than
a dividend by First Gibraltar of the capital stock of Unified Mortgage
Corporation."
(f) Section 2.05(b)(ii)(D) is amended by adding at the end
thereof the phrase "(other than the Second New FN Holdings Debt and
other than the Debt to be issued by Mafco pursuant to clauses (E) and
(F) of Section 8(i)(i) of the Mafco Guaranty)."
(g) Section 6.01(l) is amended by (i) deleting the word "or"
immediately preceding the words "Section 3.01 hereof" and replacing
such word with "," and (ii) adding immediately after the words
"Section 3.01 hereof" the words "or the First Amendment."
(h) Section 6.01(n) is amended by adding immediately after
the words "the FN Holdings New Debt Document" the words ", the Second
New FN Holdings Debt Document, the FN Holdings Preferred Stock."
SECTION 2. Amendment to the Mafco Guaranty. The Mafco
Guaranty is, effective as of the date on which all of the conditions precedent
set forth in Section 4 hereof have been satisfied or waived, hereby amended as
follows:
(a) Section 6(b) is amended by adding to the end of the
second sentence thereof the phrase "and those permitted to be
created pursuant to Section 8(a)(vii) and (viii)."
(b) Section 6(d) is amended by adding immediately before
the semicolon preceding the proviso in the first sentence the
phrase "and except for the
5
authorizations, approvals, actions, notices and filings
required in connection with the Transaction (as defined in the
First Amendment) or the merger of FN Escrow with and into FN
Holdings."
(c) Section 6(q) is amended by adding to the end thereof
the phrase "other than in connection with any Debt permitted to
be incurred pursuant to Section 8(i)."
(d) Section 8(a) is amended by (i) deleting the word "and"
immediately preceding clause (vi) thereof and (ii) adding at
the end thereof the following:
"; (vii) Liens on the rights of First Gibraltar
under the Newco Loan and all related loan
documentation and all payments thereunder, and on a
cash collateral account, in each case as required to
be pledged by First Gibraltar pursuant to the terms
of the First Gibraltar Credit Agreement; and (viii)
a Lien on the rights of the Guarantor under the FN
Tax Agreement and payments thereunder required to be
pledged by the Guarantor pursuant to the terms of
the First Gibraltar Credit Agreement, provided that
such Lien shall be subordinate to the Lien created
by the Mafco Security Agreement in favor of the
Agent and the Lender Parties."
(e) Section 8(c) is amended by adding at the end thereof
the following:
", except that FN Escrow may merge with and into
FN Holdings."
(f) Section 8(f)(ii) is hereby amended in its entirety to
read as follows:
"(ii) Permit any Designated Relevant Party to make
or hold any Investment in any Person other than (s)
Investments in Cash Equivalents, (t) Investments by
First Gibraltar in Borrower Parent pursuant to the
terms of the First Gibraltar Loan Agreement and the
First Gibraltar Certificate of Incorporation, (u)
the Investments set forth on Schedule VI hereto, (v)
Investments by FN Holdings and FN Parent in Borrower
Parent so long as such Investments comply with the
provisions of Section 7(n), (w) the Investment by
First Gibraltar in Newco consisting of the Newco
Loan in an aggregate principal amount not to exceed
$150,000,000, provided that such Investment is
evidenced by a promissory note and that Newco is a
bankruptcy remote corporation on terms satisfactory
to the Agent, (x) Investments by FN
6
Holdings, prior to the date on which the Transaction
(as defined in the First Amendment) is consummated,
in liquid investments permitted by the First
Gibraltar Credit Agreement in an aggregate principal
amount not to exceed the net proceeds of the
issuance of the FN Holdings Preferred Stock plus
earnings thereon, (y) Investments by FN Holdings in
Cal Fed Bancorp Inc. and a new wholly-owned
subsidiary created solely to consummate the
Transaction (as defined in the First Amendment) and
(z) the Investment by FN Holdings in Mafco
consisting of an advance in an aggregate principal
amount not to exceed $20,000,000, provided that such
advance is evidenced by a promissory note and such
advance is subordinated to all Obligations of the
Guarantor under the Loan Documents and has terms and
conditions substantially similar to those set forth
on Exhibit F hereto."
(g) Section 8(g) is amended by adding to the end thereof
the phrase "and (iii) as contemplated by the First Amendment."
