EXHIBIT 10.7
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Second Amended and Restated Revolving Credit Agreement (this
"Agreement"), dated as of September 24, 2004 (but is effective retroactively to
August 30, 2004), is by and among AMERICAN HOME MORTGAGE SERVICING, INC. f/k/a
Columbia National, Incorporated, a Maryland corporation ("AHMS"), AMERICAN HOME
MORTGAGE CORP. ("AHMC" and collectively with AHMS, each a "Borrower" and
collectively, the "Borrowers") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association (the "Bank").
RECITALS
WHEREAS, AHMS and AHMC and the Bank are parties to an Amended and Restated
Revolving Credit Agreement dated as of May 30, 2003, (as amended, the "Existing
Credit Agreement");
WHEREAS, the Borrowers desire that the Bank agree to, and the Bank has
agreed to, amend and restate the Existing Credit Agreement pursuant to the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the forgoing Recitals and other good
and valuable consideration, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used herein, in each exhibit hereto, the following
terms shall have the following respective meanings (such terms to be equally
applicable to both the singular and plural forms of the terms defined):
"Affiliate": with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Authorized Persons": each of those persons named on Exhibit B, as the
same may be amended from time to time.
"Business Day": a day on which the Bank is open for the transaction of
business in Minneapolis, Minnesota, and for purposes of determining and changing
the Floating LIBOR Rate, on which dealings in Dollars may be carried on by the
Bank in the interbank eurodollar market and on which banks are open for business
in London, England and New York City.
"Collateral": the "Collateral" as defined in the Pledge and Security
Agreement.
"Cash Collateral Account": Account number 000000000000 of the Borrowers
maintained with the Bank.
"Commitment": The maximum unpaid principal Advances which may from time to
time be outstanding hereunder, being $50,000,000, as the same may be reduced
from time to time pursuant to Section 2.3 and, as the context may require, the
agreement of the Bank to make Advances to the Borrowers subject to the terms and
conditions of this Agreement.
"Credit Agreement": that certain Credit Agreement dated as of August 30,
2004, among the Borrowers, Bank of America, N.A., as Administrative Agent and
Swingline Lender, the Lenders party thereto and certain other parties.
"Floating LIBOR Rate": With respect to any date of determination, the
average offered rate for one month deposits in United States dollars (rounded
upward, if necessary, to the nearest 1/16 of 1%), which appears on Telerate page
3750 as of 11:00 A.M., London time (or such other time as of which such rate
appears) on such date of determination, or the rate for such deposits determined
by the Bank at such time based on such other published service of general
application as shall be selected by the Bank for such purpose; provided, that in
lieu of determining the rate in the foregoing manner, the Bank may determine the
rate based on rates at which one month deposits in United States dollars are
offered to the Bank in the interbank Eurodollar market at such time for delivery
in Immediately Available Funds (rounded upward, if necessary, to the nearest
1/16 of 1%). "Telerate page 3750" means the display designated as such on the
Telerate reporting system operated by Telerate System Incorporated (or such
other page as may replace page 3750 for the purpose of displaying London
interbank offered rates of major banks for United States dollar deposits). For
purposes of determining any interest rate hereunder or under any other Loan
Document which is based on the Floating LIBOR Rate, such interest rate shall
change as and when the Floating LIBOR Rate shall change.
"Immediately Available Funds": funds with good value on the day and in the
city in which payment is received.
"Investment Collateral Account" shall mean the Borrowers' account no.
385000004 maintained with the Bank.
"Loan Documents": this Agreement, the Notes, the Pledge and Security
Agreement and the other documents, certificates, or exhibits executed and
delivered by any Borrower under the terms of this Agreement.
"Maturity Date": the earlier of (i) August 30, 2005, or (ii) the date on
which the Bank terminates the Commitment pursuant to Section 6.2 hereof.
"Note": the executed promissory note, substantially in the form of Exhibit
A hereto, dated as of the date of this Agreement, executed by the Borrowers to
the order of the Bank in the original principal amount of the highest amount of
the Commitment, as the same may be amended, modified or restated from time to
time hereafter.
"Permitted Investments": the following, in each case not subject to any
lien, security interest, right of offset, or other encumbrance (except in favor
of the Bank): (i) cash, (ii) securities with remaining maturities of 90 days or
less issued or fully guaranteed by the United States Government or other
securities with remaining maturities of 90 days or less issued or fully
guaranteed by any state, political subdivision or taxing authority (provided
that such
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other securities are rated at least A by Standard & Poor's Ratings Group or
Xxxxx'x Investors Service, Inc.), and (iii) commercial paper with remaining
maturities of 90 days or less of a domestic issuer rated as least A-1 by
Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investors Service, Inc.
"Person": any natural person, corporation, partnership, joint venture,
firm, association, trust, governmental agency or political subdivision or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Pledge and Security Agreement": the executed Second Amended and Restated
Pledge and Security Agreement substantially in the form of Exhibit C hereto,
covering, among other things, the Cash Collateral Account, the Investment
Collateral Account and the Permitted Investments carried in the Investment
Collateral Account, as amended from time to time, and each financing statement
and other document required by the Bank to perfect or record its interest
thereunder.
"Subsidiary": any corporation a majority of the shares of the outstanding
capital stock of which is owned by any Borrower, either directly or through one
or more subsidiaries.
1.2 Accounting Terms and Calculations. All accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made
in accordance with GAAP. To the extent any change in GAAP after the date hereof
affects any computation or determination required to be made pursuant to this
Agreement, such computation or determination shall be made as if such change in
GAAP had not occurred unless the Borrowers and the Bank agree in writing on an
adjustment to such computation or determination to account for such change in
GAAP.
1.3 Computation of Time Periods. In this Agreement, in the computation of
a period of time from a specified date to a later specified date, unless
otherwise mated the word "from" means "from and including" and the word "to" or
"until" each means "to but excluding".
