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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
among
FREMONT FINANCIAL CORPORATION,
VARIOUS LENDING INSTITUTIONS,
XXXXX FARGO BANK N.A.
and
FLEET BANK, NATIONAL ASSOCIATION,
AS CO-AGENTS
and
THE CHASE MANHATTAN BANK,
AS AGENT
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Dated as of June 23, 1997
-------------------------
$450,000,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit....................................... 1
1.01 Commitments....................................................... 1
1.02 Minimum Amount of Each Borrowing; Maximum Number of
Borrowings..................................................... 3
1.03 Notice of Borrowing of Term Loans or Revolving Loans.............. 3
1.04 Competitive Bid Borrowings........................................ 4
1.05 Disbursement of Funds............................................. 6
1.06 Notes; Register................................................... 7
1.07 Conversions....................................................... 8
1.08 Pro Rata Borrowings............................................... 9
1.09 Interest.......................................................... 9
1.10 Interest Periods.................................................. 10
1.11 Increased Costs, Illegality, etc.................................. 12
1.12 Compensation...................................................... 14
1.13 Change of Lending Office.......................................... 15
SECTION 2. Fees; Commitments................................................ 15
2.01 Fees ........................................................... 15
2.02 Voluntary Reduction of Commitments................................ 16
2.03 Mandatory Reduction of Commitments................................ 16
SECTION 3. Payments......................................................... 17
3.01 Voluntary Prepayments............................................. 17
3.02 Mandatory Prepayments; Repayments................................. 18
3.03 Method and Place of Payment....................................... 21
3.04 Net Payments...................................................... 21
SECTION 4. Conditions Precedent............................................. 23
4.01 Effectiveness; Notes.............................................. 23
4.02 No Default; Representations and Warranties........................ 23
4.03 Officer's Certificate............................................. 23
4.04 Opinions of Counsel............................................... 23
4.05 Corporate Proceedings............................................. 23
4.06 Existing Credit Agreement......................................... 24
4.07 Adverse Change, etc............................................... 24
4.08 Litigation........................................................ 24
4.09 Keep Well Agreement............................................... 25
(i)
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4.10 Subsidiary Guaranty............................................... 25
4.11 Permitted Subordinated Debt....................................... 25
4.12 Financial Statements.............................................. 25
4.13 Approvals......................................................... 26
4.14 Payment of Fees................................................... 26
4.15 Notice of Borrowing............................................... 26
4.16 Consent Letter.................................................... 27
SECTION 5. Representations, Warranties and Agreements....................... 27
5.01 Corporate Status.................................................. 27
5.02 Corporate Power................................................... 28
5.03 Authority......................................................... 28
5.04 Binding Obligation................................................ 28
5.05 Financial Position................................................ 28
5.06 Litigation........................................................ 29
5.07 No Conflict....................................................... 29
5.08 Securities Activities............................................. 29
5.09 No Material Adverse Change........................................ 29
5.10 Restricted Junior Payments........................................ 30
5.11 Use of Proceeds................................................... 30
5.12 Disclosure........................................................ 30
5.13 Ownership and Activities.......................................... 30
5.14 Subordination Agreements.......................................... 31
5.15 Payment of Taxes.................................................. 31
5.16 Compliance with Law............................................... 31
5.17 Assets and Properties............................................. 31
5.18 Consents and Authorizations....................................... 31
5.19 ERISA ........................................................... 31
SECTION 6. Affirmative Covenants............................................ 32
6.01 Reporting Requirements............................................ 32
6.02 Corporate Existence, etc.......................................... 36
6.03 Corporate Powers, etc............................................. 36
6.04 Compliance with Law, etc.......................................... 37
6.05 Use of Proceeds................................................... 37
6.06 Payment of Taxes and Claims....................................... 37
6.07 Maintenance of Properties; Insurance.............................. 37
6.08 Inspection of Property; Books and Records; Discussions............ 38
6.09 ERISA ........................................................... 38
(ii)
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6.10 Maintenance of Subordinated Debt.................................. 38
6.11 Further Assurances................................................ 38
SECTION 7. Negative Covenants............................................... 38
7.01 Liens ........................................................... 38
7.02 Indebtedness...................................................... 40
7.03 Lease Obligations................................................. 41
7.04 Sale of Assets.................................................... 41
7.05 Accommodation Obligations......................................... 42
7.06 Investments....................................................... 43
7.07 Restricted Junior Payments........................................ 44
7.08 Restriction on Fundamental Changes................................ 45
7.09 Conduct of Business............................................... 45
7.10 Transactions with Affiliates...................................... 45
7.11 Certain Indebtedness.............................................. 46
7.12 Use of Proceeds................................................... 46
7.13 Cancellation of Debt.............................................. 47
7.14 Subordination of Subsidiary Debt to Borrower...................... 47
7.15 ERISA ........................................................... 47
7.16 Restrictions on Preferred Stock................................... 48
7.17 Restrictions on Subsidiary Dividends, etc......................... 48
7.18 Modifications of Certain Agreements............................... 48
7.19 Minimum Tangible Net Worth........................................ 48
7.20 Minimum Allowance for Credit Losses............................... 48
7.21 Non-Performing Assets Coverage Test............................... 49
7.22 Capital Expenditures.............................................. 49
7.23 Minimum Interest Coverage Ratio................................... 49
7.24 Leverage Ratio.................................................... 49
7.25 Customer Exposure................................................. 49
SECTION 8. Events of Default................................................ 49
8.01 Payments.......................................................... 49
8.02 Representations, etc.............................................. 49
8.03 Certain Covenants................................................. 50
8.04 Other Generally................................................... 50
8.05 Servicer Default.................................................. 50
8.06 Default Under Other Agreements.................................... 50
8.07 Bankruptcy, etc................................................... 50
8.08 ERISA ........................................................... 51
(iii)
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8.09 Keep Well Agreement............................................... 52
8.10 Subsidiary Guaranty............................................... 52
8.11 Judgments......................................................... 52
8.12 Ownership......................................................... 52
SECTION 9. Definitions...................................................... 53
SECTION 10. The Agent....................................................... 74
10.01 Appointment...................................................... 74
10.02 Delegation of Duties............................................. 75
10.03 Exculpatory Provisions........................................... 75
10.04 Reliance by Agent................................................ 76
10.05 Notice of Default................................................ 76
10.06 Non-Reliance on Agent a Other Banks.............................. 76
10.07 Indemnification.................................................. 77
10.08 Agent in Its Individual Capacity................................. 78
10.09 Resignation of the Agent; Successor Agent........................ 78
10.10 Co-Agents........................................................ 78
SECTION 11. Miscellaneous................................................... 78
11.01 Payment of Expenses, etc......................................... 78
11.02 Right of Setoff.................................................. 79
11.03 Notices.......................................................... 79
11.04 Benefit of Agreement............................................. 79
11.05 No Waiver; Remedies Cumulative................................... 81
11.06 Payments Pro Rata................................................ 81
11.07 Calculations; Computations....................................... 82
11.08 Governing Law; Submission to Jurisdiction; Venue................. 82
11.09 Counterparts..................................................... 83
11.10 Effectiveness.................................................... 83
11.11 Headings Descriptive............................................. 84
11.12 Amendment or Waiver.............................................. 84
11.13 Survival......................................................... 84
11.14 Domicile of Loans................................................ 84
11.15 Confidentiality.................................................. 85
11.16 WAIVER OF JURY TRIAL............................................. 85
(iv)
ANNEX I -- List of Banks and Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Subsidiaries
ANNEX IV -- ERISA Plans
ANNEX V -- Insurance
ANNEX VI -- Eligible Receivable Criteria
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Notice of Competitive Bid
Borrowing
EXHIBIT B-1 -- Form of Term Note
EXHIBIT B-2 -- Form of Revolving/Converted Term Note
EXHIBIT C-1 -- Form of Opinion of Xxxxxxx X. Xxxx, Xx.
EXHIBIT C-2 -- Form of Opinion of Xxxx X. Xxxxxx
EXHIBIT C-3 -- Form of Opinion of White & Case
EXHIBIT D -- Form of Officer's Certificate
EXHIBIT E -- Form of Keep Well Agreement
EXHIBIT F -- Form of Subsidiary Guaranty
EXHIBIT G -- Form of Assignment and Assumption
Agreement
EXHIBIT H-1 -- Form of Borrower CT Corporation
Consent Letter
EXHIBIT H-2 -- Form of FGC CT Corporation Consent Letter
EXHIBIT H-3 -- Form of FPFC CT Corporation Consent Letter
EXHIBIT H-4 -- Form of FPFC Delaware CT Corporation Consent Letter
EXHIBIT I -- Form of Borrowing Base Certificate
EXHIBIT J -- Subordination Agreement between Fremont Financial
Corporation and Fremont Compensation Insurance Company
EXHIBIT K -- Subordination Agreement between Fremont Financial
Corporation and Fremont Indemnity Company
(v)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June
23, 1997, among FREMONT FINANCIAL CORPORATION, a California corporation (the
"Borrower"), the lending institutions listed from time to time on Annex I hereto
(each a "Bank" and, collectively, the "Banks"), XXXXX FARGO BANK N.A. and FLEET
BANK, NATIONAL ASSOCIATION, as Co-Agents (the "Co-Agents"), and THE CHASE
MANHATTAN BANK, as Agent (the "Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 9 are used herein as so
defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set
forth herein, the Banks are willing to make available to the Borrower the credit
facility provided for herein.
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Term Loan Commitment severally
agrees to make, on the Second Restatement Effective Date, a term loan (each a
"Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term
Loans (i) may, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that all
Term Loans made by all the Banks pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Term Loans of the
same Type, and (ii) shall be made by each Bank in that initial aggregate
principal amount as is equal to the Term Loan Commitment of such Bank on the
Second Restatement Effective Date (before giving effect to the termination
thereof on such date pursuant to Section 2.03(a)). Once repaid, Term Loans
incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set
forth, each Bank with a Revolving Loan Commitment severally agrees to make a
loan or loans (each a "Revolving Loan" and, collectively, the "Revolving Loans")
to the Borrower,
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which Revolving Loans (i) shall be made at any time and from time to time on and
after the Second Restatement Effective Date and prior to the Conversion Date,
(ii) may, at the option of the Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that all Revolving
Loans made by all Banks pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Revolving Loans of the same
Type, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which equals the Revolving Loan Commitment of such
Bank at such time, (v) shall not exceed in the aggregate for all Banks at any
time outstanding that aggregate principal amount which, when added to the then
aggregate outstanding principal amount of all Competitive Bid Loans, equals the
Total Revolving Loan Commitment at such time, and (vi) shall not exceed in the
aggregate for all Banks at any time outstanding that aggregate principal amount
which, when added to the then aggregate outstanding principal amount of all
Competitive Bid Loans and all Term Loans, equals the Adjusted Borrowing Base at
such time.
(c) Subject to and upon the terms and conditions set forth
herein, the Borrower and each Bank which has Revolving Loans outstanding at such
time agree that, at 9:00 A.M. (New York time) on the Conversion Date, the
aggregate principal amount of Revolving Loans owing to such Bank and outstanding
at such time shall (unless such Revolving Loan have been declared (or have
become) due and payable pursuant to this Agreement), without any notice or
action by any party, automatically convert to and thereafter constitute
Converted Term Loans owing to such Bank hereunder. The Converted Term Loans of
any Bank (i) shall, at the option of the Borrower, be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that
all Converted Term Loans made by all Banks pursuant to the same Borrowing shall,
unless otherwise specifically provided herein, consist entirely of Converted
Term Loans of the same Type and (ii) shall not exceed in initial principal
amount for such Bank an amount which equals the aggregate principal amount of
Revolving Loans owed to such Bank and outstanding immediately prior to such
conversion. Once repaid, Converted Term Loans may not be reborrowed.
(d) Subject to and upon the terms and conditions herein set
forth, each Bank severally agrees that the Borrower may incur a loan or loans
(each a "Competitive Bid Loan" and collectively, the "Competitive Bid Loans")
pursuant to a Competitive Bid Borrowing at any time and from time to time on and
after the Second Restatement Effective Date and prior to the date which is the
third Business Day preceding the date which is 14 days prior to the Conversion
Date, provided that after giving effect to any Competitive Bid Borrowing and the
use of the proceeds thereof, (i) the aggregate outstanding principal amount of
Competitive Bid Loans, when combined with the then aggregate outstanding
principal amount of all Revolving Loans, shall not exceed the
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Total Revolving Loan Commitment at such time and (ii) the aggregate outstanding
principal amount of Competitive Bid Loans, when combined with the then aggregate
outstanding principal amount of all Term Loans and Revolving Loans, shall not
exceed the Adjusted Borrowing Base at such time.
1.02 MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF
BORROWINGS. The aggregate principal amount of each Borrowing hereunder shall not
be less than (i) $5,000,000, in the case of Revolving Loans, Term Loans or
Converted Term Loans incurred and maintained as, and/or converted into,
Eurodollar Loans, (ii) $1,000,000, in the case of Revolving Loans, Term Loans or
Converted Term Loans incurred and maintained as, and/or converted into, Base
Rate Loans and (iii) $10,000,000, in the case of Competitive Bid Loans, and, if
in excess thereof, shall be in an integral multiple of $1,000,000. More than one
Borrowing may be incurred on any day; provided that at no time shall there be
outstanding more than twelve Borrowings of Eurodollar Loans.
1.03 NOTICE OF BORROWING OF TERM LOANS OR REVOLVING LOANS. (a)
Whenever the Borrower desires to incur Term Loans or Revolving Loans hereunder,
it shall give the Agent at its Notice Office, (x) in the case of a Borrowing of
Eurodollar Loans, written notice (or telephonic notice promptly confirmed in
writing) of such proposed Borrowing, which notice must be given prior to 12:00
Noon (New York time) at least three Business Days prior to the date of such
proposed Borrowing and (y) in the case of a Borrowing of Base Rate Loans,
written notice (or telephonic notice promptly confirmed in writing) of such
proposed Borrowing, which notice must be given prior to 12:00 Noon (New York
time) on the date of such proposed Borrowing. Each such notice (each, a "Notice
of Borrowing"), except as otherwise expressly provided in Section 1.11, shall be
irrevocable, and, in the case of a written notice or a confirmation of
telephonic notice, shall be in the form of Exhibit A-1 hereto, appropriately
completed to specify (i) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) whether the Loans being made pursuant to such Borrowing
shall constitute Term Loans or Revolving Loans and (iv) whether the respective
Borrowing shall consist of Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Agent shall promptly give each Bank written notice (or telephonic notice
promptly confirmed in writing) of each proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters covered by the Notice of
Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any notice it may give hereunder by telephone, the Agent
may act prior to receipt of written confirmation without liability upon the
basis of such
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telephonic notice, believed by the Agent in good faith to be from an Authorized
Officer of the Borrower. In each such case the Borrower hereby waives the right
to dispute the Agent's record of the terms of any such telephonic notice.
1.04 COMPETITIVE BID BORROWINGS. (a) Whenever the Borrower
desires to incur a Competitive Bid Borrowing, it shall deliver to the Agent,
prior to 2:00 p.m. (New York time) (x) at least five Business Days prior to the
date of such proposed Competitive Bid Borrowing, in the case of a Spread
Borrowing, and (y) at least two Business Days prior to the date of such proposed
Competitive Bid Borrowing, in the case of an Absolute Rate Borrowing, a written
notice substantially in the form of Exhibit A-2 hereto (a "Notice of Competitive
Bid Borrowing"), which notice shall specify in each case (i) the date (which
shall be a Business Day) and the aggregate amount of the proposed Competitive
Bid Borrowing, (ii) the maturity date for repayment of each and every
Competitive Bid Loan to be made as part of such Competitive Bid Borrowing (which
maturity date may be (A) one, two, three or six months after the date of such
Competitive Bid Borrowing, in the case of a Spread Borrowing, and (B) between 14
and 364 days, inclusive, after the date of such Competitive Bid Borrowing, in
the case of an Absolute Rate Borrowing, provided that in no event shall the
maturity date of any Competitive Bid Borrowing be later than the third Business
Day preceding the Conversion Date), (iii) the interest payment date or dates
relating thereto, (iv) whether the proposed Competitive Bid Borrowing is to be
an Absolute Rate Borrowing or a Spread Borrowing, and if a Spread Borrowing, the
Interest Rate Basis, and (v) any other terms to be applicable to such
Competitive Bid Borrowing. The Agent shall promptly notify each Bidder Bank by
telephone or facsimile of each such request for a Competitive Bid Borrowing
received by it from the Borrower and of the contents of the related Notice of
Competitive Bid Borrowing.
(b) Each Bidder Bank shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid Loans to
the Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Bidder Bank in its sole discretion and
determined by such Bidder Bank independently of each other Bidder Bank, by
notifying the Agent (which shall give prompt notice thereof to the Borrower)
before 1:00 p.m. (New York time) on the date (the "Reply Date") which is (x) in
the case of an Absolute Rate Borrowing, one Business Day before the date of such
proposed Competitive Bid Borrowing and (y) in the case of a Spread Borrowing,
four Business Days before the date of such proposed Competitive Bid Borrowing,
of the minimum amount and maximum amount of each Competitive Bid Loan which such
Bidder Bank would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first sentence of
Section 1.01(d), exceed such Bidder Bank's Commitment), the rate or rates of
interest therefor and such Bidder Bank's lending office with respect to
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such Competitive Bid Loan; provided that if the Agent in its capacity as a
Bidder Bank shall, in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer before 12:45 p.m. (New York time) on the
Reply Date. If any Bidder Bank shall elect not to make such an offer, such
Bidder Bank shall so notify the Agent, before 1:00 p.m. (New York time) on the
Reply Date, and such Bidder Bank shall not be obligated to, and shall not, make
any Competitive Bid Loan as part of such Competitive Bid Borrowing; provided
that the failure by any Bidder Bank to give such notice shall not cause such
Bidder Bank to be obligated to make any Competitive Bid Loan as part of such
proposed Competitive Bid Borrowing.
(c) The Borrower shall, in turn, (x) before 3:00 p.m. (New
York time) on the Reply Date in the case of a proposed Absolute Rate Borrowing
and (y) before 3:00 p.m. (New York time) on the Business Day following the Reply
Date in the case of a proposed Spread Borrowing, either:
(i) cancel such Competitive Bid Borrowing by giving the Agent
notice to such effect (it being understood and agreed that if the
Borrower gives no such notice of cancellation and no notice of
acceptance pursuant to clause (ii) below, then the Borrower shall be
deemed to have cancelled such Competitive Bid Borrowing), or
(ii) accept one or more of the offers made by any Bidder Bank
or Bidder Banks pursuant to clause (b) above by giving notice (in
writing or by telephone confirmed in writing) to the Agent of the
amount of each Competitive Bid Loan (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Agent on behalf of such Bidder
Bank for such Competitive Bid Borrowing pursuant to clause (b) above)
to be made by each Bidder Bank as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Bidder Banks
pursuant to clause (b) above by giving the Agent notice to that effect;
provided that the acceptance of offers may only be made on the basis of
ascending Absolute Rates (in the case of an Absolute Rate Borrowing) or
Spreads (in the case of a Spread Borrowing), in each case commencing
with the lowest rate so offered; provided further, however, if offers
are made by two or more Bidder Banks at the same rate and acceptance of
all such equal offers would result in a greater principal amount of
Competitive Bid Loans being accepted than the aggregate principal
amount requested by the Borrower, if the Borrower elects to accept any
of such offers the Borrower shall accept such offers pro rata from such
Bidder Banks (on the basis of the maximum amounts of such offers)
unless any such Bidder Bank's pro rata share would be less than the
minimum amount specified by such Bidder Bank in its offer, in which
case
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the Borrower shall have the right to accept one or more such equal
offers in their entirety and reject the other equal offer or offers or
to allocate acceptance among all such equal offers (but giving effect
to the minimum and maximum amounts specified for each such offer
pursuant to clause (b) above), as the Borrower may elect in its sole
discretion.