(h) Section 8(i) is hereby amended by (i) replacing clause
(i) therein in its entirety with the following:
"(i) in the case of the Guarantor, (A) loans
pursuant to the terms of the Related Documents, (B)
Debt under this Guaranty, (C) the Debt set forth on
Schedule V hereto, (D) Debt under the guaranty of
all loans made by FN Holdings to Borrower Parent,
provided that such guaranty shall be subordinated to
Debt under this Guaranty on terms and conditions
substantially identical to the terms and conditions
set forth on Exhibit A hereto subject to the
provisions set forth under the heading "Ranking" on
Exhibit B hereto, (E) Debt owing to FN Holdings in
an aggregate principal amount not to exceed
$20,000,000, provided that such Debt is evidenced by
a promissory note and such Debt is subordinated to
all Obligations of the Guarantor under the Loan
Documents and has terms and conditions substantially
similar to those set forth on Exhibit F hereto, and
(F) Debt owing to the underwriters of the Second New
FN Holdings Debt in an aggregate principal amount
not to exceed the amount of the underwriting
discounts and fees payable in connection with the
issuance of the Second New FN Holdings Debt,
provided that such Debt is evidenced by a promissory
note and has terms and
7
conditions substantially similar to those set forth
on Exhibit G hereto,"
(ii) deleting the word "and" immediately preceding clause (vi) thereof
and replacing such word with "," and (iii) adding at the end thereof
the following:
", (vii) in the case of FN Holdings, the assumption
of the Second New FN Holdings Debt, upon the
consummation of the merger of FN Escrow with and
into FN Holdings, pursuant to the terms of the
Second New FN Holdings Debt Document and any Debt
issued or assumed by FN Holdings in exchange for the
Second New FN Holdings Debt, provided that the terms
of the Second New FN Holdings Debt Document shall be
in substantially the form of Exhibit C hereto, and
(viii) in the case of First Gibraltar, the
incurrence of Debt under the First Gibraltar Credit
Agreement in an aggregate principal amount not to
exceed $150,000,000, provided that (A) the terms of
the First Gibraltar Credit Agreement shall be
substantially similar to those set forth on Exhibit
D hereto, (B) the Lenders shall have received a
certified copy of an amendment to the Voting Trust
Agreement among Trans Network Insurance Services
Inc., FG Guarantor, First Gibraltar, the Agent and
the voting trustee thereunder to document the
transfer of the ownership of common stock of First
Gibraltar from Trans Network Insurance Services Inc.
to FG Guarantor and (C) the Lenders shall have
received a certified copy of a voting trust
agreement duly executed by FG Guarantor, Trans
Network Insurance Services Inc., the Agent and a
voting trustee, in substantially the form of the
Voting Trust Agreement referred to in clause (B)
above."
(i) Section 8 (j) is hereby amended by adding at the end
thereof the phrase ", except that the First Gibraltar Charter
Document and the certificate of incorporation of FN Holdings
may be amended for the purposes described in Exhibit E hereto
in such form as shall be approved by the Administrative Agent."
(j) Section 8(k) is hereby amended by (i) adding to the
end of clause (i) thereof the phrase "or any other Debt
permitted pursuant to the terms of Section 8(i)", (ii) deleting
the word "and" immediately preceding clause (ii) thereof and
replacing such word with "," and (iii) adding at the end
thereof the following: ", (iii) to amend, modify or change any
term or condition of the First Gibraltar Credit Agreement
(other than the definition of "Excess Cash Flow" contained
therein and any provisions
8
relating to the prepayment of the Debt outstanding under the First
Gibraltar Credit Agreement from "Excess Cash Flow" (as defined
therein)) and (iv) to make voluntary prepayments of amounts
outstanding under the First Gibraltar Credit Agreement from funds in
any amount which, if such funds had been deposited in the Borrower
Collateral Account, would have been available for release to the
Borrower pursuant to the terms of Section 7 of the Borrower Security
Agreement."
(k) Section 8(m) is hereby amended in its entirety to read
as follows:
"(m) Negative Pledge. Enter into or suffer
to exist, or permit any other Relevant Party to
enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or
assumption of any Lien upon any of its property or
assets other than (i) in favor of the Agent and the
Lender Parties, (ii) any prohibition or condition
existing on the date hereof or (iii) any prohibition
or condition contained in the Second New FN Holdings
Debt Document or the First Gibraltar Credit
Agreement."
(l) Section 8(q) is hereby amended by adding at the end
thereof the following:
"or (z) in the case of the Designated Relevant
Parties, consensual encumbrances or restrictions
that are contained in the First Gibraltar Credit
Agreement, the Second New FN Holdings Debt Document
or the FN Holdings Preferred Stock."
(m) Exhibit C is added thereto to read as set forth in
Annex A hereto.
(n) Exhibit D is added thereto to read as set forth in
Annex B hereto.
(o) Exhibit E is added thereto to read as set forth in
Annex C hereto.
(p) Exhibit F is added thereto to read as set forth in
Annex D hereto.
(q) Exhibit G is added thereto to read as set forth in
Annex E hereto.
SECTION 3. Amendment to the First Gibraltar Loan Agreement. Section 1 of
the First Gibraltar Loan Agreement is, effective as of the date on which all
of the conditions precedent set forth in Section 4 hereof have been satisfied
or waived, amended by
9
(i) adding immediately after the words "from FN Parent" in the first sentence
thereof, the words "which are not applied to any payment in respect of the Debt
outstanding under the First Gibraltar Credit Agreement" and (ii) adding at the
end of the first sentence thereof the words "and which are not applied to any
payment in respect of the Debt outstanding under the First Gibraltar Credit
Agreement."
SECTION 4. Conditions of Effectiveness. This First Amendment shall become
effective on the first date (the "First Amendment Effective Date") upon which
the Agent shall have received evidence satisfactory to it that the following
conditions precedent have been satisfied:
(a) The Borrower shall have paid all accrued expenses of the
Agent (including the reasonable fees and expenses of counsel to the
Agent).
(b) The Merger Agreement shall be in full force and effect,
without any waiver or amendment to which the Agent or the Required
Lenders shall have objected within a reasonable period after being
notified of such waiver or amendment.
(c) FN Escrow shall have issued the New Debt.
