CREDIT AGREEMENT
BY AND AMONG
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.,
X.X. XXXXXXXXX FUNDING CORP.,
THE FINANCIAL INSTITUTIONS FROM
TIME TO TIME PARTIES HERETO
AND
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL MARKETS, INC.,
as Agent
Dated as of May 26, 1995
TABLE OF CONTENTS
ARTICLE 1. CERTAIN DEFINITIONS
1.1 Certain Definitions........................................... 1
1.2 Construction.................................................. 23
1.3 Accounting Principles......................................... 24
ARTICLE 2. THE LOANS
2.1 Loans......................................................... 24
2.2 Voluntary Conversion and Continuation of Loans................ 26
2.3 Notes......................................................... 28
2.4 Unused Commitment Fee......................................... 28
2.5 Reductions of the Maximum Facility Amount;
Termination of the Commitments................................ 28
ARTICLE 3. INTEREST RATES; PAYMENTS
3.1 Interest Rate Option; Computation of Interest;
Maximum Interest Rate......................................... 28
3.2 Interest After Default........................................ 30
3.3 Euro-Rate Unascertainable..................................... 30
3.4 Selection of Interest Rate Options............................ 31
3.5 Payments...................................................... 32
3.6 Pro Rata Treatment of Banks................................... 34
3.7 Interest Payment Dates........................................ 34
ARTICLE 4. INCREASED COSTS; TAXES; BREAKAGE
4.1 Interest Protection........................................... 35
4.2 Increased Capital............................................. 35
4.3 Taxes......................................................... 35
4.4 Breakage...................................................... 37
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Borrower................ 38
5.2 Representations and Warranties of the General
Partner....................................................... 43
5.3 Survival of Representations and Warranties.................... 44
ARTICLE 6. CONDITIONS PRECEDENT
6.1 Conditions Precedent to Effectiveness of this
Agreement..................................................... 44
6.2 Conditions Precedent to Each Loan and Each
Continuation or Continuation of any Loan...................... 47
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ARTICLE 7. AFFIRMATIVE COVENANTS
7.1 Affirmative Covenants of the Borrower......................... 48
7.2 Affirmative Covenants of the General Partner.................. 56
ARTICLE 8. NEGATIVE COVENANTS
8.1 Negative Covenants of the Borrower............................ 56
8.2 Negative Covenants of the General Partner..................... 58
ARTICLE 9. DEFAULTS AND REMEDIES
9.1 Events of Default............................................. 60
9.2 Remedies...................................................... 62
9.3 Notice of Sale................................................ 63
ARTICLE 10. THE AGENT
10.1 Appointment................................................. 63
10.2 UCC Filings................................................. 64
10.3 Delegation of Duties........................................ 64
10.4 Nature of Duties, Independent Credit
Investigation. ............................................ 64
10.5 Actions in Discretion of Agent; Instructions
from the Banks.............................................. 65
10.6 Reimbursement and Indemnification of Agent by
the Borrower................................................ 65
10.7 Exculpatory Provisions...................................... 66
10.8 Reimbursement and Indemnification of Agent by
Banks. .................................................... 67
10.9 Reliance by Agent. ........................................ 68
10.10 Notice of Default. ........................................ 68
10.11 Notices. .................................................. 68
10.12 The Agent in its Individual Capacity. ...................... 68
10.13 Holders of Notes. ......................................... 68
10.14 Sharing of Payments......................................... 69
10.15 Successor Agent. .......................................... 69
10.16 Calculations. ............................................. 70
10.17 Beneficiaries. ............................................ 70
10.18 The Agent May Perform....................................... 70
ARTICLE 11. MISCELLANEOUS
11.1 Modifications, Amendments or Waivers......................... 70
11.2 No Implied Waivers; Cumulative Remedies; Writing
Required. .................................................. 71
11.3 Reimbursement and Indemnification of Banks by
the Borrower................................................. 71
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11.4 Payments Due on Non-Business Days............................ 72
11.5 Funding by Branch, Subsidiary or Affiliate................... 73
11.6 Notices...................................................... 73
11.7 Severability. .............................................. 73
11.8 GOVERNING LAW. ............................................. 74
11.9 Prior Understanding. ....................................... 74
11.10 Duration; Survival. ........................................ 74
11.11 Successors and Assigns; Assignments.......................... 74
11.12 Confidentiality. ........................................... 77
11.13 Counterparts. .............................................. 78
11.14 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO
VENUE; AGENT FOR SERVICE OF PROCESS.......................... 78
11.15 WAIVER OF JURY TRIAL......................................... 78
11.16 Assignment and Security Interest. ........................... 78
11.17 Lending to Competitors....................................... 79
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EXHIBITS
EXHIBIT A -- Form of Notes
EXHIBIT B-1 -- Form of Loan Request
EXHIBIT B-2 -- Form of Conversion/Continuation Request
EXHIBIT C -- Form of Assignment and Assumption
Agreement
EXHIBIT D -- Form of Guaranty Agreement
EXHIBIT E-1 -- Form of Assignment of Interest (JUA)
EXHIBIT E-2 -- Form of Assignment of Interest (MTF)
EXHIBIT E-3 -- Form of Assignment of Interest (The City
of Philadelphia and SEPTA)
EXHIBIT F-1 -- Form of Notice of Assignment (JUA)
EXHIBIT F-2 -- Form of Notice of Assignment (MTF)
EXHIBIT F-3 -- Form of Notice of Assignment (The City
of Philadelphia and SEPTA)
EXHIBIT G -- Form of Notification of Deferral
EXHIBIT H -- Form of Security Agreement
EXHIBIT I -- Form of Opinion of Counsel for the
Borrower and the General Partner
EXHIBIT J -- Form of Borrowing Base Certificate
EXHIBIT K -- Form of Lock-Box Agreement
EXHIBIT L -- Form of Monthly Report
SCHEDULES
SCHEDULE 1.1(a) -- Commitments of the Banks
SCHEDULE 1.1(b) -- Guarantors
SCHEDULE 1.1(c) -- Permitted Existing Indebtedness
SCHEDULE 5.1(j) -- Intellectual Property
SCHEDULE 5.1(k) -- Material Agreements and Contracts
SCHEDULE 5.1(q) -- ERISA Matters
SCHEDULE 5.1(w) -- Bank Accounts; Lock-Boxes; Lock-Box
Accounts; Lock-Box Banks
SCHEDULE 5.1(x) -- Locations of Offices; Chief
Executive Office
SCHEDULE 5.1(y) -- Insurance Policies
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of May 26, 1995 by and among X.X.
XXXXXXXXX MFC ASSOCIATES, L.P., a Pennsylvania limited partnership (the
"Borrower"), X.X. XXXXXXXXX FUNDING CORP., a Pennsylvania corporation (the
"General Partner"), the financial institutions from time to time parties hereto
(together with each such institution's respective successors and assigns being
referred to herein collectively as the "Banks" and each individually as "Bank")
and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL MARKETS, INC. ("ING"), as agent
(in such capacity as agent, the "Agent").
RECITALS
WHEREAS, the Borrower has requested, and the Banks have agreed to make,
certain loans, advances and other financial accommodations to the Borrower on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS
1.1 Certain Definitions. In addition to words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
following meanings, respectively, unless the context clearly requires otherwise:
"Affiliate" as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common control
with, such Person, (ii) which beneficially owns or holds 10% or more of any
class of the voting stock (or, in the case of a Person that is not a
corporation, 10% or more of the equity interest) of such Person, or (iii) 10% or
more of the voting stock (or, in the case of a Person that is not a corporation,
10% or more of the equity interest) of which is beneficially owned or held,
directly or indirectly, by such Person. Control, as used herein, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, partnership interests, membership, voting
rights, governing boards, committees, divisions or other bodies, including the
power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
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"Agent" shall mean ING and its successors in such capacity hereunder.
"Agent's Account" shall mean the Agent's bank account at Xxxxxx
Guaranty Trust, New York, ABA No. 021 00 0238, Account No. 00000000, for the
account of ING (U.S.) Capital Markets, or such other account as may be
designated by the Agent from time to time by notice to the Borrower.
"Agreement" shall mean this Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to time
hereafter, including all schedules and exhibits hereto.
"Applicable Discount Rate" shall mean, with respect to any Purchased
Claim, the Discount Rate then applicable to the Claim Group to which such Claim
is allocated at such time.
"Assignment and Assumption Agreement" shall mean an Assignment, Notice
and Assumption Agreement substantially in the form of Exhibit C hereto, by and
among a Bank making an assignment and a Bank accepting such assignment pursuant
to Section 11.11.
"Assignment of Interest" shall mean an assignment substantially in the
form of Exhibit E-1, E-2 or E-3 attached hereto among the Borrower, the
Plaintiff and the Plaintiff's Attorney pursuant to which the Plaintiff and the
Plaintiff's Attorney sells, assigns and conveys all of their respective rights,
title and interests in a Claim and all amounts due with respect thereto.
"Authorized Officer" shall mean those Persons designated by written
notice to the Agent from the Borrower as being authorized to execute notices,
reports and other documents required hereunder. The Borrower may amend such list
of Persons from time to time by giving written notice of such amendment to the
Agent.
"Bankruptcy Code" shall mean Title 11 of the United States Code 11
U.S.C. (section)101 et seq.), as amended from time to time, and any successor
statute.
"Banks" shall have the meaning assigned to such term in the Preamble to
this Agreement.
"Base Rate" shall mean, on any date, a fluctuating per annum rate of
interest equal to the higher of (i) the Chemical Bank Prime Rate and (ii) the
Citibank Prime Rate.
"Base Rate Option" shall mean, on any date of determination, the higher
of (i) the Base Rate as in effect on such date minus 0.50% and (ii) the sum of
(a) the Euro-Rate that
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would have been applicable on such date for a one month Interest Period
commencing on the first day of the month in which such date of determination
occurs, plus (b) 2.50%.
"Base Rate Portion" shall mean the portion of the Loans bearing
interest under the Base Rate Option at such time.
"Borrower's Account" shall have the meaning assigned to such term in
Section 2.1(d).
"Borrowing" shall mean a borrowing consisting of one or more Borrowing
Tranches from the Banks.
"Borrowing Base" shall mean on any date of determination, the sum of:
(a) with respect to all Seasoned Purchased Claims included on the then
current Borrowing Base Certificate on such date, the product of (1) the sum
of the present values of the outstanding Maturity Values of each such
Purchased Claim which is an Eligible Claim on such date of determination,
discounted at the Applicable Discount Rate with respect thereto as in
effect on such date and (2) 98%; and
(b) with respect to all other Purchased Claims included on then current
Borrowing Base Certificate on such date, the sum of the Purchase Prices of
each such Purchased Claim which is an Eligible Claim as of such date, less
any Collections received with respect to any such Claims included in this
clause (b).
"Borrowing Base Certificate" shall mean the certificate in the form of
Exhibit J hereto delivered with each Loan Request and at the times specified in
Sections 6.1(i) and 7.1(a)(x).
"Borrowing/Conversion Date" shall mean, with respect to any Loan, the
date for the making thereof or the Continuation or Conversion to the same or a
different Interest Rate Option, which date shall in any case be a Business Day.
"Borrowing Tranche" shall mean (i) with respect to the Fixed Rate
Portion of the Loans, Loans to which a Fixed Rate Option applies by reason of
the selection of, Conversion to or Continuation of such Interest Rate Option on
the same day and having the same Interest Period, and (ii) with respect to the
Base Rate Portion of the Loans, all outstanding Loans to which the Base Rate
Option applies by reason of the selection of or Conversion to such Interest Rate
Option.
"Business Day" shall mean any day other than a Saturday or Sunday or
other day upon which banks are authorized or required to close in New York City;
provided, however, that when
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used with respect to the Euro-Rate, the term "Business Day" shall be deemed to
mean a day of the year on which dealings are carried on in the London interbank
market and banks are open in London and not authorized or required to be closed
in New York City.
"Chemical Bank Base Rate" shall mean the rate designated by Chemical
Bank from time to time as its prime rate in the United States, such rate to
change as when such designated rate changes. The Chemical Bank Base Rate is not
necessarily the lowest rate of interest charged by Chemical Bank in connection
with extensions of credit to its customers.
"Citibank Base Rate" shall mean the rate designated by Citibank, N.A.
from time to time as its prime rate in the United States, such rate to change as
when such designated rate changes. The Citibank Base Rate is not necessarily the
lowest rate of interest charged by Citibank, N.A. in connection with extensions
of credit to its customers.
"City of Philadelphia" shall mean the City of Philadelphia,
Pennsylvania, a municipal corporation formed under Title 53 of Pa.C.S.A.
"Claim" shall mean (i) a fully settled Residual Bodily Injury claim
against the JUA resulting from a motor vehicle accident for which payment has
been deferred for twelve months pursuant to N.J.S.A. 17:33B-3 of the FAIRA and
the Department of Insurance Order Xx. X00-000 or for eighteen months pursuant to
N.J.S.A. 17:33-B3 of the FAIRA and N.J.A.C. 11:3-2A.3; (ii) a fully settled
Residual Bodily Injury Claim against the MTF resulting from a motor vehicle
accident for which payment has been deferred for eighteen months pursuant to the
GDP Act and the Plan of Operation; (iii) a fully settled claim against the City
of Philadelphia resulting from an accident for which payment has been deferred
by the City of Philadelphia for up to twelve months; and (iv) a fully settled
claim against SEPTA resulting from an accident for which payment has been
deferred by SEPTA for up to eight months.
"Claim Group" shall mean either the Base Rate Claim Group, the Matched
Claim Group or the Unmatched Claim Group.
"Claims Package" shall mean fully executed copies of all documentation
relating to the purchase of any and all Claims by the Borrower, and shall
include, without limitation, (i) the Assignment of Interest and all documents
required to be delivered to the Borrower pursuant thereto, (ii) the Judgment (to
the extent such Claim is a judgment Claim), (iii) the Settlement Agreement (to
the extent such Claim is a settlement Claim), (vi) the Release, (vii) the
Notice of Assignment, (viii) the Notification of Deferral (to the extent such
Claim is a Partial Claim) and (ix) any notifications or acknowledgments received
by the Borrower from Servicing Carriers relating to Purchased
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Claims, including acknowledgment of releases and payment obligations.
"Claims Servicer" shall mean Electronic Data Systems Corporation, a
Texas corporation, in its capacity as the provider of services under the
Servicing Agreement and/or any other Person or entity performing similar
services for the Borrower which has been approved by the Agent in accordance
with the terms of this Agreement.
"Closing Date" shall mean May 26, 1995.
"Collateral" shall mean the property of the Borrower in which security
interests are granted to the Agent for the benefit of itself and the Banks
hereunder or under the Security Agreement.
"Collections" shall mean, with respect to any Purchased Claim, all cash
collections and other cash proceeds of such Purchased Claim.
"Commitment" shall mean as to any Bank at any time, the amount set
forth opposite its name on Schedule 1.1(a) attached hereto or on Schedule I to
the most recent Assignment and Assumption Agreement to which such Bank is a
party, in each case, as such amount may be reduced pursuant to Section 2.5(a),
and "Commitments" shall mean the aggregate Commitments of all of the Banks at
such time.
"Commitment Percentage" shall mean, with respect to any Bank, the
percentage set forth next to such Bank's name on Schedule 1.1(a) or on Schedule
I to the most recent Assignment and Assumption Agreement to which such Bank is a
party.
"Commitment Termination Date" shall mean the earliest to occur of (i)
the date of the reduction of the Commitments to zero or the termination of the
Commitments, in either case, pursuant to Section 2.5, (ii) the declaration or
automatic occurrence of the Commitment Termination Date or the Facility
Termination Date pursuant to Section 9.2, or (iii) May 24, 1996.
"Competitor" shall have the meaning assigned to such term in Section
11.17.
"Continue" and "Continuation" each refers to the continuation of a Loan
accruing interest at a Fixed Rate Option for an additional Interest Period at
such Fixed Rate Option.
"Convert," "Conversion," and "Converted" each refers to either (i) a
conversion of Loans accruing interest at the Base Rate Option to Loans accruing
interest at a Fixed Rate Option or (ii) a conversion of Loans accruing interest
at a Fixed Rate
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Option to Loans accruing interest at a different Fixed Rate Option or the Base
Rate Option.
"Conversion/Continuation Request" shall mean a request for the
Conversion or Continuation of any outstanding Loans made in accordance with
Section 2.2, which request shall be substantially in the form of Exhibit B-2
hereto appropriately completed.
"CoreStates shall mean CoreStates Bank, N.A.
"CoreStates Documents shall have the meaning assigned to such term in
Section 6.1(c).
"Default Rate" shall mean a floating per annum rate equal to the Base
Rate then in effect plus 2.00% per annum.
"Defaulted Claim" shall mean a Claim: (i) as to which any portion of
the Maturity Value thereof remains unpaid for more than seventy-five (75) days
after the Scheduled Maturity Date of such Claim , (ii) as to which the Obligor
thereof has taken any action, or suffered any event to occur, of the types
described in clause (vii) of the definition of "Eligible Claim," (iii) any
Insolvency Event has occurred with respect to the Ultimate Obligor with respect
to such Claim, or (iv) which has been or should have been written off the
Borrower's books as being uncollectible.
"Delinquency Ratio" shall mean the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the aggregate
Maturity Value of all Purchased Claims that were Delinquent Receivables on such
date, by (ii) the aggregate Maturity Value of all Purchased Claims on such Date.
"Delinquent Claim" shall mean a Claim that is not a Defaulted Claim and
as to which any portion of the Maturity Value thereof remains unpaid forty-five
(45) days after the last day of the calendar month in which the Scheduled
Maturity Date of such Claim occurs.
"Discount Rate" shall mean for any day, as reported in the most recent
Monthly Report (or, until the first such report shall have been delivered, on
the Closing Date) and confirmed by the Agent:
(a) with respect to the Base Rate Claim Group, a rate per annum equal
to:
(M x .25%) + ER(WAM(FL));
(b) with respect to the Matched Claim Group, a rate per annum equal to:
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(M x .25%) + ER(WAM(MP));
(c) with respect to the Unmatched Claim Group, a rate per annum equal
to:
(M x .25%) + [ER(WTM(UP)) + ER(WAM(UP) - WTM(UP))];
in each case, as such amounts (other than the interest rates) are calculated as
of the last day of the immediately preceding month and as such interest rates
are in effect on the date of such Monthly Report (or, until the date the first
such Monthly Report shall be delivered, as such amounts are calculated on the
Closing Date) (the "Set Date") and where:
ER(WAM(FL)) = The Euro-Rate which would be applicable on
such Set Date to (and interpolated on a
straight-line basis for the applicable number
of days of) an Interest Period commencing on
such Set Date and having a duration equal to
the Weighted Average Maturity of the Purchased
Claims allocated to the Base Rate Claim Group;
ER(WAM(MP)) = The Euro-Rate which would be applicable on
such Set Date to (and interpolated on a
straight-line basis for the applicable number
of days of) an Interest Period commencing on
such Set Date and having a duration equal to
the Weighted Average Maturity of the Purchased
Claims allocated to the Matched Claim Group;
ER(WTM(UP)) = The Euro-Rate which would be applicable on
such Set Date to (and interpolated on a
straight line basis for the applicable number
of days of) an Interest Period commencing on
such Set Date and having a duration equal to
the Weighted Average Tranche Maturity of the
Purchased Claims allocated to the Unmatched
Claim Group;
ER(WAM(UP)-WTM(UP)) = The forward Euro-Rate which (based on the
interest rate information available on such
Set Date, interpolated on a straight line
basis for the applicable number of days
thereof) would be applicable to an Interest
Period having a duration equal to the
difference between (x) the Weighted Average
Maturity of the Purchased Claims allocated to
the Unmatched Claim Group and (y) the Weighted
Average Tranche
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Maturity of such Purchased Claims and which
Interest Period would be deemed to commence
such number of days as equals such Weighted
Average Tranche Maturity after the Set Date;
and
M = The Multiplier on such date;
provided, however, that if any of the Interest Periods used to calculate the
interest rates set forth above would (regardless of the actual duration thereof)
be outstanding one year after the Set Date, such interest rate shall,
notwithstanding the references therein to the Euro-Rate, be calculated by
reference to the Swap Rate.
"Dollar", "Dollars", "U.S. Dollars" and the symbol "$" shall mean
lawful money of the United States of America.