(d) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled, or if such Competitive Bid Borrowing is deemed
cancelled, pursuant to clause (c)(i) above, the Agent shall give prompt notice
thereof to the Bidder Banks and such Competitive Bid Borrowing shall not be
made.
(e) If the Borrower accepts one or more of the offers made by
any Bidder Bank or Bidder Banks pursuant to clause (c)(ii) above, the Agent
shall in turn promptly notify (x) each Bidder Bank that has made an offer as
described in clause (b) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by such
Bidder Bank pursuant to clause (b) above have been accepted by the Borrower and
(y) each Bidder Bank that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Loan to be made
by such Bidder Bank as part of such Competitive Bid Borrowing.
1.05 DISBURSEMENT OF FUNDS. (a) Subject to the terms and
conditions herein set forth, no later than 11:00 A.M. (New York time) on the
date of each incurrence of Loans (2:00 P.M. (New York time) on such date in the
case of a Borrowing of Base Rate Loans or a Competitive Bid Borrowing
constituting an Absolute Rate Borrowing), each Bank will make available its pro
rata share, if any, of each Borrowing requested to be made on such date in the
manner provided below.
(b) Each Bank shall make available all amounts it is to fund
under any Borrowing in U.S. dollars and immediately available funds to the Agent
at the Agent's Payment Office and the Agent will make available to the Borrower
by depositing to its account at the Agent's Payment Office the aggregate of the
amounts so made available in the type of funds received. Unless the Agent shall
have been notified by any Bank prior to the time of any such Borrowing that such
Bank does not intend to make available to the Agent its portion of the Borrowing
or Borrowings to be made on such date, the Agent may assume that such Bank has
made such amount available to the Agent on such date of Borrowing, and the
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Agent by such
Bank and the Agent has made available the same to the Borrower, the Agent shall
be entitled to recover such corresponding amount from such
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Bank. If such Bank does not pay such corresponding amount forthwith upon the
Agent's demand therefor, the Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Agent. The Agent
shall also be entitled to recover from such Bank or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to the Borrower
to the date such corresponding amount is recovered by the Agent, at a rate per
annum equal to (x) if paid by such Bank, the overnight Federal Funds Effective
Rate or (y) if paid by the Borrower, the then applicable rate of interest,
calculated in accordance with Section 1.09, for the respective Loans.
(c) Nothing in this Section 1.05 shall be deemed to relieve
any Bank from its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result of
any default by such Bank hereunder.
1.06 NOTES; REGISTER. (a) The Borrower's obligation to pay the
principal of, and interest on, the Term Loans, Revolving Loans and Converted
Term Loans made to it by each Bank shall be evidenced (i) if Term Loans, by a
promissory note substantially in the form of Exhibit B-1 hereto with blanks
appropriately completed in conformity herewith (each a "Term Note" and
collectively the "Term Notes") and (ii) if Revolving Loans or Converted Term
Loans, by a promissory note substantially in the form of Exhibit B-2 hereto with
blanks appropriately completed in conformity herewith (each a
"Revolving/Converted Term Note" and collectively the "Revolving/Converted Term
Notes" and together with the Term Notes, the "Notes").
(b) The Term Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date, (iii) be in a stated principal amount equal to the
initial Term Loans made by such Bank and be payable in the principal amount of
the Term Loans evidenced thereby, (iv) mature on the Term Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of Section 1.09 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to mandatory repayment as provided in Section
3.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Revolving/Converted Term Note issued to each Bank
shall (i) be executed by the Borrower, (ii) be payable to the order of such Bank
and be dated the Second Restatement Effective Date, (iii) be in a stated
principal amount equal to the Revolving Loan Commitment of such Bank and be
payable in the principal amount of the Revolving Loans or Converted Term Loans,
as the case may be, evidenced thereby,
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(iv) mature on the Final Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.09 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 3.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(d) Each Bank will record on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior to
any transfer of any Note endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation shall not affect the Borrower's obligations in
respect of such Loans.
(e) The Agent shall maintain at its Payment Office a register
for the recordation of the names and addresses of the Banks, the Commitments of
the Banks from time to time, and the principal amount of the Term Loans,
Revolving Loans (and, on or after the Conversion Date, Converted Term Loans),
and Competitive Bid Loans owing to each Bank from time to time together with the
maturity and interest rates applicable to each such Competitive Bid Loan, and
other terms applicable thereto (the "Register"). The entries in the Register
shall constitute prima facie evidence as to the information set forth therein.
Upon the request of the Borrower, the Agent shall provide the Borrower with a
copy of the Register. The parties hereto acknowledge and agree that the Register
shall be maintained in accordance with this Section 1.06(e), among other
reasons, in lieu of the Borrower issuing promissory notes evidencing Competitive
Bid Loans.
1.07 CONVERSIONS. The Borrower shall have the option to
convert on any Business Day all or a portion of the outstanding principal amount
of the Term Loans or Revolving Loans (or, on or after the Conversion Date,
Converted Term Loans) of one Type owing by the Borrower into a Borrowing or
Borrowings of the other Type of Loans; provided that (i) Eurodollar Loans may
only be converted into Base Rate Loans if such conversion is in a minimum
principal amount at least equal to $1,000,000 (and, if in excess thereof, an
integral multiple of $1,000,000), and no partial conversion of a Borrowing of
Eurodollar Loans shall reduce the outstanding principal amount of the Eurodollar
Loans pursuant to such Borrowing to less than $5,000,000, (ii) Base Rate Loans
may only be converted into Eurodollar Loans if such conversion is in a minimum
principal amount at least equal to $5,000,000 (and, if in excess thereof, an
integral multiple of $1,000,000) and no Default or Event of Default is in
existence on the date of the conversion, (iii) concurrently with any conversion
of Eurodollar Loans into Base Rate Loans made pursuant to this Section 1.07 on a
day which is not the last day of an Interest Period applicable thereto, the
Borrower shall compensate each Bank for any breakage costs owing under Section
1.12 in respect of
-8-
such conversion, (iv) Borrowings of Eurodollar Loans resulting from this Section
1.07 shall be limited in number as provided in Section 1.02 and (v) each such
conversion shall be made pro rata among the Term Loans or Revolving Loans (or,
on or after the Conversion Date, Converted Term Loans), as the case may be, of
each Bank of the Type being converted. Each such conversion shall be effected by
the Borrower by giving the Agent at its Notice Office, prior to 12:00 Noon (New
York time), at least three Business Days' (or one Business Day's in the case of
a conversion into Base Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each a "Notice of Conversion") specifying the
Loans to be so converted, the Type of Loans to be converted into and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Agent shall give each Bank prompt notice of
any such proposed conversion.
1.08 PRO RATA BORROWINGS. All Borrowings of Term Loans and
Revolving Loans under this Agreement shall be loaned by the Banks pro rata on
the basis of their Term Loan Commitments or Revolving Loan Commitments, as the
case may be. All Borrowings of Converted Term Loans shall be loaned by the Banks
pro rata on the basis of their Revolving Loan Commitments as in effect on the
Conversion Date (immediately prior to the termination thereof pursuant to
Section 2.03(b)). It is understood that no Bank shall be responsible for any
default by any other Bank in its obligation to make Loans hereunder and that
each Bank shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.09 INTEREST. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the incurrence thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which shall
at all times be the Applicable Base Rate Margin plus the Base Rate in effect
from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the incurrence thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) The unpaid principal amount of each Competitive Bid Loan
shall bear interest from the date of the incurrence thereof until maturity
(whether by acceleration or otherwise) at the rate or rates per annum specified
by a Bidder Bank or Bidder Banks, as the case may be, pursuant to Section
1.04(b) and accepted by the Borrower pursuant to Section 1.04(c).
-9-
(d) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per annum
equal to the Base Rate in effect from time to time plus the sum of (i) 2% and
(ii) the Applicable Base Rate Margin; provided that principal in respect of
Eurodollar Loans and Competitive Bid Loans shall bear interest after the same
becomes due (whether by acceleration or otherwise) until the end of the
applicable Interest Period for such Eurodollar Loans, or the original scheduled
maturity of such Competitive Bid Loans, as the case may be, at a per annum rate
equal to 2% plus the rate of interest applicable on the due date therefor.
(e) Interest shall accrue from and including the date of any
incurrence of a Loan to and excluding the date of any payment thereof and shall
be payable (i) in respect of each Base Rate Loan, quarterly in arrears on the
last Business Day of each calendar quarter, it being understood that interest
shall accrue and be payable through such last Business Day of each calendar
quarter, (ii) in respect of each Competitive Bid Loan, at such times as
specified in the Notice of Competitive Bid Borrowing relating thereto, (iii) in
respect of each Eurodollar Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three month intervals after the first day of
such Interest Period and (iv) in respect of each Loan, on any conversion or
prepayment (on the amount so converted or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(f) All computations of interest hereunder shall be made in
accordance with Section 11.07(b).
(g) The Agent, upon determining the interest rate for any
Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify the
Borrower and the Banks thereof.
1.10 INTEREST PERIODS. At the time the Borrower gives a Notice
of Borrowing or Notice of Conversion, in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto), or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Agent written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period to be applicable to such Borrowing, which Interest Period shall,
at the option of the Borrower, be a one, two, three or six month period,
provided, however, that for the thirty day period following the Second
Restatement Effective Date, any such Interest Period may, at the option of the
Borrower and so long as any such Interest Period elected pursuant to this
proviso
-10-
expires on or prior to the thirtieth day after the Second Restatement Effective
Date, also be a seven, fourteen or twenty-one day period. Notwithstanding
anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Base Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, provided that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) no Interest Period may be elected if it would extend
beyond (i) in the case of Revolving Loans, the Conversion Date, (ii) in
the case of Term Loans, the Term Loan Maturity Date or (iii) in the
case of Converted Term Loans, the Final Maturity Date;
(v) no Interest Period with respect to any Borrowing of Term
Loans shall extend beyond any date upon which a mandatory prepayment of
Term Loans is required to be made under Section 3.02(c), if, after
giving effect to the selection of such Interest Period, the aggregate
principal amount of Term Loans maintained as Eurodollar Loans with
Interest Periods ending after such date of mandatory repayment would
exceed the aggregate principal amount of Term Loans permitted to be
outstanding after such mandatory prepayment;
(vi) no Interest Period with respect to any Borrowing of
Converted Term Loans shall extend beyond any date upon which a
mandatory repayment of such Converted Term Loans will be required to be
made under Section 3.02(d), if the aggregate principal amount of such
Converted Term Loans which have Interest Periods which will expire
after such date will be in excess of the
-11-
aggregate principal amount of such Converted Term Loans then
outstanding less the aggregate amount of such required repayment; and
(vi) no Interest Period may be elected at any time when a
Default or Event of Default is then in existence.
If upon the expiration of any Interest Period, the Borrower has failed, or is
not permitted, to elect a new Interest Period to be applicable to any Borrowing
of Euro-dollar Loans as provided above, the Borrower shall be deemed to have
elected to convert such Borrowing into a Borrowing of Base Rate Loans effective
as of the expiration date of such current Interest Period.
1.11 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
(x) in the case of clause (i) below, the Agent or (y) in the case of clauses
(ii) and (iii) below, any Bank shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period or in respect of any Spread Borrowing priced by
reference to the Eurodollar Rate that, by reason of any changes arising
after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loans or Competitive Bid Loans because of (x) any
change since the date of this Agreement (or, in the case of any such
cost or reduction with respect to any Competitive Bid Loan, since the
making of such Competitive Bid Loan) in any applicable law,
governmental rule, regulation, guideline, order or request (whether or
not having the force of law) or in the interpretation or administration
thereof and including the introduction of any new law or governmental
rule, regulation, guideline, order or request (such as, for example,
but not limited to, a change in official reserve requirements, but, in
all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate) and/or (y)
other circumstances affecting the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time that the making or continuance of any
Eurodollar Loan or Competitive Bid Loan has become unlawful by reason
of compliance by such Bank in good faith with any law, governmental
rule, regulation, guideline or
-12-
order (or would conflict with any such governmental rule, regulation,
guideline or order not having the force of law but with which such Bank
customarily complies even though the failure to comply therewith would
not be unlawful), or has become impracticable as a result of a
contingency occurring after the Restatement Effective Date which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above to the extent applicable to Term Loans and/or Revolving Loans (and/or, on
or after the Conversion Date, Converted Term Loans)) shall on such date give
notice (if by telephone promptly confirmed in writing) to the Borrower and to
the Agent of such determination (which notice the Agent shall promptly transmit
to each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans (or Competitive Bid Loans constituting a Spread Borrowing
priced by reference to the Eurodollar Rate) shall no longer be available until
such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of Conversion
given by the Borrower with respect to Eurodollar Loans (or any affected
Competitive Bid Loans) which have not yet been incurred shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Bank, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or reductions
in amounts receivable hereunder (a written notice as to the additional amounts
owed to such Bank, showing in reasonable detail the basis for the calculation
thereof, including such Bank's method of allocating such costs among its
affected customers, submitted to the Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) and
(z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.11(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.11(a)(ii) or any Eurodollar Loan or
Competitive Bid Loan is affected by the circumstances described in Section
1.11(a)(iii), the Borrower may (and in the case of a Eurodollar Loan or
Competitive Bid Loan affected pursuant to Section 1.11(a)(iii) shall) either (x)
if the affected Eurodollar Loan or Competitive Bid Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (promptly confirmed in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.11(a)(ii) or (iii), (y) if
the affected Eurodollar Loan is then outstanding, upon at least
-13-
three Business Days' notice to the Agent, require the affected Bank to convert
each such Eurodollar Loan into a Base Rate Loan or (z) subject to the provisions
of Section 3.02(f), if the affected Competitive Bid Loan is then outstanding,
prepay such Competitive Bid Loan in full (which prepayment may be made with the
proceeds of Term Loans or a Revolving Loan); provided, that if more than one
Bank is affected at any time, then all affected Banks must be treated the same
(subject to their respective ratable interests) pursuant to this Section
1.11(b).
(c) If any Bank shall have determined that the adoption after
the Restatement Effective Date of any applicable law, rule or regulation
regarding capital adequacy, or any change therein after the Restatement
Effective Date, or any change after the Restatement Effective Date in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank or its parent with any request or directive
made after the Restatement Effective Date regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's or its parent's capital or assets as a consequence of its Commitments or
obligations hereunder to a level below that which such Bank or its parent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or its parent's policies with respect to capital
adequacy), then from time to time, within 30 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank or its parent
such additional amount or amounts as will compensate such Bank or its parent for
such reduction. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.11(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
including such Bank's method of allocating such costs among its affected
customers, although the failure to give any such notice shall not release or
diminish any of the Borrower's obligations to pay additional amounts pursuant to
this Section 1.11(c) upon receipt of such notice.
1.12 COMPENSATION. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Bank to fund its Eurodollar Loans, or Competitive Bid Loans but excluding
any loss of anticipated profit with respect to such Loans) which such Bank may
sustain: (i) if for any reason (other than a default by such Bank or the Agent)
a Borrowing of Eurodollar Loans, or of Competitive Bid Loans accepted by the
Borrower in accordance with Section 1.04(c)(ii),
-14-
does not occur on a date specified therefor in a Notice of Borrowing, Notice of
Competitive Bid Borrowing or Notice of Conversion (whether or not withdrawn by
the Borrower or deemed withdrawn pursuant to Section 1.11(a)); (ii) if any
repayment, prepayment or conversion of any of its Eurodollar Loans or any
repayment of Competitive Bid Loans occurs on a date which is not the last day of
an Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans or Competitive Bid Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Eurodollar Loans or Competitive Bid
Loans when required by the terms of this Agreement or (y) an election made
pursuant to Section 1.11(b); provided, however, that the Borrower shall have no
obligation to compensate any Bank for any losses, expenses or liabilities
incurred by such Bank under this Section 1.12 if the Borrower shall not have
received a written request therefor from such Bank within 60 days of its
incurrence of such losses, expenses or liabilities. Calculation of all amounts
payable to a Bank under this Section 1.12 in respect of Eurodollar Loans or
Competitive Bid Loans priced by reference to the Eurodollar Rate shall be made
as though that Bank had actually funded its relevant Loan through the purchase
of a Eurodollar deposit bearing interest at the Eurodollar Rate in an amount
equal to the amount of that Loan, having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar deposit from an
offshore office of that Bank or other bank to a domestic office of that Bank in
the United States of America; provided, however, that each Bank may fund each of
its Eurodollar Loans or Competitive Bid Loans in any manner it sees fit and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 1.12.
1.13 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.11(a)(ii) or
(iii) or 3.04 with respect to such Bank, it will, if requested by the Borrower,
use reasonable efforts (subject to overall policy considerations of such Bank)
to designate another lending office for any Loans affected by such event;
provided, that such designation is made on such terms that, in the opinion of
such Bank, such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this Section
1.13 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Section 1.11 or 3.04.
SECTION 2. FEES; COMMITMENTS.
2.01 FEES. (a) The Borrower agrees to pay to the Agent a
facility fee (the "Facility Fee") for the account of each Bank for the period
from and including the Second Restatement Effective Date to and including the
date the Total Commitment has
-15-
been terminated and all Loans have been repaid computed at a rate per annum
equal to the Applicable Facility Fee Percentage from time to time of the sum of
the Revolving Loan Commitment (whether or not used) of such Bank as in effect
from time to time plus the outstanding Converted Term Loans and Term Loans of
such Bank from time to time. Accrued Facility Fees shall be due and payable in
arrears on the last Business Day of each March, June, September and December, on
the date upon which the Total Commitment is terminated and on the date on which
the Loans are repaid in full.
(b) In addition to any fees set forth herein, the Borrower
shall pay to the Agent, for the account of the Agent and/or the Banks, when and
as due, such fees as have been, or are from time to time, separately agreed
upon.
(c) All computations of Fees shall be made in accordance with
Section 11.07(b).
2.02 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) given by the Borrower to the Agent at its Notice Office (which notice
shall be irrevocable and shall be promptly transmitted by the Agent to each of
the Banks), the Borrower shall have the right, without premium or penalty, to
terminate, in whole or in part, the Total Unutilized Revolving Loan Commitment
(or to the extent that at such time there are no Revolving Loans or Competitive
Bid Loans outstanding, to terminate the Total Revolving Loan Commitment),
provided, that (x) any partial reduction of the Total Unutilized Revolving Loan
Commitment pursuant to this Section 2.02 shall be in the amount of at least
$25,000,000 (and, if greater, in an integral multiple of $25,000,000), and (y)
any such termination shall apply to proportionately and permanently reduce the
Revolving Loan Commitment of each of the Banks.
2.03 MANDATORY REDUCTION OF COMMITMENTS. (a) In addition to
any other mandatory commitment reductions pursuant to this Section 2.03, the
Total Term Loan Commitment (and the Term Loan Commitment of each Bank) shall
terminate in its entirety on the Restatement Effective Date (after giving effect
to the making of the Term Loans on such date).