1.4 Other Terms. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
schedule, exhibit and like references are to this Agreement unless otherwise
clearly requires, "or" has the inclusive meaning represented by the phrase
"and/or." The singular includes the plural and the singular. All incorporation
by reference of covenants, terms, definitions or other provisions from other
agreements are incorporated into this Agreement as if such provisions were fully
set forth herein, and such incorporation shall include all necessary definitions
and related provisions from such other agreements but including only amendments
thereto agreed to by the Bank, and shall survive any termination of such other
agreements until the obligations of the Borrowers under this Agreement and the
Note are irrevocably paid in full and the Commitment has been terminated.
ARTICLE II
COMMITMENTS OF THE BANK
2.1 Commitment. Prior to the Maturity Date and subject to the terms and
conditions of this Agreement, the Bank agrees to lend to the Borrowers, jointly
and severally and secured by
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the Collateral, up to the amount of the Commitment in the aggregate outstanding
at any time in the form of loans ("Advances"), provided, that the Permitted
Investments to which such Advance relate have been credited to the Investment
Collateral Account (as defined in the Pledge and Security Agreement), and
provided however, that the principal amount of any Advance shall not exceed the
purchase price of the Permitted Investments that shall be purchased with the
proceeds of such Advance. Within the foregoing limits, and subject to the
additional terms and conditions of this Agreement, the Borrowers may from time
to time borrow, repay in whole or in part and reborrow, regardless of the
cumulative amount of the Advances. The Bank shall not be obligated to make
Advances if, after giving effect thereto, any of the foregoing limitations would
be exceeded.
2.2 Use of Proceeds of Advances. The Advances shall be used solely to
purchase Permitted Investments, which Permitted Investments will be credited to
the Investment Collateral Account and included in the Collateral.
2.3 Optional Reduction or Termination of Commitment. The Borrowers may, at
any time, upon no less than three Business Days' prior written notice to the
Bank, reduce the Commitment, with any such reduction in a minimum amount of
$1,000,000 or an integral multiple thereof. Upon any reduction in the Commitment
pursuant to this Section, the Borrowers shall pay to the Bank the amount, if
any, by which the aggregate unpaid principal amount of outstanding Advances
exceeds the Commitment as so reduced. Amounts so paid cannot be reborrowed. The
Borrowers may, at any time, upon not less than three Business Days' prior
written notice to the Bank, terminate the Commitment in its entirety. Upon
termination of the Commitment pursuant to this Section, the Borrowers shall pay
to the Bank the full amount of all outstanding Advances, all accrued and unpaid
interest thereon, and all other unpaid obligations of the Borrowers to the Bank
hereunder.
2.4 Time and Method of Payments. All payments and prepayments by the
Borrowers of principal of the Notes shall be made in Immediately Available Funds
not later than 12:00 noon (Minneapolis time) on the dates called for under this
Agreement at the main office of the Bank in Minneapolis, Minnesota. Funds
received after such hour shall be deemed to have been received by the Bank on
the next Business Day. The Borrowers hereby authorize the Bank to charge the
Cash Collateral Account in an amount equal to any such payment or prepayment
when due and payable to the Bank under this Agreement on the date due and agrees
to maintain collected funds in such Cash Collateral Account sufficient to make
such payments as and when due. If any payment of principal on the Notes becomes
due and payable on a day which is not a Business Day, such payment shall be made
on the next succeeding Business Day and such extension of time shall in such
case be included in the computation of any interest on such principal payment.
2.5 Borrowing of Advances. The Borrowers shall give the Bank telephonic
notice of each request for an Advance (promptly confirmed in writing) under the
Commitment not later than 12:00 noon (Minneapolis time) on the date of the
requested Advance, specifying the amount requested; provided, that the Borrowers
shall have a reasonable expectation of maintaining Available Balances so that no
"Deficiency" (as determined in accordance with Section 2.9) shall exist for such
month. Each request for an Advance shall specify the date and the amount of such
Advance which shall be in a minimum amount of $100,000. The Bank shall deposit
into the
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Cash Collateral Account in Immediately Available Funds by not later than 5:00
P.M. (Minneapolis time) on said date the total amount of the Advance or Advances
to be made by the Bank. Upon such deposit, the Cash Collateral Account will be
debited to purchase the related Permitted Investments and, upon such purchase,
such Permitted Investments will be credited to the Investment Account.
2.6 Note Evidencing Advances. All Advances shall be evidenced by the Note.
The date and amount of each Advance may be noted by the Bank on a schedule
annexed to the Note or on the Bank's ledgers or computer records. The aggregate
amount of Advances made by the Bank under the Note less repayments of principal
thereof shall be the principal amount owing and unpaid on the Note. The
notations made by a Bank on the schedule annexed to the Note or its ledgers and
computer records shall be presumed to be accurate absent manifest error,
provided however, that the failure of the Bank to make such notations or to
maintain such records shall not affect the validity or enforceability of the
Note.
2.7 Payment and Prepayment of Advances. The Borrowers shall pay the
principal of the Note as follows:
(a) Maturity Date. The entire unpaid principal balance of the Note
shall be due and payable on the Maturity Date.
(b) Mandatory Prepayments. If at any time the aggregate outstanding
amount of the Advances exceed the Commitment, reduced as provided in the
definition of "Commitment" and as provided in Section 2.3, the Borrowers
shall immediately make principal payments of such excess.
(c) Optional Prepayments. The Borrowers may prepay the Advances, in
whole or in part, at any time, without premium or penalty. Any such
prepayment must be accompanied by accrued and unpaid interest on the
amount prepaid. Each partial prepayment shall be in an amount of $100,000.
2.8 Interest Rate Applicable to the Notes. The Borrowers will pay the Bank
interest on the unpaid principal balance of each Advance from time to time
outstanding as follows:
(a) Before Maturity. Subject to adjustment of the rate of interest
applicable to any given month as provided in Section 2.9 the unpaid
principal amount of each Advance shall bear interest prior to maturity at
a rate of 0.70% per annum.