"Eligible Claim" shall mean a Claim:
(i) which is not a Defaulted Claim or a Delinquent Claim;
(ii) (A) the performance of which has been completed by the Plaintiff
and/or the Plaintiff's Attorney, as applicable, and by all other parties other
than the Obligor; (B) that requires the Maturity Value thereof to be paid in
full within the following number of months after the effective date of the
Release relating thereto: (x) eighteen months, in the case of a Claim against
the JUA or the MTF, (y) twelve months, in the case of a Claim against The City
of Philadelphia and (z) eight months, in the case of a Claim against SEPTA; and
(C) that has been duly authorized and is in full force and effect and
constitutes the legal, valid and binding obligation of the Obligor, enforceable
against such Obligor in accordance with its terms and is not subject to any
dispute, offset, counterclaim or defense whatsoever;
(iii) with respect to which, the Scheduled Maturity Date thereof is no
later than 30 days prior to the Scheduled Facility Termination Date;
(iv) which (a) was acquired by the Borrower from a Plaintiff (or the
estate thereof), Plaintiff's Attorney or any other seller that, immediately
prior to its sale thereof to the Borrower, owned such Claim free and clear of
any Lien and (b) continues to be free and clear of any Lien other than a
Permitted Lien;
(v) which (A) is either a "general intangible" within the meaning of
Section 9-106 of the UCC of all applicable juris dictions or such other type of
property in which the Agent's and the Banks' security interest therein shall be
perfected by the
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execution by all parties thereto of a Notice of Assignment with respect thereto
as contemplated herein; (B) has been delivered to the Claims Servicer, together
with all other instruments, documents and agreements included in the Claims
Package with respect thereto, in each case, in accordance with the terms of the
Servicing Agreement; (C) is denominated and payable only in Dollars in the
United States; and (D) no portion of which is payable on account of taxes;
(vi) the assignment of which does not contravene or conflict with any
applicable Law or any contractual or other restriction, limitation or
encumbrance;
(vii) which has not been compromised, adjusted or modified (including,
without limitation, by extension of time of payment or the granting of any
discounts, allowances or credits);
(viii) which does not contravene in any material respect any Law
applicable thereto and which no party thereto is in violation of any such Law in
any material respect;
(ix) with respect to which all of the conditions precedent set forth in
the Assignment of Claim have been fully satisfied;
(x) the rating of the Ultimate Obligor in respect thereof (other than
the MTF or the JUA) is at least "BBB-" or the equivalent by Standard & Poor's
Ratings Group or any other nationally recognized statistical ratings agency that
rates such Person, and no other such rating agency that rates (either actually
or on a "shadow" basis) such Person has rated it less than "BBB-" or the
equivalent thereof;
(xi) in respect of which the respective Notice of Assignment executed
by all parties and acknowledged by the Obligor thereof has been delivered to the
Claims Servicer; provided, that a Claim shall not be deemed ineligible pursuant
to this clause (xi) for the failure to have delivered evidence of the
acknowledgement of such Obligor with respect to such Notice of Assignment to the
Claims Servicer until ninety days after the date of the purchase of such Claim
by the Borrower;
(xii) which is not a judgment Claim, unless the Borrower shall have
provided evidence satisfactory to the Agent of the perfection, in favor of the
Agent, of a first priority, perfected security interest or Lien therein; and
(xiii) which complies with such other criteria and requirements as the
Agent may from time to time in its commercially reasonable credit judgment
specify to the Borrower following thirty days' prior written notice, which other
criteria and requirements shall be based on the existence or occurrence of any
factors to be specified by the Agent, in such notice, which,
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in the commercially reasonable credit judgment of the Agent materially impair
the composition, quality, the Collateral with respect thereto or the prospects
of collection thereof.
"Environmental Laws" shall mean all federal, state, local and foreign
Laws, including, without limitation, permits, orders, judgments, consent decrees
issued, or entered into, pursuant thereto, relating to pollution or protection
of human health or the environment or employee safety in the work place.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended or supplemented from time to time, and any successor
statute, and the rules and regulations thereunder, as from time to time in
effect.
"ERISA Group" shall mean any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Borrower, and (iii)
member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as the Borrower, any corporation described
in clause (i) above or any partnership, trade or business, described in clause
(ii) above.
"Euro-Rate" shall mean, with respect to any Borrowing Tranche to which
the Euro-Rate applies for any Interest Period, the per annum rate of interest
determined by the Agent to be equal to the sum of (a) 2.50% and (b) the rate for
deposits in Dollars in a principal amount of not less than $500,000 for a period
approximating such Interest Period which appears on the Reuters Screen LIBO Page
as of 11:00 A.M. (London time) on the second Business Day before (and for value
on) the first day of such Interest Period (and, in the case of any such Interest
Period in excess of three months, adjusted by the Agent to account for quarterly
payment of interest thereon by the Borrower as required by Section 3.7), divided
by the remainder of one minus the Euro-Rate Reserve Percentage (expressed as a
decimal) applicable, if any, during such Interest Period. The Agent shall give
the Borrower and each Bank notice of the Euro-Rate determined by the Agent to be
applicable to any such Borrowing Tranche for any Interest Period promptly (and,
in any event, within 10 days) after the commencement thereof, and such
determination by the Agent shall be conclusive absent manifest error.
"Euro-Rate Portion" shall mean the portion of the Loans bearing
interest at the Euro-Rate.
"Euro-Rate Reserve Percentage" shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest
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1/100 of 1%) as determined by the Agent (which determination shall be conclusive
absent manifest error) which is in effect during any relevant period, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve requirements) with
respect to eurocurrency funding (currently referred to as "Eurocurrency
Liabilities") of a member bank in such System.
"Event of Default" shall mean any of the Events of Default described in
Section 9.1.
"Facility Termination Date" shall mean the earlier to occur of (i) the
declaration or automatic occurrence of the Facility Termination Date pursuant to
Section 9.2 and (ii) the date occurring two years after the occurrence of the
Commitment Termination Date for any reason whatsoever.
"FAIRA" means the Fair Automobile Insurance Reform Act of 1990,
N.J.S.A. 17:33B-1 et seq., or any successor statute.
"Federal Funds Effective Rate" shall mean for any day during, the rate
per annum (rounded upward to the nearest 1/100 of 1%) announced by the Federal
Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight Federal funds transactions arranged by Federal
funds brokers on the previous trading day, as computed and announced by such
Federal Reserve Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to as
the "Federal Funds Effective Rate" as of the date of this Agreement; provided,
however, that if such Federal Reserve Bank (or its successor) does not announce
such rate on any day, the "Federal Funds Effective Rate" for such day shall be
the average of the quotations of such rate for such day on such transactions
obtained by the Agent from three Federal Funds brokers of recognized standing
selected by it.
"Fee Letter" shall have the meaning assigned to such term in Section
2.4.
"Fixed Rate Option" shall mean either the Euro-Rate or the Swap Rate.
"Fixed Rate Portion" shall mean the portion of the Loans bearing
interest at the Fixed Rate.
"GAAP" shall mean generally accepted accounting principles as are in
effect from time to time, subject to the provisions of Section 1.3, and applied
on a consistent basis (except for changes in application in which the Borrower's
independent certified public accountants and the Agent concur) both as to
classification of items and amounts.
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"GDP Act" shall mean the New Jersey Good Driver Protection Act of 1994,
P.L. 1994, C.57.
"General Partner" shall have the meaning assigned to such term in the
Preamble of this Agreement.
"Governmental Authority" shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Guarantor" shall mean any of the Persons set forth on Schedule 1.1(b)
hereto.
"Guaranty" shall mean with respect to any Person any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any liability or obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limiting the generality of the foregoing, any agreement to indemnify or
hold harmless any other Person, any performance bond or other suretyship
arrangement, any agreement to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor and any other
form of assurance against loss, except indorsement of negotiable or other
instruments for deposit or collection in the ordinary course of business.
"Guaranty Agreement" shall mean any Guaranty and Surety Agreement in
substantially the form of Exhibit D hereto executed and delivered by a Guarantor
in favor of the Agent for the benefit of the Banks.
"Guaranty Fund" shall mean the New Jersey Automobile Insurance Guaranty
Fund created pursuant to N.J.S.A. 17:33B-5 of the FAIRA.
"Indebtedness" shall mean as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money; (ii)
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) amounts raised under or liabilities in respect of any
note purchase or acceptance credit facility; (iv) reimbursement obligations
under any letter of credit, currency swap agreement, interest rate swap, cap,
collar or floor agreement or other interest rate management device; (v)
obligations of such Person to pay the deferred purchase price of property or
services; (vi) obligations of such Person as lessee under leases which have been
or should be, in accordance with
-12-
GAAP recorded as capital leases; (vii) any other transaction (including without
limitation forward sale or purchase agreements, capitalized leases and
conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such Person to finance its operations or capital
requirements, and whether as structured as a borrowing, sale and leaseback, or
sale of assets for accounting purposes; (viii) any Guaranty of any Indebtedness
of the types described in this definition; (ix) liabilities secured by any Lien
on property owned or acquired, whether or not such a liability shall have been
assumed; or (x) unvested pension obligations; provided, however, that
"Indebtedness" shall not include trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness and which are not more than thirty days past
due).
"Insolvency Event" shall mean, with respect to any Person, an event of
the type described in Section 9.1(f) shall have occurred with respect to such
Person.
"Interest Period" shall mean, with respect to each Fixed Rate Portion
constituting part of the same Borrowing Tranche, the period commencing on the
date such Loan is made, Converted or Continued at or to the applicable Fixed
Rate Option for such Borrowing Tranche, and ending on the last day of the period
selected by the Borrower by delivery of a Loan Request or a
Conversion/Continuation Request in accordance with the terms of this Agreement.
The determination of Interest Periods shall be subject to the following
provisions:
(i) Subject to the limitations set forth herein, the duration of
each Interest Period for a Borrowing Tranche which is requested to
accrue interest at the Euro-Rate shall be any number of months up to
(and including) twelve, and the duration of each Interest Period for a
Borrowing Tranche which is requested to accrue interest at the Swap
Rate shall be any period between twelve and eighteen months;
(ii) In the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the day on which the next
preceding Interest Period expires;
(iii) If an Interest Period would otherwise expire on a day other
than a Business Day, the last day of such Interest Period shall be
extended to occur on the immediately succeeding Business Day; provided,
however, that, in the case of an Interest Period to which the Euro-Rate
is applicable, if the next succeeding Business Day occurs in the
following calendar month, then the last day of such Interest Period
shall be deemed to occur on the immediately preceding Business Day;
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(iv) In the case of an Interest Period to which the Euro-Rate is
applicable, if such Interest Period commences on the last Business Day
in a calendar month or on a day for which there is no numerically
corresponding day in the calendar month in which such Interest Period
is to expire, the last day of such Interest Period shall be deemed to
occur on the last Business Day of the calendar month in which such
Interest Period is to expire;
(v) No Borrowing Tranche of less than $500,000 or an integral
multiple of $100,000 in excess of such amount may be allocated,
Converted or Continued to an Interest Period, and if the aggregate
principal amount of any Borrowing Tranche allocated to an Interest
Period shall at any time during such Interest Period fall below
$500,000, such Interest Period shall be terminated and the Loans
allocated thereto shall be Converted to the Base Rate Option on such
date; and
(vi) The Borrower may not select any Interest Period which is
scheduled to expire after the Scheduled Facility Termination Date.
"Interest Rate Option" shall mean the Euro-Rate, the Swap Rate or the
Base Rate Option.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as the same may be amended or supplemented from time to time, or any successor
statute, and the rules and regulations thereunder, as the same are from time to
time in effect.
"Involuntary Proceeding" shall have the meaning assigned to such term
in Section 9.1(f).
"JUA" shall mean the New Jersey Automobile Full Insurance Underwriting
Association, created pursuant to N.J.S.A. 17:30E-4 of the NJAFIAA.
"Judgment" shall have the meaning assigned to such term in the
Assignment of Interest.
"Law" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Governmental Authority, including,
without limitation, any Environmental Laws.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including but not
limited to any conditional
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sale or title retention arrangement, and any assignment, deposit arrangement or
lease intended as, or having the effect of, security and any filed financing
statement or other notice of any of the foregoing (whether or not a lien or
other encumbrance is created or exists at the time of the filing).
"Loan Documents" shall mean this Agreement, the Notes, the Guaranty
Agreements, the Security Agreement, the Lock-Box Agreements, the Fee Letter and
any other instruments, certificates or documents delivered or contemplated to be
delivered hereunder or thereunder or in connection herewith or therewith, as the
same may be supplemented or amended from time to time hereafter in accordance
herewith or therewith, and "Loan Document" shall mean any of the Loan Documents.
"Lock-Box" shall mean a Lock-Box described on Schedule 5.1(w) hereto
and/or any other lock-box from time to time hereafter designated by the Borrower
as a Lock-Box in accordance with the terms hereof and of the Security Agreement
and in respect of which a Lock-Box Agreement executed by all of the parties
thereto shall have been delivered to the Agent in accordance with the terms
hereof and thereof.
"Lock-Box Account" shall mean the bank accounts described on Schedule
5.1(w) hereto and/or any other bank account from time to time hereafter
designated by the Borrower as a Lock-Box Account in accordance with the terms
hereof and of the Security Agreement and in respect of which a Lock-Box
Agreement executed by all of the parties thereto shall have been delivered to
the Agent in accordance with the terms hereof and thereof.
"Lock-Box Agreement" shall mean an agreement substantially in the form
of that attached hereto as Exhibit K.
"Lock-Box Bank" shall mean the bank(s) described on Schedule 5.1(w) at
which any Lock-Box or Lock-Box Account is maintained or any other bank from time
to time hereafter designated by the Borrower as a Lock-Box Bank in accordance
with the terms hereof and of the Security Agreement and who has executed and
delivered a Lock-Box Agreement to the Agent with respect to all such Lock-Boxes
and/or Lock-Box Accounts maintained with it as required pursuant hereto and/or
to the Security Agreement.
"Loan Request" shall mean a request for Loans made in accordance with
Section 2.1(b), which request shall be substantially in the form of Exhibit B-1
hereto appropriately completed.
"Loans" shall mean collectively, and "Loan" shall mean separately, all
Loans or any Loan made by the Banks or one of the Banks to the Borrower pursuant
to Section 2.1.
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"Management Agreement" shall mean that certain letter agreement dated
as of the Closing Date between the Borrower and X.X. Xxxxxxxxx and Company, Inc.
concerning the provision of certain services by X.X. Xxxxxxxxx and Company, Inc.
for the Borrower, as the same may be amended, restated, supplemented or
otherwise modified from time to time hereafter in accordance with the terms of
this Agreement.
"Matched Claim Group" shall mean, at any time, those Purchased Claims
then allocated to Interest Periods ending within five days of the respective
Scheduled Maturity Dates thereof.
"Material Adverse Change" shall mean any set of circumstances or events
which (a) has or could reasonably be expected to have any, material adverse
effect whatsoever upon the validity or enforceability of, or the Borrower's or
any Guarantor's ability to perform its respective obligations under, this
Agreement or any other Loan Document, (b) is or could reasonably be expected to
be material and adverse to the businesses, properties, assets, financial
condition, results of operations or prospects of the Borrower or any Guarantor,
(c) impairs materially or could reasonably be expected to impair materially the
ability of the Borrower to duly and punctually pay or perform its Obligations
hereunder and under the other Loan Documents, or (d) impairs materially or could
reasonably be expected to impair materially the ability of the Agent or any of
the Banks, to the extent permitted, to enforce their legal remedies pursuant to
this Agreement or any other Loan Document.
"Material Adverse Effect" shall mean an effect that could result in a
Material Adverse Change.
"Maturity Value" shall mean with respect to any Claim, the Settlement
Amount thereof plus all interest payable with respect thereto.
"Maximum Available Facility Amount" shall mean at any time, the lesser
of (A) Maximum Facility Amount at such time and (B) the Borrowing Base at such
time.
"Maximum Facility Amount" shall mean $90,000,000, as the same may be
reduced from time to time pursuant to Section 2.5(a); provided, however, that at
any time from and after the Commitment Termination Date, the "Maximum Facility
Amount" shall equal the aggregate principal balance of the Loans outstanding at
such time.
"Maximum Rate" shall have the meaning assigned to such term in Section
3.1(d).
"Meridian" shall mean Meridian Bank, its successors and assigns.
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"Monthly Report" shall mean a report substantially in the form of that
attached as Exhibit L and covering the matters described in Section 7.1(vii).
"MTF" shall mean the Market Transition Facility of New Jersey created
pursuant to N.J.S.A. 17:33B-1 of the FAIRA, as amended by the GDP Act.
"Multiplier" shall mean, (i) at any time prior to the purchase by the
Borrower of the portfolio of Claims from Settler's Funding, L.L.C., 1, and (ii)
at any time after such purchase, an amount, as reported on the most recent
Monthly Report, equal to the ratio of (a) the difference of the aggregate
Maturity Value of the Purchased Claims as of the last day of the month covered
by such report, minus $6,533,000, to (b) the aggregate Maturity Value of the
Purchased Claims as of the last day of the month covered by such report.
"Net Worth" shall mean as of any date of determination the difference
of (i) the aggregate present value of all Purchased Claims (other than Defaulted
Claims) owned by the Borrower at such time, discounted at the Applicable
Discount Rates as in effect as of such date with respect thereto, minus (ii) the
total liabilities of the Borrower at such time as determined in accordance with
GAAP.
"Notice of Assignment" shall mean the notification to the Servicing
Carrier, in the case of Claims against the JUA or the MTF, or to the payor of
the Purchased Claims, in the case of any other Claim, of the Assignment of
Interest executed by the Plaintiff, the Plaintiff's Attorney and the Borrower
and acknowledged by the Servicing Carrier or the other payor, as applicable,
which Notice of Assignment shall be substantially in the form of Exhibit F-1,
F-2 or F-3 attached hereto, and pursuant to which such Servicing Carrier or
other payer, as applicable, (a) acknowledges receipt of notification of such
Assignment of Interest in favor of the Borrower, (b) acknowledges receipt of
notification of the Agent's security interest in such Claim and (c) agrees to
pay the Maturity Value of such Claim to the Claims Servicer or to such other
Person as the Agent may direct.
"Notification of Deferral" shall mean the notification to the Borrower
from the Plaintiff's Attorney requesting deferral of monies owed to the
Plaintiff's Attorney, which Notification of Deferral shall be substantially in
the form of Exhibit G attached hereto.
"NJAFIAA" shall mean the New Jersey Automobile Full Insurance
Availability Act, N.J.S.A. 17:30E-1 et seq.
"Notes" shall mean collectively, and "Note" shall mean separately, all
the Notes of the Borrower, in each case, in the form of Exhibit A hereto and
evidencing the Loans together with
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all amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
"Obligations" shall mean and include all loans, advances, debts,
liabilities, obligations, covenants and duties owing to the Agent and the Banks
by the Borrower of any kind or nature, present or future, arising under this
Agreement, the Notes, the Security Agreement, the Fee Letter or any of the other
Loan Documents or other instruments, documents or agreements executed and/or
delivered in connection with any of the foregoing and to which the Borrower is a
party, whether or not for the payment of money, whether arising by reason of an
extension of credit, opening of a letter of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising. The term includes, without limitation, the
principal amount of all Loans, together with interest, charges, expenses, fees,
attorneys' and paralegals' fees and expenses, and any other sums chargeable to
the Borrower under this Agreement or the other Loan Document pursuant to which
it arose.
"Obligor" shall mean, with respect to any Claim, the JUA, the MTF, the
City of Philadelphia, SEPTA, or the applicable Servicing Carrier obligated to
make payments with respect to such Claim.
"Other Taxes" shall have the meaning assigned to such term in Section
4.3(b).
"Partial Claim" shall mean any Claim of a Plaintiff (or its estate) or
a Plaintiff's Attorney, but not both, which has been purchased by the Borrower.
"Partnership Agreement" shall mean the Limited Partnership Agreement of
X. X. Xxxxxxxxx MFC Associates, L.P. dated as of June 9, 1993 among the General
Partner, Xxxx Xxxxxxx and Xxxxx XxXxxxx, as the same may be amended, restated,
supplemented or otherwise modified from time to time hereafter in accordance
with the terms of this Agreement.
"Permitted Assignee" shall mean (i) any of the Banks or their
Affiliates, PNC Bank, Meridian, UJB or any company managed or administered by
ING or (ii) any other financial institutions approved by the Borrower upon the
request of any Bank, which approval shall not unreasonably be withheld;
provided, however, that after the occurrence and during the continuance of an
Event of Default under Section 9.1(a) or Section 9.1(b)(i), a "Permitted
Assignee" shall mean any financial institution selected by a Bank .
"Permitted Indebtedness" shall mean:
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(a) Indebtedness under the Loan Documents;
(b) Existing Indebtedness as set forth on Schedule 1.1(c); and
(c) Other Indebtedness incurred in the ordinary course of the
Borrower's business but not to exceed $100,000 at any time outstanding.
"Permitted Liens" shall mean:
(a) Liens for taxes, assessments or similar charges, incurred in the
ordinary course of business and which are not yet due and payable;
(b) pledges or deposits made in the ordinary course of business and to
the extent required by Law to secure payment of worker's compensation, or to
participate in any fund in connection with worker's compensation, unemployment
insurance, old-age pensions or other social security programs;
(c) Liens in favor of the Agent for the benefit of itself and the
Banks; and
(d) purchase money security interests on the equipment or goods of the
Borrower securing no more than 100% of the purchase price of the equipment or
goods purchased with the proceeds of any purchase money Indebtedness, to the
extent such Indebtedness is Permitted Indebtedness hereunder.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, government or political subdivision or agency thereof, or any other
entity.
"Plaintiff" shall mean a person with a Claim.
"Plaintiff's Attorney" shall mean the attorney who represented a
Plaintiff in connection with the settling of a Claim.
"Plan of Operation" shall mean the Plan of Operation adopted by the New
Jersey Insurance Commissioner pursuant to the GDP Act, as amended from time to
time.
"PNC Bank" shall mean PNC Bank, National Association, its successors
and assigns.
"PNC Documents" shall have the meaning assigned to such term in Section
6.1(c).
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"Potential Default" shall mean any event or condition which with
notice, passage of time or both would constitute an Event of Default.
"Prohibited Transaction" shall mean any prohibited transaction as
defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by the United
States Department of Labor.
"Property" shall mean all real property, both owned and leased, of the
Borrower.
"Purchased Claims" shall mean all Claims against the JUA, the MTF, the
City of Philadelphia or SEPTA previously or hereafter purchased by the Borrower
from Plaintiffs (or their respective estates), Plaintiff's Attorneys or, subject
to the terms hereof, any other sellers of such Claims; provided, however, that
with respect to any Partial Claim, "Purchased Claim" shall exclude any amounts
(including any assignment obligations) with respect to the Claim of the
Plaintiff or the Plaintiff's Attorney, as applicable, which has not agreed to
sell such Claim.