(d) The Agent shall have received on or before the First
Amendment Effective Date the following, each dated on or before the
First Amendment Effective Date, in form and substance satisfactory to
the Agent (unless otherwise specified) and in sufficient copies for
each Lender:
(i) counterparts to this First Amendment duly executed by
the Borrower, Mafco, First Gibraltar, the Required Lenders and
the Agent;
(ii) counterparts to the Consent attached hereto duly
executed by each Loan Party other than the Borrower, Mafco and
First Gibraltar;
(iii) a certificate signed by a duly authorized officer of
Mafco stating that:
(A) After giving effect to this First
Amendment, the representations and warranties
contained in each of the Loan Documents are correct
on and as of the First Amendment Effective
10
Date, except to the extent such representations and
warranties specifically relate to an earlier date;
and
(B) After giving effect to this First
Amendment, no event has occurred and is continuing
which constitutes an Event of Default or would
constitute an Event of Default but for the
requirement that notice be given or time elapse or
both.
SECTION 5. Reference to and Effect on the Loan Documents. (a) Upon the
effectiveness of Sections 1, 2 and 3 hereof: (i) each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby; (ii) each reference in the Mafco Guaranty
to "this Agreement", "hereunder", "hereof" or words of like import referring
to the Mafco Guaranty, and each reference in the other Loan Documents to "the
Mafco Guaranty", "thereunder", "thereof" or words of like import referring to
the Mafco Guaranty, shall mean and be a reference to the Mafco Guaranty as
amended hereby; and (iii) each reference in the First Gibraltar Loan Agreement
to "this Agreement", "hereunder", "hereof" or words of like import referring
to the First Gibraltar Loan Agreement and each reference in the other Loan
Documents to "the First Gibraltar Loan Agreement", "thereunder", "thereof" or
words of like import referring to the First Gibraltar Loan Agreement, shall
mean and be a reference to the First Gibraltar Loan Agreement as amended
hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Notes, and all other Loan Documents, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this First Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender Party or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 6. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this First
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and
11
with respect to advising the Agent as to its rights and responsibilities
hereunder and thereunder. The Borrower further agrees to pay on demand all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this First Amendment and the
other instruments and documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 6. In addition, the Borrower shall pay
any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this First Amendment and the
other instruments and documents to be delivered hereunder, and agrees to save
the Agent and each Lender Party harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes.
SECTION 7. Execution in Counterparts. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
SECTION 8. Governing Law. This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
12
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
MARVEL IV HOLDINGS INC.
By /s/ Xxxxx Xxxxxx
----------------------------
Name:
Title:
MAFCO HOLDINGS INC.
By /s/ Xxxxx Xxxxxx
---------------------------
Name:
Title:
FIRST GIBRALTAR HOLDINGS INC.
By /s/ Xxxxx Xxxxxx
---------------------------
Name:
Title:
CITIBANK, N.A., as Agent
By
--------------------------
Name:
Title:
12
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
MARVEL IV HOLDINGS INC.
By
----------------------------
Name:
Title:
MAFCO HOLDINGS INC.
By
---------------------------
Name:
Title:
FIRST GIBRALTAR HOLDINGS INC.
By
---------------------------
Name:
Title:
CITIBANK, N.A., as Agent
By /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Attorney-in-Fact
00
Xxxxxxx
XXXX XX XXXXXXX XXXXXXXX
By /s/ Xxxxxxx X. Xxx Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
N.A.
By
--------------------------
Name:
Title:
CITIBANK, N.A.
By
--------------------------
Name:
Title:
00
Xxxxxxx
XXXX XX XXXXXXX XXXXXXXX
By
---------------------------
Name:
Title:
THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
N.A.
By
--------------------------
Name:
Title:
CITIBANK, N.A.
By
--------------------------
Name:
Title:
00
Xxxxxxx
XXXX XX XXXXXXX XXXXXXXX
By
---------------------------
Name:
Title:
THE BANK OF NEW YORK
By
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
N.A.
By /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A.
By
--------------------------
Name:
Title:
00
Xxxxxxx
XXXX XX XXXXXXX XXXXXXXX
By
---------------------------
Name:
Title:
THE BANK OF NEW YORK
By
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
N.A.
By
--------------------------
Name:
Title:
CITIBANK, N.A.
By /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Attorney-in-Fact
14
CREDIT SUISSE
By /s/ Xxxxxxxxx
--------------------------
Name: Xxxxxxxxx
Title: MSM
By /s/ Andy Tchopp
--------------------------
Name: Andy Tchopp
Title: Associate
THE FIRST NATIONAL BANK OF
BOSTON
By
--------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
--------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By
--------------------------
Name:
Title:
14
CREDIT SUISSE
By
--------------------------
Name:
Title:
By
--------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By /s/ Xxxxxxx X. Xxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Director
THE FUJI BANK, LIMITED
By
--------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By
--------------------------
Name:
Title:
14
CREDIT SUISSE
By
--------------------------
Name:
Title:
By
--------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By
--------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By
--------------------------
Name:
Title:
14
CREDIT SUISSE
By
--------------------------
Name:
Title:
By
--------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By
--------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By
--------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice Pres.-
Portfolio Mgr.