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
Conversion Date.
-16-
SECTION 3. PAYMENTS.
3.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay Term Loans and Revolving Loans (and, on or after the Conversion Date,
Converted Term Loans), without premium or penalty, in whole or in part, from
time to time on the following terms and conditions: (i) the Borrower shall give
the Agent at its Notice Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay such Term Loans or Revolving Loans
(or, on or after the Conversion Date, Converted Term Loans), the amount of such
prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s)
pursuant to which made, which notice shall be given by the Borrower (A) in the
case of any prepayment of Eurodollar Loans, no later than 12:00 Noon (New York
time) two Business Days prior to the date of such prepayment, and (B) in the
case of any prepayment of Base Rate Loans, no later than 12:00 Noon (New York
time) on the date of such prepayment, and which notice shall promptly be
transmitted by the Agent to each of the Banks; (ii) each partial prepayment of
any Borrowing shall be (A) in the case of any partial prepayment of Eurodollar
Loans, in an aggregate principal amount of at least $5,000,000 (and, if greater,
in an integral multiple of $1,000,000), provided that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Loans outstanding pursuant to such Borrowing to an
amount less than $5,000,000 and (B) in the case of any partial prepayment of
Base Rate Loans, in an aggregate principal amount of at least $1,000,000 (and,
if greater, in an integral multiple of $1,000,000); (iii) concurrently with any
prepayment of Eurodollar Loans made pursuant to this Section 3.01 on a day which
is not the last day of the Interest Period applicable thereto, the Borrower
shall compensate each Bank for any breakage costs owing under Section 1.12 in
respect of such prepayment; and (iv) each prepayment in respect of any Term
Loans, Converted Term Loans or Revolving Loans made pursuant to a Borrowing
shall be applied pro rata among such Term Loans, Converted Term Loans or
Revolving Loans. Upon receipt of a notice of prepayment pursuant to this Section
3.01, the Agent shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share (if any) of such prepayment. The Borrower shall have
no right under this Section 3.01 to prepay any principal amount of any
Competitive Bid Loans. Any voluntary prepayments of Term Loans or Converted Term
Loans pursuant to this Section 3.01 shall reduce future Term Loan Scheduled
Repayments and Converted Term Loan Scheduled Repayments, respectively, on a pro
rata basis.
-17-
3.02 MANDATORY PREPAYMENTS; REPAYMENTS. (a) If at any time the
Aggregate Loan Outstandings exceed the Adjusted Borrowing Base, the Borrower
shall prepay on such date the Loans in the amount necessary to reduce the
Aggregate Loan Outstandings to an amount equal to the Adjusted Borrowing Base.
Prepayments made pursuant to this Section 3.02(a) shall be applied in the
following order: (i) if made on or prior to the Conversion Date, first, to the
Revolving Loans then outstanding in the amount of such excess, second, to the
extent any excess remains after all Revolving Loans are prepaid, to the
Competitive Bid Loans then outstanding (subject to Section 3.02(f)), and third,
to the extent any excess remains after all Competitive Bid Loans are prepaid, to
the Term Loans then outstanding in the amount of such remaining excess (such
prepayments to reduce future Term Loan Scheduled Repayments on a pro rata
basis); and (ii) if made after the Conversion Date, first, to the Converted Term
Loans then outstanding in the amount of such excess (such prepayments to reduce
future Converted Term Loan Scheduled Repayments on a pro rata basis), and
second, to the extent any excess remains after all Converted Term Loans are
prepaid, to the Term Loans then outstanding in the amount of such remaining
excess (such prepayments to reduce future Term Loan Scheduled Repayments on a
pro rata basis).
(b) If on any date the sum of outstanding Revolving Loans and
outstanding Competitive Bid Loans exceeds the Total Revolving Loan Commitment as
then in effect, the Borrower shall repay on such date the principal of Revolving
Loans, in an amount equal to such excess (together with any breakage costs owing
under Section 1.12). If, after giving effect to the prepayment of all
outstanding Revolving Loans as set forth above, the Competitive Bid Loan
outstandings exceed the Total Revolving Loan Commitment, the Borrower shall
repay on such date the principal of Competitive Bid Loans in an aggregate amount
equal to such excess (together with any breakage costs owing under Section
1.12), provided that no Competitive Bid Loan shall be prepaid pursuant to this
sentence unless the Bank that made same consents to such prepayment. In the
absence of such consent, the provisions of Section 3.02(f) shall be applicable.
(c) In addition to any other mandatory repayments pursuant to
this Section 3.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Term Loans, to the extent then outstanding, as
is set forth opposite such date (each such repayment, as the same may be reduced
as provided in Sections 3.01 and 3.02(a), a "Term Loan Scheduled Repayment," and
each such date, a "Term Loan Scheduled Repayment Date"):
-18-
TERM LOAN SCHEDULED REPAYMENT DATE AMOUNT
the Last Business Day
of September, 1998 ................................... $6,250,000
the Last Business Day
of December, 1998 .................................... $6,250,000
the Last Business Day
of March, 1999 ....................................... $6,250,000
the Last Business Day
of June, 1999 ........................................ $6,250,000
the Last Business Day
of September, 1999 ................................... $6,250,000
the Last Business Day
of December, 1999 .................................... $6,250,000
the Last Business Day
of March, 2000 ....................................... $6,250,000
the Last Business Day
of June, 2000 ........................................ $6,250,000
the Last Business Day
of September, 2000 ................................... $12,500,000
the Last Business Day
of December, 2000 .................................... $12,500,000
the Last Business Day
of March, 2001 ....................................... $12,500,000
Term Loan Maturity Date ................................ $12,500,000
(d) In addition to any other mandatory repayments pursuant to
this Section 3.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Converted Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 3.01 and 3.02(a), a "Converted Term
Loan Scheduled Repayment," and each such date, a "Converted Term Loan Scheduled
Repayment Date").
CONVERTED TERM LOAN
SCHEDULED REPAYMENT DATE AMOUNT
the Last Business Day in
August 2000 ..................... $43,750,000
-19-
the Last Business Day
in November, 2000 .............. $43,750,000
the last Business Day in
February, 2001 ................. $43,750,000
the Last Business Day
in May, 2001 .................... $43,750,000
the Last Business Day
in August, 2001 ................ $43,750,000
the Last Business Day
in November, 2001 .............. $43,750,000
the Last Business Day
in February 2002 ............... $43,750,000
Final Maturity Date .............. $43,750,000
In the event that less than $350,000,000 of Converted Term
Loans are outstanding on the Conversion Date (after giving effect to the
conversion of outstanding Revolving Loans into Converted Term Loans on such
date), the amount of each Converted Term Loan Scheduled Repayment set forth in
the table above shall be reduced on a pro rata basis (based on the relative
proportion that the amount of each such Converted Term Loan Scheduled Repayment
as set forth in the table above bears to the aggregate amount of all Converted
Term Loan Scheduled Repayments as set forth in the table above).
(e) With respect to each prepayment of Term Loans, Converted
Term Loans and/or Revolving Loans required by this Section 3.02, the Borrower
may designate the Types of Term Loans, Converted Term Loans and/or Revolving
Loans which are to be prepaid and the specific Borrowing(s) pursuant to which
made; provided, that (i) if any prepayment of Eurodollar Loans made pursuant to
a single Borrowing shall reduce the outstanding Term Loans, Converted Term Loans
or Revolving Loans made pursuant to such Borrowing to an amount less than
$5,000,000, such Borrowing shall be immediately converted into Base Rate Loans;
and (ii) each prepayment of any Term Loans, Converted Term Loans or Revolving
Loans made pursuant to a Borrowing shall be applied pro rata among such Term
Loans, Converted Term Loans or Revolving Loans. In the absence of a designation
of Term Loans, Converted Term Loans or Revolving Loans by the Borrower as
described in this Section 3.02(e), the Agent shall, subject to the above, make
such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.12.
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(f) At any time that the Borrower is obligated to prepay any
Competitive Bid Loan pursuant to Section 1.11(b) or 3.02(a) or (b) on a date
other than the scheduled maturity date thereof, such prepayment shall only be
made if the respective Bank that made such Competitive Bid Loan has consented in
writing (or by telephone confirmed in writing) to the Borrower to such
prepayment within 48 hours after notice (in writing or by telephone confirmed in
writing) by the Borrower to such Bank of such prepayment (it being understood
that the Borrower will give such notice and that any failure to respond to such
notice will constitute a rejection thereof); if such prepayment is not so
consented to by the respective Bank then, in the case of a prepayment otherwise
required pursuant to Section 3.02(a) and (b), the provisions of the immediately
succeeding sentence will be applicable. At the time any such Competitive Bid
Loans are otherwise required to be prepaid, the Borrower will deposit 100% of
the principal amount that otherwise would have been paid in respect of the
Competitive Bid Loans with the Agent to be held as security for the obligations
of the Borrower hereunder pursuant to a cash collateral agreement to be entered
into in form and substance satisfactory to the Agent, with such cash collateral
to be released from such cash collateral account (and applied to repay the
principal amount of such Competitive Bid Loans) upon each occurrence thereafter
of the last day of an Interest Period applicable to the relevant Competitive Bid
Loans, with the amount to be so released and applied on the last day of each
Interest Period to be the amount of the Competitive Bid Loans to which such
Interest Period applies (or, if less, the amount remaining in such cash
collateral account).
3.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement and the Notes
shall be made to the Agent for the ratable account of the Banks entitled
thereto, not later than 1:30 p.m. (New York time) on the date when due and shall
be made in immediately available funds and in lawful money of the United States
of America at the Agent's Payment Office, it being understood that written,
telex or facsimile notice by the Borrower to the Agent to make a payment from
the funds in the Borrower's account at the Agent's Payment Office shall
constitute the making of such payment to the extent of such funds held in such
account. Any payments under this Agreement which are made later than 1:30 p.m.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
3.04 NET PAYMENTS. All payments made by the Borrower hereunder
will be made without setoff or counterclaim. Promptly upon notice from any Bank
to the
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Borrower, the Borrower will pay, prior to the date on which penalties attach
thereto, all present and future income, stamp and other taxes, levies, costs and
charges whatsoever imposed, assessed, levied or collected on or in respect of a
Loan solely as a result of the interest rate being determined by reference to
the Eurodollar Rate and/or the provisions of this Agreement relating to the
Eurodollar Rate and/or the recording, registration, notarization or other
formalization of any thereof and/or any payments of principal, interest or other
amounts made on or in respect of a Loan when the interest rate is determined by
reference to the Eurodollar Rate (all such taxes, levies, costs and charges
being herein collectively called "Taxes"); provided that Taxes shall not include
taxes imposed on or measured by the overall net income or overall net profits of
that Bank by the United States of America or any political subdivision or taxing
authority thereof or therein, or taxes on or measured by the overall net income
or overall net profits of any foreign branch or subsidiary of that Bank by any
foreign country or subdivision thereof in which that branch or subsidiary is
doing business. The Borrower shall also pay such additional amounts equal to
increases in taxes payable by that Bank described in the foregoing proviso which
increases are attributable to payments made by the Borrower described in the
immediately preceding sentence of this Section 3.04. Promptly after the date on
which payment of any such Tax is due pursuant to applicable law, the Borrower
will, at the request of that Bank, furnish to that Bank evidence, in form and
substance satisfactory to that Bank, that the Borrower has met its obligation
under this Section 3.04. The Borrower will indemnify each Bank against, and
reimburse each Bank on demand for, any Taxes, as determined by that Bank in its
good faith discretion. Such Bank shall provide the Borrower with appropriate
receipts for any payments or reimbursements made by the Borrower pursuant to
this Section 3.04. Notwithstanding the foregoing, the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
(and shall not be required to make payments as otherwise required in this
Section 3.04 on account of such deductions or withholdings) income or other
similar taxes imposed by the United States of America from interest, fees or
other amounts payable hereunder for the account of any Bank other than a Bank
(i) who is a U.S. Person for Federal income tax purposes or (ii) who has the
Prescribed Forms on file with the Borrower for the applicable year to the extent
deduction or withholding of such taxes is not required as a result of the filing
of such Prescribed Forms, provided that if the Borrower shall so deduct or
withhold any such taxes, it shall provide a statement to the Agent and such
Bank, setting forth the amount of such taxes so deducted or withheld, the
applicable rate and any other information or documentation which such Bank may
reasonably request for assisting such Bank to obtain any allowable credits or
deductions for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Bank is subject to tax.
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SECTION 4. CONDITIONS PRECEDENT. The obligation of the Banks
to make any Loan to the Borrower hereunder is subject, at the time of the making
of such Loan (except as otherwise hereinafter indicated), to the satisfaction of
the following conditions:
4.01 EFFECTIVENESS; NOTES. This Agreement shall have become
effective as provided in Section 11.10 and there shall have been delivered to
the Agent for the account of each Bank the appropriate Note executed by the
Borrower in the amount, maturity and as otherwise provided herein.
4.02 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time
of the making of such Loan and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Loan, unless stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
4.03 OFFICER'S CERTIFICATE. On the Second Restatement
Effective Date, the Agent shall have received a certificate dated such date,
signed by an appropriate officer of the Borrower, stating that all of the
applicable conditions set forth in Sections 4.02, 4.06, 4.07, 4.08, 4.11(a) and
4.13 exist as of such date.
4.04 OPINIONS OF COUNSEL. On the Second Restatement Effective
Date, the Agent shall have received an opinion, or opinions, in form and
substance reasonably satisfactory to the Agent, addressed to each of the Banks
and dated the Second Restatement Effective Date, from (i) Xxxxxxx X. Xxxx, Xx.,
general counsel of the Borrower, which opinion shall be substantially in the
form of Exhibit C-1 hereto, (ii) Xxxx Xxxxxx, general counsel of FGC, FPFC and
FPFC Delaware, which opinion shall be substantially in the form of Exhibit C-2
hereto and (iii) White & Case, special counsel to the Banks, which opinion shall
be substantially in the form of Exhibit C-3 hereto.
4.05 CORPORATE PROCEEDINGS. (a) On the Second Restatement
Effective Date, the Banks shall have received from each of the Borrower, FGC,
FPFC and FPFC Delaware a certificate, dated the Second Restatement Effective
Date, signed by the President, any Executive Vice President or any Senior Vice
President of such Person, and attested to by the Secretary or any Assistant
Secretary of such Person, in the form of Exhibit D hereto with appropriate
insertions, together with copies of the Certificate of Incorporation and By-Laws
of such Person, the resolutions of such Person and the
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other documents referred to in such certificate, and the foregoing shall be
reasonably satisfactory to the Agent.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to the Agent, and the Agent shall have received all
information and copies of all certificates, documents and papers, including
records of corporate proceedings and governmental approvals, if any, which the
Agent reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental
authorities.
4.06 EXISTING CREDIT AGREEMENT. On the Second Restatement
Effective Date, concurrently with the incurrence of Loans hereunder, (i) all
loans under the Existing Credit Agreement shall have been repaid in full,
together with interest thereon and all accrued but unpaid facility fees and
utilization fees thereunder, in each case whether or not then due and payable
and (ii) and all other amounts, costs and expenses then owing to the Banks
(under and as defined in the Existing Credit Agreement) shall have been paid in
full.
4.07 ADVERSE CHANGE, ETC. On or prior to the Second
Restatement Effective Date, nothing shall have occurred since December 31, 1996,
which the Agent or the Required Banks shall determine (i) has, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Agent or the Banks, or on the ability of the Borrower to perform
its obligations to them, (ii) has, or could reasonably be expected to have, a
material adverse effect on the corporate, organizational or legal structure of
FGC, the Borrower or of FGC or the Borrower and their respective Subsidiaries
taken as a whole or (iii) has, or could reasonably be expected to have, a
materially adverse effect on the condition (financial or otherwise), operations,
assets, liabilities or prospects of FGC, the Borrower or of FGC or the Borrower
and their respective Subsidiaries taken as a whole.
4.08 LITIGATION. At the time of the making of such Loan, there
shall be (a) no law or regulation, and no order, judgment or decree of any
governmental authority, prohibiting, enjoining or restraining any Bank from
making the requested Loan, and (b) no actions, suits or proceedings pending or
threatened with respect to FGC or the Borrower or any of their respective
Subsidiaries which in the judgment of the Agent or the Required Banks could
reasonably be expected to (i) have a material adverse effect on the condition
(financial or otherwise), operations, assets, liabilities or prospects of FGC,
the Borrower or of FGC or the Borrower and their respective Subsidiaries taken
as a whole, (ii) have a material adverse effect on the rights or
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remedies of the Banks hereunder or under any other Credit Document or on the
ability of the Borrower to perform its obligations to the Banks hereunder or
under any other Credit Document, or (iii) have a material adverse effect on (A)
the ability of FGC to perform its obligations under the Keep Well Agreement, (B)
the ability of FPFC to perform its obligations under the Subsidiary Guaranty or
(C) the ability of FPFC Delaware to perform its obligations under the Subsidiary
Guaranty.
4.09 KEEP WELL AGREEMENT. On or prior to the Second
Restatement Effective Date, FGC shall have duly authorized, executed and
delivered the Keep Well Agreement in the form attached as Exhibit E hereto (as
modified, amended or supplemented from time to time in accordance with the terms
hereof and thereof, the "Keep Well Agreement"), and the Keep Well Agreement
shall be in full force and effect.
4.10 SUBSIDIARY GUARANTY. On or prior to the Second
Restatement Effective Date, each of FPFC and FPFC Delaware shall have duly
authorized, executed and delivered a Subsidiary Guaranty in the form attached as
Exhibit F hereto (as modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof, the "Subsidiary Guaranty"), and
each such Subsidiary Guaranty shall be in full force and effect.
4.11 PERMITTED SUBORDINATED DEBT. (a) On the Second
Restatement Effective Date, the Borrower shall have outstanding Permitted
Subordinated Debt in an aggregate principal amount of at least $20,000,000.
(b) On or prior to the Second Restatement Effective Date, the
Banks shall have received true and correct copies of the documents relating to
the Permitted Subordinated Debt and such documents and all of the terms and
conditions of the Permitted Subordinated Debt (including, without limitation,
subordination, standstill, blockage and turnover provisions) shall be in form
and substance satisfactory to the Agent.
(c) The Agent shall have received evidence in form, scope and
substance satisfactory to it that the matters set forth in this Section 4.11
have been satisfied at such time.
4.12 FINANCIAL STATEMENTS. Prior to the Second Restatement
Effective Date, the Borrower shall have delivered or caused to be delivered to
the Agent and to each Bank:
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(a) the audited consolidated and unaudited consolidating
balance sheet of the Borrower as of December 31, 1996, and the related
consolidated and consolidating statement of income and consolidated
statements of stockholders' equity and of cash flows for the fiscal
year then ended, in each case prepared in accordance with GAAP;
(b) the unaudited consolidated and consolidating balance sheet
of the Borrower as of March 31, 1997, and the related consolidated and
consolidating statement of income and consolidated statement of
stockholders' equity for the three-month period then ended, in each
case prepared in accordance with GAAP (subject to normal year-end audit
adjustments);
(c) the annual report on Form 10-K of FGC for FGC's fiscal
year ended on December 31, 1996, as filed with the SEC; and
(d) the quarterly report on Form 10-Q of FGC for FGC's fiscal
quarter ended on March 31, 1997, as filed with the SEC.