"Purchase Price" shall mean, with respect to any Claim, the aggregate
amount paid by the Borrower for the Claim from the Person from whom such Claim
was purchased.
"Ratable Share" shall mean the proportion that a Bank's Commitment
bears to the Commitments of all of the Banks.
"Register" shall have the meaning assigned to such term in Section
11.11(e).
"Release" shall have the meaning assigned to such term in the
Assignment of Interest.
"Required Banks" shall mean (i) if there are no Loans outstanding,
those Banks whose Commitments aggregate at least 50% of the Commitments of all
of the Banks, or (ii) if there are Loans outstanding, those Banks whose Loans
outstanding aggregate at least 50% of the total outstanding principal amount of
the Loans.
"Residual Bodily Injury Claim" shall mean a liability claim for loss of
any kind, other than present economic loss, resulting from liability imposed by
law for, or as a result of bodily injury or death.
"Scheduled Facility Termination Date" shall mean the date occurring two
years after the date set forth in clause (iii) of the definition of "Commitment
Termination Date."
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"Scheduled Maturity Date" shall mean with respect to any Claim, the
original date scheduled for the payment by the Obligor thereof of the Settlement
Amount with respect thereto.
"Seasoned Purchased Claim" shall mean on any date of determination, any
Claim which became a Purchased Claim in any calendar month ending prior to such
date of determination.
"Security Agreement" shall mean the Security Agreement in substantially
the form of Exhibit H hereto executed and delivered by the Borrower in favor of
the Agent for the benefit of the Banks.
"SEPTA" shall mean the Southeastern Pennsylvania Transportation
Authority created pursuant to the Metropolitan Transportation Authorities Act of
1963 and currently operating under 74 Pa. C.S.A. (section)(section)1501-1543.
"Servicing Agreement" shall mean (i) initially, the Servicing Agreement
between the Borrower and the Claims Servicer dated as of June 11, 1993, as
amended, and that certain letter agreement dated as of December 30, 1993 among
PNC Bank, CoreStates and the Claims Servicer, as amended, in each case, as the
same are made subject to those certain letter agreements dated as the Closing
Date among the Agent, the Claims Servicer and the Borrower, in the one case, and
the Agent and Claims Servicer, in the other case, in each case, setting forth
the agreement and procedures for the provision of custodial and administrative
services by the Claim Servicer for the Borrower and the Agent with respect to
the Purchased Claims and (ii) upon the execution thereof, the agreement(s)
contemplated by Section 7.1(s)(iv) to be executed by the Borrower, the Agent and
the Claims Servicer with respect to the provision of such services by the Claims
Servicer for and on behalf of the Borrower and the Agent, in each case, as such
agreements may be amended, supplemented or otherwise modified from time to time
in accordance with the terms of this Agreement.
"Servicing Carrier" shall mean (i) with respect to Claims against the
JUA, an insurance company that had or presently has a contract with the JUA to
underwrite, process and adjust automobile insurance policies for the JUA
pursuant to the NJAFIAA, (ii) with respect to Claims against the MTF, an
insurance company that has or presently has a contract with the MTF to
underwrite, process and adjust automobile policies for the MTF pursuant to the
FAIRA, as amended by the GDP Act, and (iii) with respect to Claims against the
City of Philadelphia or SEPTA, The City of Philadelphia or SEPTA, respectively.
"Settlement Agreement" shall mean the agreement between the Plaintiff,
the Plaintiff's Attorney and the Servicing Carrier settling litigation between
the Plaintiff and the JUA, the MTF, the City of Philadelphia or SEPTA, as
applicable.
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"Settlement Amount" shall mean with respect to any Claim, the total
consideration agreed to be paid by the Obligor thereon to the Plaintiff and/or
the Plaintiff's Attorney (exclusive of interest which is to accrue thereon) for
the settlement of the Claim.
"Subsidiary" of any Person at any time shall mean (a) any corporation
or trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
subsidiaries, or any partnership of which such Person is a general partner or of
which 50% or more of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Personals subsidiaries,
and (b) any corporation, trust, partnership or other entity which is controlled
or capable of being controlled by such Person or one or more of such Person's
subsidiaries.
"Swap Rate" shall mean, with respect to any Borrowing Tranche to which
the Swap Rate applies for any Interest Period, a per annum rate of interest
equal to the sum of (a) 2.50% and (b) a rate per annum to be determined by the
Agent to be applicable to such Interest Period by interpolating (on a
straight-line basis) between the average one-year and the eighteen-month zero
coupon bond swap rates offered to major financial institutions (as quoted by the
Agent's Derivatives and Treasury Department) for notional amounts in a principal
amount of not less than $500,000 for a period approximating such Interest Period
(adjusted by the Agent to account for quarterly payment of interest thereon by
the Borrower as required by Section 3.7), as such rate shall be determined by
the Agent as of 11:00 A.M. (New York City time) on the second Business Day
before (and for value on) the first day of such Interest Period. The Agent shall
give the Borrower and each Bank notice of the Swap Rate determined by the Agent
to be applicable to any such Borrowing Tranche for any Interest Period promptly
(and, in any event, within 10 days) after the commencement thereof, and such
determination by the Agent shall be conclusive absent manifest error.
"Swap Rate Portion" shall mean the portion of the Loans bearing
interest at the Swap Rate.
"Taxes" shall have the meaning assigned to such term in Section 4.3.
"UJB" shall mean United Jersey Bank, its successors and assigns.
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"Ultimate Obligor" shall mean (a) with respect to any Claim against The
City of Philadelphia, The City of Philadelphia, (b) with respect to any Claim
against SEPTA, SEPTA, (c) with respect to any Claim against the JUA, the JUA and
the State of New Jersey, and (d) with respect to a Claim against the MTF, the
MTF and the State of New Jersey.
"Uniform Commercial Code" shall mean the Uniform Commercial Code (or
any successor statute) as in effect from time to time in the State of New York
or of any other jurisdiction the laws of which are required by Section 9-103
thereof to be applied in connection with the issue of the perfection of security
interests.
"Unmatched Claim Group" shall mean, at any time, the Purchased Claims
which are not included in the Base Rate Claim Group or the Matched Claim Group.
"Unused Commitment Fee" shall have the meaning assigned to that term in
Section 2.4.
"Weighted Average Maturity" shall mean on any date as reported in the
most recent Monthly Report with respect to any specified group of Purchased
Claims, the weighted average of the maturities (determined by reference to the
Scheduled Maturity Dates) of all such outstanding Purchased Claims in such group
as of the last day of month covered by such report.
"Weighted Average Tranche Maturity" shall mean on any date as set forth
on the then most recent Monthly Report with respect to any group of Purchased
Claims accruing interest at a Fixed Rate Option, the weighted average of the
remaining durations of all Interest Periods for all of the Purchased Claims in
such group as of the last day of the month covered by such report.
"Weighted Average Tranche Rate" shall mean on any date as set forth on
the then most recent Borrowing Base Certificate, the per annum rate equal to the
weighted average of all applicable per annum interest rates applicable to all
outstanding Borrowing Tranches accruing interest at a Fixed Rate Option as of
the last day of the week covered by such Weekly Report.
"Welfare Plan" shall have the meaning assigned to such term is Section
5.1(q)(ii).
1.2 Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural shall include the singular,
references to the singular shall include the plural, references to the part
shall include the whole and references to any masculine, feminine or neuter
pronoun shall include all other genders. References in this Agreement to
"determination" of or by the Agent or the Banks shall be deemed
-23-
to include good faith estimates by the Agent or the Banks, respectively (in the
case of quantitative determinations) and good faith beliefs by the Agent or the
Banks, respectively (in the case of qualitative determinations). The words
"hereof," "herein," "hereunder" and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Any references herein to Articles, Sections, Exhibits or Schedules are
references to Articles, Sections, Exhibits and Schedules of or to this Agreement
unless expressly otherwise specified. All other undefined terms used herein
shall, unless the context otherwise requires, have the meanings provided for by
the UCC to the extent the same are used or defined therein. The Section and
other headings contained in this Agreement and the Table of Contents preceding
this Agreement are for reference purposes only and shall not control or affect
the construction of this Agreement or the interpretation thereof in any respect.
1.3 Accounting Principles. Except as otherwise provided in this
Agreement, all computations and determinations as to accounting or financial
matters and all financial statements to be delivered pursuant to this Agreement
shall be made and prepared in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
ARTICLE 2. THE LOANS
2.1 Loans.
(a) Upon the terms and subject to the conditions hereinafter set forth,
each Bank, severally and not jointly with any other Bank, agrees to make to the
Borrower, from time to time during the period from the date hereof to, but not
including, the Commitment Termination Date, Loans in an aggregate principal
amount up to such Bank's Commitment; provided, however, that the aggregate
outstanding principal balance of all such Loans shall at no time exceed the
Maximum Available Facility Amount at such time. Within such limits of time and
amount and subject to the other provisions of this Agreement, the Borrower may
borrow, repay without premium or penalty, except as provided in Section 4.4, and
reborrow pursuant to this Section 2.1.
(b) Except as otherwise provided herein, the Borrower may from time to
time prior to the Commitment Termination Date request the Banks to make Loans to
the Borrower by the delivery to the Agent, not later than 10:00 A.M. New York
City time (i) three (3) Business Days prior to the proposed Borrowing/
Conversion Date with respect to the making of Loans to which a Fixed Rate Option
is requested to apply and (ii) on the proposed Borrowing/Conversion Date with
respect to the making of a Loan to which the Base Rate Option applies, in either
case, of a duly
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completed Loan Request therefor, or a request by telephone immediately confirmed
in writing (including by any tele-transmission) signed by an Authorized Officer
in such form. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Loan Request and, with respect to any telephonic
request for a Loan, the Agent shall have no duty to verify the identity of any
individual representing himself as an Authorized Officer. Any Loan Request
received by the Agent after the time specified in the immediately preceding
sentence shall be deemed to have been received by the Agent on the next Business
Day, and the date specified in any such Loan Request as the proposed
Borrowing/Conversion Date shall be deemed to be the Business Day immediately
succeeding the proposed Borrowing/Conversion Date specified in such Loan
Request.
(c) Each Loan Request shall be (x) irrevocable, (y) shall specify (i)
the proposed Borrowing Date; (ii) the aggregate amount of such Borrowing, which,
in the case of a Borrowing to which the Base Rate Option shall be applicable,
shall be in a minimum amount of $2000, and, in the case of a Borrowing to which
the Fixed Rate Option shall be applicable, shall be in a minimum amount of
$500,000 and in integral multiples of $100,000 in excess of such amount; (iii)
which Interest Rate Options shall be applicable and the allocation of the
Borrowing Tranches with respect thereto, and (iv) with respect to any such Loans
to which a Fixed Rate Option is to be applicable, an appropriate Interest Period
for each Borrowing Tranche of such Borrowing, and (z) shall be accompanied by a
fully completed Borrowing Base Certificate.
(d) The Agent shall, promptly (but in any event by 12:00 P.M. on the
date of its deemed receipt of a Loan Request for a Loan) notify the Banks of its
receipt of such Loan Request specifying: (A) the proposed Borrowing/Conversion
Date and the time and method of disbursement of such Loan; (B) the amount of
such Loan and the allocation of the Borrowing Tranches thereof among the
applicable Interest Periods and/or the Base Rate Option as requested by the
Borrower; and (C) each Bank's Ratable Share of such Loan. Each Bank shall remit
its Ratable Share of the principal amount of each Loan to the Agent's Account by
no later than 11:00 A.M. (New York City time) on the Borrowing Date specified or
deemed specified in such Loan Request, and the Agent shall, to the extent the
Banks have made funds available to it for such purpose, fund such Loan to the
Borrower in U.S. Dollars and immediately available funds to the Borrower's
Account No. 085-435-214-90 maintained with PNC Bank, National Association, Land
Title Building, Broad and Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, ABA
No. 031 0000 53 (the "Borrower's Account") prior to 2:00 P.M. New York City time
on the Borrowing/Conversion Date specified or deemed specified in such Loan
Request; provided, that if any Bank fails to remit such funds to the Agent in a
timely manner, the Agent may, but shall not be required to, advance on behalf of
any such Bank, such
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Bank's Ratable Share of the Loans on the applicable Borrowing/Conversion Date
unless such Bank shall have notified the Agent prior to such
Borrowing/Conversion Date that it does not intend to make available its Ratable
Share of such Loans on such date. If the Agent makes such advance, each of the
Borrower and such defaulting Bank severally, but not jointly, shall be liable to
repay the Agent the amount thereof immediately upon the Agent's demand therefor,
together with interest thereon from the date such amount is advanced until
repaid in full at a rate equal to, in the case of such Bank, the Federal Funds
Effective Rate and, in the case of the Borrower, the interest rate applicable to
the Interest Rate Option applicable to the Borrowing Tranche to which such Loan
was allocated. Until such amount is repaid to the Agent by such Bank or the
Borrower, such advance shall be deemed for all purposes to be a Loan made by the
Agent to the Borrower, and the Agent shall for all purposes hereunder be deemed
a "Bank" and shall be entitled to all rights, remedies and benefits as such
hereunder and under the other Loan Documents. Upon the repayment of the
principal and interest of any such Loan by such Bank to the Agent, such
repayment shall be treated (to the extent of the principal amount thereof) as
the funding of such Bank's Ratable Share of the Loans to which such amounts
relate. No such repayment or payment by the Borrower shall prejudice its rights
in respect of any default by such Bank hereunder. The failure of any Bank to
fulfill its Commitment to fund any Loan on any Borrowing/Conversion Date shall
not relieve any other Bank of its Commitment to fund any such Loan on such date,
but no Bank shall be responsible for the failure of any other Bank to fulfill
such Commitment of any other Bank.
(e) The Borrower shall only use the proceeds of the Loans (i) to
refinance the Indebtedness evidenced by the PNC Documents and the CoreStates
Documents on the Closing Date, (ii) to purchase additional Eligible Claims,
(iii) to pay the Obligations, (iv) to pay the fees and expenses of the Claim
Servicer under and in accordance with the terms of the Servicing Agreement, and
(v) for any other legal purpose to the extent permitted hereunder and under the
other Loan Documents.
2.2 Voluntary Conversion and Continuation of Loans.
(a) Prior to the Facility Termination Date, the Borrower shall have the
option with respect to each Borrowing Tranche, (i) to Convert all or any portion
of the Borrowing Tranche accruing interest at the Base Rate Option to Borrowing
Tranches accruing interest at a Fixed Rate Option; (ii) to Convert all or any
portion of any outstanding Borrowing Tranches accruing interest at a Fixed Rate
Option to a Borrowing Tranche accruing interest at a different Fixed Rate Option
or at the Base Rate Option, in either case, upon the expiration date of the
Interest Period applicable to such Fixed Rate Portions being Converted; or (iii)
upon the expiration of the applicable Interest Periods applicable to any
outstanding Borrowing Tranches
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accruing interest at a Fixed Rate, to Continue all or any portion of such
Borrowing Tranches at such Fixed Rate for an additional Interest Period to be
selected by the Borrower in accordance with the terms and conditions hereof. The
Borrower's right to Convert or Continue Loans pursuant to this Section 2.2 shall
be understood to include the right (i) to divide any Borrowing Tranche into two
or more Borrowing Tranches having aggregate principal equal to the aggregate
principal of such initial Borrowing Tranche or (ii) to combine any two or more
Borrowing Tranches into a single Borrowing Tranche having aggregate principal
equal to the aggregate principal of such initial Borrowing Tranches; provided,
that with respect to any Borrowing Tranche accruing interest at the Euro-Rate,
such divisions or combinations may only be made upon the expiration of the
Interest Periods to which such Borrowing Tranche is allocated.
(b) To Convert or Continue any Borrowing Tranche under Section 2.2(a),
the Borrower shall deliver a written Conversion/ Continuation Request signed by
an Authorized Officer or telephonic notice (confirmed immediately thereafter in
writing (including by any tele-transmission) signed by an Authorized Officer in
such form) to the Agent not later than 10:00 A.M. (New York City time) (i) on
the third Business Day prior to the proposed Borrowing/Conversion Date with
respect to the proposed Conversion or Continuation if the Borrowing Tranche is
to be Converted into or Continued at a Fixed Rate Option and (ii) on the
proposed Borrowing/Conversion Date with respect to the a proposed Conversion
from a Fixed Rate Option to the Base Rate Option. The Agent shall then give each
Bank prompt (and in any event not later than 12:00 P.M. on such day) notice
thereof by telephone, facsimile or telex. Each such notice by the Borrower shall
specify (i) the proposed Borrowing/Conversion Date of such proposed
Conversion/Continuation (which shall be a Business Day), (ii) the Borrowing
Tranches to be Converted and/or Continued, (iii) the principal amount of the
Loans to be Converted and/or Continued, (iv) whether such Borrowing Tranche is
to be Converted or Continued and (v) in the case of any Conversion to or
Continuation of any Loans at a Fixed Rate, the requested Interest Period for
such Converted and/or Continued Borrowing Tranche. Any Conversion/Continuation
Request (or telephonic notice thereof) shall be irrevocable, and the Borrower
shall be bound to Convert or to Continue the Loans in accordance therewith. The
Agent shall have no duty to verify the authenticity of the signature appearing
on any Conversion/Continuation Request and, with respect to any telephonic
request for a Conversion/Continuation, the Agent shall have no duty to verify
the identity of any individual representing himself as an Authorized Officer.
Any Conversion/Continuation Request received by the Agent after the time
specified in the immediately preceding sentence shall be deemed to have been
received by the Agent on the next Business Day.
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2.3 Notes. The Loans payable to each Bank shall be evidenced by a Note
of the Borrower dated the Closing Date payable to the order of such Bank in a
maximum principal face amount equal to the Commitment of such Bank.
2.4 Unused Commitment Fee. The Borrower shall pay to the Agent, for the
account of the Banks in such proportions as the Agent and each such Bank shall
agree, a fee (the "Unused Commitment Fee") on the average daily excess of the
Maximum Facility Amount over the aggregate outstanding principal balance of the
Loans at the per annum rate set forth in that certain letter agreement of even
date herewith (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Fee Letter") among the Agent, ING and the
Borrower. The Unused Commitment Fee shall be calculated on the basis of a
360-day year and the actual number of days elapsed and shall be payable, in
arrears, on the first Business Day of each calendar month commencing after the
date hereof and on the Commitment Termination Date.
2.5 Reductions of the Maximum Facility Amount; Termination of the
Commitments. (a) The Borrower shall have the option, upon not less than 5 days'
prior written notice to the Agent, to reduce, in whole or in part, any unused
portion of the Maximum Facility Amount; provided, that any such reduction shall
be in a minimum amount of $1,000,000 and in integral multiples of $100,000 in
excess of such amount. Any such reduction in the Commitments pursuant to the
immediately preceding sentence shall reduce the Commitment of each Bank ratably
in accordance with their respective Commitment Percentages. Any such notice of
reduction given by the Borrower to the Agent shall be irrevocable when given.
(b) In addition, the Borrower shall have the option to terminate the
Commitments in their entirety, upon not less than 5 days' prior written notice
thereof to the Agent (who shall promptly thereafter notify each of the Banks
thereof) and the payment in full, in cash, of all then outstanding interest and
principal on the Loans, any breakage fees then owing or resulting from such
prepayment pursuant to Section 4.4, and all other Obligations then outstanding
(and whether or not then otherwise due and payable). Any such notice of
termination given by the Borrower to the Agent shall be irrevocable when given.
ARTICLE 3. INTEREST RATES; PAYMENTS
3.1 Interest Rate Option; Computation of Interest; Maximum Interest
Rate.
(a) The Borrower shall pay to the Agent for the account of each Bank
interest on the unpaid principal amount of each Loan made by the Bank from the
date of such Loan until such
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principal amount shall be paid in full, at the following rates per annum:
(i) with respect to each Borrowing Tranche of the Euro-Rate Portion, a
rate per annum at all times during the Interest Period to which such
Borrowing Tranche is allocated equal to the Euro-Rate for such Interest
Period;
(ii) with respect to each Borrowing Tranche of the Swap Rate Portion, a
rate per annum at all times during the Interest Period to which such
Borrowing Tranche is allocated equal to the Swap Rate for such Interest
Period; and
(iii) with respect to the Base Rate Portion, a rate per annum equal at
all times to the Base Rate in effect from time to time;
it being understood that, subject to the provisions of this Agreement, the
Borrower may select different Interest Rate Options and different Interest
Periods to apply simultaneously to the Loans comprising different Borrowing
Tranches and may Convert to or Continue one or more Interest Rate Options with
respect to all or any portion of the Loans, comprising any Borrowing Tranche.
(b) All interest accruing hereunder (other than interest at the Base
Rate Option) shall be computed on the basis of a year of 360 days and the actual
number of days elapsed. Interest accruing at the Base Rate Option shall be
computed on the basis of a year of 365 or 366 days, as applicable, and the
actual number of days elapsed.
(c) The Agent's determination of a rate of interest and any change
therein shall, in the absence of manifest error, be conclusive and binding upon
all parties hereto.