15
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL
CORPORATION
By /s/ Kunduck Moon
-------------------------
Name: Kunduck Moon
Title: Managing Director
PILGRIM PRIME RATE TRUST
By
-------------------------
Name:
Title:
00
XXXXXXXXXXXXXX XXXXXXXXXXX
(X.X.) CAPITAL
CORPORATION
By
-------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CONSENT
Reference is made to (a) the Credit Agreement dated as of
June 3, 1996 (the "Credit Agreement"; the terms defined therein being used
herein as therein defined unless otherwise defined herein) among Marvel IV
Holdings Inc., a Delaware corporation (the "Borrower"), the lenders parties to
the Credit Agreement (the "Lenders"), and Citibank, N.A., as agent (the
"Agent") for the Lenders, and (b) the First Amendment dated as of September 9,
1996 (the "First Amendment") among the Borrower, Mafco Holdings Inc., a
Delaware corporation ("Mafco"), First Gibraltar Holdings Inc., a Delaware
corporation ("First Gibraltar"), the Lenders and the Agent.
Each of the undersigned, as a Loan Party under the Credit
Agreement, hereby consents to the First Amendment and hereby confirms and
agrees that (i) each Collateral Document to which such Loan Party is a party
and the Collateral described in each such Collateral Document does, and shall
continue to, secure the payment of all of the Secured Obligations and
Guaranteed Obligations, as the case may be, described in such Collateral
Document and (ii) each Loan Document to which such Loan Party is a party is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that, on and after the effective date of the
First Amendment, (A) each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended thereby, (B) each reference in the Mafco Guaranty to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Mafco Guaranty,
and each reference in the other Loan Documents to "the Mafco Guaranty",
"thereunder", "thereof" or words of like import referring to the Mafco
Guaranty, shall mean and be a reference to the Mafco Guaranty as amended
thereby, and (C) each reference in the First Gibraltar Loan Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
First Gibraltar Loan Agreement, and each reference in the other Loan Documents
to "the First Gibraltar Loan Agreement", "thereunder", "thereof" or words of
like import referring to the First Gibraltar Loan Agreement, shall mean and be
a reference to the First Gibraltar Loan Agreement as amended thereby.
2
This Consent may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same consent.
XXXXXXX GROUP INCORPORATED
CONSOLIDATED CIGAR II
HOLDINGS INC.
XXXXXXX (PARENT) HOLDINGS INC.
FLAVORS (PARENT) HOLDINGS INC.
FOUR STAR HOLDINGS
CORP.
MACANDREWS & FORBES
HOLDINGS INC.
MAFCO CONSOLIDATED
HOLDINGS INC.
MARVEL V HOLDINGS INC.
NEW XXXXXXX HOLDINGS, INC.
NWCG (PARENT) HOLDINGS
CORPORATION
By /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
An authorized signatory for each
of the above-named corporations
ANNEX B
ANNEX I
FIRST GIBRALTAR HOLDINGS INC.
Summary of Terms and Conditions
-------------------------------
[CAPITALIZED TERMS NOT OTHERWISE DEFINED
HEREIN HAVE THE MEANINGS SET FORTH IN THE
LETTER TO WHICH THIS ANNEX IS ATTACHED]
BORROWER: First Gibraltar Holdings Inc., a Delaware
-------- corporation.
GUARANTORS: A newly formed bankruptcy remote corporation
---------- ("Parent Guarantor") which will be a direct
wholly-owned subsidiary of Trans Network Insurance
Services Inc. (formerly known as "First Gibraltar
(Parent) Holdings Inc."). The Borrower will be a
direct wholly-owned subsidiary of the Parent
Guarantor.
A newly formed bankruptcy remote corporation
("Newco") the common stock of which will be held by
Xxxxxx X. Xxxx or another non-affiliate of Mafco
Holdings Inc.
LENDERS: NationsBank, N.A. ("NationsBank"), Citibank, N.A.
------- "Citibank") and a syndicate of financial
institutions acceptable to them.
ADMINISTRATIVE AGENT: NationsBank.
--------------------
SYNDICATION AGENT: NationsBanc Capital Markets, Inc.
-----------------
DOCUMENTATION AGENT: Citibank.
-------------------
SENIOR FACILITY: $150,000,000 Term Loan.
---------------
PURPOSE: To finance the following transaction (the
------- "Transaction"): the loan (the "Newco Loan") by the
Borrower to Newco in an aggregate principal amount
not to exceed $150,000,000, the purchase by Newco,
with the proceeds of the Newco Loan, of
$150,000,000 in newly issued perpetual preferred
stock (the "Preferred Stock")
2
from First Nationwide Holdings Inc. ("FN Holdings")
in order to provide, together with the net proceeds
of $525,000,000 principal amount of new senior
subordinated notes to be issued or assumed by FN
Holdings (the "New Notes"), the financing for the
acquisition (the "Acquisition") of California
Federal Bank, F.S.B. ("CalFed") by FN Holdings'
wholly-owned subsidiary, First Nationwide Bank,
F.S.B. (the "Bank").
AVAILABILITY: In one drawing concurrently with the purchase by
------------ Newco of the Preferred Stock.
CLOSING DATE: On or before September 27, 1996.
------------
AMORTIZATION: Amortization quarterly commencing either on March
------------ 31, 1997 or, if the Transaction shall be consummated
after December 31, 1996, on June 30, 1997, with
reductions of $50,000,000 each calendar year. Final
maturity on December 31, 1999; provided, however,
that the entire Facility will be due and payable on
June 30, 1997 if the Acquisition has not been
consummated by such date.