4.13 APPROVALS. On the Second Restatement Effective Date, all
necessary and material governmental and third party approvals and filings in
connection with the Credit Documents and otherwise referred to herein, to the
extent such approvals and filings are required to be obtained or made prior to
the Second Restatement Effective Date, shall have been obtained and remain in
full force and effect, and all applicable waiting periods shall have expired
without any action being taken by any competent authority which restrains,
prevents or imposes, in the judgment of the Required Banks or the Agent,
materially adverse conditions upon the consummation of the transactions
contemplated thereby.
4.14 PAYMENT OF FEES. On the Second Restatement Effective
Date, all costs, fees and expenses, and all other compensation contemplated by
this Agreement or the other Credit Documents, due to the Agent or any Banks
shall have been paid to the extent due.
4.15 NOTICE OF BORROWING. The Agent shall have received (a) a
Notice of Borrowing satisfying the requirements of Section 1.03 in the case of a
Borrowing of Revolving Loans, or a Notice of Competitive Bid Borrowing
satisfying the requirements of Section 1.04 in the case of a Borrowing of
Competitive Bid Loans and (b) a Borrowing Base Certificate, dated as of the most
recent date for which a Borrowing Base Certificate is required to be delivered
pursuant to Section 6.01(d).
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4.16 CONSENT LETTER. On the Second Restatement Effective Date,
the Agent shall have received from CT Corporation System (a) a letter
substantially in the form of Exhibit H-1 hereto, indicating its consent to its
appointment by the Borrower as its agent to receive service of process as
specified in Section 11.08, (b) a letter substantially in the form of Exhibit
H-2 hereto, indicating its consent to its appointment by FGC as its agent to
receive service of process as specified in Section 13(a) of the Keep Well
Agreement, (c) a letter substantially in the form of Exhibit H-3 hereto,
indicating its consent to its appointment by FPFC as its agent to receive
service of process as specified in Section 20(A) of the Subsidiary Guaranty and
(d) a letter substantially in the form of Exhibit H-4 hereto, indicating its
consent to its appointment by FPFC Delaware as its agent to receive service of
process as specified in Section 20(A) of the Subsidiary Guaranty.
The acceptance of the benefits of each Loan shall constitute a
representation and warranty by the Borrower to each of the Banks that all of the
applicable conditions specified above exist or have been satisfied as of such
date. All of the certificates, legal opinions and other documents and papers
referred to in this Section 4, unless otherwise specified, shall be delivered to
the Agent at its Notice Office for the account of each of the Banks and, except
for the Notes, in sufficient counterparts for each of the Banks and shall be
reasonably satisfactory in form and substance to the Agent.
SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Banks to enter into this Agreement and to make the Loans
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Banks, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans (with the
making of each Loan being deemed to constitute a representation and warranty
that the matters specified in this Section 5 are true and correct in all
material respects on and as of the date of the making of each such Loan unless
such representation and warranty expressly indicates that it is being made as of
any specific date in which case such representation and warranty shall be true
and correct in all material respects as of such specified date):
5.01 CORPORATE STATUS. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and in good
standing might have a material adverse effect on the operations, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of the Borrower and its Subsidiaries taken as a whole, and (iii) has all
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requisite corporate power and authority to own, operate and encumber, its
property and assets and to conduct its business as presently conducted.
5.02 CORPORATE POWER. The execution, delivery and performance
by each of the Borrower, FGC, FPFC and FPFC Delaware of each Credit Document to
which it is or will be a party are within such Person's corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
(i) such Person's articles of incorporation or by-laws or (ii) any law or any
contractual restriction binding on or affecting such Person.
5.03 AUTHORITY. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Borrower, FGC, FPFC or FPFC
Delaware of any Credit Document to which it is or will be a party.
5.04 BINDING OBLIGATION. This Agreement is, and each other
Credit Document to which the Borrower will be a party when delivered hereunder
will be, the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms.
5.05 FINANCIAL POSITION. The audited consolidated and
unaudited consolidating balance sheets of Borrower and its Subsidiaries as at
December 31, 1996, and the related audited consolidated and unaudited
consolidating statements of income and consolidated statements of stockholder's
equity and of cash flows of the Borrower and its Subsidiaries for the fiscal
year then ended, and the unaudited consolidated and unaudited consolidating
balance sheets of the Borrower and its Subsidiaries as at March 31, 1997 and the
related unaudited consolidated and unaudited consolidating statements of income
and consolidated statement of stockholder's equity for the three-month period
then ended, copies of which have been furnished to each Bank, fairly present
(subject, in the case of the balance sheets as at March 31, 1997 and the
statements of income and stockholder's equity for the three-month period then
ended, to year-end audit adjustments) the financial condition of the Borrower
and its Subsidiaries as at such date and the results of the operations of the
Borrower and its Subsidiaries for the period ended on such date, all in
accordance with GAAP. Since December 31, 1996, there has been no change in such
condition or operations which has had or might have a material adverse effect on
(i) the operations, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or of the Borrower and its Subsidiaries taken as a
whole or (ii) the ability of the Borrower to perform under, or the ability of
the Agent or the Banks to enforce repayment of the Loans under, the Credit
Documents.
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5.06 LITIGATION. There is no pending or threatened action or
proceeding affecting the Borrower, FGC, FPFC or FPFC Delaware or any of their
respective Subsidiaries before any court, governmental agency or arbitrator,
which (i) could reasonably be expected to have a material adverse effect on (A)
the operations, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower, FPFC or FPFC Delaware or of FGC or the Borrower and
their respective Subsidiaries taken as a whole or (B) the ability of the
Borrower, FPFC, FPFC Delaware or FGC to perform under, or the ability of the
Agent or the Banks to enforce repayment of the Loans under, the Credit Documents
or (ii) which purports to affect the legality, validity or enforceability of
this Agreement or any Credit Document to which such Person is or will be a
party.
5.07 NO CONFLICT. The execution, delivery and performance by
each of the Borrower, FGC, FPFC and FPFC Delaware of each of the Credit
Documents to which it is a party do not and will not (i) conflict with or
violate the articles of incorporation or by-laws of such Person, (ii) conflict
with, result in a breach of or constitute a default under any Requirement of Law
or Contractual Obligation of such Person, or require termination of any
Contractual Obligation, which conflict, breach, default or termination would be
likely to have a material adverse effect on (A) the operations, assets,
liabilities, condition (financial or otherwise) or prospects of such Person or
of the Borrower and its Subsidiaries taken as a whole or (B) the ability of the
Borrower, FPFC, FPFC Delaware or FGC to perform under, or the ability of the
Agent or the Banks to enforce repayment of the Loans under, the Credit
Documents, (iii) result in or require the imposition of any Lien whatsoever upon
any of the properties or assets of such Person or (iv) constitute a tortious
interference with any Contractual Obligation of any Person.
5.08 SECURITIES ACTIVITIES. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Loan 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.
5.09 NO MATERIAL ADVERSE CHANGE. Since December 31, 1996,
there has occurred no event which has had or could reasonably be expected to
have a material adverse effect on (i) the operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower, FPFC or FPFC
Delaware or of FGC or the Borrower and their respective Subsidiaries taken as a
whole or (ii) the ability of the Borrower, FPFC, FPFC Delaware or FGC to perform
under, or the ability of the Agent or the Banks to enforce repayment of the
Loans under, the Credit Documents.
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5.10 RESTRICTED JUNIOR PAYMENTS. Since December 31, 1996,
neither the Borrower nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made or set apart any sum or property for any
Restricted Junior Payment or agreed to do so, except for those allowed under the
Existing Credit Agreement as then in effect.
5.11 USE OF PROCEEDS. The Borrower will use proceeds of the
Loans to be made hereunder solely as set forth in and permitted by Section 6.05
and Section 7.12.
5.12 DISCLOSURE. The schedules, certificates and other written
statements and materials and information furnished by or on behalf of the
Borrower to the Agent and the Banks do not contain any material misstatement of
fact or omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
5.13 OWNERSHIP AND ACTIVITIES. The Borrower is a Wholly-Owned
Subsidiary of FGCC. FGCC is a Wholly-Owned Subsidiary of FGC and its principal
business is the ownership of the Borrower, the Borrower's Subsidiaries and other
financial services Subsidiaries of FGC. FGC is a holding company with its
principal subsidiaries engaged in the insurance and financial services
industries. The principal business of the Borrower is the making of asset-based
secured loans to small and middle-market companies. Fremont Funding Inc. is a
special purpose corporation incorporated in furtherance of the transactions
contemplated by the Pooling and Servicing Agreement and the Asset Sale and
Contribution Agreement. The principal business of FPFC is the financing of
commercial insurance premiums. The principal business of FPFC Delaware is the
financing of commercial insurance premiums in states other than California.
FVFCFC is a special purpose corporation incorporated in furtherance of the
transactions contemplated by the Pooling and Servicing Agreement and the Asset
Sale and Contribution Agreement. The Subsidiaries of the Borrower and of FGC are
set forth in Annex III, which shows, for each Subsidiary of FGC the direct owner
of its capital stock and the nature of its business and, for each Subsidiary of
the Borrower, the jurisdiction of its organization, the number of shares of each
class of capital stock or other equity interests outstanding, and the direct
owner of each such share. Annex III is accurate and complete as of the date
hereof. Other than as set forth on Annex III, there are no outstanding options,
warrants, rights of conversion or purchase, or similar rights to acquire capital
stock of any such Subsidiaries, and all of the outstanding shares of capital
stock or other equity interests of all of such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned directly by the Borrower
or FGC (as the case may be) free and clear of all liens, security interests and
other charges or encumbrances.
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5.14 SUBORDINATION AGREEMENTS. The subordination provisions of
each of the Subordination Agreements are enforceable against the holders of the
Subordinated Notes and all liability of the maker thereof in respect of the
Obligations is within the definition of the "Obligations" as defined and used in
the Subordination Agreements.
5.15 PAYMENT OF TAXES. All tax returns and reports of the
Borrower and its Subsidiaries required to be filed have been timely filed, and
all taxes, assessments, fees and other charges of Governmental Authorities upon
the Borrower and its properties, assets, income and franchises which are shown
on such returns as being due and payable, have been paid.
5.16 COMPLIANCE WITH LAW. Each of the Borrower and its
Subsidiaries is in compliance in all material respects with all Requirements of
Law applicable to it and its business and has obtained all material Permits
necessary for the conduct of its business as presently conducted.
5.17 ASSETS AND PROPERTIES. Each of the Borrower and its
Subsidiaries has good title to all of the assets (tangible and intangible) owned
by it, and all such assets are free and clear of all Liens, except as otherwise
specifically permitted by the terms and provisions of this Agreement and the
other Credit Documents.
5.18 CONSENTS AND AUTHORIZATIONS. Each of the Borrower, FGC,
FPFC and FPFC Delaware has obtained all consents and authorizations required
pursuant to any of its material Contractual Obligations with any other Person,
and has obtained all consents and authorizations of, and effected all filings,
registrations, or other actions with any Governmental Authority, as may be
necessary to allow it lawfully to execute, deliver and perform its obligations,
as of the date this representation is made, under the Credit Documents and each
other agreement or instrument to be executed and delivered by it pursuant
thereto.
5.19 ERISA. Neither the Borrower nor any ERISA Affiliate
maintains or contributes to any Plan other than those listed on Annex IV. Each
Plan which is intended to be qualified under Section 401(a) of the Code as
currently in effect has been determined by the Internal Revenue Service to be so
qualified, and each trust related to any such Plan has been determined to be
exempt from federal income tax under Section 501(a) of the Code as currently in
effect. Neither the Borrower nor any ERISA Affiliate maintains or contributes to
any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. Neither the Borrower nor any ERISA
Affiliate has breached any of the responsibilities, obligations or duties
imposed on it by ERISA or regulations promulgated thereunder
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with respect to any Plan. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither the Borrower nor any ERISA Affiliate nor any
fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in a
nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of
the Code or (ii) has taken or failed to take any action which would constitute
or result in a Termination Event (other than the standard termination pursuant
to Section 4041(b) of ERISA of the Commercial Bankers' Life Insurance Company
Retirement Plan). Neither the Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. Schedule B to the most recent annual report filed with the Internal
Revenue Service with respect to each Benefit Plan and furnished to Banks is
complete and accurate. Since the date of each such Schedule B, there has been no
adverse change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate is
currently or has, within the past six years, been obligated to make a
contribution or payment to a Multiemployer Plan. Neither the Borrower nor any
ERISA Affiliate has failed to make a required installment or any other required
payment under Section 412 of the Code on or before the due date for such
installment or other payment. Neither Borrower nor any ERISA Affiliate is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Code due to a Plan amendment that results in an increase in current liability
for the plan year. The Borrower or FGC has given to the Agent copies of all of
the following: the most recent actuarial report for each Benefit Plan in
existence or committed to as of the date of this Agreement; each employee
welfare benefit plan within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as required by
Section 601 of ERISA; the most recent summary plan description for such plan;
and the aggregate amount of the most recent annual payments made to terminated
employees under each such plan.
SECTION 6. AFFIRMATIVE COVENANTS. The Borrower hereby
covenants and agrees that on the Second Restatement Effective Date and
thereafter, for so long as this Agreement is in effect and until such time as
the Total Commitment has terminated, no Notes are outstanding and the Loans,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
6.01 Reporting Requirements. The Borrower will furnish to
each Bank:
(a) as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, (i) a consolidated and consolidating balance sheet of
the Borrower and its
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Subsidiaries as of the end of such fiscal quarter and a consolidated
and consolidating statement of income and a consolidated statement of
stockholder's equity of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending at
the end of such fiscal quarter, certified by the chief financial
officer of the Borrower, (ii) a consolidated balance sheet of FPFC and
its Subsidiaries as of the end of such fiscal quarter and a
consolidated and consolidating statement of income of FPFC and its
Subsidiaries for such fiscal quarter, all of which shall be certified
by the chief financial officer of the Borrower and (iii) the quarterly
report on Form 10-Q for FGC for such fiscal quarter;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, (i) a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal year and a consolidated and consolidating
statement of income and consolidated statements of stockholder's equity
and of cash flows of the Borrower and its Subsidiaries for such fiscal
year, (ii) a consolidated balance sheet of FPFC and its Subsidiaries as
of the end of such fiscal year and a consolidated and statement of
income and of stockholder's equity and statements of cash flows for
FPFC and its Subsidiaries for such fiscal year; all of which (except
for the consolidating statements referred to in clause (i) above) shall
be certified without qualification by Ernst & Young or other
independent public accountants acceptable to the Agent and the Required
Banks and (iii) the annual report on Form 10-K for FGC for such fiscal
year;
(c) within 45 days after the end of each fiscal quarter of the
Borrower, a compliance certificate executed by an Authorized Officer of
the Borrower demonstrating in reasonable detail compliance during and
at the end of such fiscal quarter with the covenants set forth in
Sections 7.19 through 7.25;
(d) (i) within 10 days after the end of each month and
promptly after any request therefor by the Agent or any Bank, a
Borrowing Base Certificate dated as of the last day of such month or a
more recent date stated in any such request, and (ii) within 30 days
after the end of each fiscal quarter of Borrower, a risk class rating
summary of the Borrower's loan portfolio using the Borrower's internal
risk class rating system;
(e) as soon as possible and in any event within 10 days after
any change in (i) the credit rating assigned by Xxxxx'x or S&P to any
long-term debt of FGC (including, without limitation, any change in the
Xxxxx'x Credit Rating or the S&P Credit Rating), (ii) the stated
implied senior debt rating
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assigned by Xxxxx'x or S&P with respect to FGC and/or (iii) the credit
rating assigned by Xxxxx'x or S&P to the Liquid Yield Option Notes of
FGC; notice of such change and the date on which it was first announced
by the applicable rating agency;
(f) as soon as possible and in any event within 10 days after
(i) any change with respect to any of the matters that are the subject
of the representations and warranties in Section 5 which could
reasonably be expected to have a material adverse effect on (A) the
operations, assets, liabilities, condition (financial or otherwise) or
prospects of FPFC, FPFC Delaware or the Borrower or of FGC or the
Borrower and their respective Subsidiaries taken as a whole or (B) the
ability of the Borrower, FPFC, FPFC Delaware or FGC to perform under,
or the ability of the Agent or the Banks to enforce repayment of the
Loans under, the Credit Documents, or (ii) the occurrence of any
Default or Event of Default, a statement of the chief financial officer
of the Borrower setting forth details of such change, Default or Event
of Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(g) promptly after the sending or filing thereof, copies of
all reports and registration statements which the Borrower or any of
its Subsidiaries files with the SEC or any national securities
exchange;
(h) promptly after the service upon, or receipt by, the
Borrower or any of its Subsidiaries of a summons and/or complaint or
cross-complaint naming the Borrower or any of its Subsidiaries as a
defendant or cross-defendant or other legal process initiating, or any
communication threatening, any litigation against the Borrower or any
of its Subsidiaries which, if determined adversely to the Borrower or
such Subsidiary, could reasonably be expected to have a material
adverse effect on (i) the operations, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of the
Borrower and its Subsidiaries taken as a whole or (ii) the ability of
the Borrower to perform under, or the ability of the Agent or the Banks
to enforce repayment of the Loans under, the Credit Documents, notice
of such pending or threatened litigation;
(i) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Bank through the Agent may from time to time
reasonably request;
(j) within 10 Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that a Termination Event has
occurred, a written
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statement of the chief financial officer of the Borrower describing
such Termination Event and the action, if any, which the Borrower or
such ERISA Affiliate has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the
Internal Revenue Service, DOL or PBGC with respect thereto;
(k) within 10 Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that a prohibited transaction
(defined in Section 406 of ERISA or Section 4975 of the Code) has
occurred, a statement of the chief financial officer of the Borrower
describing such transaction and the action which the Borrower or such
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto;
(l) within three Business Days after the filing thereof with
the Internal Revenue Service, DOL or PBGC, copies of each annual report
(Form 5500 series), including Schedule B thereto, filed with respect to
each Benefit Plan;
(m) within three Business Days after receipt by the Borrower
or any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(n) within three Business Days after the filing thereof with
the Internal Revenue Service, a copy of each funding waiver request
filed with respect to any Benefit Plan and all communications received
by the Borrower or any ERISA Affiliate with respect to such request;
(o) within three Business Days of the occurrence thereof,
notification of any increases in the benefits of any existing Plan or
the establishment of any new Plan or the commencement of contributions
to any Plan to which the Borrower or any ERISA Affiliate was not
previously contributing;
(p) within three Business Days after receipt by the Borrower
or any ERISA Affiliate of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
(q) within three Business Days after receipt by the Borrower
or any ERISA Affiliate of any favorable or unfavorable determination
letter from the Internal Revenue Service regarding the qualification of
a Plan under Section 401(a) of the Code, copies of each such letter;
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(r) within three Business Days after receipt by the Borrower
or any ERISA Affiliate of a notice from a Multiemployer Plan regarding
the imposition of withdrawal liability, copies of each such notice;
(s) within three Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Code on or before the due date for
such installment or payment, a notification of such failure;
(t) within three Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know (A) a Multiemployer Plan has been
terminated, (B) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or (C) the PBGC has
instituted or will institute proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan, notification thereof; and
(u) as soon as practicable following request by the Agent or
any Bank, short-form good standing certificates for the Borrower from
the Secretary of State of each jurisdiction in which the Borrower is
qualified to transact business, except those jurisdictions where the
failure to qualify does not have or is not reasonably likely to have a
material adverse effect on the operations, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of
the Borrower and its Subsidiaries taken as a whole.