(d) In no event shall any interest rate exceed the maximum rate
permissible for business borrowers such as the Borrower under applicable Law
(the "Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate for
that month shall be the Maximum Rate, and, if in future months, that interest
rate would otherwise be less than the Maximum Rate, then that interest rate
shall remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Obligations under this Agreement, the total amount of interest paid
or accrued under the terms of this Agreement is less than the total amount of
interest which would have been paid or accrued if the interest rates set forth
in this Agreement had at all times been in effect, then the Borrower shall, to
the extent permitted by applicable law, pay the Agent, for the
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benefit of the affected Banks, an amount equal to the difference between (a) the
lesser of (i) the amount of interest which would have been charged if the
Maximum Rate had, at all times, been in effect or (ii) the amount of interest
which would have accrued had the interest rates set forth in this Agreement, at
all times, been in effect and (b) the amount of interest actually paid or
accrued under this Agreement. In the event that a court determines that any Bank
has received interest and other charges hereunder in excess of the Maximum Rate,
such excess shall be deemed received on account of, and shall automatically be
applied to reduce, the Obligations other than interest, in the inverse order of
maturity, and if there are no Obligations outstanding, such Bank shall refund
such excess to the Borrower.
(e) The Borrower may call the Agent on or before the date on which a
Loan Request or Conversion/Continuation Request is to be delivered to receive an
indication of the rates then in effect, but it is acknowledged and agreed that
such projection shall not be binding on the Agent or the Banks nor affect the
rate of interest which thereafter is actually in effect when the election is
made.
3.2 Interest After Default. To the extent permitted by Law, upon the
occurrence and during the continuation of an Event of Default, any principal,
interest, fee or other amount payable hereunder shall bear interest for each day
thereafter until paid in full (before and after judgment) at the Default Rate as
in effect from time to time. The Borrower acknowledges that such increased
interest rate reflects, among other things, the fact that such Loans or other
Obligations have become a substantially greater risk given their default status
and that the Banks are entitled to additional compensation for such risk.
3.3 Euro-Rate Unascertainable.
(a) If (x) on any date on which a Euro-Rate would otherwise be
determined, the Agent shall have determined (which determination shall be
conclusive absent manifest error) that:
(i) adequate and reasonable means do not exist for ascertaining
such Euro-Rate; or
(ii) a contingency has occurred which materially and adversely
affects the London interbank market relating to the Euro-Rate; or
(y) at any time any Bank shall have determined (which determination shall be
conclusive absent manifest error) that:
(i) the making, maintenance or funding of any Loan to which a
Euro-Rate applies has been made impracticable or unlawful by compliance by such
Bank in good faith with any Law or any interpretation or application thereof by
any Governmental
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Authority or with any request or directive of any such Governmental Authority
(whether or not having the force of Law); or
(ii) such Euro-Rate will not adequately and fairly reflect the
cost to such Bank of the establishment or maintenance of any such Loan; or
(iii) after making all reasonable efforts, that deposits of the
relevant amount in Dollars for the relevant Interest Period for a Loan to which
a Euro-Rate applies are not available to such Bank at the effective cost of
funding such Loan in the London interbank market;
then, in the case of any event specified in subclause (x)(i) or (x)(ii) above,
the Agent shall promptly so notify the Banks and the Borrower thereof and in the
case of an event specified in subclause (y)(i), (ii) or (iii) above, such Bank
shall promptly so notify the Agent and endorse a certificate to such notice as
to the specific circumstances of such notice and the Agent shall promptly send
copies of such notice and certificate to the other Banks and the Borrower. Upon
such date as shall be specified in such notice (which shall not be earlier than
the date such notice is given) the obligation of (A) the Banks in the case of
such notice given by the Agent or (B) such Bank in the case of such notice given
by such Bank to allow the Borrower to select, Convert to or Continue a Loan
accruing interest at the Euro-Rate Option shall be suspended until the Agent
shall have later notified the Borrower or such Bank shall have later notified
the Agent, of the Agent's or such Bank's, as the case may be, determination
(which determination shall be conclusive absent manifest error) that the
circumstances giving rise to such previous determination no longer exist.
(b) If at any time the Agent makes a determination under Section
3.3(a) and the Borrower has previously notified the Agent of its selection of,
any Conversion to or Continuation of a Loan to accrue interest at the Euro-Rate
and such Interest Rate Option has not yet gone into effect, such notification
shall be deemed to provide for selection of, Conversion to or Continuation of
such Loan to the Base Rate Option. If any Bank notifies the Agent of a
determination under subclause (y)(i), (ii) or (iii) of Section 3.3(a), the
Borrower shall, subject to the Borrower's indemnification obligations under
Section 4.4, as to any Loan of the Bank to which a Euro-Rate applies, on the
date specified in such notice either Convert such Loan to the Base Rate Option
or pay such Loan in full.
3.4 Selection of Interest Rate Options. If the Borrower fails to select
an Interest Period in accordance with the provisions of Section 2.2 in the case
of a Continuation of a Borrowing Tranche accruing interest at a Fixed Rate
Option, the Borrower shall be deemed to have Converted such Loan or portion
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thereof to the Base Rate Option, commencing upon the last day of the current
Interest Period. If an Event of Default shall occur and be continuing, the Agent
may in its discretion limit the Borrower to the Base Rate Option hereunder.
3.5 Payments.
(a) All of the Obligations shall be full recourse obligations of the
Borrower and shall be due and payable at the times set forth herein and in the
Notes. Notwithstanding anything contained in this Agreement, the Notes or the
other Loan Documents to the contrary, all outstanding principal, interest and
other Obligations of the Borrower owing hereunder and under the other Loan
Documents shall be due and payable on the Facility Termination Date. The
Obligations may be prepaid at the option of the Borrower, in whole or in part,
at any time without notice; provided that any such prepayment of less than all
of the outstanding Obligations at such time shall be applied as set forth in
Section 3.5(b). In addition, the Obligations shall be mandatorily prepaid in
accordance with Section 3.5(b). The principal amount of any Loan which is
prepaid may, subject to the limitations set forth Section 2.1(a), be reborrowed.
(b) (i) The Borrower shall instruct all Obligors to make all payments
in respect of the Purchased Claims to be sent to a Lock-Box under the exclusive
ownership and control of the Agent pursuant to the Lock Box Agreement relating
to such Lock-Box. All such payments received in a Lock-Box shall be deposited
on a daily basis to a Lock-Box Account, whereupon, upon such funds becoming
available (in accordance with the applicable Lock-Box Bank's schedule of
availability), they shall be transferred (by electronic transfer of immediately
available funds) to the Agent's Account. All such amounts received by the Agent
in the Agent's Account as aforesaid (as well as any other amounts deposited
therein in accordance herewith, other than to the extent specifically designated
by the Borrower for the payment of a specific Obligation (other than interest or
principal) due hereunder) shall be credited, first, to the payment of interest,
if any, which is then due and payable with respect to the Loans in accordance
with Section 3.7, second, to any breakage costs which is then due and owing
(including any such amounts which would become due and payable after giving
effect to any prepayment of principal in accordance with the immediately
succeeding clause third) in accordance with Section 4.4, third, to the
prepayment and reduction of the outstanding principal amount of the Loans,
fourth, to the payment of all other fees, expenses and indemnities due and
payable hereunder, including without limitation, the Unused Commitment Fee, and
fifth, with respect to any excess, remit such amounts to the Borrower's Account
for the account of the Borrower.
(ii) If, on any day, the aggregate outstanding principal balance
of the Loans shall exceed the Maximum Available
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Facility Amount (after giving effect to the application of any Collections
available for application in accordance with subclause (b)(i) immediately
above), the Borrower shall be required on such day to make a prepayment of the
Loans and the other Obligations by payment thereof by wire transfer to the
Agent's Account of immediately available funds in such an amount that, when
applied in accordance with subclause (b)(i) immediately above, will be
sufficient to eliminate such excess. In addition, all such proceeds of the
Purchased Claims, other Collateral and other payments received from or on behalf
of the Borrower (including any such payments required to be turned over to the
Agent in respect of damaged, destroyed or condemned Collateral pursuant to the
terms of the Security Agreement) in respect of the Obligations shall be applied
in the manner set forth in Section 3.5(b)(i).
(iii) Unless otherwise specified by the Borrower, all prepayments
of principal made in accordance with this Section 3.5(b) shall be applied first
to the Base Rate Portion of the outstanding Loans and then to the Fixed Rate
Portion of such Loans. Without limiting the foregoing in any way, all
prepayments applied to the principal of any Fixed Rate Portion shall be subject
to Section 4.4 hereof to the extent applicable.
(c) All payments and prepayments to be made in respect of principal,
interest, Unused Commitment Fees, or other fees, expenses, indemnities or other
Obligations due from the Borrower hereunder shall be made to the Agent's Account
prior to 11:00 A.M. (New York City time) on the date when due without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and without setoff, counterclaim or other
deduction of any nature, and an action therefor shall immediately accrue. The
Borrower hereby authorizes and directs the Agent to charge the Agent's Account
for each payment of principal and interest when due on the Loans and for all
fees, expenses, indemnities and other Obligations due from the Borrower
hereunder when due. The Borrower agrees that, to the extent there are
insufficient funds in the Agent's Account or such other accounts to make any
payment when due, the Borrower shall immediately pay to the Agent all amounts
due that remain unpaid.
(d) On each day upon its receipt thereof, the Agent shall distribute to
the Banks in immediately available funds all payments and prepayments applied by
the Agent in respect of principal, interest and other amounts received and
available for distribution as of the opening of business on such date, net of
any principal amount that such Bank would be required to remit to the Agent
under Section 2.1(d) of this Agreement. The Agent's and each Bank's statement of
account, ledger or other relevant record shall, in the absence of manifest
error, be conclusive as the statement of the amount of principal of and interest
on the Loans and other amounts owing under this Agreement and shall be
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deemed an "account stated." The Borrower shall have no liability to the Agent or
any Bank for any loss or expense incurred as a result of the failure by the
Agent to comply with the provisions of this Section 3.5(d).
(e) The Borrower hereby transfers and conveys to the Agent, for its and
the Banks' benefit, exclusive ownership and control of each of the Lock-Boxes
and the Lock-Box Accounts. If, notwithstanding the requirements of Section
3.5(b)(i), the Borrower receives any Collections of any Purchased Claims or any
other proceeds of Collateral which are required to be paid to the Agent, for the
benefit of the Banks, it shall receive such payments as the Agent's trustee, and
shall promptly (and, in any event, within one (1) Business Day after its receipt
thereof) deliver such payments to a Lock-Box Account or to the Agent, in each
case, in their original form duly endorsed in blank. All Collections received in
the Lock-Boxes or the Lock-Box Accounts and all amounts on deposit in the
Agent's Account shall be the sole property of the Agent, for the benefit of
itself and the Banks, and subject to the Agent's sole control. At the Agent's
request, the Borrower shall execute and deliver to the Agent such documents as
the Agent shall require to grant the Agent access to, and exclusive dominion and
control over, any lock-boxes and/or bank accounts (including, without
limitation, the Lock-Boxes and Lock-Box Accounts) to which Collections are
remitted.
3.6 Pro Rata Treatment of Banks. Each Borrowing, and each selection of,
Conversion to or Continuation of any Interest Rate Option and each payment or
prepayment by the Borrower with respect to principal, interest and other amounts
due from the Borrower hereunder to the Banks (other than any such amounts of the
type described in Section 2.3, Article 4, Section 10.6 or Section 11.3) shall be
made in proportion to the Ratable Shares of each Bank.
3.7 Interest Payment Dates. Interest on Loans to which the Base Rate
Option applies shall be due and payable in arrears on the first Business Day of
each month after the date hereof and on the date (following the Commitment
Termination Date) on which all such Loans shall be paid in full. Interest on
Loans to which a Fixed Rate Option applies shall be due and payable on the last
day of each Interest Period for those Loans; provided, that with respect to any
Interest Period which is more than three (3) months long, the accrued interest
thereon shall also be due and payable thereon on the last day of each three
month period during which such Loans are outstanding; and provided, further,
that from and after the occurrence of the Commitment Termination Date for any
reason whatsoever, the Agent may, in its sole discretion, apply Collections to
the payment of accrued but unpaid interest on the Loans (including Loans
allocated to any Fixed Rate Options) at such other times as it, in its sole
discretion, may designate, which may be daily.
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ARTICLE 4. INCREASED COSTS; TAXES; BREAKAGE
4.1 Interest Protection. If due to either: (a) the introduction of or
any change (other than any change by way of imposition or increase of the
reserve requirements included in the Euro-Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (b) the compliance by any Bank with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be an increase in the cost
to such Bank of making, funding or maintaining any Loans hereunder accruing
interest at the Euro-Rate, then the Borrower shall, from time to time, within
five (5) Business Days after demand and delivery of a certificate (as described
below) to the Borrower by such Bank (with a copy to the Agent), pay to such
Bank, that portion of such increased costs incurred which such Bank determines
is attributable to making, funding or maintaining such Loans hereunder. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. Such Bank shall submit to the Borrower and the Agent a
certificate as to such increased costs incurred, amounts not received or
receivable or required payment made or to be made, which certificate, setting
forth the calculation thereof, shall be conclusive and binding for all purposes
absent manifest error.
4.2 Increased Capital. If either (i) the introduction of or any change
in or in the interpretation of any Law or (ii) compliance by any Bank with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of Law) affects or would affect the amount of
capital required or expected to be maintained by such Bank, and such Bank
determines that the amount of such capital is increased by or based upon the
existence of the such Bank's Commitment to make or the Bank's maintaining Loans
hereunder, then, within five (5) Business Days after demand and delivery of a
certificate (as described below) to the Borrower by such Bank (with a copy to
the Agent), the Borrower shall pay to such Bank Person from time to time, as
specified by such Affected Person, additional amounts sufficient to compensate
such Bank in light of such circumstances, to the extent that such Bank
reasonably determines such increase in capital to be allocable to the existence
of its agreement to make or maintain Loans hereunder. In determining such
amount, such Bank may use any reasonable averaging and attribution methods. A
certificate as to such amounts submitted to the Borrower and the Agent by such
Bank, setting forth the calculation thereof, shall be conclusive and binding for
all purposes absent manifest error.
4.3 Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 3.5(a), free and clear of and without deduction for any
and all present or future taxes,
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levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent, net income
taxes that are imposed by the United States and franchise taxes and net income
taxes that are imposed on such Bank or the Agent by the state or foreign
jurisdiction under the laws of which such Bank or the Agent (as the case may be)
is organized or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Bank or
the Agent, (i) the sum payable shall be increased as may be necessary so that,
after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.3), such Bank or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Law.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
4.3) paid by such Bank or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto; provided that a Bank or the Agent, as appropriate, making a demand for
indemnity payment shall provide the Borrower, at its address referred to in
Section 11.6, with a certificate from the relevant taxing authority or from a
responsible officer of such Bank or the Agent stating or otherwise evidencing
that a Bank or the Agent has made payment of such Taxes or Other Taxes and will
provide a copy of or extract from documentation, if available, furnished by such
taxing authority evidencing assertion or payment of such Taxes or Other Taxes.
This indemnification shall be made within 30 days from the date such Bank or the
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 11.6,
appropriate evidence of payment thereof.
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(e) The Agent and each Bank that is not created or organized under the
laws of the United States or a political subdivision thereof shall, to the
extent that it may then do so under applicable laws and regulations, deliver to
the Borrower (with, in the case of each Bank, a copy to the Agent) (i) within 15
days after the date hereof, or, if later, the date on which such Bank becomes a
Bank pursuant to Section 11.11 hereof, two (or such other number as may from
time to time be prescribed by applicable Laws) duly completed copies of IRS Form
4224 or Form 1001 (or any successor forms or other certificates or statements
which may be required from time to time by the relevant United States taxing
authorities or applicable Laws), as appropriate, to permit the Borrower to make
payments hereunder for the account of such Bank or the Agent, as the case may
be, without deduction or withholding of United States federal income or similar
taxes and (ii) upon the obsolescence of or after the occurrence of any event
requiring a change in, any form or certificate previously delivered pursuant to
this Section 4.3(e), copies (in such numbers as may be from time to time be
prescribed by applicable laws or regulations) of such additional, amended or
successor forms, certificates or statements as may be required under applicable
laws or regulations to permit the Borrower and the Agent to make payments
hereunder for the account of such Bank or the Agent, as the case may be, without
deduction or withholding of United States federal income or similar taxes.
(f) For any period with respect to which a Bank or the Agent has failed
to provide the Borrower with the appropriate form, certificate or statement
described in Section 4.3(e) (other than if such failure is due to a change in
law occurring after the date of this Agreement), such Bank or the Agent, as the
case may be, shall not be entitled to indemnification under Section 4.3(a) or
4.3(c) with respect to Taxes imposed by the United States.
(g) Within 30 days of the written request of the Borrower therefor, the
Agent and each Bank, as appropriate, shall execute and deliver to the Borrower
such certificates, forms or other documents which can be furnished consistent
with the facts and which are reasonably necessary to assist the Borrower in
applying for refunds of taxes remitted hereunder.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.3 shall survive the termination of this Agreement.
4.4 Breakage. In addition to the compensation required by Sections 4.1,
4.2 and 11.3, the Borrower shall indemnify each Bank against all liabilities,
losses or expenses (including loss of margin, any loss or expense incurred in
liquidating or employing deposits from third parties and any loss or expense
incurred in connection with funds acquired by a Bank
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to fund or maintain Loans subject to a Fixed Rate Option) which such Bank
sustains or incurs as a consequence of any:
(a) payment, prepayment, Conversion or Continuation of any Loan to
which a Fixed Rate Option was applicable on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due);
(b) failure of the Borrower to borrow, Convert or Continue, in whole or
in part, any Loan requested by the Borrower to be made pursuant to any Loan
Request or Conversion/Continuation Request; or
(c) default by the Borrower in the performance or observance of any
covenant or condition contained in this Agreement or any other Loan Document,
including without limitation any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal, interest, fees or any other amount due
hereunder.
If any Bank sustains or incurs any such loss or expense it shall from time to
time notify the Borrower of the amount determined in good faith by such Bank
(which determination shall be conclusive absent manifest error and may include
such assumptions, allocations of costs and expenses and averaging or attribution
methods as such Bank shall deem reasonable) to be necessary to indemnify such
Bank for such loss or expense. Such notice shall set forth in reasonable detail
the basis for such determination. Such amount shall be due and payable by the
Borrower to such Bank within five (5) Business Days after such notice is given.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Borrower. In order to induce
the Banks to enter into this Agreement and to make the Loans, the Borrower
represents and warrants to the Agent and the Banks that:
(a) The Borrower is a limited partnership duly formed, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania, and is
duly qualified or licensed to do business in New Jersey and in all other
jurisdictions where the failure to qualify would have a Material Adverse Effect.
(b) The General Partner is the Borrower's sole general partner. The
General Partner owns one percent (1%) of the partnership interests in the
Borrower. The General Partner is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania, and is
duly qualified or licensed as a foreign corporation in good standing
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in New Jersey and in all other jurisdictions where the failure to qualify would
have a Material Adverse Effect.
(c) The Borrower's sole limited partners are Xxxx Xxxxxxx and Xxxxx
XxXxxxx, each of whom owns 49.5% of the partnership interests in the Borrower.
(d) The Borrower has all requisite power and authority, partnership or
otherwise, to own, lease, encumber and operate its properties and assets and to
carry on its business as now being conducted and to enter into and to perform
its obligations under this Agreement and the other Loan Documents to which it is
a party and to fulfill its obligations set forth herein and therein and the
Borrower has the legal power and authority to issue the Notes. The execution,
delivery and performance of this Agreement by the Borrower, the Borrowings
thereunder and the execution and delivery of the Notes and all other Loan
Documents have, in each case, been duly authorized by all requisite partnership
action on behalf of the Borrower and, to the best knowledge of the Borrower,
will not violate or constitute a default under any provision of Law applicable
to the Borrower or of the certificate of limited partnership of the Borrower or
the Partnership Agreement, or of any indenture, note, loan or credit agreement,
license or any other agreement, lease or instrument to which the Borrower is a
party or by which the Borrower or any of Borrower's properties are bound. This
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party constitute the valid and legally binding obligations of Borrower
enforceable against the Borrower in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or equitable principles from time to time in effect
relating to or affecting the rights of creditors generally. This Agreement, the
Notes and the other Loan Documents to which the Borrower is a party have been
executed and delivered by a duly authorized officer of the General Partner.
(e) No consent or approval of any trustee or holder of any
Indebtedness, nor any authorization, consent, approval, license, exemption of or
registration, declaration or filing with any Governmental Authority is or will
be necessary for the valid execution and delivery of this Agreement, the Notes
and the other Loan Documents to which the Borrower is a party or the
consummation by the Borrower of the transactions contemplated hereby or thereby,
other than any such consents and approvals as shall have been obtained.
(f) No recording, filing, registration, notice or other similar action
is required in order to insure the legality, validity, binding effect or
enforceability of this Agreement, the
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Notes or the other Loan Documents as against all Persons, other than such
filings as may be required under the UCC.
(g) There are no judgments or other judicial or administrative orders
outstanding against the Borrower, nor is there any action, suit or proceeding at
law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any of the Borrower's property or rights which, if adversely determined, could
have a Material Adverse Effect. To the best of the Borrower's knowledge,
Borrower is not in default under any applicable Law of any Governmental
Authority having jurisdiction over it.
(h) The Borrower's audited annual balance sheet as at December 31, 1994
and the audited statements of income and cash flows for the year then ended (i)
have been prepared in accordance with GAAP consistently applied, and (ii) are
true and complete and present fairly the financial condition and results of
operations of Borrower as of December 31, 1994 and for the period covered
thereby, and said balance sheets accurately reflect all liabilities, including
contingent liabilities of Borrower as of the date thereof. Since December 31,
1994, the Borrower has conducted its business in the ordinary course, and there
has been no Material Adverse Change.