(b) After Maturity. Any amount of any Advances not paid when due,
whether at the date scheduled therefor or earlier upon acceleration, shall
bear interest until paid in full at a rate per annum equal to the Floating
LIBOR Rate plus 2.70% per annum.
(c) Payment of Interest. Except as provided in Section 2.9, interest
accrued on the Notes through the last day of each calendar month shall be
payable on the first Business Day of the next succeeding calendar month.
(d) Computation. All interest on the Notes (including any increase
or decreases to the rate of interest, as provided in Section 2.9) and
interest determinations
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made for purposes of Section 2.9 shall be computed based on actual days
elapsed in a year of 360 days.
2.9 Adjustment to Interest Rate.
(a) Maintenance of Balances. The Borrowers shall maintain on deposit
in a non-interest bearing account with the Bank for each calendar month
for which any Advance is outstanding, Average Daily Available Deposits in
an amount (the "Required Available Deposit Amount") equal to the Average
Daily Advance Amount for such month divided by the Average Daily Reserve
Factor for such month.
(b) Additional Required Balances. The Borrowers and the Bank may
from time to time agree to reduce the interest rate on an agreed portion
of an Advance to not less than 0.125% per annum (the mutually agreed
reduced rate is called a "Reduced Fixed Rate"). The Borrowers agree to
maintain on deposit in a non-interest bearing account with the Bank for
each calendar month for which any Reduced Fixed Rate is applicable,
Average Daily Available Deposits (the "Additional Required Available
Deposit Amount"), in addition to those required under Section 2.9(a), in
an amount determined in accordance with the following formula:
ARADA = ILF x 360
---------------- ---
ARF x ECR n
In such formula:
"ARADA" is the Additional Required Available Deposit Amount.
"ARF" is the Average Daily Reserve Factor for such month
"ECR" is the earnings credit rate per annum established by the Bank
for non-bearing demand deposits from time to time.
"ILF" is the interest loss factor, calculated to equal the remainder
of (i) the amount of interest that would have accrued on the Advance
subject to the Reduced Fixed Rate at the rate provided in Section
2.8(a) for such month, less (ii) the amount of interest that accrued
on the such Advance at the Reduced Fixed Rate.
"n" is the number of days in such month.
(c) Surpluses and Deficiencies The Bank shall determine for each
calendar month the amount of Average Daily Available Deposits and the
amount, if any, by which such Average Daily Available Deposits exceeds (a
"Deposit Surplus") or is less than (a "Deposit Deficiency") the Total
Required Deposits for such month. Any Deposit Surplus or Deposit
Deficiency for any month will be carried forward and applied to increase
or reduce, as the case may be, Deposit Surpluses or Deposit-Deficiencies
determined for subsequent calendar months in the same calendar quarter.
Unless the Bank shall otherwise agree with the Borrowers, net Deposit
Surpluses shall not be carried forward to
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succeeding fiscal years. If a net Deposit Deficiency exists for a full
calendar quarter, the Borrowers shall pay to the Bank additional interest
(in addition to that paid under Section 2.8) equal to the product of (a)
such net Deposit Deficiency, times (b) the Average Daily Floating LIBOR
Rate for such quarter, times (c) the quotient of (i) the actual number of
days in such quarter divided by 3, divided by (ii) 360. The Bank shall
notify the Borrowers in writing of the amount of monthly Deposit Surpluses
or Deficiencies and of the amount of any Deficiency Fee as soon as
practicable after the end of each calendar quarter, and the additional
interest within five (5) days after such notice. The Bank's written notice
shall be presumed to be correct in the absence of manifest error.
(c) Additional Definitions. For purposes of this Section 2.9 the
following capitalized terms have the following meanings:
"Available Deposits": at the time of any determination,
interest-free collected deposit balances maintained by the Borrowers
with the Bank which are not attributed to any other facility or
service, in excess of those which the Bank determines to be
necessary to support other banking services provided to the
Borrowers and to compensate the Bank for costs of insurance of the
Federal Deposit Insurance Corporation (or any successor), which
services and costs are not covered by cash payments by the
Borrowers.
"Average Daily Available Deposits": with respect to a calendar
month, the average daily amount of Available Deposits on deposit
with the Bank during such calendar month.
"Average Daily Floating LIBOR Rate": with respect to a calendar
quarter, the average daily Floating LIBOR Rate in effect during such
calendar quarter.
"Average Daily Reserve Factor": with respect to any calendar month,
the average daily amount of the Reserve Factor in effect during such
month.
"Average Daily Advance Amount": with respect to any calendar month,
the total average daily unpaid principal balance of the Advances
outstanding during such calendar month.
"Reserve Factor": as of any date, a number equal to the number one
(1) minus the percentage (expressed as a decimal rather than a
percentage) stipulated by Regulation D of the Federal Reserve Board
as the highest marginal percentage of net demand deposits required
to be maintained on reserve by the Bank.
"Total Required Deposits": the sum, for any calendar month, of the
Required Available Deposit Amount and Additional Required Available
Deposit Amount for such calendar month.
2.10 Persons Authorized to Request Advances. Until otherwise directed in
writing by an Authorized Person, the Borrowers hereby authorize the Bank, upon
receipt of telephonic instructions (confirmed in writing as soon as practicable)
from any one of the Authorized
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Persons, to make Advances in the amount and type, in each case, designated by
such Authorized Person. The list of Authorized Persons may be changed by the
Borrowers at any time upon written notice to the Bank. The Bank may assume, and
act upon the assumption, that any person giving the Bank instructions hereunder
is the person he or she purports to be.
2.11 Capital Adequacy. If the Bank shall reasonably determine that the
application or adoption of any law, rule, regulation, directive, interpretation,
treaty or guideline regarding capital adequacy, or any change therein or in the
interpretation or administration thereof, whether or not having the force of
law, increases the amount of capital required or expected to be maintained by
the Bank or any Person controlling the Bank, and such increase is based upon the
existence of the Bank's obligations hereunder and under other commitments of
this type, then from time to time, within 10 Business Days after written demand
from the Bank, the Borrowers shall pay to the Bank such amount or amounts as
will compensate the Bank or such controlling Person, as the case may be, for
such increased capital requirement. The Bank's determination of any amount to be
paid by the Borrowers under this Section shall take into consideration the
policies of the Bank or any Person controlling the Bank with respect to capital
adequacy and shall be based upon any reasonable averaging, attribution and
allocation methods. A certificate of the Bank setting forth the amount or
amounts as shall be necessary to compensate the Bank hereunder shall be deemed
conclusive in the absence of manifest error.