For purposes of clauses (j) through (t) of this Section 6.01,
the Borrower and each ERISA Affiliate shall be deemed to know all facts known by
the Administrator of any Plan of which the Borrower or any ERISA Affiliate is
the plan sponsor.
6.02 CORPORATE EXISTENCE, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, at all times maintain its corporate existence
and preserve and keep in full force and effect its rights and franchises unless
the failure to maintain such rights and franchises would not have a material
adverse effect on (i) the operations, assets, liabilities, condition (financial
or otherwise) or prospects of the Borrower or of the Borrower and its
Subsidiaries taken as a whole or (ii) the ability of the Borrower to perform
under, or the ability of the Agent or the Banks to enforce repayment of the
Loans under, the Credit Documents.
6.03 CORPORATE POWERS, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, qualify and remain qualified to do business
in each jurisdiction in which failure to be so qualified might have a material
adverse effect on (i) the operations, assets, liabilities, condition (financial
or otherwise) or prospects of the
-36-
Borrower or of the Borrower and its Subsidiaries taken as a whole or (ii) the
ability of the Borrower to perform under, or the ability of the Agent or the
Banks to enforce repayment of the Loans under, the Credit Documents.
6.04 COMPLIANCE WITH LAW, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, (i) comply in all material respects with all
Requirements of Law, and all restrictive covenants affecting such Person or the
business, assets or operations of such Person, and (ii) obtain as needed all
material Permits necessary for its operations and maintain such in good
standing.
6.05 USE OF PROCEEDS. The Borrower shall use the proceeds of
the Loans (a) to fully repay its obligations under the Existing Credit Agreement
and (b) to finance the funding of loans constituting Eligible Receivables.
6.06 PAYMENT OF TAXES AND CLAIMS. The Borrower shall pay or
cause to be paid, and shall cause each of its Subsidiaries to pay, (i) all
taxes, assessments and other governmental charges imposed upon it or on any of
its properties or assets or in respect of any of its franchises, business,
income, properties or operations before any penalty or interest accrues thereon,
and (ii) all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien upon any of its properties or assets, prior to the
time when any penalty or fine shall be incurred or the enforcement of any such
Lien shall be threatened or demanded with respect thereto; provided, that no
such taxes, assessments and governmental charges referred to in clause (i) above
or claims referred to in clause (ii) above need be paid if being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted and if adequate reserves shall have been accrued therefor in
accordance with GAAP.
6.07 MAINTENANCE OF PROPERTIES; INSURANCe. (a) The Borrower
shall, and shall cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, excepting ordinary wear
and tear and damage due to casualty or condemnation, all of its properties
material to its operations and will make or cause to be made all appropriate
repairs, renewals and replacements thereof, consistent with past practice.
(b) The Borrower and each of its Subsidiaries shall maintain
or cause to be maintained, with financially sound and reputable insurers, the
insurance policies and programs listed on Annex V (including liability
insurance) or substantially similar programs or policies and coverages or other
programs, policies and coverages reasonably acceptable to the Required Banks.
-37-
6.08 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
The Borrower shall permit, and shall cause each of its Subsidiaries to permit,
any authorized representative(s) designated by Agent to visit and inspect any of
its properties or the properties of any of its Subsidiaries, including their
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss their affairs, finances and accounts with their
officers, all at such times during normal business hours and as often as may be
reasonably requested, but at no expense to the Borrower.
6.09 ERISA. The Borrower shall establish, maintain and operate
all Plans to comply in all material respects with the provisions of ERISA, the
Code and all other applicable laws and the regulations and interpretations
thereunder.
6.10 MAINTENANCE OF SUBORDINATED DEBT. The Borrower shall at
all times maintain Permitted Subordinated Debt outstanding in an aggregate
principal amount of at least $20,000,000.
6.11 FURTHER ASSURANCES. The Borrower shall, from time to
time, upon the Required Banks' request, execute and deliver such documents as
the Required Banks may, in their reasonable discretion, deem necessary or
desirable to (i) consummate fully the transactions contemplated hereunder and
(ii) correct any errors of a typographical nature which may be contained in any
of the Credit Documents.
SECTION 7. NEGATIVE COVENANTS. The Borrower hereby covenants
and agrees that on the Second Restatement Effective Date and thereafter, for so
long as this Agreement is in effect and until such time as the Total Commitment
has terminated, no Notes are outstanding and the Loans, together with interest,
Fees and all other Obligations incurred hereunder, are paid in full:
7.01 LIENS. The Borrower shall not create or suffer to exist,
or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or
with respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its Subsidiaries to assign, any right to receive
income, in each case to secure or provide for the payment of any Indebtedness,
obligation or liability of any Person, except:
(a) Liens upon any Cash Equivalent pledged to secure any
Permitted L/C Guarantee permitted by Section 7.05, so long as the
aggregate amount so pledged does not exceed 100% of the Permitted L/C
Guarantee secured thereby;
(b) Liens created pursuant to the Asset Sale and Contribution
Agreement or the Pooling and Servicing Agreement;
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(c) Liens created by FVFCFC in connection with its commercial
paper facility;
(d) Liens for taxes not yet due or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP;
(e) Liens imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's and mechanics'
Liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to
such Lien;
(f) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 8.11;
(g) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money);
(h) Leases or subleases granted to others not interfering in
any material respect with the business of the Borrower or any of its
Subsidiaries and any interest or title of a lessor under any lease not
in violation of this Agreement;
(i) Liens arising from UCC financing statements regarding
leases not in violation of this Agreement;
(j) Liens arising pursuant to purchase money mortgages
securing Indebtedness representing the purchase price (or financing of
the purchase price within 90 days after the respective purchase) of
assets acquired after the Restatement Effective Date, provided that (i)
any such Liens attach only to the assets so purchased, attachments
thereto and proceeds thereof, (ii) the principal amount of the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 70%, of the lesser of the fair market value or the purchase price
-39-
of the property being purchased at the time of the incurrence of such
Indebtedness and (iii) the aggregate outstanding principal amount of
Indebtedness secured by Liens permitted by this clause (j) shall not
exceed $5,000,000 at any time;
(k) Liens which constitute rights of set-off of a customary
nature or bankers' liens on amounts on deposit, whether arising by
contract or by operation of law, in connection with arrangements
entered into with depository institutions in the ordinary course of
business; and
(l) Liens constituting extensions, renewals or replacements of
any Lien referred to in clause (j) above, provided that the principal
amount of the Indebtedness secured thereby is not increased and that
any such extension, renewal or replacement Lien attaches only to the
property originally encumbered thereby.
7.02 INDEBTEDNESS. The Borrower shall not create or suffer to
exist, or permit any of its Subsidiaries to create or suffer to exist, directly
or indirectly, any Indebtedness except:
(a) the Obligations;
(b) the Permitted Subordinated Debt in an aggregate principal
amount not to exceed US $50,000,000, and any Permitted Refinancing
thereof;
(c) Indebtedness in respect of Accommodation Obligations
permitted by Section 7.05;
(d) Indebtedness of FVFCFC incurred in connection with its
commercial paper facility;
(e) Indebtedness of the Borrower in respect of cash
collateral delivered to the Borrower by its customers in the ordinary
course of the Borrower's business;
(f) Indebtedness of the Borrower incurred under lines of
credit extended to the Borrower by Xxxxx Fargo Bank N.A. and LaSalle
National Bank (and any Permitted Refinancing thereof) in an amount,
taken together with the aggregate contingent liability under all
Permitted L/C Guarantees issued under Section 7.05(b), not to exceed,
in the aggregate, $25,000,000 outstanding at any one time;
-40-
(g) Indebtedness of FPFC and FPFC Delaware to the Borrower in
an aggregate amount not to exceed at any time outstanding the aggregate
amount of Eligible Receivables of FPFC or FPFC Delaware, as the case
may be, at such time;
(h) Indebtedness of Fremont Funding Inc. incurred pursuant to
the Pooling and Servicing Agreement and the Asset Sale and Contribution
Agreement;
(i) Indebtedness consisting of Interest Rate Protection
Agreements or Other Hedging Agreements entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business, so long as
such Agreements are entered into in respect of the assets or
obligations of the Borrower or such Subsidiary for bona fide hedging
purposes and not for purposes of speculation;
(j) Indebtedness of the Borrower owing to any Subsidiary
(other than FPFC) and Indebtedness of any Subsidiary (other than FPFC)
owing to the Borrower, which Indebtedness shall (x) be unsecured, (y)
not exceed $5,000,000 outstanding at any time and (z) in the case of
any such Indebtedness of the Borrower, be subordinated to the
Obligations in a manner satisfactory to the Agent; and
(k) Indebtedness consisting of purchase money indebtedness
incurred in compliance with the terms of Section 7.01(j).
7.03 LEASE OBLIGATIONS. The Borrower shall not create or
suffer to exist, or permit any of its Subsidiaries to create or suffer to exist,
any obligations for the payment of rent for any property under leases or
agreements to lease having a term of one year or more which would cause the
direct or contingent liabilities of the Borrower and its Subsidiaries, on a
consolidated basis, in respect of all such obligations to exceed $3,000,000
payable in any period of 12 consecutive months.
7.04 SALE OF ASSETS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell, assign, transfer, lease, convey or
otherwise dispose of any properties or assets, whether now owned or hereafter
acquired, or any income or profits therefrom, except:
(a) sales in the ordinary course of business for a sale price
not to exceed, in any single transaction or series of related
transactions, $15,000,000;
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(b) transfers of assets from any Subsidiary of the Borrower
to the Borrower;
(c) sales or transfers effected in connection with the
liquidation of collateral securing Finance Receivables;
(d) sales of participations in Finance Receivables in the
ordinary course of business for cash and payments (including transfers
of collateral securing amounts which, but for the sale of
participations therein, would constitute Finance Receivables and
payments of proceeds of such collateral) to participants in respect of
such participations;
(e) transfer of assets and sales contemplated by the Pooling
and Servicing Agreement and the Asset Sale and Contribution Agreement;
and
(f) transfers of the "Variable Funding Certificate" described
in the Pooling and Servicing Agreement to or by FVFCFC in connection
with its commercial paper facility.
7.05 ACCOMMODATION OBLIGATIONS. The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly create or
become or be liable with respect to any Accommodation Obligation except:
(a) guaranties resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(b) Permitted L/C Guarantees, fully supported by collateral
pledged to the Borrower or its Subsidiaries by third parties under
existing working capital facilities, issued in the ordinary course of
the Borrower's or its Subsidiaries' business for the account of Persons
who are not Affiliates or Subsidiaries of the Borrower; provided, that
the aggregate contingent liability under such Permitted L/C Guarantees,
taken together with Indebtedness of the Borrower incurred under lines
of credit extended to the Borrower by Xxxxx Fargo Bank N.A. and LaSalle
National Bank permitted by Section 7.02(f), shall not at any time
exceed, in the aggregate, $25,000,000; and
(c) Letters of credit, purchase guarantees or other similar
credit support arrangements issued by the Borrower in the ordinary
course of Borrower's or its Subsidiaries' business for the account of
Persons who are not Affiliates or Subsidiaries of the Borrower and
fully secured by collateral pledged to the Borrower or its Subsidiaries
by third parties under existing working capital
-42-
facilities; provided, that the aggregate amount of the Borrower's
contingent liability thereunder does not at any time exceed (i) for the
period commencing on August 24, 1996 to but excluding August 24, 1997,
$15,000,000 and (ii) for the period commencing on August 24, 1997 and
thereafter, $20,000,000.
7.06 INVESTMENTS. The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, make or own any Investment
in any Person except:
(a) Investments in cash or Cash Equivalents;
(b) Investments acquired in satisfaction of claims in an
proceedings under the Bankruptcy Code or similar insolvency
proceedings;
(c) Investments in Finance Receivables in the ordinary course
of business, provided that (i) the aggregate amount of such Investments
in Discounted Receivables shall not exceed 5% of consolidated Finance
Receivables of the Borrower and its Subsidiaries, (ii) with respect to
any Finance Receivables purchased, directly or indirectly, from FIL
and/or FGC Commercial Mortgage Finance, (A) such purchases must be on
arms-length terms, (B) all such Finance Receivables must qualify as
Eligible Receivables and (C) the aggregate principal amount of such
Finance Receivables held by the Borrower and its Subsidiaries from time
to time (whether purchased directly or indirectly and whether purchased
prior to or after the Restatement Effective Date) shall not exceed
$65,000,000 and (iii) the aggregate amount of such Investments in
Finance Receivables which are primarily secured by mortgages or other
interests in real property (including promissory notes which are
secured primarily by mortgages or other interests in real property) and
originated or serviced by the Borrower and its Subsidiaries or its
Affiliates and which are not also secured by working capital assets
shall not exceed $135,000,000 at any time;
(d) Investments in stock, shares, capital or other ownership
interests in any Person (other than FGC or any Subsidiary of FGC) all
or substantially all of whose assets are comprised of Finance
Receivables, provided that any such Investment, when added to all prior
Investments under this Section 7.06(d) from and after August 24, 1995,
shall not exceed, in the aggregate, 25% of the Consolidated Tangible
Net Worth of the Borrower at the time of such Investment;
-43-
(e) Investments in real property only to the extent acquired
in connection with the liquidation of Finance Receivables;
(f) Investments by Fremont Funding Inc. in the "Transferor
Interest" as defined in and as provided under the Pooling and Servicing
Agreement;
(g) Capital contributions to Fremont Funding Inc., FPFC and
FVFCFC;
(h) Investments by the Borrower in FPFC and/or FPFC Delaware
consisting of Indebtedness of FPFC or FPFC Delaware, as the case may
be, permitted by Section 7.02(g);
(i) Investments by the Borrower in its Subsidiaries (other
than FPFC), and Investments by Subsidiaries of the Borrower (other than
FPFC) in the Borrower, in each case consisting of Indebtedness
permitted by Section 7.02(j);
(j) Investments by FPFC in FPFC Delaware; and
(k) Other investments by the Borrower and its Subsidiaries in
an aggregate principal amount not to exceed $2,000,000.
7.07 RESTRICTED JUNIOR PAYMENTS. The Borrower shall not, and
shall not permit any of its Subsidiaries to, declare or make any Restricted
Junior Payment, except:
(a) dividends or distributions to the Borrower on the capital
stock of, or other equity ownership in, any of its Subsidiaries;
(b) dividends or distributions to FGC on Preferred Stock of
the Borrower in an amount not to exceed 10% of the aggregate
liquidation preference per annum if, and only if, (i) no Default or
Event of Default shall have occurred and be continuing or shall result
therefrom, and (ii) the Borrower's after tax income is sufficient to
cover such dividends or distribution;
(c) scheduled payments (but not prepayments) due on the
Subordinated Notes, provided, that (i) no Default or Event of Default
shall have occurred and be continuing or shall result therefrom, and
(ii) payment is permitted to be made pursuant to the terms of such
Subordinated Notes and the applicable Subordination Agreement;
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(d) scheduled payments (but not prepayments) of principal due
on the Permitted Subordinated Debt other than the Subordinated Notes,
provided, that (i) no Default or Event of Default shall have occurred
and be continuing or shall result therefrom, (ii) such payment is made
only out of net cash proceeds received by the Borrower from a Permitted
Refinancing of such Permitted Subordinated Debt and (iii) payment is
permitted to be made pursuant to the terms of such Permitted
Subordinated Debt and the applicable Subordination Agreement; and
(e) dividends or distributions to FGC on the common stock of
the Borrower, provided, that no Default or Event of Default shall have
occurred and be continuing or shall result therefrom.
7.08 RESTRICTION ON FUNDAMENTAL CHANGES. (a) The Borrower
shall not, and shall not permit any of its Subsidiaries to, enter into any
merger or consolidation, or liquidate, wind up or dissolve (or suffer any
liquidation or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or any substantial part of its business or assets, whether now or hereafter
acquired, except for the sale and transfer of assets to Fremont Funding Inc. and
FVFCFC and the sale and transfer of assets by Fremont Funding Inc. to the
Fremont Small Business Loan Master Trust, in each case as contemplated by the
Pooling and Servicing Agreement and the Asset Sale and Contribution Agreement.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to enter into any partnership or joint venture.
(c) The Borrower shall not permit the portion of Consolidated
Tangible Net Worth attributable to its Subsidiaries (other than FPFC, FPFC
Delaware, Fremont Funding Inc. and FVFCFC) at any time to be more than 1% of
Consolidated Tangible Net Worth at such time.
7.09 CONDUCT OF BUSINESS. The Borrower shall not, and shall
not permit any of its Subsidiaries to, engage in any other business other than
(i) the business engaged in by the Borrower or such Subsidiary on the Second
Restatement Effective Date, and (ii) any business activities substantially
similar or related thereto.
7.10 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service or the
payment of any management fee) with any of its Affiliates on terms that are less
favorable to it than those fair and reasonable
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terms that might be obtained in a comparable arms-length transaction at the
time, except for such transactions among the Borrower, Fremont Funding Inc.,
FVFCFC and the Fremont Small Business Loan Master Trust, in each case as
provided in the Asset Sale and Contribution Agreement or the Pooling and
Servicing Agreement.
7.11 CERTAIN INDEBTEDNESS. (a) The Borrower shall not amend,
supplement or modify the terms of the Permitted Subordinated Debt in any respect
except to renew or modify such Debt on terms and conditions not more onerous to
the Borrower than those in effect on the date of this Agreement, provided that
(i) the terms of subordination shall not be modified and (ii) the aggregate
principal amount of the Permitted Subordinated Debt shall not at any time exceed
$50,000,000.
(b) The Borrower shall deliver to the Agent (i) a copy of each
notice or other written communication with respect to any Subordinated Note
delivered by or on behalf of the issuer of such Subordinated Note to any holder
of such Subordinated Note, such delivery to be made at the same time and by the
same means as such notice or other written communication is delivered to such
holder, and (ii) a copy of each notice or other written communication received
by the issuer of any Subordinated Note from any holder of such Subordinated
Note, such delivery to be made promptly after receipt of such notice or other
written communication.
(c) The Borrower shall not permit the aggregate outstanding
principal amount of the Permitted Subordinated Debt at any time to be less than
$20,000,000.
7.12 USE OF PROCEEDS. (a) No portion of the proceeds of any
credit extended under this Agreement and no portion of the proceeds of the
Permitted Subordinated Debt shall be used (i) in a manner which might cause the
extension of credit or the application of such proceeds to violate Regulation G,
Regulation T, Regulation U or Regulation X or any other regulation of the Board
of Governors of the Federal Reserve System or to violate the Securities Act or
the Securities Exchange Act, in each case as in effect on the date or dates of
such extension of credit and use of such proceeds, or (ii) to purchase or
otherwise acquire Discounted Receivables except to the extent permitted under
Section 7.06(c).
(b) If, after giving effect to any Borrowing, the Aggregate
Loan Outstandings would exceed that portion of the Borrowing Base attributable
to Eligible Receivables of the Borrower (the "FFC Borrowing Base"), that portion
of the proceeds of such Borrowing which is equal to the remainder of the
Aggregate Loan Outstandings minus the FFC Borrowing Base shall not be used by
the Borrower for any other purpose other than to make Investments in FPFC and/or
FPFC Delaware to the extent permitted by Section 7.06(h).