OPTIONAL PREPAYMENT: The Borrower may, upon at least one
-------- business days' notice, in the case of Alternate Base
Rate Advances and three business days' notice, in
the case of Eurodollar Rate Advances, prepay, in
full or in part, the Facility without penalty;
provided, however, that each partial prepayment
shall be in an amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
MANDATORY PREPAYMENT: Prepayment (to be applied pro rata to each remaining
-------------------- installment) required in amounts equal to:
1. All net cash proceeds from the sale
of assets or the issuance of
additional debt or equity permitted
under the loan documentation by the
Parent Guarantor, the Borrower, FN
Holdings or First Nationwide
(Parent) Holdings Inc.("FN Parent").
2. All gains (net of taxes) received
by the Bank from the sale of its
Florida deposits and the sale of
other material deposits.
3
3. All presently dividendable net cash
proceeds from the issuance of
additional equity (including any
net cash proceeds received from
"REIT Preferred") by the Bank.
4. All proceeds of redemptions of, and
dividends and other distributions
paid on or in respect of, the
Preferred Stock, in each case
except to the extent the same are
applied to scheduled payments of
principal of or interest on the
Facility or are used to effect the
prepayments referred to in items
1-3 above.
5. 50% of "Excess Cash Flow" until
such time as gains (net of taxes)
of not less than $50,000,000 are
received from the sale by the Bank
of its Florida deposits (such time
being referred to herein as the
"Florida Deposits Event") or at
any time during which the actual
Tier I Capital Amount is less than
the Minimum Tier I Capital Amount
(defined as the Tier I Capital
Amount on the date of the closing
of the Acquisition less
$100,000,000) (a "Tier I Capital
Event"). "Excess Cash Flow" means
all dividends and other
distributions, loans and other
advances and any other amounts
received by FN Holdings (including
any amounts received in respect of
the Bank Tax Sharing Agreement (as
defined below) net of any amounts
required to be paid by FN Holdings
in respect of the Bank Tax Sharing
Agreement) during any relevant
period, less (without duplication)
amounts applied to the following
during such period:
(i) interest obligations under
the FN Holdings and FN
Parent indebtedness
(including the New Notes),
(ii) reasonable and customary
fees and expenses relating
to the issuance of the New
Notes and the Preferred
Stock,
(iii) the dividend obligation in
respect of Xxxxxx X.
Xxxx'x FN Holdings Class B
Common Stock,
(iv) redemptions of and divi-
dends and other distribu-
tions paid on the Pre-
ferred Stock and, to the
extent otherwise includ-
able in this definition,
any dividend
4
or other distribution
received by FN Holdings
that is covered under any
of items 1-4 above, and
(v) $5,200,000 per annum
(representing corporate
overhead of FN Holdings).
All Excess Cash Flow that is not
required to be applied to a
prepayment of the Senior Facility
shall be deposited in the
Collateral Account (see "Collateral
Account" below).
INTEREST: Payable at the Applicable Margin above the
-------- Administrative Agent's Alternate Base Rate
(360 day basis) or, at the Borrower's
option, the Administrative Agent's
Eurodollar Rate (adjusted for reserves).
The "Applicable Margin" means 2-1/2% per
annum for Alternate Base Rate borrowings
and 4-1/2% per annum for Eurodollar Rate
borrowings.
During the continuance of any default under
the loan documentation, the Applicable
Margin shall increase by 2% per annum.
SECURITY: 1. Pledge by the Borrower of all of its
-------- rights under the Newco Loan and
the related loan documentation and
all payments thereunder.
2. Amounts in the Collateral Account.
3. Pledge by Newco of the Preferred
Stock, together with all dividends,
distributions and other proceeds in
respect of the Preferred Stock.
4. Assignment by Mafco of amounts
payable under its tax sharing
agreement (the "Bank Tax Sharing
Agreement") with FN Holdings and the
Bank. Such assignment and the
security interest created thereby
will be subordinate to the assignment
and security interest currently in
effect (the "Existing Assignment").
5
COLLATERAL ACCOUNT: Other amounts received by the Borrower (and, subject
------------------- to the Existing Assignment, all amounts received
by Mafco under the Bank Tax Sharing Agreement) and
not required (or elected by the Borrower) to be
applied to the immediate prepayment of the Facility
shall be deposited in a cash collateral account
maintained by the Borrower but under sole dominion
and control of the Administrative Agent (the
"Collateral Account"). In order for amounts to be
released from the Collateral Account, the Borrower
will be required to have delivered a "Look-Forward
Certificate" to the Lenders stating that on a pro
forma basis, as demonstrated by the most recent
annual business plan which continues to represent a
reasonable business plan in all material respects,
after the release of the requested amount there
will be sufficient cash distributions received by
the Borrower to meet all interest and principal
payments scheduled under the Facility.
RESTRICTED PAYMENT
------------------
EXCLUSION: So long as no default exists or would result under
--------- the Facility, (i) the Borrower will be permitted to
make restricted payments in an aggregate amount
equal to 50% of Excess Cash Flow at any time prior
to the occurrence of the Florida Deposits Event,
and (ii) from and after the occurrence of the
Florida Deposits Event, the Borrower will be
permitted to make restricted payments in an
aggregate amount equal to 100% of Excess Cash Flow;
provided, however, that if a Tier I Capital Event
occurs at any time after the occurrence of the
Florida Deposits Event, then during such time as a
Tier I Capital Event has occurred and is
continuing, the Borrower will be permitted to make
restricted payments in an aggregate amount equal to
50% of Excess Cash Flow and from and after such
time as a Tier I Capital Event is no longer
continuing, the Borrower will be permitted to make
restricted payments in an aggregate amount equal to
100% of Excess Cash Flow.