ARTICLE III
CONDITIONS PRECEDENT
3.1 Conditions of Initial Advance. The obligation of the Bank to make the
initial Advance pursuant to this Agreement shall be subject to the satisfaction
of the following conditions precedent, in addition to the applicable conditions
precedent set forth in Section 3.2 below, that the Bank shall have received all
of the following, in form and substance satisfactory to the Bank, each duly
executed and certified or dated the date of the initial Advance or such other
date as is satisfactory to the Bank:
(a) The Note executed by a duly authorized officer (or officers) of
the Borrower.
(b) A copy of the separate corporate resolution of each Borrower
authorizing the execution, delivery and performance of the Loan Documents,
certified by the Secretary or an Assistant Secretary of such Borrower,
together with a certificate of incumbency of officers signing the Loan
Documents, and certified copies of the Articles of Incorporation and
By-Laws (or the equivalent) of such Borrower.
(c) A Certificate of Good Standing for each Borrower in the
jurisdiction of its incorporation.
(d) The Pledge and Security Agreement executed by a duly authorized
officer (or officers) of the Borrowers.
(e) An opinion of counsel to the Borrowers, addressed to the Bank,
in substantially the form of Exhibit D.
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3.2 Conditions Precedent to all Advances. The obligation of the Bank to
make any Advance hereunder (including the initial Advance) shall be subject to
the satisfaction of the following conditions precedent (and each request for an
Advance shall be deemed a representation by the Borrowers that the following
have been satisfied):
(a) Before and after giving effect to such Advance, the
representation and warranties contained in Article IV shall be true and
correct, as though made on the date of such Advance; and
(b) Before and after giving effect to such Advance, no Default or
Event of Default (each such term as defined in Article VI) shall have
occurred and be continuing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, to grant the Commitment
and to make the Advances hereunder, each Borrower represents and warrants to the
Bank that each of the representations and warranties made by any Borrower in the
Credit Agreements are true and correct. For purposes of this incorporation, any
reference in the representations and warranties made by any Borrower in the
Credit Agreement to "this Agreement", "the Loan Documents", "herein" and similar
references shall be deemed to refer to this Agreement, the Note or the Loan
Documents, as applicable, and any reference in the Credit Agreement to the
"Credit Agent" or the "Lenders" shall be deemed to refer to the Bank.
ARTICLE V
COVENANTS
From the date of this Agreement and thereafter until the Commitment is
terminated or expires and the Advances and all other liabilities of the
Borrowers to the Bank hereunder and under the Note have been paid in full,
unless the Bank shall otherwise expressly consent in writing, the Borrowers will
comply with each of the terms, covenants and agreements set forth in the Credit
Agreements, and will supply to the Bank each report and statement required
thereunder (except to the extent that it is already supplying such items to the
Bank in its capacity as a Lender under the Credit Agreement). For purposes of
this incorporation, any reference to "this Agreement", "the Loan Documents",
"herein" and similar references shall be deemed to refer to this Agreement, the
Note or the Loan Documents, as applicable, and any reference in the Credit
Agreement to the "Agent" or the "Lenders" shall be deemed to refer to the Bank.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default:
(a) Any Borrower shall fail to make when due, whether by
acceleration or otherwise, any payment of principal of or interest on the
Note or any fee or other amount required to be made to the Bank pursuant
to the Loan Documents;
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(b) Any representation or warranty made or deemed to have been made
by or on behalf of any Borrower or any Subsidiary in the Loan Documents or
by or on behalf of any Borrower or any Subsidiary in any certificate,
statement, report or other writing furnished by or on behalf of any
Borrower to the Bank pursuant to the Loan Documents shall prove to have
been false or misleading in any material respect on the date as of which
the facts set forth are stated or certified or deemed to have been stated
or certified;
(c) Any default or event of default, however denominated, shall have
occurred and continued under the Credit Agreement; or
(d) Any Borrower shall fail to comply with any agreement, covenant,
condition, provision or term contained in the Loan Documents (and such
failure shall not constitute an Event of Default under any of the other
provisions of this Section 6.1) and such failure to comply shall continue
for 30 calendar days after notice thereof to the Borrowers by the Bank.
6.2 Remedies. If (a) any Event of Default that is an automatic Event of
Default without action by the Credit Agent or lenders under the Credit Agreement
shall occur with respect to any Borrower, the Commitment shall automatically
terminate and the outstanding unpaid principal balance of the Note, the accrued
interest thereon and all other obligations of the Borrowers to the Bank under
the Loan Documents shall automatically become immediately due and payable; or
(b) any other Event of Default shall occur and be continuing, then the Bank may
take any or all of the following actions: (i) declare that the Commitment is
terminated, whereupon the Commitment shall terminate, (ii) declare that the
outstanding unpaid principal balance of the Note, the accrued and unpaid
interest thereon and all other obligations of the Borrowers to the Bank under
the Loan Documents to be forthwith due and payable, whereupon the Note, all
accrued and unpaid interest thereon and all such obligations shall immediately
become due and payable, in each case without demand or notice of any kind, all
of which are hereby expressly waived, anything in this Agreement or in the Note
to the contrary notwithstanding, (iii) exercise all rights and remedies under
any other instrument, document or agreement between any Borrower and the Bank,
and (iv) enforce all rights and remedies under any applicable law.
6.3 Offset. In addition to the remedies set forth above, upon the
occurrence of any Event of Default or at any time thereafter while such Event of
Default continues, the Bank or any other holder of the Note may offset any and
all balances, credits, deposits (general or special, time or demand, provisional
or final), accounts or monies of the Borrowers then or thereafter with the Bank
or such other holder, or any obligations of the Bank or such other holder of the
Note, against the Indebtedness then owed by the Borrowers to the Bank.