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7.13 CANCELLATION OF DEBT. The Borrower shall not, and shall
not permit any of its Subsidiaries to, cancel any claim or debt owed to the
Borrower or such Subsidiary, except for reasonably equivalent value and in the
ordinary course of its business.
7.14 SUBORDINATION OF SUBSIDIARY DEBT TO BORROWER. The
Borrower shall not, and shall not permit any of its Subsidiaries to, cause or
permit (i) the obligations of such Subsidiary in respect of Subsidiary Debt to
the Borrower to be subordinated to the obligations of such Subsidiary with
respect to any other Indebtedness or (ii) any restriction on the ability of such
Subsidiary to create Liens on its assets to secure such Subsidiary Debt to the
Borrower, except in each case to the extent required by the Pooling and
Servicing Agreement or the Asset Sale and Contribution Agreement.
7.15 ERISA. The Borrower shall not:
(a) engage, or permit any ERISA Affiliate to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of
the Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), whether or not
waived;
(c) fail, or permit any ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any
waived funding deficiency to any Benefit Plan;
(d) terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any liability under Title IV of
ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(f) fail, or permit any ERISA Affiliate to fail to pay any
required installment or any other payment required under Section 412 of
the Code on or before the due date for such installment or other
payment; or
(g) amend, or permit any ERISA Affiliate to amend, a Plan
resulting in an increase in current liability for the plan year such
that the Borrower or such
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ERISA Affiliate is required to provide security to such Plan under
Section 401(a)(29) of the Code.
7.16 RESTRICTIONS ON PREFERRED STOCK. The Borrower (i) shall
not (A) issue or permit to remain outstanding any preferred stock other than the
Preferred Stock, (B) create additional classes of the Preferred Stock or (C)
otherwise alter, amend or change the Preferred Stock (including the annual
dividend defined therein) in a manner that would increase the rights of the
holders of the Preferred Stock or the amount of the annual dividend, and (ii)
shall not permit the holder of any shares of such Preferred Stock to redeem such
Preferred Stock without the prior written approval of Required Banks.
7.17 RESTRICTIONS ON SUBSIDIARY DIVIDENDS, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist any encumbrance or restriction which prohibits or
otherwise restricts (i) the ability of any Subsidiary to (A) pay dividends or
make other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary, (B) make loans or advances to the Borrower or any Subsidiary, (C)
transfer any of its properties or assets to the Borrower or any Subsidiary or
(D) guarantee the Obligations or (ii) the ability of the Borrower or any
Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien
upon its property or assets to secure the Obligations, other than prohibitions
or restrictions existing under or by reason of (I) this Agreement and the other
Credit Documents, (II) applicable statutes, rules and regulations, (III)
customary non-assignment provisions pursuant to contracts entered into in the
ordinary course of business and consistent with past practices, (IV) purchase
money obligations or lease obligations for property acquired in the ordinary
course of business, so long as such obligations are permitted under this
Agreement and (V) the Asset Sale and Contribution Agreement and the Pooling and
Servicing Agreement.
7.18 MODIFICATIONS OF CERTAIN AGREEMENTS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, amend, supplement, modify,
rescind or otherwise alter any of the terms, conditions or provisions of its
Articles of Incorporation (including, without limitation, by the filing of any
certificate of designation) or its By-Laws in any material respect.
7.19 MINIMUM TANGIBLE NET WORTH. The Borrower shall not
permit Consolidated Tangible Net Worth at any time to be less than the
Minimum Adjusted Tangible Net Worth at such time.
7.20 MINIMUM ALLOWANCE FOR CREDIT LOSSES. The Borrower shall
not permit the consolidated Allowance for Credit Losses for the Borrower and its
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Subsidiaries at the end of any fiscal quarter to be less than 1.75% of the
consolidated total of all Finance Receivables.
7.21 NON-PERFORMING ASSETS COVERAGE TEST. The Borrower shall
not permit the Non-Performing Assets of the Borrower and its Subsidiaries at any
time to exceed 20% of the sum of (i) Consolidated Tangible Net Worth of the
Borrower at such time plus (ii) the outstanding principal amount of the
Borrower's Permitted Subordinated Debt at such time.
7.22 CAPITAL EXPENDITURES. The Borrower and its Subsidiaries
shall not make or become obligated to make Capital Expenditures in any fiscal
year which, in the aggregate, exceed $2,000,000.
7.23 MINIMUM INTEREST COVERAGE RATIO. The Borrower shall not
permit the Interest Coverage Ratio, as determined quarterly for any period of
four consecutive fiscal quarters of the Borrower (taken as one accounting
period), to be less than 1.25 to 1.0.
7.24 LEVERAGE RATIO. The Borrower shall not permit the
Leverage Ratio at any time to exceed 6.5 to 1.0; provided that if (and for so
long as) the applicable S&P and Moody's ratings used at such time to determine
the Applicable Rating Period are BBB or better and Baa2 or better, respectively,
then the maximum ratio for purposes of this Section 7.24 shall be 7.0 to 1.0.
7.25 CUSTOMER EXPOSURE. The Borrower shall not permit the sum
of the outstanding loans and unutilized lines of credit (net of participations
sold) to any single customer or group of affiliated customers of the Borrower
and its Subsidiaries at any time to exceed 25% of the Consolidated Tangible Net
Worth at such time.
SECTION 8. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
8.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default shall
continue for two or more Business Days, in the payment when due of any interest
on the Loans or any Fees or any other amounts owing hereunder or under any other
Credit Document; or
8.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made or deemed made by FGC, FPFC, FPFC Delaware, the Borrower or any
of itsSubsidiaries herein or in any other Credit Document or in any statement or
certificate
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delivered or required to be delivered pursuant hereto or thereto shall prove to
have been untrue in any material respect on the date as of which made or deemed
made; or
8.03 CERTAIN COVENANTS. The Borrower shall default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 6.10 or 7; or
8.04 OTHER GENERALLY. FGC, FPFC, FPFC Delaware or the Borrower
shall default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in Sections 8.01, 8.03, 8.09 or 8.10)
contained in any Credit Document on its part to be performed or observed and
such default shall continue unremedied for a period of at least 10 consecutive
days; or
8.05 SERVICER DEFAULT. Any "Event of Termination" or "Servicer
Default" (as such terms are used and defined in the Pooling and Servicing
Agreement) shall occur and be continuing, or any party to the Pooling and
Servicing Agreement shall exercise any remedy based upon the existence of any
such "Event of Termination" or "Servicer Default", or the Borrower or Fremont
Funding Inc. shall fail to perform or observe any material term or covenant in
the Asset Sale and Contribution Agreement; or
8.06 DEFAULT UNDER OTHER AGREEMENTS. (a) FGC, FPFC, FPFC
Delaware, the Borrower or any Subsidiary of the Borrower shall (i) default in
any payment with respect to Indebtedness (other than the Loans) in excess of
$5,000,000 individually or in the aggregate, for all such Persons, beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created or (ii) default in the observance or performance
of any agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated maturity; or
(b) any such Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof;
or
8.07 BANKRUPTCY, ETC. FGC, FPFC, FPFC Delaware, the Borrower
or any Subsidiary of the Borrower shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect and applicable, or any successor thereto (the "Bankruptcy
Code"); or an involun-
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tary case is commenced against FGC, FPFC, FPFC Delaware, the Borrower or any
Subsidiary of the Borrower and, with respect to any such case commenced under
the Bankruptcy Code, the petition is not controverted within 10 days, or is not
dismissed within 60 consecutive days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of FGC, FPFC, FPFC Delaware, the
Borrower or any Subsidiary of the Borrower; or FGC, FPFC, FPFC Delaware, the
Borrower or any Subsidiary of the Borrower commences (including by way of
applying for or consenting to the appointment of, or the taking of possession
by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator
(collectively, a "conservator") of itself or all or any substantial portion of
its property, whether or not confidential) any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency, liquidation, rehabilitation, conservatorship or similar law of any
jurisdiction whether now or hereafter in effect relating to FGC, FPFC, FPFC
Delaware, the Borrower or any Subsidiary of the Borrower; or any such proceeding
is commenced against FGC, FPFC, FPFC Delaware, the Borrower or any Subsidiary of
the Borrower, whether or not such proceeding is consented to by such Person but
only to the extent that such proceeding remains undismissed for a period of 60
consecutive days; or FGC, FPFC, FPFC Delaware, the Borrower or any Subsidiary of
the Borrower is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or FGC, FPFC, FPFC
Delaware, the Borrower or any Subsidiary of the Borrower suffers any appointment
of any conservator or the like for it or substantially all of its property which
continues undischarged or unstayed for a period of 60 consecutive days; or FGC,
FPFC, FPFC Delaware, the Borrower or any Subsidiary of the Borrower makes a
general assignment for the benefit of creditors; or any formal corporate action
is taken by FGC, FPFC, FPFC Delaware, the Borrower or any Subsidiary of the
Borrower for the purpose of effecting any of the foregoing; or
8.08 ERISA. (a) Any Plan shall fail to maintain the minimum
funding standard required by Section 412 of the Code for any plan year or part
thereof or a waiver of such standard or extension of any amortization period is
sought or granted under Section 412 of the Code or shall provide security to
induce the issuance of such waiver or extension, (b) any Plan is or shall have
been terminated or the subject of termination proceedings under ERISA or an
event has occurred entitling the PBGC to terminate a Plan under Section 4042(a)
of ERISA, (c) any Plan shall have an Unfunded Current Liability or (d) the
Borrower or a Subsidiary or any ERISA Affiliate has incurred or is likely to
incur a material liability to or on account of a termination of or a withdrawal
from a Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; and
there shall result from any such event or events described in the preceding
clauses of this Section 8.08 the imposition of a lien upon the assets of the
Borrower or
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any Subsidiary or any ERISA Affiliate, the granting of a security interest, or a
liability or a material risk of incurring a liability to the PBGC or a Plan or a
trustee appointed under ERISA or a penalty under Section 4971 or 4975 of the
Code or Section 409, 502(i) or 502(l) of ERISA, any of which, individually or in
the aggregate, would have a material adverse effect upon the condition
(financial or otherwise), businesses, operations, properties, assets,
liabilities, investments or prospects of the Borrower and its Subsidiaries taken
as a whole; or
8.09 KEEP WELL AGREEMENT. The Keep Well Agreement or any
provision thereof shall cease to be in full force and effect, or FGC or any
Person acting by or on behalf of FGC shall deny or disaffirm FGC's obligations
under the Keep Well Agreement, or FGC shall default in the due performance or
observance of any material term, covenant or agreement on its part to be
performed or observed pursuant to the Keep Well Agreement; or
8.10 SUBSIDIARY GUARANTY. The Subsidiary Guaranty or any
provision thereof shall cease to be in full force and effect, or FPFC or FPFC
Delaware or any Person acting by or on behalf of FPFC or FPFC Delaware shall
deny or disaffirm their obligations under the Subsidiary Guaranty, or FPFC or
FPFC Delaware shall default in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed pursuant to
the Subsidiary Guaranty; or
8.11 JUDGMENTS. One or more judgments or decrees shall be
entered against FGC, FPFC, FPFC Delaware, the Borrower or any Subsidiary of the
Borrower involving a liability that exceeds applicable insurance coverage by
$2,000,000 or more in the aggregate at any one time for all such judgments and
decrees for FGC, FPFC, FPFC Delaware, the Borrower and the Subsidiaries of the
Borrower, and any such judgments or decrees shall not have been paid, vacated,
discharged, stayed or bonded pending appeal within 30 days after the entry
thereof; or
8.12 OWNERSHIP. (a) FGC shall at any time and for any reason
cease to own and control beneficially, directly or indirectly, 100% of the
outstanding voting capital stock of the Borrower; (b) the Borrower shall at any
time and for any reason cease to own and control beneficially, directly or
indirectly, 100% of the outstanding capital stock of FPFC; or (c) FPFC shall at
any time and for any reason cease to own and control beneficially, directly or
indirectly, 100% of the outstanding capital stock of FPFC Delaware;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without
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prejudice to the rights of the Agent or any Bank to enforce its claims against
the Borrower, except as otherwise specifically provided for in this Agreement
(provided that if an Event of Default specified in Section 8.07 shall occur with
respect to the Borrower, the result which would occur upon the giving of written
notice by the Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment (or the unutilized portion thereof) terminated, whereupon the
Commitment of each Bank (or the unutilized portion thereof, as the case may be)
shall forthwith terminate immediately; and/or (ii) declare the principal of and
any accrued interest in respect of all Loans and all Obligations owing hereunder
and under the other Credit Documents to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
SECTION 9. DEFINITIONS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Absolute Rate" shall mean an interest rate (rounded to the
nearest .0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid
Borrowing with respect to which the Borrower has requested that the Banks offer
to make Competitive Bid Loans at Absolute Rates.
"Accommodation Obligation", as applied to any Person, shall
mean any Contractual Obligation, contingent or otherwise, of that Person with
respect to any Indebtedness or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement (i) to purchase, repurchase (including
the repurchase of Finance Receivables by the Borrower sold to Fremont Funding
Inc. as may be required under the Asset Sale and Contribution Agreement and/or
the Pooling and Servicing Agreement) or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or (ii) to provide funds for
the payment or discharge thereof (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or (iii) to maintain solvency,
net worth, assets, level of income, or other financial condition, or (iv) to
make payment other than for value received or (v) to make payment in respect of
any net liability arising in connection with any Interest Rate
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Protection Agreement or Other Hedging Agreement in any such case if the purpose
or intent of such agreement is to provide assurance that the primary obligation
under such agreement will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such primary obligation
will be protected, or (vi) to otherwise ensure the holder of such Indebtedness,
obligation or liability, in any manner, whether directly or indirectly, against
loss in respect thereof.
"Adjusted Borrowing Base" shall mean, for any date of
determination, the Borrowing Base as of such date minus the then outstanding
principal balance of all Senior Debt other than the Obligations.
"Advance Rate" shall mean 88%.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph
of this Agreement and shall include any successor to the Agent appointed
pursuant to Section 10.09.
"Aggregate Loan Outstandings" shall mean the sum of the
outstanding principal amount of Term Loans, Revolving Loans (and, on or after
the Conversion Date, Converted Term Loans) and Competitive Bid Loans.
"Agreement" shall mean this Second Amended and Restated Credit
Agreement, as the same may be from time to time modified, amended and/or
supplemented.
"Allowance for Credit Losses" shall have the meaning
attributed to it under GAAP.
"Applicable Base Rate Margin" shall mean 0%.
"Applicable Eurodollar Margin" shall mean, for any day, the
rate per annum set forth below opposite the Applicable Rating Period then in
effect:
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Applicable Rating Applicable Eurodollar
Period Margin
----------------- ----------------------
Category A Period 0.3500%
Category B Period 0.4000%
Category C Period 0.5000%
Category D Period 0.6250%
"Applicable Facility Fee Percentage" shall mean, for any day,
the percentage set forth below opposite the Applicable Rating Period then in
effect:
Applicable Rating Applicable Facility
Period Fee Percentage
----------------- ----------------------
Category A Period 0.1500%
Category B Period 0.2000%
Category C Period 0.2500%
Category D Period 0.3750%
"Applicable Rating Period" shall mean, subject to the terms
and conditions set forth below in this definition, the period set forth below
then in effect:
Applicable Rating
Period Criteria
----------------- ------------------------------------------------
Category A Period (a) The S&P Credit Rating is BBB or above OR the
Xxxxx'x Credit Rating is Baa2 or above AND (b)
the Leverage Ratio is equal to or less than 6 to
1.
Category B Period (a) The S&P Credit Rating is BBB- or above OR
the Xxxxx'x Credit Rating is Baa3 or above AND
(b) the Leverage Ratio is equal to or less than
6 to 1; but no Category A Period is in effect at
such time.
Category C Period The S&P Credit Rating is BB+ or above OR the
Xxxxx'x Credit Rating is Ba1 or above; but no
Category A or B Period is in effect at such
time.
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Category D Period The S&P Credit Rating is below BB+ AND the
Xxxxx'x Credit Rating is below Ba1.
In the event that none of FGC's senior long-term debt is rated by the Rating
Agencies, FGC's implied senior debt rating as stated by the Rating Agencies
shall be utilized. In the event that none of the Rating Agencies state an
implied senior debt rating for FGC, an alternate implied rating shall be used.
Such alternate implied rating shall be one full rating above the actual credit
rating assigned to FGC's Liquid Yield Option Notes by the Rating Agencies (it
being understood that a "full rating" shall include numerical modifiers and (+)
and (-) modifiers). If only one of a Xxxxx'x Credit Rating and an S&P Credit
Rating exists at any time or only one Rating Agency states an implied senior
debt rating for FGC (and for which no alternate implied senior debt rating is
available), then the Applicable Rating Period shall be determined as set forth
above based on such Credit Rating. In the event of a split rating of two or more
rating levels in connection with the senior long-term debt rating, implied
senior debt rating or alternate implied rating, the rating level one below the
higher rating will apply. In the event that and for so long as FGC has no senior
or subordinated long-term debt that is rated by Xxxxx'x or S&P, then a Category
D Period shall be deemed to exist.
The Category A and Category B Periods shall be available at any time only if the
Borrower maintains a Leverage Ratio equal to or less than 6 to 1 at such time.
If the Borrower's Leverage Ratio is greater than 6 to 1 at any time, the
Category A and Category B Periods shall not be available at such time regardless
of the Credit Ratings applicable to FGC.
If any credit rating shall be downgraded by Xxxxx'x or S&P, such change shall be
effective for purposes of this definition as of the Business Day on which such
change in credit rating is announced by Xxxxx'x and/or S&P, as the case may be,
provided that nothing herein shall relieve the Borrower of its obligation to
notify the Banks of any such change pursuant to Section 6.01(e). If any credit
rating shall be upgraded by Xxxxx'x or S&P, such change shall be effective for
purposes of this definition as of the Business Day upon which the Banks receive
notice of any such change pursuant to Section 6.01(e). Any change in the
Applicable Rating Period due to a change in a credit rating or a change in the
Borrower's Leverage Ratio shall apply from and including the effective date of
such change to and including the date immediately preceding the effective date
of the next such change.
"Asset Sale and Contribution Agreement" shall mean the Asset
Sale and Contribution Agreement made by and between Fremont Funding Inc. and the
Borrower, dated as of March 1, 1993, as it may be amended or modified from time
to time in accordance with the Pooling and Servicing Agreement.
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"Authorized Officer" shall mean any senior officer of the
Borrower designated as such in writing by the Borrower to, and found acceptable
by, the Agent.
"Bank" shall have the meaning provided in the first paragraph
of this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section
8.07.
"Base Rate" at any time shall mean the higher of (x) the rate
which is 1/2 of 1% plus the Federal Funds Effective Rate and (y) the Prime
Lending Rate as in effect from time to time.
"Base Rate Loans" shall mean each Term Loan, Revolving Loan
and/or Converted Term Loan bearing interest at the rates provided in Section
1.09(a).
"Benefit Plan" shall mean a defined benefit plan as deemed in
Section 3(35) of ERISA (other than a Multiemployer Plan) in respect of which the
Borrower or any ERISA Affiliate is, or within the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"Bidder Bank" shall mean each Bank that has notified in
writing (and has not withdrawn such notice) the Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean (i) the incurrence of one Type of Term
Loan, Revolving Loan or Converted Term Loan by the Borrower from all of the
Banks on a pro rata basis on a given date (or resulting from conversions on a
given date), having in the case of Eurodollar Loans the same Interest Period,
provided that Base Rate Loans incurred pursuant to Section 1.11(b) shall be
considered part of any related Borrowing of Eurodollar Loans or (ii) a
Competitive Bid Borrowing.