(i) The Borrower has filed all federal, state and local tax returns
which it is required by Law to file and has paid all taxes, assessments and
other governmental charges due in respect of such returns, except to the extent
that any such taxes, assessments or other governmental charges are being
contested in good faith and as to which Borrower has set aside on its books
adequate reserves and in respect of which no Liens have attached to or been
filed against the Collateral. There are no agreements or waivers extending the
statutory period of limitations applicable to any federal income tax return of
Borrower for any period.
(j) All patents, trademarks, service marks, tradenames, copyrights,
licenses, registrations, franchises and permits of the Borrower are listed and
described on Schedule 5.1(j) hereto, which patents, trademarks, service marks,
tradenames, copyrights, licenses, registrations, franchises, permits and rights
are the only such patents, trademarks, service marks, tradenames, copyrights,
licenses, registrations, franchises, permits and rights necessary for the
Borrower to own and operate its properties and to carry on its business as
presently conducted and planned to be conducted.
(k) Except as described in Schedule 5.1(k) hereto, the Borrower is not
a party to any material lease, contract, agreement, understanding or commitment
of any kind (including without limitation all agreements which, if breached,
could
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directly or indirectly have a Material Adverse Effect), and to the best of
Borrower's knowledge, (a) all parties (including the Borrower) to all such
material leases, contracts, agreements, understandings and commitments, have
complied with the provisions thereof, (b) no such party (including the Borrower)
is in default under any thereof, and (c) no event has occurred which, but for
the giving of notice or the passage of time, or both, would constitute a default
thereunder.
(l) The Borrower does not own or lease any Property.
(m) All of the Borrower's properties and assets are free and clear of
any Liens, other than Permitted Liens.
(n) Neither this Agreement nor any other Loan Document to which the
Borrower is a party, or any certificate or statement furnished to the Agent or
the Banks in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact known to Borrower
which has or may have a Material Adverse Effect which has not been set forth in
this Agreement or in the other Loan Documents, certificates and statements
furnished to the Banks in connection with the transactions contemplated hereby.
(o) Borrower has no outstanding Indebtedness to any Person other than
to Bank, except for Permitted Indebtedness.
(p) Borrower owns no, and shall not use any of the proceeds of the
Loans to purchase or carry, any margin stock (within the meaning of Regulation
G, T, U or X and the regulations thereunder promulgated by the Board of
Governors of the Federal Reserve System, as the same are in effect from time to
time) or to extend credit to others for the purpose of purchasing or carrying
any margin stock. The Borrower is not, and is not controlled by, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(q) (i) Neither the Borrower nor any member of the ERISA Group has ever
maintained or been required to pay any amount with respect to any "employee
pension benefit plan" (as defined in Section 3(2) of ERISA), including any
plan which is subject to Title IV of ERISA. Schedule 5.1(q) hereto sets
forth a true and complete list of each "employee welfare benefit plan" (as
defined in Section 3(1) of ERISA) covering any employee or former employee
of the Borrower or any member of the ERISA Group (the "Welfare Plans").
(ii) The Borrower and each member of the ERISA Group are in compliance
in all material respects with any applicable provisions of ERISA with
respect to all Welfare Plans. There has been no Prohibited Transaction with
respect to any Welfare Plan which could result in any
-41-
material liability of the Borrower or any other member of the ERISA Group.
Borrower and all members of the ERISA Group have made when due any and all
payments required to be made under any agreement relating to all of its
Welfare Plans or any Laws pertaining thereto.
(iii) Neither the Borrower nor any other member of the ERISA Group
maintains or contributes to any Welfare Plan which provides benefits to any
persons following their termination of employment other than as required by
Section 601 of ERISA; and
(iv) To the extent that any Welfare Plan is insured, Borrower and all
other members of the ERISA Group have paid when due all premiums required
to be paid thereunder. To the extent that any Welfare Plan is funded other
than with insurance, Borrower and all other members of the ERISA Group have
made when due all contributions required to be made thereunder and under
applicable Law.
(r) The Borrower has no employees and is not party to any employment
agreements, collective bargaining agreements or any other labor contracts, other
than the Management Agreement.
(s) Borrower does not operate or do business under any assumed, trade
or fictitious names.
(t) To the actual knowledge of the Borrower, no partner of the Borrower
is a director, executive officer or principal shareholder of a Bank and no
director of a Bank is in control of Borrower. For purposes of this Section, the
terms "director," "executive officer," "principal shareholder" and "control of"
have the respective meanings assigned thereto in Regulation O issued by the
Board of Governors of the Federal Reserve System.
(u) There has occurred no event which constitutes a Potential Default
or an Event of Default.
(v) The Borrower has no Subsidiaries.
(w) Schedule 5.1(w) hereto is a complete list of all of the Borrower's
bank accounts, lock-box accounts and lock-boxes and the names and addresses of
the banks at which they are maintained, in each case, as of the Closing Date.
(x) Schedule 5.1(x) hereto is a complete list of the addresses of the
Borrower's chief executive office and principle place of business and all other
locations (owned or leased) at which any assets, books or records of the
Borrower are kept, in each case, as of the Closing Date.
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(y) Schedule 5.1(y) herein is a complete list of all of the Borrower's
insurance policies, in each case, as of the Closing Date.
5.2 Representations and Warranties of the General Partner. In order to
induce the Banks to enter into this Agreement and to make the Loans, the General
Partner represents and warrants to the Banks that:
(a) The General Partner is a corporation duly formed, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania, and is
duly qualified or licensed to do business in New Jersey and in all other
jurisdictions where the failure to qualify would have a Material Adverse Effect.
(b) The General Partner is the Borrower's sole general partner. The
General Partner owns one percent (1%) of the partnership interests in the
Borrower. The General Partner is a holding company, does not conduct any other
business other than as general partner of the Borrower, does not have any
employees, and does not own or lease any assets or properties, other than the
general partnership interest in the Borrower. The General Partner has no
Indebtedness and is solvent.
(c) One hundred percent of the issued and outstanding capital stock of
the General Partner is owned by Xxxx Xxxxxxx and Xxxxx XxXxxxx.
(d) The General Partner has all requisite corporate power and authority
to execute, deliver and perform its obligations hereunder and other the other
Loan Documents to which it is a party, and to execute and deliver, for and on
behalf of the Borrower, this Agreement and the other Loan Documents to which the
Borrower is a party; all of which, in each case, has been duly authorized by all
requisite corporate action on behalf of the General Partner and, to the best
knowledge of the General Partner, will not violate or constitute a default under
any provision of Law applicable to the General Partner or of the Article of
Incorporation or By-Laws of the General Partner. This Agreement, the Notes and
the other Loan Documents to which the Borrower is a party constitute the valid
and legally binding obligations of Borrower enforceable against the Borrower in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or equitable principles
from time to time in effect relating to or affecting the rights of creditors
generally. This Agreement and the other Loan Documents to which the General
Partner is a party have been executed and delivered by a duly authorized officer
of the General Partner.
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5.3 Survival of Representations and Warranties. All of the foregoing
representations and warranties of the Borrower and the General Partner set forth
in Section 5.1 and 5.2, respectively, shall survive the execution and delivery
of the this Agreement and the making by the Banks of the Loans hereunder and
shall continue in full force and effect so long as any of the Obligations of the
Borrower are outstanding or unperformed or this Agreement remains in effect.
ARTICLE 6. CONDITIONS PRECEDENT
6.1 Conditions Precedent to Effectiveness of this Agreement. The
effectiveness of this Agreement and the Commitments of the Banks hereunder are
subject to the condition precedent that the Agent shall have received original
copies, in form and substance satisfactory to it and (other than with respect to
the Notes) in sufficient copies for each it and each of the Banks, of the
following:
(a) Fully-executed copies of this Agreement, the Notes, the Security
Agreement, the Servicing Agreement, the Lock-Box Agreement, the Fee Letter and
the Guaranty Agreements, together with all schedules and exhibits thereto;
(b) Acknowledgment copies of all properly filed financing statements
required to be filed by the Borrower pursuant to the Security Agreement;
(c) Pay-out letters executed by (i) PNC Bank, individually and as
agent, Meridian and UJB, acknowledging (x) the repayment and satisfaction in
full of all of the Indebtedness and other obligations owing by the Borrower to
such Person under and in connection with that certain Credit Agreement dated as
of December 30, 1993 (as amended) among such Persons and the Borrower, all other
instruments, documents and agreements executed in connection therewith
(collectively, the "PNC Documents") and the transactions contemplated thereby
and (y) the termination of all such PNC Documents and all arrangements
thereunder, and (ii) CoreStates acknowledging (x) the repayment and satisfaction
in full of all of the Indebtedness and other obligations owing by the Borrower
to CoreStates under and in connection with that certain Loan and Security
Agreement by and among Borrower, the General Partner and CoreStates dated as of
June 11, 1993 (as amended) among, CoreStates, the General Partner and the
Borrower, all other instruments, documents and agreements executed in connection
therewith (collectively, the "CoreStates Documents") and the transactions
contemplated thereby, and (y) the termination of all such CoreStates Documents
and all arrangements thereunder, in each case, together with executed releases
relating to any UCC financing statements or any other filing made by or on
behalf of any such Persons against the Borrower or any of the Collateral;
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(d) Certified copies of UCC and tax lien and judgment search reports
with respect to the Borrower and the General Partner from such jurisdictions as
are deemed necessary or desirable by the Agent, in each case, dated a date
reasonably prior to the Closing Date;
(e) Executed releases with respect to any Liens (other than Permitted
Liens) filed against the Borrower or the General Partner or any of their
respective properties;
(f) Written acknowledgment by the Claims Servicer of the Agent's
security interest in the Purchased Claims and the Claims Packages and agreement
by the Claims Servicer that upon notice of an Event of Default it will perform
all services under the Servicing Agreement for the benefit of the Banks and
relinquish all Claims Packages to the Agent, at the option of the Agent;
(g) A Certificate of the Claims Servicer, certifying (i) a list
attached thereto of all Purchased Claims as of the Closing Date, with each
Purchased Claim identified by number, indicating for each Purchased Claim (A)
the Purchase Price and Maturity Value, (B) whether the claim is a settled Claim
or judgment Claim; and (C) the status of documentation of the Claims Package,
certified by the Claims Servicer to be true and correct in all material
respects; and (ii) that the Claims Servicer is in compliance with all provisions
of the Servicing Agreement and the processing manual then in use by the Claims
Servicer;
(h) A Borrowing Base Certificate dated as of the Closing Date and
certified by an Authorized Officer:
(i) A Certificate of the Assistant Secretary of the General Partner
dated as of the Closing Date, certifying:
(i) that the copies of the Partnership Agreement, the Articles of
Incorporation of the General Partner and the By-Laws of the General
Partner attached thereto are true, correct and complete copies of the
foregoing as the same are in force as of the Closing Date;
(ii) copies of the Resolutions of the Board of Directors of the General
Partner attached thereto authorizing the execution and delivery of this
Agreement and the other Loan Documents by the General Partner on its
own behalf and for and on behalf of the Borrower, and the performance
of the transactions contemplated therein by the Borrower and the
General Partner; and
(iii) the names and signatures of the officers of the General Partner
authorized to execute this Agreement
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and the other Loan Documents on its and the Borrower's behalf;
(j) A copy of the Articles of Incorporation of the General Partner
certified by the Secretary of the Commonwealth of Pennsylvania as of date
reasonably prior to the Closing Date;
(k) Good Standing Certificates for the General Partner from the
Secretary of the Commonwealth of Pennsylvania and the Secretary of State of New
Jersey, in each case, dated as of a date reasonably prior to the Closing Date;
(l) A copy of the Certificate of Limited Partnership of the Borrower
certified by the Secretary of the Commonwealth of Pennsylvania as of date
reasonably prior to the Closing Date;
(m) Good Standing Certificates for the General Partner from the
Secretary of the Commonwealth of Pennsylvania and the Secretary or State of New
Jersey, in each case, dated as of a date reasonably prior to the Closing Date;
(n) written opinion of counsel to the Borrower and the General Partner
addressed to the Agent and the Banks in substantially the form of Exhibits I
attached hereto;
(o) A certificate signed by the General Partner to the effect that (i)
the representations and warranties of the Borrower and the General Partner set
forth in Sections 5.1 and 5.2 are true as of the Closing Date, (ii) no Potential
Default or Event of Default hereunder has occurred and is continuing as of such
date, (iii) no Material Adverse Change has occurred in Borrower's financial
condition since December 31, 1994, and (iv) all conditions precedent required to
be satisfied by the Borrower or the General Partner for the making of the
initial Loans hereunder shall have been satisfied on or prior to the Closing
Date;
(p) Evidence that adequate insurance in compliance with Section 7.1(i)
hereof and the Security Agreement is in full force and effect and that all
premiums then due thereon have been paid, together with certified copies of the
casualty insurance policy or policies evidencing coverage satisfactory to the
Banks, with additional insured and lender loss payable endorsements naming the
Agent, as agent for the Banks, as additional insured and lender loss payee;
(q) Evidence of insurance covering the Claims Servicer comparable to
that required by Section 7.1(i) of this Agreement;
(r) Audited annual financial statements of the Claims Servicer for the
year ended December 31, 1994; and
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(s) Such additional documents, certificates, information, approvals and
opinions as the Agent or any Bank may reasonably require or request.
The acceptance by the Borrower of any Loans on the Closing Date shall be deemed
to be a representation and warranty made by Borrower and the General Partner to
the effect that all of the conditions to the making of such Loans set forth in
this Section 6.1 have been satisfied, with the same effect as delivery to the
Agent of a certificate signed by an officer of General Partner, for itself and
on behalf of the Borrower, dated the Closing Date, to such effect.
6.2 Conditions Precedent to Each Loan and Each Continuation or
Continuation of any Loan. The obligation of the Banks to make each Loan,
including the initial Loans to be made on the Closing Date, and to Continue or
Convert any Borrowing Tranche of such Loan from time to time thereafter, shall,
in each case, be subject to the further conditions precedent that on the date of
any such Loan:
(a) Both before and after giving effect to the funding, Conversion or
Continuation of any such Loan and the use of the proceeds thereof, all of
the representations and warranties of Borrower and the General Partner
contained herein and in each of the other Loan Documents shall be true and
correct in all material respects as though made on and as of such date,
except to the extent that any such representation or warranty expressly
speaks to an earlier date.
(b) No event shall have occurred and be continuing, or would result
from the funding, Continuation or Conversion of such Loan or the use of the
proceeds thereof, which constitutes or would constitute an Event of Default
or Potential Default.
(c) The aggregate unpaid principal amount of the Loans, after giving
effect to such Loan shall not exceed the Maximum Available Facility Amount.
(d) The Agent shall have received a Loan Request or
Conversion/Continuation Request with respect to any such proposed Loan
(other than that to be made on the Closing Date), Conversion or
Continuation, respectively.
(e) Since the Closing Date, no event or events shall have occurred and
be continuing which would have, or would reasonably be expected to result
in, a Material Adverse Change.
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(f) No order, judgment or decree of any Governmental Authority and no
Law applicable to the Agent or any Bank shall purport by its terms to
enjoin, restrain or otherwise prohibit the making, Conversion or
Continuation of such Loan.
The delivery by the Borrower of each Loan Request, Conversion/
Continuation Request, and/or the acceptance by the Borrower of each Loan or the
benefits of such Conversion or Continuation shall, in any case, be deemed to
constitute, as of the date of such delivery or Loan, as applicable, (A) a
representation and warranty by the Borrower and the General Partner that the
conditions in this Section 6.2 have been satisfied and (B) a confirmation and
reaffirmation by the Borrower of the granting and continuance of the Agent's
Liens on the Collateral pursuant to the Security Agreement.
ARTICLE 7. AFFIRMATIVE COVENANTS
7.1 Affirmative Covenants of the Borrower. So long as this Agreement
remains in effect or any of the Obligations of the Borrower remains outstanding,
the Borrower shall:
(a) Furnishing Financial Statements and Other Reports. Furnish or
caused to be furnished to the Agent:
(i) within 90 days after the close of each fiscal year of the Borrower,
a balance sheet and statements of income, owners' equity and cash flows of the
Borrower audited by Coopers & Xxxxxxx or any other independent public accounting
firm selected by the Borrower and acceptable to the Agent showing the financial
condition of the Borrower as of the close of such fiscal year and the results of
the Borrower's operations during such fiscal year and certified without
qualification (except any qualifications that the Required Banks may in their
discretion approve in writing) by such firm to have been prepared in accordance
with GAAP;
(ii) within 60 days after the end of each of Borrower's first three
fiscal quarters, internal, unaudited financial statements showing the same
financial information as described in Section 7.1(a), as of the end of each such
period and for the then lapsed portion of such year, certified by the General
Partner of the Borrower to be true and correct and to have been prepared in
accordance with GAAP (subject to normal year-end adjustments);
(iii) (x) within 30 days after the end of each month, an internal,
unaudited statement of income prepared by the Borrower, (y) within 20 days after
the end of each month, the calculation of the Delinquency Ratio and Net Income
for the immediately preceding month then ended, and (z) within 20 days after the
end of each month, an aging report with respect to the
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Purchased Claims, certified as being accurate in all material respects by the
Claims Servicer;
(iv) accompanying the financial statements provided pursuant to
Sections 7.1(a) and (b), a certificate of the General Partner of Borrower,
stating (i) that a review of the activities of Borrower during such period has
been made under its immediate supervision with a view to determining whether all
of the obligations and covenants hereunder or in connection herewith have been
performed and fulfilled, (ii) that such review showed that there existed during
such period no Potential Default or Event of Default or if any such Potential
Default or Event of Default existed, specifying the nature thereof, the period
of existence thereof and what action Borrower proposes to take, or has taken,
with respect thereto, and (iii) that the Borrower is in compliance with all
terms, conditions and provisions of this Agreement and all other Loan Documents;
(v) copies of all management letters prepared by the Borrower's
accountants, promptly after receipt thereof;
(vi) promptly after the sending or making available or filing of the
same, copies of all reports, proxy statements and financial statements delivered
or sent by the Borrower to its limited partners or prospective investors;
(vii) within 5 Business Days after the end of each month, a report (the
"Monthly Report") setting forth the Applicable Discount Rate for each Claim
Group for the upcoming month, the Weighted Average Maturity for each Claim
Group, the Weighted Average Tranche Rate for each Claim Group, the present value
of the Purchased Claims, the Present Value of the Purchased Claims, the
Delinquency Ratio and the aggregate Maturity Value of all of the Purchased
Claims, together, in each case, with the calculations thereof.
(vii) within 20 days after the end of each month, a report prepared by
the Claims Servicer listing each Purchased Claim identified by number and
indicating for each Purchased Claim (i) the Purchase Price thereof, the Maturity
Value thereof, and the outstanding Maturity Value thereof; and (ii) whether the
Claim is a settled Claim or judgment Claim, accompanied by certification by the
Claims Servicer that all calculations with respect to the Purchased Claims are
correct and that the Claims Servicer is in compliance with all provisions of the
Servicing Agreement and the processing manual then in use by the Claims
Servicer;
(viii) to the extent requested by the Agent, copies of all notices sent
by the Claims Servicer to the Borrower with respect to the Purchased Claims;
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(ix) within 120 days after the close of the fiscal year of the Claims
Servicer, a copy of the Claims Servicer's annual report as sent to its
shareholders;
(x) no less than weekly, on the first Wednesday following the end of
each calendar week (to the extent not delivered earlier in any such week in
accordance with this clause), and with each Loan Request, a fully completed
Borrowing Base Certificate;
(xi) promptly upon request, such other information regarding the
operations, business affairs and financial condition of the Borrower as the
Agent or the Banks may, from time to time, reasonably request upon reasonably
adequate notice, including without limitation budgets and forecasts;
(xii) (x) within 30 days after any extension, renewal or replacement
thereof, a copy of an insurance certificate evidencing the effectiveness of a
fidelity bond (or other similar insurance) covering the Claims Servicer and (y)
as soon as practicable thereafter, descriptions of any material changes to any
of the insurance policies maintained by the Borrower or the Claims Servicer of
the type described in Section 7.1(i).
All balance sheets, statements and other information furnished pursuant hereto
shall be prepared in accordance with GAAP and fairly set forth the financial
condition of the Borrower and the results of Borrower's operations. The Banks
shall have the right, from time to time, to discuss the Borrower's affairs
directly with the Borrower's independent certified public accountants after
reasonable notice to the Borrower; provided, that the Borrower shall have the
right to be present at any such discussions.
(b) Net Worth. Have at all times a Net Worth at least equal to the
greater of (x) $1,000,000 and (y) the product of (1) 2% and (2) the difference
of (A) the aggregate present value at such time of all of the Purchased Claims,
minus (B) the present value of all Defaulted Claims, in each case, discounted at
the Applicable Discount Rate as in effect at such time with respect thereto.
(c) Existence and Rights; Compliance with Laws. Preserve and keep in
full force and effect its limited partnership existence, rights, permits,
patents, franchises, licenses, trademarks and trade names and obtain and
preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement and comply in all material
respects with any and all Laws which may at any time be applicable to it.
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(d) Books and Records. Maintain proper and complete financial and
accounting books and records in which shall be set forth accurately and in
accordance with GAAP, all of its dealings and transactions.