ARTICLE VII
MISCELLANEOUS
7.1 Waiver and Amendment. No failure on the part of the Bank or the holder
of the Note to exercise and no delay in exercising any power or right hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any power or right preclude any other or
further exercise thereof or the exercise of any other power
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or right. The remedies herein and in any other instrument, document or agreement
delivered or to be delivered to the Bank hereunder or in connection herewith are
cumulative and not exclusive of any remedies provided by law. No notice to or
demand on the Borrowers not required hereunder or under the Note shall in any
event entitle the Borrowers to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the right of the Bank or the
holder of the Note to any other or further action in any circumstances without
notice or demand. No amendment, modification or waiver of any provision of the
Loan Documents or consent to any departure by any Borrower therefrom shall be
effective unless the same shall be in writing and signed by the Bank, and then
such amendment, modifications, waiver or consent shall be effective only in the
specific instances and for the specific purpose for which given.
7.2 Expenses and Indemnities. Whether or not any Advance is made
hereunder, the Borrowers agree to reimburse the Bank upon demand for all
reasonable expenses paid or incurred by the Bank (including filing and recording
costs and fees, charges and disbursements of outside counsel to the Bank
(determined on the basis of such counsel's generally applicable rates, which may
be higher than the rates such counsel charges the Bank in certain matters)
and/or the allocated costs of in-house counsel incurred from time to time) in
connection with the preparation, review, execution, delivery, amendment,
modification, interpretation, collection and enforcement of the Loan Documents.
The Borrowers agree to pay, and save the Bank harmless from all liability for,
any stamp or other taxes which may be payable with respect to the execution or
delivery of the Loan Documents. The Borrowers agree to indemnify and hold the
Bank harmless from any loss or expense which arises or is created by the
acceptance of telephonic or other instructions from the Borrowers for making
Advances or disbursing the proceeds thereof to the Borrowers. The obligations of
the Borrowers under this Section 7.2 shall survive any termination of this
Agreement.
7.3 Notices. Except when telephonic notice is expressly authorized by this
Agreement, any notice or other communication to any party in connection with
this Agreement shall be in writing and shall be sent by manual delivery,
facsimile transmission, overnight courier or United States mail (postage
prepaid) addressed to such party at the address specified on the signature page
hereof, or at such other address as such party shall have specified to the other
party hereto in writing. All periods of notice shall be measured from the date
of delivery thereof if manually delivered, from the date of sending thereof if
sent by facsimile transmission, from the first Business Day after the date of
sending if sent by overnight courier, or from four days after the date of
mailing if mailed; provided, however, that any notice to the Bank under Article
II hereof shall be deemed to have been given only when received by the Bank.
7.4 Successors. This Agreement shall be binding upon the Borrowers and the
Bank and their respective successors and assigns, and shall inure to the benefit
of the Borrowers and the Bank and the successors and assigns of the Bank. No
Borrower shall assign its rights or duties hereunder without the written consent
of the Bank.
7.5 Participations and Information.
(a) The Bank may sell participation interests in and assign its
interest in any or all of the Advances and in all or any portion of the
Commitment to any Person.
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(b) The Bank shall use reasonable efforts to assure that information
about the Borrowers and their operations, affairs and financial condition,
not generally disclosed to the public or to trade and other creditors,
which is furnished to the pursuant to the provisions hereof is used only
for the purposes of this Agreement and any other relationship between the
Bank and the Borrower and shall not be divulged to any Person other than
the Bank, its affiliates and their respective officers, directors,
employees and agents, except: (i) to their attorneys and accountants, (ii)
in connection with the enforcement of the rights of the Bank hereunder and
under the Loan Documents or otherwise in connection with applicable
litigation, (iii) in connection with assignments and participations and
the solicitation of prospective assignees and participants referred to in
Section 3(a) hereof, (iv) if such information is generally available to
the public other then as a result of disclosure by the Bank, (v) to any
direct or indirect contractual counterparty in any hedging arrangement or
such contractual counterparty's professional advisor, (vi) to any
nationally recognized rating agency that requires information about the
Bank's investment portfolio in connection with ratings issued with respect
to the Bank, and (vii) as may otherwise be required or requested by any
regulatory authority having jurisdiction over the Bank or by any
applicable law, rule, regulation or judicial process, the opinion of the
Bank's counsel concerning the making of such disclosure to be binding on
the parties hereto. Neither the Bank shall incur any liability to the
Borrower by reason of any disclosure permitted by this Section.
(c) The Bank may disclose to any assignee or participant and to any
prospective assignee or participant any and all financial information in
the Bank's possession concerning the Borrowers or any of their
subsidiaries which has been delivered to the Bank by or on behalf of the
Borrowers or any of their subsidiaries pursuant to this Agreement or which
has been delivered to the Bank by or on behalf of the Borrowers or any of
their subsidiaries in connection with the Bank's credit evaluation of the
Borrowers or any of their subsidiaries prior to entering into this
Agreement, provided that prior to disclosing such information, the Bank
shall first obtain the agreement of such prospective assignee or
participant to comply with the provisions of Section 3(b) hereof.
7.6 Severability. Any provision of the 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.
7.7 Subsidiary References. The provisions of this Agreement relating to
Subsidiaries shall apply only during such times as any Borrower has one or more
Subsidiaries.
7.8 Captions. The captions or headings herein and any table of contents
hereto are for convenience only and in no way define, limit or describe the
scope or intent of any provision of this Agreement.