"Borrowing Base" shall mean, for any date of determination, an
amount equal to the sum of (a) the product of (i) the Advance Rate times (ii)
the Eligible Receivables of the Borrower on such date, and (b) the lesser of (i)
the product of (x) the Advance Rate times (y) the sum of the Eligible
Receivables of FPFC and FPFC Delaware on such date and (ii) $75,000,000.
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"Borrowing Base Certificate" shall mean a certificate of the
chief financial officer of the Borrower, substantially in the form of Exhibit I,
setting forth (i) the face amount of all then Eligible Receivables and (ii) such
other information concerning the Borrower's and its Subsidiaries' Finance
Receivables as the Agent may request, as at the close of business on the last
Business Day of each month and at such other times as the Agent or any Bank may
request.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans or Competitive Bid Loans
priced by reference to the Eurodollar Rate, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
during that period and including that portion of Capital Leases which is
capitalized on the balance sheet of the Borrower) made by the Borrower and its
Subsidiaries during such period that, in conformity with GAAP, are required to
be included in or reflected by the Borrower's property, plant or equipment,
licenses and permits, or other similar fixed asset accounts as reflected in its
balance sheet.
"Capital Lease" as applied to any Person, shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is, or is required to be, accounted for as a
capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrower or any of its Subsidiaries in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"Cash Equivalents" shall mean (i) marketable direct
obligations issued or unconditionally guaranteed by the United States Government
or issued by an agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 90 days after the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within 90 days after the date of
acquisition thereof and, at the time of acquisition, having one of
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the two highest ratings obtainable from either S&P or Xxxxx'x (or, if at any
time neither S&P nor Xxxxx'x shall be rating such obligations, then from such
other nationally recognized rating services acceptable to the Required Banks)
and not listed in Credit Watch published by S&P; (iii) commercial paper, other
than commercial paper issued by the Borrower or any of its Affiliates, maturing
no more than 90 days after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either S&P or Xxxxx'x
(or, if at any time neither S&P nor Xxxxx'x shall be rating such obligations,
then the highest rating from other nationally recognized rating services
acceptable to the Required Banks); and (iv) domestic and Eurodollar certificates
of deposit or time deposits or bankers' acceptances maturing within 90 days
after the date of acquisition thereof issued by, or money market accounts with,
any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia having combined capital and
surplus of not less than $500,000,000.
"Chase" shall mean The Chase Manhattan Bank.
"Co-Agents" shall have the meaning provided in the first
paragraph of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Commitment" shall mean, with respect to each Bank at any
time, the sum of such Bank's Revolving Loan Commitment and Term Loan Commitment.
"Competitive Bid Borrowing" shall mean a Borrowing of
Competitive Bid Loans pursuant to Section 1.04.
"Competitive Bid Loan" shall have the meaning provided in
Section 1.01(d).
"Consolidated EBIT" shall mean, for any period, the sum of (i)
the Consolidated Net Income of the Borrower for such period, (ii) provisions for
taxes based on income or profits to the extent such income or profits were
included in computing Consolidated Net Income for such period and (iii)
Consolidated Interest Expense (including amortization of original issue discount
and the interest component of Capitalized Lease Obligations) theretofore
deducted from earnings in computing Consolidated Net Income for such period.
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"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of the Borrower and its Subsidiaries for such period on a
consolidated basis determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period, as determined in accordance
with GAAP.
"Consolidated Tangible Net Worth" shall mean, for any date of
determination, the consolidated stockholders' equity of the Borrower and its
Subsidiaries including Preferred Stock, determined and consolidated in
accordance with GAAP, minus the book value of all treasury stock and all
intangible assets of the Borrower and its Subsidiaries, including, without
limitation, goodwill, organization costs, patents, copyrights, trademarks, trade
names, franchises, licenses, research and development expenses, unamortized debt
discount and expense, prepaid expenses, deferred charges (except those related
to the Borrower's employee benefit plans), leasehold improvements not
recoverable at the expiration of a lease, marketing expenses and capitalized
interest costs.
"Contractual Obligation", as applied to any Person, shall mean
any provision of any Securities issued by such Person or any indenture,
mortgage, deed of trust, contract, undertaking, document or other agreement or
instrument to which such Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"Conversion Date" shall mean June 23, 2000
"Converted Term Loans" shall mean each Revolving Loan that is
converted into a term loan on the Conversion Date pursuant to Section 1.01(c).
"Converted Term Loan Scheduled Repayment" shall have the
meaning provided in Section 3.02(d).
"Converted Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 3.02(d).
"Credit Documents" shall mean this Agreement, the Notes, the
Keep Well Agreement and the Subsidiary Guaranty.
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"Credit Rating" shall mean the Xxxxx'x Credit Rating and the
S&P Credit Rating.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Discounted Receivable" shall mean a Finance Receivable
originated by a Person other than the Borrower or one of its Subsidiaries which
is acquired at less than face or par value and, at the time of acquisition,
would have constituted a Non-Performing Asset.
"DOL" means the United States Department of Labor and any
successor department or agency.
"Eligible Receivables" shall mean (a) with respect to the
Borrower, all Finance Receivables of the Borrower which comply with all of the
criteria set forth in Part A of Annex VI, (b) with respect to FPFC and FPFC
Delaware, all Finance Receivables of FPFC and FPFC Delaware which comply with
all of the criteria set forth in Part B of Annex VI; provided that Eligible
Receivables in any event shall not include any Non-Performing Assets.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time. Section references to ERISA are to ERISA,
as in effect at the date of this Agreement and any subsequent provisions of
ERISA, amend-atory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which, from and after the Restatement Effective Date,
together with the Borrower, or any Subsidiary of the Borrower, would be deemed
to be a member of the same "controlled group" within the meaning of Section
414(b), (c), (m) and (o) of the Code.
"Existing Credit Agreement" shall mean the Amended and
Restated Credit Agreement, dated as of July 11, 1996, among the Borrower,
various lending institutions, Xxxxx Fargo Bank N.A. and Fleet Bank National
Association, as co-agents, and The Chase Manhattan Bank, as agent, as amended,
modified and supplemented prior to the Second Restatement Effective Date.
"Eurodollar Loans" shall mean each Term Loan, Revolving Loan
and/or Converted Term Loan bearing interest at the rates provided in Section
1.09(b).
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"Eurodollar Rate" shall mean with respect to each Interest
Period, (i) the arithmetic average (rounded to the nearest 1/100 of 1%) of the
offered quotations to first-class banks in the interbank Eurodollar market by
each Reference Bank for dollar deposits of amounts in same day funds comparable
to the outstanding principal amount of the Eurodollar Loan of such Reference
Bank for which an interest rate is then being determined (or in the case of a
Competitive Bid Loan that is a Spread Borrowing priced by reference to the
Eurodollar Rate, the arithmetic average (rounded to the nearest 1/100 of 1%) of
the offered rates for deposits in U.S. dollars for the applicable Interest
Period (or the period closest to such applicable Interest Period) which appear
on the Telerate Page 3750, British Bankers Association Interest Settlement
Rates) with maturities comparable to the Interest Period, determined as of 10:00
A.M. (New York time) (11:00 A.M. (London Time) in the case of any such
Competitive Bid Loan) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D); provided that if one of the Reference Banks fails to
provide the Agent with its aforesaid rate, then the Eurodollar Rate shall be
determined based on the rate provided to the Agent by the other Reference Bank.
"Event of Default" shall have the meaning provided in Section
8.
"Facility Fee" shall have the meaning provided in Section 2.01
(a).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred
to in, Section 2.01.
"FFC Borrowing Base" shall have the meaning provided in
Section 7.12(b).
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"FGC" shall mean Fremont General Corporation, a Nevada
corporation.
"FGCC" shall mean Fremont General Credit Corporation, a
California corporation which is a Wholly-Owned Subsidiary of FGC.
"FIL" shall mean Fremont Investment and Loan, a California
corporation.
"Final Maturity Date" shall mean the second anniversary of the
Conversion Date.
"Finance Receivables" shall mean (a) with respect to the
Borrower and its Subsidiaries other than FPFC and FPFC Delaware, (i) loans
receivable which arise from commercial loans made or acquired by the Borrower or
any such Subsidiary in the ordinary course of its business, which are secured by
the accounts receivable, inventory, equipment or other property of the customers
of the Borrower or any such Subsidiary (net of any participations sold) and (ii)
participating interests purchased by the Borrower in the ordinary course of its
business in commercial loans made by other commercial lenders (other than FPFC,
FPFC Delaware, FVFCFC and Fremont Funding Inc.) in the ordinary course of such
other commercial lender's business which are secured by the accounts receivable,
inventory, equipment or other property of the customers of such commercial
lender, provided that such loans receivable and participating interests (y) are
free of any Liens and are unconditionally owed to the Borrower or such
Subsidiary without defense, offset, or counterclaim, and (z) are items of the
type included as finance receivables on the balance sheet of the Borrower as at
December 31, 1996, and (b) with respect to FPFC and FPFC Delaware, receivables
which arise from commercial loans made by each of FPFC and FPFC Delaware in the
ordinary course of business; provided that such receivables (i) are free of any
Liens and are unconditionally owed to FPFC and FPFC Delaware, respectively,
without defense, offset or counterclaim, and (ii) are items of the type included
as premium notes receivable or receivables from insurance companies on the
balance sheet of FPFC as at December 31, 1996.
"FPFC" shall mean Fremont Premium Finance Corporation, a
California corporation.
"FPFC Delaware" shall mean Fremont Premium Finance Company of
Delaware, a Delaware corporation.
"Fremont Funding Inc." shall mean Fremont Funding Inc., a
Delaware corporation which is a Wholly-Owned Subsidiary of the Borrower.
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"Fremont Small Business Loan Master Trust" shall mean the
trust created pursuant to the Pooling and Servicing Agreement between Fremont
Funding Inc, as Transferor, the Borrower, as Servicer and LaSalle National Bank
as Trustee, on March 1, 1993 to issue from time to time one or more series of
asset backed certificates.
"FVFCFC" shall mean Fremont VFC Funding Corporation, a
Delaware corporation which is a Wholly-Owned Subsidiary of the Borrower.
"GAAP" shall mean generally accepted accounting principles in
the United States of America; it being understood and agreed that determinations
in accordance with GAAP for purposes of Section 7, including defined terms as
used therein, are subject (to the extent provided therein) to Section 11.07(a).
"Governmental Authority" shall mean any nation, state,
sovereign or any political subdivision thereof and any entity exercising
executive, legislative, judicial regulatory or administrative functions of or
pertaining to government.
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services which in accordance with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a
second Person secured by any Lien on any property owned by such first Person,
whether or not such Indebtedness has been assumed, provided that if such
Indebtedness is not assumed, the amount of such Indebtedness shall be deemed for
purposes hereof to be the lesser of the principal amount of such Indebtedness
and the fair market value of the property securing such Indebtedness, (v) all
Capitalized Lease Obligations of such Person, (vi) all obligations of such
Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all net
obligations of such Person under Interest Rate Protection Agreements or Other
Hedging Agreements, (viii) all Accommodation Obligations of such Person and (ix)
any obligation of the type referred to in any of clauses (i)-(viii) above of any
general partnership of which such Person is the or a general partner; provided
that Indebtedness shall not include trade payables, daylight overdrafts, open
accounts, accrued expenses and indemnities, in each case arising in the ordinary
course of business.
"Interest Coverage Ratio" shall mean, with respect to any
period, the ratio of (i) Consolidated EBIT for such period to (ii) Consolidated
Interest Expense for such period.
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"Interest Period" shall mean (x) with respect to any
Eurodollar Loan, the interest period applicable thereto, as determined pursuant
to Section 1.10 and (y) with respect to any Competitive Bid Loan, the period
beginning on the date of incurrence thereof and ending on the stated maturity
thereof.
"Interest Rate Basis" shall mean the Eurodollar Rate and/or
such other basis for determining an interest rate as the Borrower and the Agent
may agree upon from time to time.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such short sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person) and (without
duplication) the entering into of any commitment to deposit funds with, advance
or lend funds to or otherwise extend credit to such Person; (c) the entering
into of any Accommodation Obligation with respect to Indebtedness or other
liability of any other Person; or (d) the entering into by such Person of any
Interest Rate Protection Agreement.
"Keep Well Agreement" shall have the meaning provided in
Section 4.09.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Total Consolidated Funded Indebtedness at such time to (b) the sum of (i)
Consolidated Tangible Net Worth at such time and (ii) the outstanding principal
amount of Permitted Subordinated Debt (not to exceed $20,000,000 for purposes of
this clause (ii)) at such time.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, deposit arrangement,
security interest, encumbrance, lien (statutory or other), preference, priority
or other preferential arrangement of any kind or nature whatsoever in respect of
any property of a Person,
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whether granted voluntarily or imposed by law, and includes the interest of a
lessor under a capital lease or under any financing lease having substantially
the same economic effect and the filing of any financing statement or similar
notice (other than a financing statement filed by a "true" lessor pursuant to
Section 9-408 of the UCC), naming the owner of that property as debtor, under
the UCC or other comparable law of any jurisdiction.
"Liquid Yield Option Notes" shall mean FGC's $373,750,000
Aggregate Principal Amount at Maturity Liquid Yield Option(TM) Notes due 2013
(Zero Coupon Subordinated) Effective October 4, 1993.
"Loan" shall mean (i) prior to the Conversion Date, any Term
Loan, Revolving Loan or Competitive Bid Loan and (ii) on or after the Conversion
Date, any Term Loan or Converted Term Loan.
"Minimum Adjusted Tangible Net Worth" shall mean, at any time,
the sum of (i) $80,000,000, (ii) an amount (if positive) equal to 50% of the
Consolidated Net Income of the Borrower for the period from July 1, 1995 to the
end of the then most recently ended fiscal quarter (determined on a cumulative
basis) and (iii) an amount equal to 50% of the net proceeds of any equity
issuance received by the Borrower after August 24, 1995 (other than the proceeds
of any equity issuance received by the Borrower pursuant to the Keep Well
Agreement).
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and its
successors.
"Moody's Credit Rating" shall mean the rating level (it being
understood that a rating level shall include numerical modifiers and (+) and (-)
modifiers) assigned by Moody's to the senior unsecured long-term debt of FGC.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
years was, contributed to by either the Borrower or any ERISA Affiliate.
"Non-Performing Assets" shall mean Finance Receivables with
respect to which (a) payment thereon is contractually past due (x) by more than
60 days in the case of Finance Receivables of the Borrower, and (y) by more than
120 days in the case of Finance Receivables of each of FPFC and FPFC Delaware,
(b) the aggregate amount of principal and interest payable thereon exceeds the
market value of the assets securing such Finance Receivable, (c) any portion of
the principal or interest payable thereon has been reserved against on the books
of the Borrower or any of its Subsidiaries, or (d)
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any portion of the principal or interest payable thereon is classified as
non-accrual on the books of the Borrower or any of its Subsidiaries.
"Note" shall have the meaning provided in Section 1.06(a).
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Competitive Bid Borrowing" shall have the meaning
provided in Section 1.04.
"Notice of Conversion" shall have the meaning provided in
Section 1.07.
"Notice Office" shall mean the office of the Agent at 4 Chase
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxx, or such other office as the Agent may designate to the Borrower and the
Banks from time to
time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Agent or any Bank pursuant to the terms of this Agreement or any
other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements or other similar agreements or arrangements
designed to protect against the fluctuations in currency values.
"Payment Office" shall mean the office of the Agent at Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the
Agent may designate to the Borrower and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permit" shall mean any permit, approval, consent,
authorization, license, variance, or permission required from a Governmental
Authority under any applicable Requirement of Law.
"Permitted L/C Guarantee" shall mean a guarantee, issued by
the Borrower in the ordinary course of business, of the reimbursement
obligations of any customer of the Borrower under a letter of credit issued by a
third party for the account of such customer.
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"Permitted Refinancing" shall mean, with respect to any
Indebtedness of the Borrower, a renewal or refinancing of such Indebtedness on
terms no more onerous toward, or restrictive on, the Borrower than the terms of
the indebtedness renewed or refinanced, or otherwise on terms and conditions
satisfactory to the Required Banks.
"Permitted Subordinated Debt" shall mean (i) the Subordinated
Notes and (ii) Indebtedness of the Borrower not exceeding a maximum amount
outstanding at any time of $30,000,000, in each case only if and to the extent
(x) expressly subordinated to the Obligations, (y) having no maturities,
scheduled repayments or sinking fund requirements prior to the date which is six
months after the Final Maturity Date and (z) issued pursuant to documentation
(1) containing no financial maintenance covenants or cross-default provisions
(it being understood and agreed that a cross-acceleration provision shall be
permitted) and (2) containing terms and conditions relating to the interest rate
applicable thereto, covenants, defaults, remedies and subordination, standstill,
blockage and turnover provisions, all of which shall be in form and substance
satisfactory to the Agent and the Required Banks.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" shall mean any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is contributed to pursuant to collective
bargaining requirements or maintained by, or at any time during the six calendar
years preceding the date of this Agreement was contributed to pursuant to
collective bargaining requirements or maintained by, the Borrower, any
Subsidiary or an ERISA Affiliate.
"Pooling and Servicing Agreement" shall mean the Amended and
Restated Pooling and Servicing Agreement, dated as of April 1, 1997, made by and
among the Borrower, Fremont Funding Inc., and LaSalle National Bank as Trustee
for the benefit of the certificate holders under the Fremont Small Business Loan
Master Trust, as supplemented by the Amended and Restated Variable Funding
Supplement, the Series C Supplement, the Series D Supplement and the Series
1995-1 Supplement thereto, and as it may be further amended, modified or
supplemented from time to time.
"Preferred Stock" means a separate class of stock of the
Borrower in the amount of $40,000,000 to be accorded a preference or priority in
respect of dividends over the Borrower's other stock in an amount not to exceed
10% per annum.
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"Prescribed Forms" shall mean such duly executed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an income
tax treaty between the United States and the country of residence of the Bank
providing the form(s) or statement(s), (b) the Code, or (c) any applicable rule
or regulation under the Code, permit the Borrower to make payments hereunder for
the account of such Bank free of deduction or withholding of income or similar
taxes.
"Prime Lending Rate" shall mean the rate which the Agent
announces from time to time as its prime commercial lending rate, the Prime
Lending Rate to change when and as such prime commercial lending rate changes.
The Prime Lending Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Rating Agencies" shall mean each of Moody's and S&P.
"Reference Banks" shall mean Chase and Fleet Bank, National
Association.
"Register" shall have the meaning provided in Section 1.06(e).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
"Reply Date" shall have the meaning provided in Section 1.04
(b).
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Banks the sum of whose outstanding
Term Loans and Revolving Loan Commitments (or, on or after the Conversion Date,
outstanding Converted Term Loans) represent an amount equal to or greater than
66- 2/3% of the sum of all outstanding Term Loans of Banks and the Total
Revolving Loan
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Commitment (or, on or after the Conversion Date, outstanding Converted Term
Loans) of Banks at such time.
"Requirement of Law" shall mean, as to any Person, the charter
and by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation, Permit or order, decree or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restatement Effective Date" shall mean July 11, 1996, the
date of the effectiveness of the Existing Credit Agreement.