CONDITIONS PRECEDENT
--------------------
TO FUNDING: The funding of the Facility will be subject to the
----------- satisfaction of the conditions deemed appropriate
by the Administrative Agent, the Documentation
Agent and the Lenders for leveraged financings
generally and for this transaction in particular,
including but not limited to the following:
6
(a) The Lenders shall be satisfied with
the final terms and conditions of
the Transaction, including, without
limitation, all legal and tax
aspects thereof; and all
documentation relating to the
Transaction (including the Preferred
Stock (with the terms and provisions
outlined in Exhibit A hereto,
provided that such terms and
provisions may be amended for
regulatory or accounting reasons
with the consent of the
Administrative Agent and the
Documentation Agent), the Newco Loan
(and all related loan documentation)
and the New Notes) shall be in form
and substance satisfactory to the
Lenders. (i) All material financing
portions of the Transaction shall
occur concurrently with the funding
of the Facility and (ii) the Lenders
shall be satisfied with the
arrangements with respect to the
completion of the other parts of the
Transaction and the arrangements for
repayment of the Facility if the
Acquisition is not completed by June
30, 1997.
(b) All documentation relating to the
Facility, including a credit
agreement incorporating substantially
the terms and conditions outlined
herein, shall be in form and
substance satisfactory to the
Lenders.
(c) The Lenders shall be satisfied with
the corporate and legal structure
and capitalization of the Parent
Guarantor, the Borrower and Newco,
including, without limitation, the
charter and bylaws of the Parent
Guarantor, the Borrower and Newco
and each agreement or instrument
relating thereto. The Parent
Guarantor, the Borrower and Newco
will be "bankruptcy remote"
corporations, and the Borrower's
existing charter will be amended in
order to permit the transactions
contemplated hereby. The Lenders
shall have reviewed, and shall be
satisfied with, the terms of all of
the existing debt instruments of FN
Holdings and FN Parent.
(d) The Administrative Agent, on behalf
of the Lenders, shall have a valid
and perfected first priority lien and
security interest in all of the
collateral referred to above under
"Security" and shall have received
executed undated stock powers and an
irrevocable power of attorney with
respect to the Preferred Stock.
7
(e) FN Holdings, Newco and the
Administrative Agent shall have
entered into a Registration Rights
Agreement relating to the Preferred
Stock (which shall be assignable to
subsequent transferees of the
Preferred Stock and shall permit a
transferee of the Preferred Stock to
elect an "Exxon Capital" exchange
offer), in form and substance
satisfactory to the Lenders.
(f) The Credit Agreement dated as of June
3, 1996 with Marvel IV Holdings Inc.,
Citibank, as Agent and the lenders
named therein and all related loan
documentation shall have been amended
to permit the Facility, the
Transaction and the other
transactions contemplated thereby
and, the Lenders shall be satisfied
with all of the terms and conditions
thereof.
(g) There shall have occurred no material
adverse change in the business,
condition (financial or otherwise),
operations, performance, properties
or prospects of CalFed, the Parent
Guarantor, the Borrower or any of
the Borrower's subsidiaries, and all
information provided by or on behalf
of the Borrower to the Lenders prior
to their commitment (the
"Pre-Commitment Information") shall
be true and correct in all material
aspects.
(h) There shall exist no action, suit,
investigation, litigation or
proceeding pending or threatened in
any court or before any arbitrator
or governmental instrumentality that
(i) would be reasonably likely to
have a material adverse effect on
the business, condition (financial
or otherwise), operations,
performance, properties or prospects
of CalFed, the Parent Guarantor, the
Borrower or any of the Borrower's
subsidiaries or (ii) purports to
affect the Transaction or the
Facility (collectively, a "Material
Adverse Effect").
(i) All governmental and third party
consents and approvals necessary in
connection with the Transaction and
the Facility shall have been
obtained (without the imposition of
any conditions that are not
acceptable to the Lenders) and shall
remain in effect; all applicable
waiting periods shall have expired
without any action being taken by
any competent authority; and no law
or regulation shall be applicable in
the judgment of the Lenders that
restrains, prevents or imposes
8
materially adverse conditions upon
the Transaction or the Facility.
(j) The Lenders shall have received (i)
satisfactory opinions of counsel to
the Borrower and of counsel to the
Administrative Agent and
Documentation Agent as to the
transactions contemplated hereby
(including, without limitation, the
tax aspects thereof and compliance
with all applicable securities laws)
and (ii) such corporate resolutions,
certificates and other documents as
the Lenders shall reasonably request.
(k) There shall exist no default under
any of the loan documentation, and
the representations and warranties of
the Parent Guarantor and the Borrower
therein shall be true and correct
immediately prior to, and after
giving effect to, funding of the
Facility.
REPRESENTATIONS AND
-------------------
WARRANTIES: Usual and customary for transactions of this type.