7.9 Entire Agreement. This Agreement and the Note embody the entire
agreement and understanding between the Borrowers and the Bank with respect to
the subject matter hereof
12
and thereof. This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
7.11 Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
AGREEMENT AND THE NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
7.12 Consent to Jurisdiction. AT THE OPTION OF THE BANK, THIS AGREEMENT
AND THE NOTE MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT
SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE EACH BORROWER CONSENTS TO
THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE
IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ANY BORROWER COMMENCES ANY ACTION
IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING
DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE BANK
AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
7.13 Waiver of Jury Trial. EACH BORROWER WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY -RIGHTS (a) UNDER THIS
AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (b) ARISING FROM
ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
7.14 Reaffirmation of Existing Credit Agreement. Prior to giving effect to
Section 7.15 hereof, the Borrowers hereby reaffirm all of their obligations
under the Existing Credit Agreement and the existing promissory note issued
thereunder (the "Existing Note") and Borrower confirms to the Bank that such
Borrower's obligations under the Existing Credit Agreement and the Existing Note
are and continue to be secured by the security interest granted by such Borrower
in favor of the Bank under the Pledge and Security Agreement (as defined in the
Existing Credit Agreement), and all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of each Borrower under such documents and any and all other
documents and agreements entered into with respect to the obligations under the
Existing Credit Agreement are incorporated herein by reference and are hereby
ratified and affirmed in all respects by such Borrower.
13
7.15 Effect of Existing Loan Agreement and Existing Note. After giving
effect to Section 7.14 hereof, this Agreement amends and restates, and the Note
amends and restates, the Existing Loan Agreement and the Existing Note in their
respective entireties, provided that the obligations of the Borrowers incurred
under the Existing Loan Agreement and the Existing Note shall continue without
duplication under this Agreement and the Note, respectively, and shall not in
any circumstances be terminated, extinguished or discharged hereby or thereby
but shall hereafter be governed by the terms of this Agreement and the Note,
respectively.
7.16 Joint and Several Liability. The obligations of the Borrowers
hereunder and under the other Loan Documents and any other documents executed by
it in connection with loans made under this Agreement shall be joint and
several; provided that in no event shall the amount payable by any Borrower
exceed an aggregate amount equal to the largest amount that would not render
such Borrower's obligations subject to avoidance under Section 548 of the United
States Bankruptcy Code or any applicable provision of comparable state law. If
it is at any time determined by a court or governmental authority having
competent jurisdiction that any Borrower is liable as a guarantor (and not as a
co-obligor or co-borrower) with respect to any portion of the Obligations (with
respect to such Borrower, its "Guaranteed Obligations"), such Borrower hereby
agrees to the terms set forth on Exhibit E hereto with respect to its Guaranteed
Obligations.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above.
AMERICAN HOME MORTGAGE SERVICING, INC.,
f/k/a Columbia National, Incorporated
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: EVP & CFO
-------------------------------------
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn.: Treasurer
AMERICAN HOME MORTGAGE CORP.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: EVP & CFO
-------------------------------------
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn.: Treasurer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
------------------------------------
000 Xxxxxxxx Xxxx
Xxxx Xxxxxxx XX-XX-X00X
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
LIST OF EXHIBITS
Exhibit
A Note
B Schedule of Authorized Persons
C Pledge and Security Agreement
D Legal Opinion
E Guaranteed Obligations
NOTE
$50,000,000 Minneapolis, Minnesota:
September __, 2004
FOR VALUE RECEIVED, the undersigned AMERICAN HOME MORTGAGE SERVICING, INC.
f/k/a Columbia National, Incorporated, a Maryland corporation and AMERICAN HOME
MORTGAGE CORP. (collective, the "Borrowers"), jointly and severally promises to
pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank"), on the Maturity Date, as defined in the Credit
Agreement hereinafter referred to, or such earlier date as set forth in such
Credit Agreement, the principal sum of FIFTY MILLION DOLLARS ($50,000,000), or
if less, the then aggregate unpaid principal amount of the Advances (as such
term is defined in the Credit Agreement) as may be borrowed by the Borrowers
under the Credit Agreement. All Advances and all payments of principal shall be
recorded by the holder in its records which records shall be conclusive evidence
of the subject matter thereof, absent manifest error.
The Borrowers further promise to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at the rates per annum which shall be
determined in accordance with the provisions of the Credit Agreement. Accrued
interest shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
the Bank's main office in Minneapolis, Minnesota, or at such other place as may
be designated by the Bank to the Borrowers in writing.
This note is the Note referred to in, and evidences indebtedness incurred
under, a Second Amended and Restated Revolving Credit Agreement dated
concurrently herewith (herein, as it may be amended, modified or supplemented
from time to time, called the "Credit Agreement") between the Borrowers and the
Bank, to which Credit Agreement reference is made for a statement of the terms
and provisions thereof, including those under which the Borrowers are permitted
and required to make prepayments and repayments of principal of such
indebtedness and under which such indebtedness may be declared to be immediately
due and payable.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
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This Note is made under and governed by the internal laws of the State of
Minnesota.
AMERICAN HOME MORTGAGE SERVICING, INC.
f/k/a Columbia National, Incorporated
By:
-------------------------------------
Title:
----------------------------------
AMERICAN HOME MORTGAGE CORP.
By:
-------------------------------------
Title:
----------------------------------
A-2
EXHIBIT B
TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
AUTHORIZED PERSONS
------------------
Printed Name Title Signature
------------ ----- ---------
1.
2.
3.
4.
B-1
EXHIBIT D
TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Opinion of Counsel
September ___, 2004
U.S. Bank National Association
000 Xxxxxxxx Xxxx
Xxxx Xxxxxxx XX-XX-X00X
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Ladies/Gentlemen:
This opinion is delivered to you pursuant to the Second Amended and
Restated Revolving Credit Agreement (the "Credit Agreement") dated concurrently
herewith entered into among AMERICAN HOME MORTGAGE SERVICING, INC. f/k/a
Columbia National Incorporated, and AMERICAN HOME MORTGAGE CORP. (each a
"Borrower" and collectively, the "Borrowers") and U.S. Bank National Association
(the "Bank"). Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.