"Restricted Junior Payment" shall mean (i) any dividend or
other distribution, direct or indirect, on account of any shares of any class of
capital stock of the Borrower, except a distribution of stock as part of a stock
split and except a dividend payable solely in shares of that class of stock or
in any junior class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any capital stock of the Borrower
now or hereafter outstanding, (iii) any payment or prepayment of principal of,
premium, if any, or interest on, and any redemption, purchase, retirement or
defeasance of, or sinking fund or similar payment with respect to, any Permitted
Subordinated Debt or any other Indebtedness of the Borrower which (pursuant to
the express terms of the instrument evidencing or governing the same) is subject
or subordinated to any other Indebtedness of the Borrower, and (iv) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of capital stock of the Borrower
now or hereafter outstanding.
"Revolving/Converted Term Note" shall have the meaning
provided in Section 1.06(a).
"Revolving Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Annex I hereto under the
heading "Revolving Loan Commitment", as the same may be reduced or terminated
pursuant to Sections 2.02, 2.03 and/or 8.
"Revolving Loans" shall have the meaning provided in Section
1.01(b).
"S&P" shall mean Standard & Poor's Ratings Group and its
successors.
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"S&P Credit Rating" shall mean the rating level (it being
understood that a rating level shall include numerical modifiers and (+) and (-)
modifiers) assigned by S&P to the senior unsecured long-term debt of FGC.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second Restatement Effective Date" shall have the meaning
provided in Section 11.10.
"Securities" shall mean any stock, shares, partnership
interests, voting trust certificates, bonds, debentures, notes or other
evidences of Indebtedness of or of any capital or ownership interests in any
Person, whether or not certificated and whether secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include trade accounts payable or accrued expenses
incurred in the ordinary course of business or any evidence of the Obligations.
"Securities Act" shall mean the Securities Act of 1933, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended to the date hereof and from time to time hereafter, and
any successor statute.
"Senior Debt" shall mean all Indebtedness of the Borrower and
its Subsidiaries that is not Subordinated Debt, including, without limitation,
the Obligations.
"Spread" shall mean a percentage per annum in excess of, or
less than, an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid Borrowing with
respect to which the Borrower has requested the Banks to make Competitive Bid
Loans at a Spread over or under a specified Interest Rate Basis.
"Subordinated Debt" shall mean all Indebtedness of the
Borrower and its Subsidiaries which shall have been subordinated in right of
payment, upon terms satisfactory to the Required Banks, to the Obligations.
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"Subordinated Notes" shall mean the Promissory Notes of the
Borrower each dated August 28, 1989 and each in the amount of $10,000,000
payable to Fremont Compensation Insurance Company and Fremont Indemnity Company
respectively each as amended by an Amendment to each Promissory Note dated
December 1, 1989, as further amended by a Second Amendment to each Promissory
Note dated November 27, 1990, as further amended by a Third Amendment to each
Promissory Note dated December 1, 1991, as further amended by a Fourth Amendment
to each Promissory Note dated December 1, 1992, as further amended by a Fifth
Amendment to each Promissory Note dated March 1, 1993, as further amended by a
Sixth Amendment to each Promissory Note dated as of December 1, 1993, as further
amended by a Seventh Amendment to each Promissory Note dated November 18, 1994,
as further amended by an Eighth Amendment to each Promissory Note dated as of
August 11, 1995, as further amended by a Ninth Amendment to each Promissory Note
dated January 1, 1996, as further amended by a Tenth Amendment to each
Promissory Note dated July 1, 1996, as further amended by an Eleventh Amendment
to each Promissory Note dated May 23, 1997, and as any of them may be further
amended, modified or renewed as permitted herein.
"Subordination Agreement" shall mean Subordination Agreements
executed by the Borrower and Fremont Indemnity Company and by the Borrower and
Fremont Compensation Insurance Company attached hereto as Exhibit J and Exhibit
K, respectively.
"Subsidiary Guaranty" shall have the meaning provided in
Section 4.10.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity or voting interest at the time. Unless
otherwise expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Debt to Borrower" shall mean, for any date of
determination and for any Subsidiary of the Borrower, the amount of Indebtedness
owed to the Borrower by such Subsidiary as of such date.
"Taxes" shall have the meaning provided in Section 3.04.
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"Telerate Page" shall mean, when used in connection with any
designated page number, the display page so designated on the Dow Xxxxx Telerate
Service (or such other page as may replace that page on that service, or such
other service as may be nominated as the information vendor, for the purpose of
displaying rates or prices comparable to the Eurodollar Rate.
"Term Loan Commitment" shall mean, with respect to each Bank,
the amount set forth opposite such Bank's name on Annex I hereto under the
heading "Term Loan Commitment", as the same may be reduced or terminated
pursuant to the provisions of this Agreement.
"Term Loan Maturity Date" shall mean July 11, 2001.
"Term Loan Scheduled Repayment" shall have the meaning
provided in Section 3.02(c).
"Term Loan Scheduled Repayment Date" shall have the meaning
provided in Section 3.02(c).
"Termination Event" shall mean (i) a Reportable Event with
respect to any Benefit Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which the Borrower or such
ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA; (iii) the imposition of an obligation on the Borrower or any ERISA
Affiliate under Section 4041 of ERISA to provide affected parties written notice
of intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each Bank.
"Total Consolidated Funded Indebtedness" shall mean, at any
time, Total Consolidated Indebtedness at such time less any portion of such
Total Consolidated Indebtedness constituting Accommodation Obligations.
"Total Consolidated Indebtedness" shall mean, at any time, all
Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of
the type
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described in clause (iii) of the definition of Indebtedness) at such time
determined on a consolidated basis.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each Bank.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each Bank.
"Total Unutilized Revolving Loan Commitment" shall mean at any
time for the determination thereof, the Total Revolving Loan Commitment less the
aggregate outstanding principal amount of all Revolving Loans and Competitive
Bid Loans at such time.
"Type" shall mean any type of Term Loan and/or Revolving Loan
(or, on or after the Conversion Date, Converted Term Loan) determined with
respect to the interest option applicable thereto, i.e., a Base Rate Loan or
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code, as enacted and
in effect in the State of New York.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the present value of the accrued benefits under such
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, determined in accordance with Section 412 of
the Code.
"Wholly-Owned Subsidiary" of any Person shall mean any
Subsidiary of such Person to the extent all of the capital stock or other
ownership interests in such Subsidiary, other than directors' or nominees'
qualifying shares, is owned directly or indirectly by such Person.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile device, telegraph
or cable.
SECTION 10. THE AGENT.
10.01 Appointment. Each Bank hereby irrevocably designates and
appoints Chase as Agent of such Bank to act as specified herein and in the other
Credit Documents, and each such Bank hereby irrevocably authorizes Chase as the
Agent for such Bank to take such action on its behalf under the provisions of
this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are
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expressly delegated to the Agent by the terms of this Agreement and the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. The Agent agrees to act as such upon the express conditions contained
in this Section 10. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein or in the other Credit Documents, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent. The provisions of this Section
10 are solely for the benefit of the Agent and the Banks, and the Borrower shall
have no rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and the Agent shall not assume, nor shall it be
deemed to have assumed, any obligation or relationship of agency or trust with
or for the Borrower or any of its Subsidiaries.
10.02 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care except to the extent otherwise required by Section 10.03.
10.03 EXCULPATORY PROVISIONS. Neither the Agent, nor any of
its respective officers, directors, employees, representatives, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Borrower, any
Subsidiary or any of their respective officers contained in this Agreement, any
other Credit Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Credit Document or for any failure of the
Borrower or any Subsidiary or any of their respective officers to perform its
obligations hereunder or thereunder. The Agent shall not be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Borrower or any Subsidiary. The
Agent shall not be responsible to any Bank for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or
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any other documents in connection herewith or therewith furnished or made by the
Agent to the Banks or by or on behalf of the Borrower to the Agent or any Bank
or be required to ascertain or inquire as to the performance or observance of
any of the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default.
10.04 RELIANCE BY AGENT. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, facsimile,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take or continue to take any action under
this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks, (or
to the extent specifically provided in Section 11.12, all the Banks), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Banks.
10.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to the Banks.
The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Banks, provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
10.06 NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank
expressly acknowledges that neither the Agent nor any of its respective
officers, directors, employees, agents, representatives, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Agent hereinafter taken,
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including any review of the affairs of the Borrower or any Subsidiary, shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the businesses, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the businesses, operations, assets, property, financial
and other conditions, prospects or creditworthiness of the Borrower or any
Subsidiary which may come into the possession of the Agent or any of its
officers, directors, employees, agents, representatives, attorneys-in-fact or
affiliates.
10.07 INDEMNIFICATION. The Banks agree to indemnify the Agent
in its capacity as such ratably according to their respective "percentages" as
used in determining the Required Banks at such time from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the Agent in its
capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by the Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by the Borrower or any of its
Subsidiaries, provided that no Bank shall be liable to the Agent for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent. If any indemnity furnished
to the Agent for any purpose shall, in the opinion of the Agent be insufficient
or become impaired, the Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section 10.07 shall survive the payment of
all Obligations.
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10.08 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower and its Affiliates as though the Agent were
not the Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, the Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the same as though it were not the
Agent and the terms "Bank" and "Banks" shall include the Agent in its individual
capacity.
10.09 RESIGNATION OF THE AGENT; SUCCESSOR AGENT. The Agent may
resign as the Agent upon 45 days' notice to the Banks. Upon the resignation of
the Agent, the Required Banks shall appoint from among the Banks a successor
Agent for the Banks subject to prior approval by the Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall include such successor agent effective upon its
appointment, and the resigning Agent's rights, powers and duties as the Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement. After the resignation
of the Agent hereunder, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement.
10.10 CO-AGENTS. Nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose any obligations or
duties on the Co-Agents in their capacities as such.
SECTION 11. MISCELLANEOUS.
11.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agent in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case) and of the Agent and each of the Banks in
connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Agent and for each of the Banks); (ii)
pay and hold each of the Banks harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify the Agent and
each Bank, and their respective officers, directors, employees, representatives
and agents
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(each, an "indemnified person") from and hold each of them harmless against any
and all losses, liabilities, claims, damages or expenses (collectively,
"Claims") incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Agent or any Bank is a party thereto) related to
the entering into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any other transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages, expenses, or the counsel fees and
disbursements related to the foregoing, to the extent incurred by reason of the
gross negligence or willful misconduct of any indemnified person).
11.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of the Borrower against and on
account of the Obligations and liabilities of the Borrower to such Bank under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations of the Borrower purchased by such Bank
pursuant to Section 11.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder.
11.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to the Borrower, at
the address specified opposite its signature below; if to any Bank, at its
address specified for such Bank on Annex II hereto; or, at such other address as
shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed, telegraphed,
telexed, telecopied, cabled or sent by overnight courier and shall be effective
when received.
11.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns
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of the parties hereto; provided that the Borrower may not assign or transfer any
of its rights or obligations hereunder without the prior written consent of the
Banks. Each Bank may at any time grant participations in any of its rights
hereunder or under any of its Notes to another financial institution; provided
that in the case of any such participation, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to receive the additional amounts under
Sections 1.11, 1.12 and 3.04 to, and only to, the extent that such Bank would be
entitled to such benefits if the participation had not been entered into or
sold; and provided further that no Bank shall transfer, grant or assign any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would extend the final scheduled maturity of
any Loan or Note in which such participant is participating or reduce the rate
or extend the time of payment of interest thereon (except in connection with a
waiver of the applicability of any post-default increase in interest rates) or
Fees, or reduce the principal amount thereof, or increase the Commitment in
which such participant is participating over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment or of a mandatory prepayment shall
not constitute a change in the terms of any Commitment and that an increase in
any Commitment shall be permitted without the consent of any participant if such
participant's participation is not increased as a result thereof).
(b) Notwithstanding the foregoing Section 11.04(a), any Bank
may assign all or a portion of its Commitment, and its rights and obligations
hereunder, to one or more commercial banks or other financial institutions
(including one or more Banks); provided, however, that no Bank may effect such
an assignment without the prior written consent of the Borrower and the Agent,
neither of which consents will be unreasonably withheld. No assignment of less
than all of a Bank's Commitment and its rights and obligations hereunder
pursuant to the immediately preceding sentence shall, to the extent such
transaction represents an assignment to an institution other than one or more
Banks hereunder, be in an aggregate amount less than the minimum of $10,000,000.
If any Bank so sells or assigns all or a part of its Commitment and its rights
hereunder or under the Notes, any reference in this Agreement or the Notes to
such assigning Bank shall thereafter refer to such Bank and to the respective
assignee to the extent of their respective interests and the respective assignee
shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would if it were such assigning
Bank. Each assignment pursuant to this
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Section 11.04(b) shall be effected by the assigning Bank and the assignee Bank
executing an Assignment and Assumption Agreement substantially in the form of
Exhibit G (appropriately completed). At the time of any such assignment, (i)
Annex I shall be deemed to be amended to reflect the Commitment, of the
respective assignee (which shall result in a direct reduction to the Commitment
of the assigning Bank) and of the other Banks, (ii) if any such assignment
occurs after the Restatement Effective Date, at the request of the assignor or
the assignee the Borrower will issue new Notes to the respective assignee and to
the assigning Bank in conformity with the requirements of Section 1.06 and (iii)
the Agent shall receive from the assigning Bank and/or the assignee Bank or
financial institution at the time of each assignment the payment of a
nonrefundable assignment fee of $3,000. Each Bank and the Borrower agrees to
execute such documents (including, without limitation, amendments to this
Agreement and the other Credit Documents) as shall be necessary to effect the
foregoing at the expense of the assignee Bank. Promptly following any assignment
pursuant to this Section 11.04(b), the assigning Bank shall promptly notify the
Borrower and the Agent thereof, and shall return to the Borrower the Note issued
to it hereunder (upon the issuance of a replacement Note or Notes in accordance
with the terms hereof unless such assigning Bank no longer has a Commitment
after giving effect to such assignment). Nothing in this Section 11.04 shall
prevent or prohibit any Bank from pledging its Loans or Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Bank from such
Federal Reserve Bank.
11.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower and the Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Agent or any Bank would
otherwise have. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Banks to
any other or further action in any circumstances without notice or demand.
11.06 PAYMENTS PRO RATA. (a) The Agent agrees that promptly
after its receipt of each payment from or on behalf of the Borrower in respect
of any Obligations of the Borrower, it shall distribute such payment to the
Banks (other than any Bank that has consented in writing to waive its pro rata
share of such payment) pro rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.
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(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the Borrower
to such Banks in such amount as shall result in a proportional participation by
all of the Banks in such amount, provided that if all or any portion of such
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
11.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP, consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks). In addition, except as otherwise specifically
provided herein, all computations determining compliance with Section 7,
including definitions used therein, shall utilize GAAP as in effect from time to
time; provided that if GAAP shall change after the Restatement Effective Date,
the Borrower shall give prompt notice thereof to the Agent and each of the Banks
and if within 30 days following such notice the Borrower, the Agent or the
Required Banks shall elect by giving written notice of such election to the
other parties hereto, such computations shall not give effect to such change
unless and until this Agreement shall be amended pursuant to Section 11.12 to
give effect to such change.
(b) All computations of interest and Facility Fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.
11.08 Governing Law; Submission to Jurisdiction; Venue. (a
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably
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designates, appoints and empowers CT Corporation System, with offices on the
date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and in respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding. The
Agent agrees to use reasonable good faith efforts to mail, by registered or
certified mail, to the Borrower, at its address set forth opposite its signature
below, copies of any correspondence mailed or delivered to CT Corporation System
in connection with the immediately preceding sentence; provided that no failure
of the Borrower to receive, for any reason, copies of such correspondence shall
in any way affect the effectiveness of the delivery of any legal process,
summons, notice or documents delivered to CT Corporation System. If for any
reason such designee, appointee and agent shall cease to be available to act as
such, the Borrower agrees to designate a new designee, appointee and agent in
New York City on the terms and for the purposes of this provision satisfactory
to the Agent. The Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at its address for notices pursuant to Section 11.03,
such service to become effective 30 days after such mailing. Nothing herein
shall affect the right of the Agent or any Bank to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Agent.
11.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Second Restatement Effective Date") on which (a) the Borrower and
each of the Banks shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Agent at the Agent's Notice
Office or, in the case of the Banks, shall have given to the Agent telephonic
(confirmed in writing), written, telex
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or telecopy notice (actually received) at such office that the same has been
signed and mailed to it and (b) each of the conditions precedent set forth in
Section 4 shall have been satisfied. The Agent will give the Borrower and each
Bank prompt written notice of the occurrence of the Second Restatement Effective
Date.
11.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
11.12 AMENDMENT OR WAIVER. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
affected thereby, (i) extend any date fixed for any payment of principal of any
Loan or Note or reduce the rate or extend the time of payment of interest
thereon or Fees or reduce the principal amount thereof, or increase the
Commitment of any Bank over the amount thereof then in effect or increase the
Advance Rate (it being understood that a waiver of any Default or Event of
Default shall not constitute a change in the terms of any Commitment of any Bank
or in the Advance Rate), (ii) amend, modify or waive any provision of this
Section or of Section 11.06, (iii) reduce any percentage specified in, or
otherwise modify, the definition of Required Banks or any provision of this
Agreement specifying the number or percentage of Banks required to take any
action hereunder, (iv) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement or any other Credit
Document or (v) amend, modify or waive any provision of, or terminate, the Keep
Well Agreement. No provision of Section 10 or any other term or provision
relating to the rights or obligations of the Agent may be amended without the
consent of the Agent.
11.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Section 1.11, 1.12, 3.04, 10.07 or 11.01 shall survive
the execution and delivery of this Agreement and the making of the Loans, the
repayment of the Obligations and the termination of the Total Commitment.
11.14 DOMICILE OF LOANS. Subject to Section 11.04, each Bank
may transfer and carry its Loans at, to or for the account of any branch office,
subsidiary or affiliate of such Bank, provided that the Borrower shall not be
responsible for costs arising under Section 1.11 or 3.04 resulting from any such
transfer to the extent not otherwise applicable to such Bank prior to such
transfer.
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11.15 CONFIDENTIALITY. Each Bank shall hold all non-public
information furnished by or on behalf of the Borrower in connection with such
Bank's evaluation of whether to become a Bank hereunder or obtained by such Bank
pursuant to the requirements of this Agreement, which has been identified as
such by the Borrower ("Confidential Information"), in accordance with its
customary procedure for handling confidential information of this nature and in
accordance with safe and sound banking or lending practices and in any event may
make disclosure reasonably required by any bona fide actual or contemplated
transferee or participant in connection with an actual or contemplated transfer
of any Loans or participation therein or as required or requested by any
governmental agency or representative thereof or pursuant to legal process or to
such Bank's attorneys or independent auditors; provided that unless specifically
prohibited by applicable law or court order, each Bank shall notify the Borrower
of any request or requirement by any governmental agency or representative
thereof (other than any such request or requirement in connection with an
examination of the financial condition of such Bank by such governmental agency)
or pursuant to legal process for disclosure of any such non-public information
prior to disclosure of such information; and provided further, that in no event
shall any Bank be obligated or required to return any materials furnished by the
Borrower or any Subsidiary of the Borrower.
11.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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[SIGNATURE PAGES INTENTIONALLY OMITTED]