(e) Taxes. Pay when due all taxes, assessments, charges and levies
imposed upon it or any of its respective properties or which it is required to
withhold and pay over, and provide evidence of such payment to the Agent if
requested, except where such taxes, assessments or charges shall be contested in
good faith by appropriate proceedings and where adequate reserves therefor have
been set aside on its books, provided that Borrower shall pay or cause to be
paid all such taxes, assessments, charges, and levies in excess, individually or
in the aggregate, in excess of $50,000 or if any Lien is or is reasonably likely
to be filed with respect thereto against the assets of the Borrower. Within ten
days of a Bank's request therefor, Borrower will furnish the Banks with copies
of federal income tax returns filed by the Borrower.
(f) Maintenance of Properties. Maintain all of its tangible property
(except for obsolete property not yet disposed of) in good repair, working order
and condition and, from time to time, make all appropriate and proper repairs,
renewals, replacements, additions and improvements thereto.
(g) Performance and Compliance with Material Agreements. Perform and
comply with each of the provisions of all material agreements of the kind
described in Section 5.1(j) to which it is a party.
(h) [Intentionally Omitted].
(i) Insurance. Carry at all times, in coverage, form and amount
satisfactory to the Agent insurance as is customarily maintained by companies in
the same or similar businesses as the Borrower, as well as coverage against
employee dishonesty, and pay all premiums on the policies for such insurance
when and as they become due and do all other things necessary to maintain such
policies in full force and effect. Notwithstanding the foregoing, the amount of
property insurance for Borrower's property and equipment shall in no event be
required to exceed the aggregate of the amount of the Commitments. The Borrower
shall from time to time if requested by the Agent, promptly furnish or cause to
be furnished to the Agent evidence in form and substance satisfactory to the
Agent, of the maintenance of all insurance required to be maintained by this
Section 7.1(i) including, but not limited to, such originals or copies as the
Agent may request of policies, certificates of insurance, riders and
endorsements relating to the casualty, property and fidelity policies of the
Borrower and proof of premium payments. The Borrower shall cause all casualty,
property and fidelity policies of the Borrower to provide, and the insurers
issuing such
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policies to certify to the Agent and the Banks, that (a) such policies contain
endorsements that name the Agent and the Banks as additional insured and the
Agent as lender loss payee as their interests may appear, with the understanding
that any obligation imposed upon the insured (including, without limitation, the
liability to pay premiums) shall be the sole obligation of the Borrower and not
that of the insured, (b) the interest of the Agent shall be insured regardless
of any breach or violation by the Borrower or the holder or owner of the
policies of any warranties, declarations and conditions contained in such
policies, (c) if such insurance be proposed to be canceled or materially changed
for any reason whatsoever, such insurer will promptly notify the Agent thereof
and such cancellation or change shall not be effective as to the Agent for sixty
days after receipt by the Agent of such notice, unless the effect of such change
is to extend or increase coverage under the policy; (d) the Agent will have the
right at its election to remedy any Default in the payment of premiums within
thirty days of notice from the insurer of such default; (e) loss payments in
each instance will be payable to the Agent as secured party, or otherwise as its
interest may appear; (f) such policies are primary without right of contribution
of any other insurance carried by or on behalf of any additional insured with
respect to their respective interests in the Collateral; and (g) inasmuch as the
policy covers more than one insured, all terms, conditions, insuring agreements
and endorsements (except limits of liability) shall operate as if there were a
separate policy covering each insured.
(j) Inspection. Allow any representative of the Agent or a Bank to
review at any time all Claims Packages in the possession of the Borrower or the
Claims Servicer, to visit and inspect any of the properties of the Borrower, to
examine the books of account and other records and files of the Borrower, to
make copies thereof and to discuss the affairs in business, finances and
accounts of the Borrower with its officers and executive employees, all at such
reasonable times, upon reasonable notice and as often as the Agent or any Bank
may request; provided, that such inspections shall not interfere with the
reasonable conduct of the Borrower's business; and provided, further, that Banks
individually may not perform field audits of the Borrower unless a Potential
Default has occurred and is continuing, but a representative of any Bank may
accompany the Agent on any field audit. The Agent's inspections are solely for
the protection of the Banks and no action or inaction of the Agent or the Banks
shall constitute any representation by the Agent or the Banks that the Borrower
is in compliance with the terms of this Agreement or that the Agent or the Banks
approve of the Borrowers affairs, business, finances or accounts.
(k) Litigation. Give prompt notice to the Agent of all litigation or
proceedings affecting it which, if adversely determined, could have a Material
Adverse Effect or in which
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damages exceeding $100,000 (if such damages would be covered by insurance) or
$50,000 (if such damages would not be covered by insurance) are claimed (whether
or not the claim is considered to be covered by insurance).
(l) Notice of Defaults. Within one Business Day after becoming aware
thereof, notify the Agent promptly of the occurrence of any Event of Default or
Potential Default hereunder, which notice shall describe such event and the
actions which the Borrower intends to take with respect thereto.
(m) Change of Business Location; Change of Lock-Boxes, Lock-Box
Accounts or Lock-Box Banks. (i) Notify the Agent at least thirty (30) days in
advance of (x) any change in the location of its principal place of business,
(y) the establishment of any new, or the discontinuance of any existing, place
of business, or (z) any change to its name or of the use any tradenames,
fictitious names, assumed names or "doing business as" names, and, in each case,
execute, deliver, file (and pay filing fees and taxes) all such documents as may
be necessary or advisable in the opinion of the Agent and the Agents legal
counsel to continue to perfect and protect the Liens of the Agent in the
Collateral (including, without limitation, UCC financing statements).
Notwithstanding anything contained herein to contrary, the Borrower may not move
its principal place of business to a location outside of the United States of
America.
(ii) Notify the Agent at least thirty (30) days in advance of
terminating any Lock-Box, Lock-Box Account or Lock-Box Bank, and provide for
such termination and handling procedures for Collections previously directed to
be sent thereto as shall be acceptable to the Agent in its commercially
reasonable judgment. Notify the Agent at least ten (10) days in advance of
adding any new lock-box, bank account or bank as a new Lock-Box, Lock-Box
Account or Lock-Box Bank and, prior to directing any Obligors to remit
Collections thereto, deliver a fully-executed Lock-Box Agreement with respect to
any such new Lock-Box, Lock-Box Account or Lock-Box Bank, as applicable, to the
Agent.
(iii) Agrees that from time to time, at its expense, it will promptly
execute and deliver all further instruments and documents, and take all further
action that the Agent or any Bank may reasonably request in order to perfect,
protect or more fully evidence the Agent's interest in the Purchased Claims, or
to enable the Agent or any of the Banks to exercise or enforce any of its rights
hereunder. Without limiting the generality of the foregoing, the Borrower will
upon the request of the Lender, execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such other
instruments or notices, as may be necessary or appropriate or as the Agent may
reasonably request. The Borrower hereby authorizes the Lender to file one or
more financing or continuation statements, and amendments thereto and
assignments
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thereof, relative to all or any of the Purchased Claims and the other Collateral
now existing or hereafter arising without the signature of the Borrower where
permitted by law.
(n) ERISA. Comply and cause each member of the ERISA Group to comply
with ERISA, the Internal Revenue Code and other applicable Laws applicable to
all Welfare Plans, except where such failure, alone or in conjunction with any
other failure, would not have a Material Adverse Effect and would not result in
any Lien on any of the Collateral. Without limiting the generality of the
foregoing, the Borrower shall make, and/or shall cause the other members of the
ERISA Group to make, all required contributions to each of the Welfare Plans.
(o) Notices Regarding Plans and Benefit Arrangements. The Borrower will
furnish or cause to be furnished to the Agent and each of the Banks:
(1) Promptly upon becoming aware of the occurrence thereof, notice
(including the nature of the event and, when known, any action taken or
threatened by any Governmental Authority with respect thereto) of:
(i) any Prohibited Transaction which could subject the Borrower or any
member of the ERISA Group to a civil penalty assessed pursuant to Section
502(i) of ERISA or a tax imposed by Section 4975 of the Internal Revenue
Code in connection with any Welfare Plan; and
(ii) increases in the benefits of any Existing Welfare Plan.
(2) At least 30 days prior to the commencement of contributions to any
employee benefit plan to which the Borrower or any other member of the ERISA
Group was not previously contributing; provided, however, that the Borrower
shall not, and shall not permit any other member of the ERISA Group to, agree to
become obligated to make contributions to any such new employee benefit plan
without the prior written consent of the Agent; it being agreed that such
consent may be withheld unless and until this Agreement is amended to include
such provisions with respect to such new plan as the Agent reasonably deems
necessary or desirable.
(3) If requested by the Agent, promptly after receipt thereof, copies
of each annual report (IRS Form 5500 Series) and all accompanying schedules, the
most recent financial information concerning the financial status of each
Welfare Plan administered or maintained by the Borrower or any member of the
ERISA Group, and schedules showing the amounts contributed to each such Welfare
Plan by or on behalf of the Borrower or any member of the ERISA Group in which
any of their personnel participate or from which such personnel may derive a
benefit.
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(p) Maintain Separateness From Affiliates. The Borrower shall engage in
only (1) the acquisition, ownership, selling and pledging of Purchased Assets
and (2) the exercise of any powers permitted to corporations under the corporate
law of the Commonwealth of Pennsylvania which are incidental to the foregoing or
necessary, suitable or convenient to accomplish the foregoing, and the Borrower
shall incur no Indebtedness other than trade payables in connection with its
operations in the normal course of business as set forth above; the Borrower
will (A) maintain its books and records separate from the books and records of
any other entity, (B) maintain separate bank accounts from, and no funds of the
Borrower shall be commingled with funds of, any other entity, (C) conduct all of
its business solely in its own name, and (D) only enter into transactions with
Affiliates that are in writing and are on terms substantially no less favorable
than it could obtain in a similar arm's-length transaction with an unaffiliated
third party.
(q) Accounting Systems. Maintain a financial accounting system reviewed
by Coopers & Xxxxxxx or such other independent certified public accountants
acceptable to the Agent and the Required Banks and determined (to the extent
that the procedures contained in such system are complied with) to be adequate
to generate timely, accurate and complete financial records of the Borrower.
(r) Payment of Obligations; Payments Under Management Agreement. Shall
pay all Permitted Indebtedness when due in accordance with the terms thereof;
provided, however, that unless an Event of Default or Potential Default is then
continuing or would result therefrom, the Borrower shall be permitted to prepay
any such obligations owing to any Person other than an Affiliate. Except to the
extent any Event of Default or Potential Default under Section 9.1(a) shall have
then occurred and be continuing or the covenant set forth in Section 7.1(b)
would no longer be true, the Borrower shall be permitted to make payments under,
and in accordance with the terms of, the Management Agreement.
(s) Post-Closing Deliveries. Deliver to the Agent, in form and
substance satisfactory to it and in sufficient number of copies for the Agent
and each of the Banks:
(i) within 45 days after the Closing Date, lenders' loss payable
endorsement executed by the applicable insurance carrier with respect to
each of the insurance policies described in Schedule 5.1(y) covering the
items described in subclauses (a)-(g) of Section 7.1(i), within 45 days
after the Closing Date;
(ii) within 30 days after the Closing Date, a copy of the Good Standing
Certificate for the General Partner from the Secretary of State of New
Jersey evidencing that the
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General Partner has filed its annual report with the Secretary of State of
New Jersey;
(iii) within 30 days after the Closing Date, evidence of the
appointment by each of the Guarantors, the Borrower and the General Partner
of The Prentice Hall Corporation System, Inc., as each such Person's agent
for the service of process within the State of New York; and
(iv) within 30 days after the provision of a draft thereof by the
Agent, a substitute agreement to serve as the Servicing Agreement as among
the Borrower, the Claims Servicer and the Agent, for the benefit of the
Banks.
7.2 Affirmative Covenants of the General Partner. So long as this
Agreement remains in effect or any of the Obligations of the Borrower remains
outstanding, the General Partner hereby covenants to engage in only (1) the
ownership of the general partnership interests of the Borrower and (2) in its
capacity as the sole general partner of the Borrower, the management of the
Borrower; the General Partner will (A) maintain its books and records separate
from the books and records of any other entity, (B) maintain separate bank
accounts from, and no funds of the General Partner shall be commingled with
funds of, any other entity, and (C) conduct all of its affairs solely in its own
name. The General Partner shall maintain its corporate existence in the
Commonwealth of Pennsylvania and preserve its qualification to do business as a
foreign entity in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement and
comply in all material respects with any and all Laws which may at any time be
applicable to it.
ARTICLE 8. NEGATIVE COVENANTS
8.1 Negative Covenants of the Borrower. So long as this Agreement
remains in effect or any of the Obligations of the Borrower remains outstanding,
the Borrower shall not:
(a) Dissolution and Merger. Wind-up, liquidate or dissolve its affairs,
convey, sell, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its properties or assets
(whether now owned or hereafter acquired), or enter into any transaction of
merger or consolidation.
(b) Other Borrowing and Liens. Incur, create, assume or permit to exist
any Indebtedness (either conventionally or by sale/leaseback), or any Lien on
any of its properties or assets, whether now owned or hereafter acquired, other
than Permitted Indebtedness and Permitted Liens.
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(c) Guarantees. Become liable, directly or indirectly, in respect of
any Guaranty, or assume, guarantee, endorse or otherwise in any way become
liable on the obligation of any other person, directly or indirectly, other than
to or for the benefit of the Agent, for the ratable benefit of the Banks, except
endorsements of negotiable instruments for deposit or collection in the usual
course of business.
(d) Loans and Investments. Make any loans or extension of credit or
purchase or otherwise acquire the capital stock, equity interest, assets or
obligations of, or any other interest in, any Person or entity.
(e) Distributions. Return any capital to the General Partner or any
limited partner or authorize or make any distribution, payment or delivery of
property or cash to the General Partner or any limited partner or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any of its general or limited partnership interests now or
hereafter outstanding or set aside any funds for any of the foregoing purposes;
provided, however, that so long as no Event of Default or Potential Default then
exists or would result therefrom and to the extent authorized by all appropriate
partnership action and not violative of the Partnership Agreement or any
applicable law, the Borrower, no more frequently than once a calendar month, may
make distributions of income to the General Partner and limited partners in
accordance with the Partnership Agreement.
(f) Disposal of Assets; Modification of Purchased Claims. Sell, lease,
transfer or otherwise dispose of any part or any amount of its assets, real or
personal, including any accounts, contracts or contract rights, other than any
obsolete or unusable property for the fair market value thereof. Extend the
Scheduled Maturity Date of, agree to adjust, compromise, modify, or otherwise
reduce the Maturity Value or Settlement Amount of, or agree to or grant any
waiver or amendment with respect to, any Purchased Claim.
(g) Change of Business or Capital Structure. Change the nature of its
business or enter into a new business or change the legal form of its business
or make any change in the capital structure thereof.
(h) Leases and Leaseback. Enter into any new agreement to rent or lease
any real or personal property, except for any operating leases entered into in
the ordinary course of the Borrower's business and not having aggregate lease
payments, when combined with all other such lease payments required to be made
by the Borrower, of not more than $100,000 in any calendar year.
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(i) [Intentionally Omitted].
(j) Amendment of Partnership Agreement, the Servicing Agreement or the
Management Agreement. Amend, restate, supplement, terminate or otherwise modify
the Partnership Agreement, the Servicing Agreement, or the Management Agreement,
in any respect or permit any of the foregoing to occur, in each case, without
the prior written consent of the Agent.
(k) Purchase of Other Types of Claims. Purchase any claims against the
JUA other than Residual Bodily Injury Claims.
(l) Bankruptcy Proceedings. (1) Commence any case, proceeding or other
action under any existing or future bankruptcy, insolvency or similar law
seeking to have an order for relief entered with respect to itself, or seeking
reorganization, arrangement, adjustment, wind-up, liquidation, dissolution,
composition or other relief with respect to itself or its debts, (2) seek
appointment of a receiver, trustee, custodian or other similar official for
itself or any part of its assets, (3) make a general assignment for the benefit
of creditors, (4) take any action in furtherance of, or consenting to or
acquiescing in, any of the foregoing, (5) initiate or support the filing of a
motion in any bankruptcy or other insolvency proceedings involving the General
Partner or any of its Affiliates to substantively consolidate itself with any
such Person.
(m) Portfolio Purchases. The Borrower shall not purchase any Claims
from any seller (other than the applicable Plaintiff (or the estate thereof) or
the applicable Plaintiff's Attorney with respect thereto) unless and until the
Borrower has reviewed and approved the assignment and documentation procedures
in respect of such seller's purchase of such Claims as being sufficient to vest
good and marketable title of such Claims in such seller upon it purchase
thereof.
(n) Deposits in Lock-Box or Lock-Box Accounts. No proceeds of any
Collateral shall at any time be deposited in any of the Borrower's bank accounts
other than the Lock-Box Account. The Borrower shall not direct any Obligor to
make any payments of any Claims to any other destination other than a Lock-Box
or a Lock-Box Account. The Borrower shall not permit the assets of any Person
(other than the Borrower) to be deposited into any of the Lock-Boxes or the
Lock-Box Accounts.
(o) Minimum Purchase Price. The Borrower shall not purchase any Claim
for a Purchase Price discount of less than (i) one minus (ii)(a) the Base Rate
at such time plus 2.50% per annum.
8.2 Negative Covenants of the General Partner. So long as this
Agreement remains in effect or any of the
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Obligations of the Borrower remains outstanding, the General Partner shall not:
(a) Permit Non-Compliance by the Borrower. Take, or permit the Borrower
to take, any action which would cause the representations, warranties or
covenants hereunder to be breached in any material respect or which is otherwise
inconsistent with the terms of this Agreement.
(b) Dissolution and Merger. Wind-up, liquidate or dissolve its affairs,
convey, sell, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its properties or assets
(whether now owned or hereafter acquired), or enter into any transaction of
merger or consolidation.
(c) Other Borrowing and Liens. Incur, create, assume or permit to exist
any Indebtedness (either conventionally or by sale/leaseback), or any Lien on
any of its properties or assets, whether now owned or hereafter acquired.
(d) Guarantees. Become liable, directly or indirectly, in respect of
any Guaranty, or assume, guarantee, endorse or otherwise in any way become
liable on the obligation of any other Person (other than the Borrower), directly
or indirectly.
(e) Loans and Investments. Make any loans or extension of credit or
purchase or otherwise acquire the capital stock, equity interest, assets or
obligations of, or any other interest in, any Person or entity, other than the
Borrower.
(f) Change of Business or Capital Structure. Engage in any business
other than the ownership of the general partnership of the Borrower and the
duties in connection therewith or change the legal form of its business or make
any change in the capital structure thereof.
(g) Bankruptcy Proceedings. (1) Commence any case, proceeding or other
action under any existing or future bankruptcy, insolvency or similar law
seeking to have an order for relief entered with respect to the General Partner
or the Borrower, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to the
General Partner, the Borrower or the respective debts of either of the
foregoing, (2) seek appointment of a receiver, trustee, custodian or other
similar official for the General Partner or the Borrower or any part of the
respective assets of either of the foregoing, (3) make, on behalf of the General
Partner or the Borrower, a general assignment for the benefit of creditors, (4)
take any action in furtherance of, or consenting to or acquiescing in, any of
the foregoing, (5) initiate or support the filing of a motion in any bankruptcy
or
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other insolvency proceedings involving the General Partner, the Borrower or any
of its Affiliates to substantively consolidate the General Partner or the
Borrower, as applicable, with any such Person.
ARTICLE 9. DEFAULTS AND REMEDIES
9.1 Events of Default. Each of the following is an event of default
("Event of Default") hereunder and under the Notes:
(a) The Borrower fails to pay when due, whether on demand, after
acceleration or otherwise, (i) any principal of the Loans, or (ii) any other
Obligation owed to the Banks or the Agent hereunder (other than as described in
the immediately preceding subclause (a)(i)), and, in the case of any such
failure to make any payment of the type described in this subclause (a)(ii),
such failure shall continue unremedied for five (5) days after the date upon
which such payment became due and payable.
(b) (i) the Borrower shall fail to comply with the covenant set forth
in Section 7.1(b), and such failure shall continue unremedied for 10 days after
the Borrower became aware, or should have become aware, thereof, or (ii) the
Borrower or the General Partner fails to comply with or perform as and when
required or to observe any of the terms, conditions or covenants of this
Agreement, the Notes or any other Loan Document (other than as described in the
immediately preceding clauses (a) or (b)(i)) to which such Person is party and
which is to be complied with, performed or observed by such Person, and such
failure shall continue unremedied for a period of 25 days after the giving of
notice of any such failure by the Agent or any Bank to an officer or agent of
the Borrower or the General Partner, as the case may be (such grace period to be
applicable only in the event such default can be remedied by corrective action
by Borrower or the General Partner, as the case may be, as determined by the
Agent in its sole discretion).
(c) Any financial statement or any representation or warranty of
Borrower, the General Partner, or a Guarantor made herein or in any report,
certificate or other document furnished in connection with this Agreement or any
of the other Loan Documents proves to be false or misleading in any material
adverse respect when made.
(d) Any Indebtedness of the Borrower or the General Partner is declared
to be due and payable prior to its stated maturity or is not paid or discharged
when due or within any permitted grace period after such due date; or there
shall occur any event which constitutes, or which with the giving of notice or
the passage of time, or both, would constitute an event of default under any
instrument, agreement or evidence of Indebtedness of the Borrower or the General
Partner, the
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occurrence of which would permit the holder of such Indebtedness to accelerate
the maturity thereof.
(e) The occurrence of a Material Adverse Change.