----------
COVENANTS: Usual and customary for transactions of this type,
--------- to include without limitation the following:
1. In the case of the Parent Guarantor
and the Borrower, covenants
appropriate for single-purpose
"bankruptcy- remote" corporations.
The Borrower will also covenant that
the proceeds of the Facility will be
used for the purpose of financing
the Acquisition and that pending
consummation of the Acquisition not
less than approximately $130,000,000
of such proceeds will be invested by
FN Holdings in liquid investments of
the type to be specified in the loan
documentation.
2. In the case of FN Holdings and FN
Parent, covenants will include in
any event the following:
(i) No additional indebtedness
or obligations, other
than the New Notes, and no
redemption, prepayment or
exchange of indebtedness.
9
(ii) No greater or more onerous
payment and dividend
restrictions than in
existing agreements and no
amendment of agreements.
(iii) No liens.
(iv) No investments, other than
existing investments and
investments in cash and
cash equivalents.
(v) No sales of assets.
(vi) No amendment of charter or
by laws.
(vii) No change in control or
breaking of tax
consolidation.
3. In the case of FN Holdings, the
following additional covenants:
(i) Not agree to any amendment
to the Bank Tax Sharing
Agreement.
(ii) Cause the Bank to give
immediate notice upon
entering into any
regulatory agreement or
learning of any proposed
regulatory action.
EVENTS OF DEFAULT: Usual and customary for transactions of this type,
------------------ to include without limitation: failure to pay
principal or interest or fees when due; any
representation or warranty proving to have been
materially incorrect when made; failure to perform
or observe covenants (with agreed upon grace
periods when customary and appropriate);
cross-defaults to other indebtedness applicable to
the Parent Guarantor and its subsidiaries and
Newco; bankruptcy defaults applicable to the Parent
Guarantor and its subsidiaries and Newco; material
judgment defaults applicable to the Parent
Guarantor and its subsidiaries and Newco;
impairment of loan documentation or security;
change in ownership or control applicable to the
Parent Guarantor and its subsidiaries; amendment of
any provision of any debt of FN Holdings or FN
Parent; amendment of the charter docuement of Newco
without the consent of the Required Lenders;
failure of the Bank (i) to continue to be
considered "well capitalized" or (ii) to maintain a
ratio of the sum
10
of Total Shareholders Equity plus the Gross
Valuation Allowance to Non-Performing Assets of at
least 3.3:1; Xxxxxx X. Xxxx shall own any shares of
FN Holdings other than (x) shares of the Class B
Common Stock and (y) through Newco, the Preferred
Stock; and Xxxxxx X. Xxxxxxxx shall cease to
beneficially own at least 80% of the stock of the
Borrower or any of its subsidiaries.
EXPENSES: The Borrower shall pay all due diligence,
-------- syndication (including printing, distribution and
bank meetings), transportation, computer,
duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and
all other out-of-pocket expenses incurred by the
Administrative Agent or the Documentation Agent
(including the fees and expenses of their counsel)
whether or not any of the transactions contemplated
hereby are consummated, as well as all expenses of
the Administrative Agent in connection with the
administration of the loan documentation. The
Borrower shall also pay the expenses of the Lenders
in connection with the enforcement of any of the
loan documentation.
INDEMNITY: The Borrower will indemnify and hold harmless the
--------- Administrative Agent, the Syndication Agent, the
Documentation Agent, each Lender and each of their
affiliates and their officers, directors,
employees, agents and advisors (each, an
"Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with
or by reason of (including, without limitation, in
connection with any investigation, litigation or
proceeding or preparation of a defense in
connection therewith (a) the Transaction or any
similar transaction of the Borrower or any of its
subsidiaries and any of the other transactions
contemplated in the loan documentation, and (b) the
Facility and any use made or proposed to be made
with the proceeds thereof, except to the extent
such claim, damage, loss, liability or expense is
found in a final, nonappealable judgment by a court
of competent jurisdiction to have resulted from
such Indemnified Party's gross negligence or
willful misconduct. In the case of an
investigation, litigation or proceeding to which
the indemnity described in this paragraph applies,
such indemnity shall be effective whether or not
such investigation, litigation or proceeding is
brought by the Borrower, its shareholders or
creditors or an Indemnified Party or an
11
Indemnified Party is otherwise a party thereto and
whether or not the Transaction is consummated. The
Borrower will further agree that no Indemnified
Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the
borrower or any of its subsidiaries or to their
respective security holders or creditors arising
out of, related to or in connection with the
Transaction, except for direct, as opposed to
consequential, damages determined in a final
nonappealable judgment by a court of competent
jurisdiction have resulted from such Indemnified
Party's gross negligence or willful misconduct.
REQUIRED LENDERS: A majority in interest, provided that such term
---------------- shall include in any event both the Administrative
Agent and the Documentation Agent until such time
as they and their affiliates shall collectively
hold less than 50% of the Facility.
ASSIGNMENTS AND
---------------
PARTICIPATIONS: Assignments must be in a minimum amount of
-------------- $5,000,000, other than in the case of an assignment
to a Lender or an assignment of the entirety of a
Lender's interest in the Facility. No participation
shall include voting rights, other than for
reductions or postponements of amounts payable or
releases of all or substantially all of the
collateral. An assignment fee of $3,500 shall be
payable by the assigning Lender to the
Administrative Agent upon any assignment
(including, but not limited to, an assignment to
another Lender).