I am the General Counsel to the Borrowers in connection with the
preparation, execution and delivery of the Loan Documents. In that connection, I
have or a member of my staff working under by supervision has examined such
documents as I deemed necessary or appropriate for this opinion. I express no
opinion regarding any transactions or any confirmations under any of the Loan
Documents or the Loan Documents as supplemented by any transactions or
confirmations thereof.
Based on the foregoing and upon such investigations as I have deemed
necessary, I am of the opinion that:
1. Each Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the state of their respective
incorporation, and each is duly qualified and in good standing as a
foreign corporation in all other jurisdictions in which its
respective present operations or properties require such
qualification.
2. Each Borrower has full corporate power and authority to own and
operate its properties and assets, carry on its business as
presently conducted, and enter into and perform its obligations
under the Loan Documents to which it is a party.
D-1
3. The execution and delivery of the Loan Documents to which a Borrower
is a party, the performance by such Borrower of its obligations
thereunder, and the borrowing by such Borrower under the Credit
Agreement, have been duly authorized by all necessary corporate
action, and all of the Loan Documents have been duly executed and
delivered on behalf of such Borrower and constitute valid and
binding obligations of such Borrower, enforceable in accordance with
their respective terms.
4. There is no provision in any Borrower's organizational documents,
nor any provision in any indenture, mortgage, contract or agreement
to which any Borrower is a party or by which it or its properties
may be bound, nor any law, statute, rule or regulation, nor any
writ, order or decision of any court or governmental instrumentality
binding on such Borrower which would be contravened by the execution
and delivery of the Loan Documents to which such Borrower is a
party, nor do any of the foregoing prohibit such Borrower's
performance of any term, provision, condition, covenant or any other
obligation of such Borrower contained therein.
5. There are no actions, suits or proceedings pending or, to my
knowledge after due inquiry, threatened against or affecting any
Borrower before any court or arbitrator or by or before any
administrative agency or government authority, which, if adversely
determined, could constitute an Adverse Event.
6. Neither the making nor performance of the Loan Documents, nor the
borrowing(s) under the Credit Agreement, requires the consent or
approval of any governmental instrumentality.
7. No Borrower a "holding company", a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
8. No Borrower is an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
9. No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve
System), and, to our knowledge after due inquiry, no part of the
proceeds of any loan under the Credit Agreement will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
This opinion is subject to the following additional assumptions,
exceptions, qualifications and limitations:
A. I have assumed that all parties to the Loan Documents other than the
Borrowers have all requisite power and authority to execute, deliver and perform
their respective obligations under the Loan Documents, and that the Loan
Documents have been duly authorized by all
D-2
necessary corporate action on the part of such parties, have been executed and
delivered by such parties and constitute the legal, valid and binding
obligations of such parties.
B. My opinion in paragraph 3 above is subject to the qualifications that
(i) the enforceability of the Loan Documents may be limited by the effect of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Loan Documents and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors' rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought; and (ii) I express no opinion
with respect to the validity, legality, binding effect or enforceability of
provisions for indemnification in any Loan Document to the extent such
provisions may be held to be unenforceable as contrary to public policy.
C. I have assumed, without independent check or certification, that there
are no agreements or understandings among the Bank, the Borrowers, and any other
party which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I am admitted to practice in the State of New York, and I render no
opinion herein as to matters involving the laws of any jurisdiction other than
the State of New York and the Federal laws of the United States of America.
This opinion is delivered to you for your use in connection with the
Credit Agreement and may not be relied upon by any other person (other than your
participants and assignees and your bank regulators in the course of their
regulatory activities), or by you for any other purpose, without my written
consent. This opinion is given as of the date hereof, and I disclaim any
obligation to advise you of any change of law that occurs, or any facts of which
I become aware, after the date of this opinion. This opinion is limited to those
matters expressly set forth, and no opinion is to be inf red or implied beyond
the matters expressly so stated.
Very truly yours,
EXHIBIT E TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
TERMS WITH RESPECT TO GUARANTEED OBLIGATIONS
If at any time determined by a court or governmental authority having
competent jurisdiction that any Borrower is liable as a guarantor (and not as a
co-obligor or co-borrower) with respect to any portion of the Obligations (with
respect to such Borrower, its "Guaranteed Obligations"), such Borrower hereby
agrees to the terms set forth herein with respect to its Guaranteed Obligations.
1. Obligations Absolute. No act or thing need occur to establish the
liability of any Borrower for its Guaranteed Obligations, and no act or thing,
except full payment and discharge of all such Guaranteed Obligations, shall in
any way exonerate such Borrower or modify, reduce, limit or release the
liability of such Borrower for its Guaranteed Obligations. The obligations of
each Borrower for its Guaranteed Obligations shall be absolute, unconditional,
and irrevocable, and shall not be subject to any right of setoff or counterclaim
by such Borrower.
2. Continuing Guaranty. Each Borrower shall be liable for its Guaranteed
Obligations, plus accrued interest thereon and all attorneys' fees, collection
costs and enforcement expenses referable thereto. Guaranteed Obligations may be
created and continued in any amount without affecting or impairing the liability
of such Borrower therefor. No notice of such Guaranteed Obligations already or
hereafter contracted or acquired by the Bank, or any renewal or extension of any
thereof need be given to such Borrower and none of the foregoing acts shall
release such Borrower from liability hereunder. The agreement of each Borrower
pursuant to the Loan Agreement with respect to its Guaranteed Obligations is an
absolute, unconditional and continuing guaranty of payment of such Guaranteed
Obligations and shall continue to be in force and be binding upon such Borrower
until such Guaranteed Obligations are paid in full and the Credit Agreement is
terminated, and the Bank may continue, at any time and without notice to such
Borrower, to extend credit or other financial accommodations and loan monies to
or for the benefit of the other Borrower on the faith thereof. Each Borrower
hereby waives, to the fullest extent permitted by law, any right they may have
to revoke or terminate its guaranty of the Guaranteed Obligations before the
Guaranteed Obligations are paid in full and the Loan Agreement is terminated. In
the event any Borrower shall have any right under applicable law to otherwise
terminate or revoke its guaranty of the Guaranteed Obligations which cannot be
waived, such termination or revocation shall not be effective until written
notice of such termination or revocation, signed by such Borrower, is actually
received by the Bank's officer responsible for such matters. Any notice of
termination or revocation described above shall not affect such Borrower's
guaranty of the Guaranteed Obligations in relation to (i) any of the Guaranteed
Obligations that arose prior to receipt thereof or (ii) any of the Guaranteed
Obligations created after receipt thereof, if such Guaranteed Obligations were
incurred either through loans by the Bank or letters of credit issued or
arranged for by Bank, including, without limitation, advances, readvances or
letters of credit in an aggregate outstanding amount not to exceed the aggregate
amount of the Commitments as of the time such notice of termination or
E-1
revocation was received, and/or for the purpose of protecting any collateral,
including, but not limited, to all protective advances, costs, expenses, and
attorneys' and paralegals' fees, whensoever made, advanced or incurred by the
Bank in connection with the Guaranteed Obligations. If, in reliance on any
Borrower's guaranty of its Guaranteed Obligations, the Bank makes loans or other
advances to or for the benefit of any other Borrower or takes other action under
this Agreement after such aforesaid termination or revocation by the undersigned
but prior to the receipt by the Bank of said written notice as set forth above,
the rights of the Bank shall be the same as if such termination or revocation
had not occurred.