(f) (i) The Borrower, the General Partner, or any of the Ultimate
Obligors shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted against such Person (an "Involuntary Proceeding") or by such Person,
in either case, seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property, and in the case of
an Involuntary Proceeding, such proceeding shall remain unstayed or unvacated
for 30 days or any relief sought thereunder shall be granted; or (ii) the
Borrower, the General Partner, or any of the Ultimate Obligors shall take any
action authorizing any of the actions set forth in clause (i) above in this
Section 9.1(f); or
(g) Any final judgment, decree or order for payment of money in excess
of $100,000 (whether or not covered by insurance) is entered against Borrower or
the General Partner and the same remains unsatisfied for more than 30 days,
unless the same has been appealed and a stay of the enforcement thereof has been
obtained.
(h) Any attachment or execution process is issued against all or any
substantial part of the assets of the Borrower or the General Partner.
(i) The suspension by Borrower of all or any substantial part of its
business operations.
(j) Any Governmental Authority seizes, appropriates, condemns or
occupies all or a substantial part of the properties of Borrower or the General
Partner.
(k) The Agent shall cease to have a valid and perfected first priority
security interest in any Purchased Claims and the Collections with respect
thereto.
(l) The FAIRA or the GDP Act shall be repealed, or there shall occur
any amendment, modification, interpretation of or regulation issued with respect
to, or modification in or termination of the appropriations level of the FAIRA
or the New Jersey Automobile Guaranty Fund established thereunder, which in
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the sole judgment of the Agent or the Required Banks, has or is likely to have a
Material Adverse Effect.
(m) Any Law is adopted, changed or interpreted and the effect of such
adoption, change or interpretation is to repeal, eliminate or materially
adversely affect the value or collectibility of the Purchased Claims, including,
without limitation, any such Law permitting the deferral of the payment of any
pre-existing Purchased Claims from the original Scheduled Maturity Date therefor
to a later date.
(n) Any Law, policy or practice (whether or not having the force of
Law) is adopted permitting the Obligor of any Purchased Claim to adjust, reduce,
compromise, settle or otherwise modify (including by extension of time of
payment or the granting of any discounts, allowances or credits) the Settlement
Amounts of any Purchased Claim or the related interest rate payable with respect
thereto.
(o) The Guarantors shall cease to own collectively 99% of the limited
partnership interests in Borrower and 100% of the capital stock of the General
Partner.
(p) The General Partner shall cease to be the sole general partner of
Borrower.
(q) The Claim Servicer shall fail to comply with or perform as and when
required or to observe any of the terms, conditions or covenants of the
Servicing Agreement and such failure shall continue unremedied for a period of 3
Business Days after the giving of notice of any such failure by the Agent or any
Bank to an officer or agent of the Claims Servicer (such grace period to be
applicable only in the event such default can be remedied by corrective action
by the Claim Servicer, as the case may be, as determined by the Agent in its
sole discretion).
(r) Any Guarantor (or any receiver, debtor-in-possession, or trustee
of or for such Guarantor) shall make any assertion or commence any action
challenging the enforceability of the Guaranty to which it is a party or
contesting liability thereunder.
(s) Either the Borrower or the General Partner shall become, or become
controlled by, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(t) The Delinquency Ratio for any month shall equal or exceed eight
percent (8%).
9.2 Remedies.
(a) Upon the occurrence of any Event of Default other than as described
in Section 9.1(f) or 9.1(s), or at any time
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thereafter during the continuation of that Event of Default, the Agent (on its
own or at the direction of the Required Banks) may, if the Commitment
Termination Date hereunder has not theretofore occurred, declare the Commitment
Termination Date to have occurred and declare the Commitments of the Banks to be
terminated, whereupon the same shall forthwith terminate.
(b) Automatic Termination. Immediately upon the occurrence of an Event
of Default described in Section 9.1(f) or 9.1(s), (i) the Commitment Termination
Date and the Facility Termination Date shall be deemed to have occurred
automatically and (ii) all of the Loans then outstanding, all interest thereon
and all other outstanding Obligations owed by the Borrower to the Agent and the
Banks hereunder shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower notwithstanding anything contained herein to
the contrary.
(c) Additional Remedies. Upon the occurrence and during the
continuation of an Event of Default, the Agent and the Banks shall have, in
addition to all other rights and remedies under this Agreement and the other
Facility Documents, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall be
cumulative and non-exclusive, to the extent permitted by Law. The Agent may, and
upon the request of the Required Banks shall, exercise all post-default rights
granted to the Agent and the Banks under the Loan Documents or applicable Law.
9.3 Notice of Sale. Any notice required to be given by the Agent of a
sale, lease or other disposition of the Collateral or any other intended action
by the Agent, if given ten (10) days prior to such proposed action, shall
constitute commercially reasonable and fair notice thereof to the Borrower.
ARTICLE 10. THE AGENT
10.1 Appointment. Each of the Banks hereby irrevocably designates,
appoints and authorizes ING to act as Agent for such Bank under this Agreement
to execute and deliver or accept on behalf of each such Bank the other Loan
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of a Note shall be deemed irrevocably to authorize, the Agent
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and any other instruments, documents and/or agreements
referred to herein, and to exercise such powers and to perform such duties
hereunder as are specifically delegated to or required of the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. ING
agrees to act as the Agent on behalf of the Banks to the extent provided in this
Agreement. The appointment and authority of the Agent hereunder shall
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termination on the date upon which the Obligations shall have been fully and
indefeasibly paid in cash.
10.2 UCC Filings. The Banks, the Borrower and the General Partner each
hereby expressly recognizes and agrees that the Agent may be listed as the
assignee or secured party of record on the various UCC filings required to be
made hereunder and under the other Loan Documents in order to perfect the
interests of the Agent and the Banks in the Collateral, that such listing shall
be for administrative convenience only in creating a record or nominee secured
party to take certain actions hereunder and under the other Loan Documents on
behalf of the Banks and that such listing will not affect in any way the status
of the Banks as the secured parties with respect to the Collateral. In addition,
such listings shall impose no duties on the Agent other than those expressly and
specifically undertaken by it in accordance with this Article 10. In furtherance
of the foregoing, each Bank shall be entitled to enforce its rights created
under this Agreement and the other Loan Documents without the need to conduct
such enforcement through the Agent, except as specifically required hereunder or
under any of the other Loan Documents.
10.3 Delegation of Duties. The Agent may perform any of its duties
hereunder or under any of the other Loan Documents by or through agents or
employees (provided such delegation does not constitute a relinquishment of its
duties as Agent) and, subject to Sections 10.6 and 10.7 hereof, shall be
entitled to engage and pay for the advice or services of any attorneys,
accountants or other experts concerning all matters pertaining to its duties
hereunder and to rely upon any advice so obtained. The Agent shall not be liable
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
10.4 Nature of Duties, Independent Credit Investigation. The Agent
shall have no duties or responsibilities hereunder or under the other Loan
Documents, except those expressly set forth herein and therein and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any such other Loan Document or be deemed to
otherwise exist. The duties of the Agent shall be mechanical and administrative
in nature; the Agent shall not have by reason of this Agreement a fiduciary or
trust relationship in respect of any Bank, the Borrower, the General Partner or
any Guarantor; and nothing in this Agreement, expressed or implied, is intended
to or shall be so construed as to impose upon the Agent any obligations in
respect of this Agreement except as expressly set forth herein. Each of the
Banks expressly acknowledges (a) that the Agent has not made any representations
or warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrower, the General Partner or the Guarantors,
shall be deemed to constitute any representation or warranty by the Agent
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to any Bank; (b) that it has made and will continue to make, without reliance
upon the Agent, its own independent investigation of the financial condition and
affairs and its own appraisal of the creditworthiness of Borrower, the General
Partner and the Guarantors in connection with this Agreement and the making and
continuance of the Loans hereunder; and (c) except as expressly provided herein,
that the Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect thereto, whether coming into its possession before the making of any
Loan or at any time or times thereafter.
10.5 Actions in Discretion of Agent; Instructions from the Banks. The
Agent shall, upon the written request of the Required Banks, take or refrain
from taking any action of the type specified as being subject to direction by
the Required Banks and otherwise the Agent, in its sole discretion, shall take
or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein; provided that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement, any other Loan Document or applicable Law.
In the absence of a request by the Required Banks, the Agent shall have the
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
10.7.
10.6 Reimbursement and Indemnification of Agent by the Borrower. The
Borrower shall unconditionally pay or reimburse the Agent (and its agents and/or
nominees) and save the Agent (and such agents and/or nominees) harmless against:
(a) liability for the payment of all reasonable out-of-pocket costs,
expenses and disbursements, including, but not limited to, fees and expenses of
counsel, appraisers and environmental consultants, incurred by the Agent (or
such agents and/or nominees):
(i) in connection with the development, negotiation, preparation,
printing, execution, syndication, interpretation, performance and administration
of this Agreement and the other Loan Documents, including, without limitation,
all reasonable fees and expenses relating to the periodic auditing of the books
and records of the Borrower by the Agent (or its agents and/or nominees);
provided, however, that in no event shall the Borrower have any liability to pay
any such costs, fees or expenses relating to such periodic auditing of the
Borrower's books and records in excess of $7500 in any calendar year.
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(ii) relating to any requested amendments, waivers or consents
pursuant to the provisions hereof;
(iii) in connection with the enforcement of this Agreement or any
other Loan Document or collection of amounts due hereunder or thereunder or the
proof and allowability of any claim arising under this Agreement or any other
Loan Document, whether in bankruptcy or receivership proceedings or otherwise;
and
(iv) in any workout, restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings; and
(b) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
its capacity as such, or any of its directors, employees, officers or agents,
acting on its behalf in such capacity, in any way relating to or arising out of
this Agreement or any other Loan Documents or any action taken or omitted by the
Agent or such other foregoing Persons hereunder or thereunder; provided that
Borrower shall not be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements if the same results solely from the Agent's (or such director's,
employee's, officer's or agent's, as applicable) gross negligence or willful
misconduct as determined by a court of competent jurisdiction by final and
non-appealable judgment (or settlement tantamount to a final judgment).
10.7 Exculpatory Provisions.
(a) Neither the Agent nor any of its directors,
officers, employees, agents, attorneys or Affiliates shall:
(i) be liable to any Bank for any action taken or omitted to be
taken by it or them hereunder, or in connection herewith, including, without
limitation, pursuant to any Loan Document, unless caused by its or their own
gross negligence or willful misconduct, subject to the obligations of the Agent
under Section 10.1 of this Agreement;
(ii) be responsible in any manner to any of the Banks for the
effectiveness, enforceability, genuineness, validity or the due execution of
this Agreement or any other Loan Documents or for any recital, representation,
warranty, document, certificate, report or statement of the Borrower, the
General Partner, the Banks, any Guarantor or any Affiliate of any of the
foregoing, made herein or furnished under or in connection with
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this Agreement or any other Loan Documents or for any failure of the Borrower,
the General Partner, any Bank, any Guarantor or any Affiliate of any of the
foregoing to perform its respective obligations hereunder or under any of the
other Loan Documents;
(iii) be under any obligation to any of the Banks to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions hereof or thereof on the part of Borrower or the General Partner, or
the financial condition of Borrower, the General Partner or the Guarantors, or
the existence or possible existence of any Event of Default or Potential
Default, subject to the obligations of the Agent under Section 10.1 of this
Agreement; or
(iv) be under any duty or have any responsibility to the Banks to
inspect the properties, books or records of the Borrower, the General Partner,
any Guarantor or any Affiliate of any of the foregoing.
(b) Neither the Agent nor any Bank nor any of their respective
directors, officers, employees, agents, attorneys or Affiliates shall be liable
to the Borrower, the General Partner, any Guarantor or any Affiliate of any of
the foregoing and, in the case of the Agent, any Bank for consequential damages
resulting from any breach of contract, tort or other wrong in connection with
the negotiation, documentation, administration or collection of the Loans or any
of the Loan Documents, whether or not it knew or was made aware of the
possibility of the occurrence thereof.
10.8 Reimbursement and Indemnification of Agent by Banks. Each Bank
shall reimburse and indemnify the Agent and its directors, officers, employees
and agents (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so) in proportion to its Ratable Share from
and against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent,
in its capacity as such, or any such director, officer, employee or agent acting
on its behalf in such capacity, in any way relating to or arising out of this
Agreement or any other Loan Documents or any action taken or omitted by the
Agent (or any such director, officer, employee or agent, as applicable)
hereunder or thereunder; provided, that the Agent shall refund to the Banks any
amounts paid by the Banks pursuant to this Section 10.8 for which the Agent is
subsequently reimbursed by the Borrower; and provided, further, that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
if the same results from the Agent's (or such director's, officer's, employee's
or agent's, as applicable) gross negligence or willful misconduct.
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10.9 Reliance by Agent. The Agent shall be entitled to rely upon any
writing, telegram, telex or teletype message, resolution, notice, consent,
certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Agent. The Agent shall be fully justified in failing or refusing to take any
action hereunder unless 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.
10.10 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Potential Default or Event of
Default unless the Agent has received written notice from a Bank or the Borrower
referring to this Agreement, describing such Potential 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 take such action with respect
to such Event of Default or Potential Default as shall be directed by the
Required Banks; provided, that unless and until the Agent shall have received
such directions, the Agent may (but shall have no obligation to) take such
action, or refrain from taking such action, with respect to such Event of
Default or Potential Default as the Agent shall deem advisable and in the best
interest of the Banks.
10.11 Notices. The Agent shall send to each Bank a copy of all notices
received from Borrower pursuant to the provisions of this Agreement or the other
Loan Documents promptly upon receipt thereof.
10.12 The Agent in its Individual Capacity. With respect to its
Commitment and the Loans made by ING, ING shall have the same rights and, powers
hereunder as any other Bank and may exercise the same as though it were not the
Agent, and the term "Banks" shall, unless the context otherwise indicates,
include ING in its individual capacity. ING and its Affiliates and each of the
Banks and their respective Affiliates may, except as prohibited herein, make
Loans to, accept deposits from, discount drafts for, act as trustee under
indentures of, and generally engage in any kind of banking or trust business
with, the Borrower and its Affiliates as though, in the case of the Agent, it
were not acting as Agent hereunder, and in the case of each Bank, as though such
Bank were not a Bank hereunder.
10.13 Holders of Notes. The Agent may deem and treat any payee of any
Note as the owner thereof for all purposes hereof unless and until written
notice of the assignment or transfer thereof shall have been filed with the
Agent. Any request, authority or consent of any Person who at the time of
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making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
10.14 Sharing of Payments. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans made by it (other than pursuant to
Sections 2.3, Article 4, or Section 11.3) in excess of its Ratable Share of
payments on account of the Loans obtained by all the Banks, such Bank shall
forthwith (i) notify each of the other Banks of such receipt and (ii) purchase
from each of the other Banks participations in the Loans made by them as shall
be necessary to cause such purchasing Bank to share the excess payment ratably
with each such other Bank; provided, however, that, if all or any portion of
such excess payment is thereafter recovered from such purchasing Bank, such
purchase from each of the other Banks shall be rescinded and such Banks shall
repay to the purchasing Bank the purchase price of such purchased participations
to the extent of such recovery together with an amount equal to such other
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 10.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
10.15 Successor Agent. The Agent may resign as Agent upon not less than
ninety days' prior written notice to the Borrower and the Banks. If the Agent
shall resign under this Agreement, then either (a) the Required Banks shall
appoint from among the Banks a successor agent for the Banks, or (b) if a
successor agent shall not be so appointed and approved within the sixty day
period following the Agent's notice to the Banks of its resignation, then the
Agent shall appoint, with the consent of the Borrower, which consent shall not
be unreasonably withheld, a successor agent which shall serve as Agent until
such time as the Required Banks appoint a successor agent. Upon its appointment
pursuant to either clause (a) or (b) above, such successor agent shall succeed
to the rights, powers and duties of the Agent and the term "Agent" shall mean
such successor agent, effective upon its appointment, and the former Agent's
rights, powers and duties as 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. Notwithstanding such resignation, the provisions of this Article
10 shall continue to inure to the benefit of such former Agent.
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10.16 Calculations. In the absence of gross negligence or
willful misconduct, the Agent shall not be liable for any error in computing the
amount payable to any Bank whether in respect of the Loans, fees or any other
amounts due to the Banks under this Agreement. In the event an error in
computing any amount payable to any Bank is made, the sole recourse of any such
Bank shall be to collect the misallocated portion of any such payment from the
other Banks or the Borrower that received such misallocated payment, with, in
the case of any such amounts to be collected from the Borrower, interest thereon
to be calculated at the Base Rate Option.
10.17 Beneficiaries. Except with respect to Sections 10.6, 10.7 and
10.16, the provisions of this Article 10 are solely for the benefit of the Agent
and the Banks, and the Borrower shall have no rights to rely on or enforce 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 does not assume
and shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Borrower, the General Partner, any Guarantor or
any Affiliate of any of the foregoing.
10.18 The Agent May Perform. If the Borrower or the General Partner
fails to perform any agreement contained herein or in any of the other Loan
Documents, the Agent may itself perform, or cause the performance of, such
agreement, and the expenses of the Agent incurred in connection therewith shall
be deemed payable by the Borrower in accordance with Section 10.6. The Agent
shall use its best efforts to give the Borrower or the General Partner, as
applicable, notice of any such actions taken or caused to be taken by the Agent
within a reasonable time after its initiation thereof; provided, that neither
the Agent nor any of the Banks shall have any liability for the failure by the
Agent to provide such notice.
ARTICLE 11. MISCELLANEOUS
11.1 Modifications, Amendments or Waivers. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Banks, do any of the following: (a) waive any
of the conditions specified in Section 6.2, (b) increase the Commitments of the
Banks or the calculation of the Ratable Share of the Banks or subject the Banks
to any additional obligations, (c) reduce the principal of, or interest on, the
Loans or other amounts payable to the Banks hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Loans or any fee
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or other amounts payable hereunder or postpone or extend the Commitment
Termination Date or the Facility Termination Date, (e) change the aggregate
unpaid principal amount of the Loans, which shall be required for the Banks or
any of them to take any action hereunder, or (f) amend this Section 11.1; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Agent under this Agreement.
11.2 No Implied Waivers; Cumulative Remedies; Writing Required. No
course of dealing and no delay or failure of the Agent or any Bank in exercising
any right, power, remedy or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or operate as a
waiver thereof; nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy or
privilege preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11.3 Reimbursement and Indemnification of Banks by the Borrower.
(a) Except as expressly otherwise provided herein, the Borrower shall,
unconditionally upon demand, pay or reimburse to each Bank (other than the
Agent, as to which Borrower's obligations are set forth in Section 10.6) and
save such Bank harmless against liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements (including fees and expenses of
counsel for each Bank), incurred by such Bank:
(i) in connection with the administration and interpretation of this
Agreement, and other instruments and documents to be delivered hereunder;
(ii) relating to any amendments, waivers or consents pursuant to the
provisions hereof;
(iii) in connection with the enforcement of this Agreement or any other
Loan Document, or the collection of amounts due hereunder or thereunder or the
proof and allowability of any claim arising under this Agreement or any other
Loan Document, whether in bankruptcy or receivership proceedings or otherwise;
and
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(iv) in any workout, restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings;
provided, however, that except as the Borrower may otherwise agree, the Borrower
shall not be liable for any fees, costs or expenses incurred by any Bank or any
Permitted Assignee or proposed Permitted Assignee thereof (including, without
limitation, the fees and/or expenses of counsel) in connection with the
negotiation of any assignment or proposed assignment hereunder pursuant to
Section 11.11 or the preparation, negotiation, execution or delivery of an
Assignment and Assumption Agreement and/or any other instruments, documents
and/or agreements in connection therewith.
(b) The Borrower shall, unconditionally upon demand, pay or reimburse
to each Bank (other than the Agent, as to which Borrower's obligations are set
forth in Section 10.6), or any of its directors, officers, employees and agent
and save such Bank, directors, officers, employees and agents harmless against
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against such Bank, director, officer,
employee or agent in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or omitted by such Bank, director,
officer, employee or agent hereunder or thereunder, provided that Borrower shall
not be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the
same results solely from such Bank's, director's, officer's, employee's or
agent's gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and non-appealable judgment (or settlement
tantamount to a final judgment).
(c) The Banks will attempt to minimize the fees and expenses of legal
counsel and other professionals for the Banks which are subject to reimbursement
by the Borrower hereunder by considering the usage of one firm to represent the
Banks and the Agent if appropriate under the circumstances.
11.4 Payments Due on Non-Business Days. Whenever any payment or action
to be made or taken hereunder shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on the next
following Business Day (except as otherwise expressly provided in Section
3.2(a)), and such extension of time shall be included in computing interest or
fees, if any, in connection with such payment or action.
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11.5 Funding by Branch, Subsidiary or Affiliate. Each Bank shall have
the right from time to time to make or maintain any Loan by arranging for a
branch, subsidiary or Affiliate of such Bank to make or maintain such Loan
subject to the last sentence of this Section 11.5. If any Bank causes a branch,
subsidiary or Affiliate to make or maintain any part of the Loans hereunder, all
terms and conditions of this Agreement shall, except where the context clearly
requires otherwise, be applicable to such part of the Loans to the same extent
as if such Loans were made or maintained by such Bank but in no event shall any
Bank's use of such a branch, subsidiary or Affiliate to make or maintain any
part of the Loans hereunder cause such Bank or such branch, subsidiary or
Affiliate to incur any cost or expenses payable by the Borrower hereunder or
require the Borrower to pay any other compensation to any Bank (including,
without limitation, any expenses incurred or payable pursuant to Article 4)
which would otherwise not be incurred had such Loans not been made or maintained
through such branch, subsidiary or affiliate.