MISCELLANEOUS: Standard yield protection (including compliance with
------------- risk-based capital guidelines, increased costs,
payments free and clear of withholding taxes and
interest period breakage indemnities), eurodollar
illegality and similar provisions. In addition, if
during the 180 day period following the Closing
Date, any breakage costs, charges or fees are
incurred with respect to Eurodollar Rate loans on
account of the syndication of the Facility, the
Borrower shall promptly reimburse the
Administrative Agent for any such costs, charges or
fees.
GOVERNING LAW: New York.
-------------
COUNSEL TO THE
--------------
ADMINISTRATIVE AGENT
--------------------
AND DOCUMENTATION
-----------------
12
AGENT: Shearman & Sterling.
-----
EXHIBIT A
FIRST NATIONWIDE HOLDINGS INC.
Terms of Cumulative Perpetual Preferred Stock
---------------------------------------------
Issuer: First Nationwide Holdings Inc. the "Company")
Issue: $150,000,000 aggregate liquidation value of
Cumulative Perpetual Preferred Stock of the Company
(the "Cumulative Preferred Stock")
Dividends: Cumulative dividends payable, when, as and if
declared by the Board of Directors of the Company,
at a floating rate per annum equal to the sum of
the Eurodollar Rate of NationsBank, N.A. (adjusted
for reserves) plus 6-1/2% per annum. Dividends
will be payable quarterly on __________, _________,
_________ and ________ in cash, commencing
_________, out of funds legally available therefor.
For dividends accruing prior to January 1, 2000, a
portion of such dividends equal to the sum of the
Eurodollar Rate of NationsBank, N.A. (adjusted for
reserves) plus 4-1/2% per annum shall be payable in
cash and the remainder shall be payable in shares
of Cumulative Preferred Stock which shall have the
same rights, terms and preferences as the
"original" shares of the Cumulative Preferred Stock
(the "PIK Dividends"); for dividends accruing
after January 1, 2000, the full amount of
such dividends shall be payable in cash. If the
Company shall redeem shares of the Cumulative
Preferred Stock having $150,000,000 of aggregate
liquidation value on or prior to December 31, 1999,
the PIK Dividends shall be deemed contributed to
the capital of the Company and shall be cancelled
without any consideration being given therefor.
Liquidation Preference: In the event of any liquidation, dissolution or
winding up of the Company, the holders of
the Cumulative Preferred Stock will be entitled to
receive $15,000 per share plus accrued and unpaid
dividends thereon.
Ranking: Senior to the outstanding common stock of
the Company and to all other classes and series of
equity securities subsequently issued by the
Company as to dividend and
2
liquidation rights; provided, however, that the
Company shall be entitled to redeem in full all of
the outstanding shares of the Cumulative Perpetual
Preferred Stock of First Nationwide Escrow Corp.
("FN Escrow") "assumed" by the Company in
connection with the merger of FN Escrow with and
into the Company.
Voting Rights: Except as (i) required by law and (ii) as set forth
in the next sentence, the holders of the Cumulative
Preferred Stock will not be entitled to any voting
rights. If (x) the equivalent of four quarterly
dividend payments on the Cumulative Preferred Stock
is in arrears or (y) certain events of bankruptcy,
receivership or similar proceedings relating to the
Company shall occur, the number of directors of the
Company will be increased by two and the holders of
the Cumulative Preferred Stock will have the right
to elect two members to the Company's Board of
Directors, who shall serve during the period that
such event shall be continuing. In addition, if the
Cumulative Preferred Stock is outstanding on and
after the tenth anniversary of its issuance, the
number of directors of the Company will be
increased by two and the holders of the Cumulative
Preferred Stock will thereafter have the right to
elect two members to the Company's Board of
Directors.
Optional Redemption: Upon (x) 3 days' notice if a newly- formed Delaware
corporation, the common stock of which will be held
by Xxxxxx X. Xxxx or another non-affiliate of Mafco
Holdings Inc. ("Newco"), is the sole holder of the
Cumulative Preferred Stock or (y) 30 days'
notice otherwise, the Cumulative Preferred Stock
will be redeemable at any time at the option of the
Company, in whole or in part, at a redemption price
equal to the stated liquidation value of $15,000
per share, plus accrued and unpaid dividends
thereon (subject, in the case of the PIK Dividends,
to the provisions set forth under the caption
"Dividends" above); provided, however,
that, on and after the date on which Newco is
not the sole holder of the Cumulative
Preferred Stock, the Cumulative Preferred Stock
will not be redeemable at
3
the option of the Company until the fifth
anniversary of its issuance.
Protective Provision: The Company shall not, without first obtaining
consent or approval of the holders of at least
two-thirds of the Cumulative Preferred Stock,
redeem or repurchase any junior stock, warrants or
parity stock; provided, -------- however, that the
Company shall be entitled to redeem in ------- full
all of the outstanding shares of the Cumulative
Perpetual Preferred Stock of FN Escrow Corp.
"assumed" by the Company in connection with the
merger of FN Escrow with and into the Company.
Information Requirements: The Company shall provide the holders of the
Cumulative Preferred Stock with all reports that
the Securities Exchange Act of 1934, as amended,
requires a reporting corporation to provide even if
the Company ceases to be a reporting corporation.
Term: Perpetual
Purchaser: Newco
Purchase Price: $145,000,000