3. Other Transactions. Whether or not any existing relationship between
the Borrowers has been changed or ended, the Bank may, but shall not be
obligated to, enter into transactions resulting in the creation or continuance
of other obligations of any Borrower to the Bank, without consent or approval by
the other Borrowers and without notice to the other Borrowers, and all such
obligations shall be guaranteed by virtue of the Credit Agreement. The liability
of each Borrower under the Loan Agreement with respect to the Guaranteed
Obligations shall not be affected or impaired by any of the following acts or
things (which the Bank is expressly authorized to do, omit or suffer from time
to time, without notice to or approval by any Borrower): (i) any acceptance of
collateral security, other guarantors, accommodation parties or sureties for any
or all Guaranteed Obligations; (ii) any one or more extensions or renewals of
Guaranteed Obligations (whether or not for longer than the original period) or
any modification of the interest rates, maturities or other contractual terms
applicable to any Guaranteed Obligations; (iii) any waiver or indulgence granted
to any other Borrower, any delay or lack of diligence in the enforcement of
Guaranteed Obligations, or any failure to institute proceedings, file a claim,
give any required notices or otherwise protect any Guaranteed Obligations; (iv)
any full or partial release of, settlement with, or agreement not to xxx, any
other Borrower or any other guarantor or other person liable in respect of any
Guaranteed Obligations; (v) any discharge of any evidence of Guaranteed
Obligations or the acceptance of any instrument in renewal thereof or
substitution therefor; (vi) any failure to obtain collateral security for
Guaranteed Obligations, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to protect, ensure,
or enforce any collateral security, or any modification, substitution,
discharge, impairment or loss of any collateral security; (vii) any foreclosure
or enforcement of any collateral security; (viii) any transfer of any Guaranteed
Obligations or any evidence thereof; (ix) any order of application of any
payments or credits upon Guaranteed Obligations; (x) any release of any
collateral security for Guaranteed Obligations; (xi) any amendment to or
modification of, any agreement between the Bank and any other Borrower, or any
waiver of compliance by any other Borrower with the terms thereof; and (xii) any
election by the Lender under Section 1111 (b) of the United States Bankruptcy
Code.
4. Waivers of Defenses and Rights. Each Borrower waives any and all
defenses, claims and discharges of any other Borrower, or any other obligor,
pertaining to the Guaranteed Obligations, except the defense of discharge by
payment in full. Without limiting the generality of the foregoing, no Borrower
will assert, plead or enforce against the Bank any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, usury, illegality or unenforceability
which may be available to the other Borrower or any other person liable in
respect of any Guaranteed Obligations, or any setoff available against the Bank
to any other Borrower or any such other person, whether or not on account of a
related transaction. Each Borrower expressly agrees that such Borrower shall be
E-2
and remain liable for any deficiency remaining after foreclosure of any mortgage
or security interest securing Guaranteed Obligations, whether or not the
liability of or any other obligor for such deficiency is discharged pursuant to
statute, judicial decision or contract. Each Borrower waives presentment, demand
for payment, notice of dishonor or nonpayment, and protest of any instrument
evidencing Guaranteed Obligations. Each Borrower agrees that its liability under
the Loan Agreement for the Guaranteed Obligations shall be primary and direct,
and that the Bank shall not be required first to resort for payment of the
Guaranteed Obligations to any other Borrower or other persons or their
properties, or first to enforce, realize upon or exhaust any collateral security
for the Guaranteed Obligations, or to commence any action or obtain any judgment
against any other Borrower or against any such collateral security or to pursue
any other right or remedy the Bank may have against any other Borrower before
enforcing the liability of such Borrower for the Guaranteed Obligations under
the Loan Agreement.
5. Approval of Credit. Each Borrower has, independently and without
reliance upon the Bank or their respective directors, officers, agents or
employees, and instead in reliance upon information furnished by the other
Borrowers and upon such other information as such Borrower deemed appropriate,
made its own independent credit analysis and decision to guaranty the
obligations of the other Borrowers pursuant to the Loan Agreement.
6. Waiver of Subrogation. Each Borrower expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration, contribution or
any other claim which it may now or hereafter have against any other Borrower,
any endorser or any other guarantor of all or any part of the Guaranteed
Obligations, and each Borrower hereby waives any benefit of, and any right to
participate in, any security or collateral given to the Bank to secure payment
of the Guaranteed Obligations or any other liability of any other Borrower to
the Bank. Each Borrower further agrees that any and all claims it may have
against any other Borrower, any endorser or any other guarantor of all or any
part of the Guaranteed Obligations or against any of their respective
properties, whether arising by reason of any payment by such Borrower to the
Lender pursuant to the provisions hereof or otherwise, is hereby waived.
E-3