11.6 Notices. Except as otherwise expressly permitted hereunder, all
notices, requests, demands, directions and other communications (collectively
"notices") given to or made upon any party hereto under the provisions of this
Agreement shall be in writing (including telex or facsimile communication) and
shall be delivered or sent to the respective parties at the addresses and
numbers set forth under their respective names on the signature pages hereof (or
in the Assignment and Assumption Agreement pursuant to which such Person became
a party hereto) or to such other address or number as such party may from time
to time designate by written notice delivered to all of the other parties as set
forth in this Section. All notices shall, except as otherwise expressly herein
provided, be deemed delivered and effective (a) in the case of notice given by
telex or facsimile, when received, (b) in the case of hand-delivered notice,
when hand delivered, and (c) if given by national overnight courier service, the
next Business Day after such notice is deposited with such courier service;
provided, that notices to the Agent shall not be deemed effective until actually
received by the Agent. Any Bank giving any notice to the Borrower shall
simultaneously send a copy thereof to the Agent. Copies of all notices to
Borrower shall be sent to Xxxxxx X. Xxxxxxx, Esquire, Xxxxxxxxx Xxxxxxxxxxx
Xxxxxxx & Xxxxxxx, Xxx Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000,
Telecopier No.: 215/000-0000, Telephone No.: 215/000-0000; provided, that the
failure to send a copy of any notice to said counsel shall in no way affect,
limit or invalidate any notice sent to the Borrower or the exercise of any of
the Banks' or the Agent's rights or remedies pursuant to a notice to the
Borrower.
11.7 Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any
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jurisdiction such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
11.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW PROVISIONS) OF
THE STATE OF NEW YORK.
11.9 Prior Understanding. This Agreement supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments.
11.10 Duration; Survival. All representations and warranties of the
Borrower and the General Partner contained herein or made in connection herewith
shall survive the making of the Loans and shall not be waived by the execution
and delivery of this Agreement, any investigation by the Agent or the Banks, the
making of Loans, or payment in full of the Loans. All covenants and agreements
of Borrower and the General Partner contained in Articles 7 and 8 shall continue
in full force and effect from and after the date hereof so long as Borrower may
borrow hereunder and until termination of the Commitments and payment in full of
the Obligations in cash. Notwithstanding anything contained herein to the
contrary, all covenants and agreements of the Borrower contained herein relating
to the payment of principal, interest, premiums, additional compensation or
expenses and indemnification, including those set forth in the Notes, Section
2.3, Article 4, and Sections 10.6, 10.8, and 11.3 hereof, shall survive the
payment in full of the Obligations and the termination of this Agreement.
11.11 Successors and Assigns; Assignments.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Banks, the Agent, the Borrower, the General Partner and their respective
successors and permitted assigns; provided, however, that neither the Borrower
nor the General Partner may assign or transfer any of its rights and obligations
hereunder or any interest herein. Subject to the exceptions thereon set forth in
the immediately succeeding clause (b), (i) the Banks shall only be permitted to
only assign their respective rights and benefits hereunder to a Permitted
Assignee and (ii) ING shall not be permitted to make any such assignment
hereunder if, after giving effect thereto, the ratio of (x) its used and unused
Commitments at such time to (y) the Maximum Facility Amount at such time would
be less than 51%.
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(b) Notwithstanding anything contained in the immediately preceding
clause (a) or any other provision hereof or of any other Loan Document, upon the
occurrence and during the continuance of any Event of Default under Section
9.1(a) or Section 9.1(b)(i), each of the Banks shall be permitted to assign any
or all of its rights and remedies hereunder (including its Loans and
Commitments) to any other financial institution without the consent or approval
of the Borrower and, in the case of ING, without regard as to whether such
assignment would result in a violation of the restriction regarding its
maintenance of a 51% interest in the aggregate used and unused Commitments
hereunder as set forth in the immediately preceding clause (a), which
restriction shall be deemed to be inapplicable at any such time and at all times
thereafter to the extent such an assignment is made which so reduces the amount
of ING's used and unused Commitments to a level below such percentage.
(c) Each Bank may upon at least 10 days notice to the Agent, assign to
one or more Permitted Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment and the Loans owing to it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Bank's rights and obligations under this Agreement, (ii) the amount of
the Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Assumption Agreement
with respect to such assignment) shall in no event be less than the lesser of
(A) $5,000,000 and (B) the full amount of the assigning Bank's Commitment, (iii)
each such assignment shall be to a bank or other financial institution which is
not currently engaged in any lending or financing arrangement with a Competitor
and is otherwise acceptable to the Agent in its sole discretion, and (iv) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, a fully-executed Assignment and
Assumption Agreement, together with a processing and recordation fee of $2500.
Upon such execution, delivery, acceptance and recording by the Agent, from and
after the effective date specified in each Assignment and Assumption Agreement,
which effective date shall be at least five Business Days after the execution
thereof, (x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Assumption Agreement, have the rights and obligations of a Bank
hereunder and (y) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Assumption Agreement, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto). Concurrently with its acceptance of any such Assignment and
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Assumption Agreement, the Agent shall substitute a revised Schedule 1.1(a) to
this Agreement showing the current Commitments of each of the Banks after giving
effect to such assignment contemplated thereby.
(d) By executing and delivering an Assignment and Assumption Agreement,
the assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Assumption Agreement, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, the General Partner or any Guarantor or the performance or
observance by the Borrower, the General Partner or any Guarantor of any of its
respective obligations under this Agreement or any of the other Loan Documents;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of such financial statements and other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption Agreement; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Bank 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 decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(e) The Agent shall maintain at its address referred to in Section 11.6
a copy of each Assignment and Assumption Agreement delivered to and accepted by
it and a register for the recordation of the names and addresses of the Banks
and the Commitment of, and principal amount of the Loans owing to, each Bank
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
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(f) Subject to the provisions of Section 11.11(b), upon its receipt of
an Assignment and Assumption Agreement executed by an assigning Bank and an
assignee, the Agent shall, if such Assignment and Assumption Agreement has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) Notwithstanding anything contained herein to the contrary, except
as contemplated pursuant to Section 10.14, no Bank may sell participations in or
to any of its rights and obligations under this Agreement (including, without
limitation, any portion of its Commitment or the Loans owing to it) to any
Person.
(h) Each Bank may, in connection with any assignment or potential
assignment pursuant to this Section 11.11, disclose to the assignee or potential
assignee any information relating to the Borrower, the General Partner, the
Guarantors or any Affiliates of any of the foregoing which has been furnished to
such Bank by or on behalf of the Borrower, the General Partner, the Guarantors
or any such Affiliate; provided, such assignee or potential assignee agrees to
be bound by the provisions of Section 11.12 below.
(i) Nothing herein shall prohibit any Bank from pledging or assigning
as collateral any of its rights under this Agreement to any Federal Reserve Bank
in accordance with applicable law and any such pledge or collateral assignment
may be made without compliance with Section 11.11.
11.12 Confidentiality. The Agent and the Banks each shall keep
confidential all information obtained from the Borrower, the General Partner and
the Guarantors which is identified by such Person in writing as being nonpublic
and confidential or proprietary in nature, except as provided below, and shall
use such information only in connection with their respective capacities under
this Agreement and for the purposes contemplated hereby. The Agent and the Banks
shall be permitted to disclose such information (a) to outside legal counsel,
accountants and other professional advisors who need to know such information,
provided that such Persons agree to maintain the confidentiality thereof, (b)
Permitted Assignees or potential Permitted Assignees as contemplated by Section
11.11, (c) to the extent requested by any bank regulatory authority or as
otherwise required by applicable Law or by any subpoena or similar legal
process, or in connection with any investigation or proceeding, provided that
the Agent or such Bank providing such information shall notify the Borrower as
soon as practicable after providing such information, (d) to any other Person if
such information becomes publicly available other than as a result of a breach
of this Agreement or becomes available from a source not subject to
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confidentiality restrictions, or (e) for any other purpose to the extent that
the Borrower, the General Partner or the Guarantors, as applicable, shall have
consented to such disclosure.
11.13 Counterparts. This Agreement may be executed by different parties
hereto on any number of separate counterparts, each of which, when so executed
and delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.
11.14 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE; AGENT FOR
SERVICE OF PROCESS. (A) THE BORROWER, THE GENERAL PARTNER, THE AGENT AND THE
BANKS EACH HEREBY AGREES TO THE JURISDICTION OF ANY STATE COURT LOCATED IN NEW
YORK CITY OR ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK.
(B) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
(C) EACH OF THE BORROWER AND THE GENERAL PARTNER HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH PROCESS MAY BE
MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO IT AT ITS ADDRESS
REFERRED TO IN SECTION 11.6 OR, AT THE AGENT'S AND/OR THE BANKS' OPTION, BY
SERVICE UPON THE PRENTICE HALL CORPORATION SYSTEM, INC. AT 000 XXXXXX XXXXXX,
XXX XXXX, XXX XXXX 00000, WHICH EACH OF THE BORROWER AND GENERAL PARTNER HEREBY
APPOINT AS ITS REGISTERED AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS
ISSUED BY ANY COURT IN THE STATE OF NEW YORK.
11.15 WAIVER OF JURY TRIAL. THE BORROWER, THE GENERAL PARTNER, THE
AGENT AND THE BANKS EACH WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN
THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
11.16 Assignment and Security Interest. The Borrower hereby assigns,
and grants to each Bank a continuing lien upon and security interest in, any and
all of its moneys, securities and other property, and the proceeds thereof, now
or hereafter held or received by or in transit to such Bank, from or for it,
whether for safekeeping, custody, pledge, transmission, collection or otherwise,
and also upon any and all of its deposits (general or special) and credits with,
and any and all of its claims against such Bank at any time existing including,
without limitation, any balance or share of any demand, time,
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savings, passbook, trust, agency, escrow or like account, as collateral security
for all present and future Obligations of the Borrower to the Banks, whether now
existing or hereafter arising.
11.17 Lending to Competitors. Each Bank, upon becoming a party
hereto, hereby agrees not to enter into any lending or financing arrangement
with any Person (a "Competitor") engaged in the purchase of Claims in direct
competition with the Borrower.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first above
written.
X. X. XXXXXXXXX MFC
ASSOCIATES, L.P.
By: X. X. XXXXXXXXX FUNDING CORP.,
Its sole General Partner
Attest:_________________ By:________________________________
Xxxxxx X. Xxxxxxx Xxxx Xxxxxxx
Assistant Secretary Chairman and Secretary
Address for Notices:
Centre Square West
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxx
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
X. X. XXXXXXXXX FUNDING CORP.
Attest:_________________ By:________________________________
Xxxxxx X. Xxxxxxx Xxxx Xxxxxxx
Assistant Secretary Chairman and Secretary
Address for Notices:
Centre Square West
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxx
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
-00-
XXXXXXXXXXXXXX XXXXXXXXXXX (X.X.)
CAPITAL MARKETS, INC., as Agent
By:________________________________
Xxxxxx Xxxx
Assistant General Counsel
Address for Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset-Backed Finance
Xxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
BANKS:
INTERNATIONALE NEDERLANDEN (US)
CAPITAL MARKETS, INC.
By:________________________________
Xxxxxx Xxxx
Assistant General Counsel
Address for Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset-Backed Finance
Xxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
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FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") dated as of September 25, 1995
is entered into by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a Pennsylvania
limited partnership (the "Borrower"), X.X. XXXXXXXXX FUNDING CORP., a
Pennsylvania corporation (the "Parent"), THE FINANCIAL INSTITUTIONS PARTIES
HERETO (collectively, the "Banks") and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
MARKETS, INC. ("ING"), individually and as agent for the Banks (in such capacity
as agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Banks and the Agent have entered
into that certain Credit Agreement dated as of May 26, 1995 (the "Agreement";
the terms defined therein being used herein as therein defined unless otherwise
defined herein), pursuant to which the Banks and the Agent have made and may
from time to time hereafter make certain loans, advances and other financial
accommodations to the Borrower;
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Agreement as set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment of the Agreement. Effective as of the date hereof,
the Agreement is hereby amended as follows:
1.01. Section 1.1 of the Agreement is hereby amended as follows:
(a) The following definition of "Base Rate Claim Group" shall be added
thereto immediately after the definition of "Base Rate" appearing therein:
"'Base Rate Claim Group' shall mean, at any time, those Purchased
Claims then allocated to Interest Periods bearing interest at the Base
Rate Option."
(b) The definition of "Base Rate Option" appearing therein is hereby
amended and restated in its entirety to read as follow:
"'Base Rate Option' shall mean, for any date during any calendar month
or any such shorter period ending on the Commitment Termination Date, a
per annum rate determined as of the last day of such calendar month or
on the Commitment Termination Date, as applicable, to the daily average
of the higher of (i) the Base Rate as in effect on such date minus
0.50% and (ii) the sum of (a) the daily average during such period (as
determined on the last day of such period) of the Euro-Rates which
would have been in effect on each Business Day during such period for
one-month Interest Periods commencing on each such day, and (b) 2.50%."
(c) The definition of "Required Banks" appearing therein is hereby
amended and restated in its entirety to read as follow:
"'Required Banks' shall mean (i) if there are no Loans outstanding,
those Banks whose Commitments aggregate at
least 51% of the Commitments of all of the Banks, or (ii) if there are
Loans outstanding, those Banks whose Loans outstanding aggregate at
least 51% of the total outstanding principal amount of the Loans."
1.02. Section 2.1(d) of the Agreement is hereby amended to delete the
reference therein to "11:00 A.M. (New York City time)" and to substitute
therefor a reference to "1:00 P.M. (New York City time)."
1.03. Section 8.1(o) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"(o) Minimum Purchase Price. The Borrower shall not purchase any Claim
for a Purchase Price which exceeds the present value of the Maturity
Value of such Claim as calculated on the date of purchase thereof using
a per annum discount rate equal to sum of the Base Rate Option at such
time plus 0.25%."
1.04. Section 11.1 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"11.1 Modifications, Amendments or Waivers. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Banks, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all
of the Banks, do any of the following:
(a) amend, supplement, or otherwise modify the definitions of, or the
manner of calculating, any of the following (or any component
definition thereof which would have the effect of so modifying or
effecting the calculation of any of the following): "Borrowing Base,"
"Claim," "Discount Rate," "Eligible Claim," "Maturity Value," or
"Seasoned Purchased Claim,";
(b) waive any of the conditions specified in Section 6.2;
(c) increase the Commitments of the Banks or the calculation of the
Ratable Share of the Banks or subject the Banks to any additional
obligations;
(d) reduce the principal of, or interest on, the Loans or other amounts
payable to the Banks hereunder;
(e) postpone any date fixed for any payment of principal of, or
interest on, the Loans or any fee or other amounts payable hereunder or
postpone or extend the Commitment Termination Date or the Facility
Termination Date;
(f) change the aggregate unpaid principal amount of the Loans, which
shall be required for the Banks or any of them to take any action
hereunder;
(g) amend, modify or supplement Section 9.1(f) or grant any waiver with
respect to the occurrence of any Event of Default thereunder; or
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(h) amend this Section 11.1; and
provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Banks required above
to take such action, affect the rights or duties of the Agent under
this Agreement."
1.05. Section 11.11(c)(iii) of the Agreement is hereby amended and restated
in its entirety to read as follows:
"(iii) each assignment shall be to a bank or other financial
institution which (A) is not currently engaged in any lending or
financing arrangement with a Competitor, unless the Borrower shall have
consented thereto in writing, and (B) is otherwise acceptable to the
Agent in its sole discretion, and".
1.06. Section 11.17 of the Agreement is hereby amended to add the following
at the beginning of such Section:
"Except to the extent that the Borrower and a Bank may otherwise agree,
in writing,".
SECTION 2. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 3. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 4. Reference to and Effect on the Agreement. Upon the
effectiveness of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import shall mean
and be, and references to the Agreement in any other document, instrument or
agreement executed and/or delivered in connection with the Agreement shall mean
and be, a reference to the Agreement as amended hereby. Except as otherwise
amended by this Amendment, the Agreement shall continue in full force and effect
and is hereby ratified and confirmed.
SECTION 5. Counterparts. This Amendment may be exe cuted in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
X. X. XXXXXXXXX MFC
ASSOCIATES, L.P.
By: X. X. XXXXXXXXX FUNDING CORP.,
Its sole General Partner
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
X. X. XXXXXXXXX FUNDING CORP.
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL MARKETS, INC., individually
and as Agent
By:________________________________
Its:
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
Its:
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STATE OF PENNSYLVANIA )
)SS
COUNTY OF __________ )
Before me on this ____ day of September, 1995 appeared Xxxx Xxxxxxx, who
executed this First Amendment in his aforementioned capacity as an officer of
X.X. Xxxxxxxxx Funding Corp. executing such First Amendment on behalf of such
corporation and as the General Partner of X.X. Xxxxxxxxx MFC Associates, L.P.,
and acknowledged that he did so as his own free act and deed.
____________________________
Notary Public
My commission expires_______
-5-
CONSENT AND REAFFIRMATION
Xxxx Xxxxxxx hereby consents to the foregoing First Amendment
dated as of September __, 1995 to that certain Credit Agreement dated as of May
26, 1995, in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto and Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and reaffirms its obligations under that certain Guaranty and Surety
Agreement ("Guaranty") executed by him, dated as of May 26, 1995, which Guaranty
remains in full force and effect.
___________________________
By: Xxxx Xxxxxxx
Dated: ____________, 0000
-0-
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of September, 1995 appeared Xxxx Xxxxxxx, who
executed this Consent and Reaffirmation and acknowledged that he did so as his
own free act and deed.
____________________________
Notary Public
My commission expires_______
-7-
CONSENT AND REAFFIRMATION
Xxxxx XxXxxxx hereby consents to the foregoing First Amendment
dated as of September __, 1995 to that certain Credit Agreement dated as of May
26, 1995, in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto and Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and reaffirms its obligations under that certain Guaranty and Surety
Agreement ("Guaranty") executed by him, dated as of May 26, 1995, which Guaranty
remains in full force and effect.
___________________________
By: Xxxxx XxXxxxx
Dated: ____________, 0000
-0-
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of September, 1995 appeared Xxxxx XxXxxxx, who
executed this Consent and Reaffirmation and acknowledged that he did so as his
own free act and deed.
____________________________
Notary Public
My commission expires_______
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SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") dated as of March 20, 1996 is
entered into by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a Pennsylvania
limited partnership (the "Borrower"), X.X. XXXXXXXXX FUNDING CORP., a
Pennsylvania corporation (the "Parent"), THE FINANCIAL INSTITUTIONS PARTIES
HERETO (collectively, the "Banks"), PNC BANK, NATIONAL ASSOCIATION ("PNC") and
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL MARKETS, INC. ("ING"), individually
and as agent for the Banks (in such capacity as agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Banks and the Agent have entered
into that certain Credit Agreement dated as of May 26, 1995 (as amended prior to
the date hereof, and as further amended, restated, supplemented, or otherwise
modified, the "Agreement"; the terms defined therein being used herein as
therein defined unless otherwise defined herein), pursuant to which the Banks
and the Agent have made and may from time to time hereafter make certain loans,
advances and other financial accommodations to the Borrower;
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Agreement as set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment of the Agreement Regarding Reductions in Maximum
Facility Amount and Commitments. Upon the satisfaction of the conditions
precedent set forth in Section 3 of this Amendment, the Agreement is hereby
amended as follows:
1.1. Section 1.1 of.the Agreement is hereby amended to delete the
amount "$90,000,000" which appears in the definition of "Maximum Facility
Amount" set forth in such Section and to substitute the amount
"$80,000,000" therefor;
1.2. Section 1.1 of the Agreement is hereby further amended to insert
the word "Option" immediately after the phrase "at the Fixed Rate"
appearing in the definition of "Fixed Rate Portion;" and
1.3. The respective "Commitments" of each of ING and PNC for purposes
of the Agreement shall be reduced from "$72,000,000" and "$18,000,000", as
respectively set forth
on Schedule I to the most recent Assignment and Assumption Agreement to
which such Persons were parties, to "$64,000,000" and "$16,000,000",
respectively.
SECTION 2. Amendment of the Agreement Regarding the Addition of the
Servicing Agent. Upon the satisfaction of the conditions precedent set forth in
Section 3 of this Amendment, the Agreement is hereby amended as follows:
2.1. Section 1.1 of the Agreement is hereby amended as follows:
(a) The definition of "Banks" appearing in such Section is hereby
amended to insert the following sentence at the end thereof:
"The Servicing Agent shall be deemed to be a "Bank" to the
extent of any outstanding Servicing Agent Advances made by
it hereunder."
(b) The following definition of the term "Daily Settlement
Option" is hereby inserted immediately preceding the definition of the
term "Default Rate" appearing in such Section:
"'Daily Settlement Option' shall have the meaning assigned
to such term in Section 2.1(f) hereof."
(c) The definition of "Euro-Rate" is hereby amended to insert the
following sentence immediately preceding the final sentence thereof:
"The Agent shall notify the Servicing Agent of such
determined rate with respect to any requested Euro-Rate
Borrowing or Conversion prior to 3:00 P.M. (New York City
time) on the next Business Day following the Agent's receipt
of notice from the Servicing Agent of the submission of a
Loan Request by the Borrower."
(d) The definition of "Obligations" appearing in the Agreement is
hereby amended to insert the words "Servicing Agent, the" therein
immediately preceding the word "Agent" appearing in the third line of
such definition.
(e) The definition of "Required Banks" appearing in the Agreement
is hereby amended and restated in its entirety to read as follows:
-2-
"'Required Banks' shall mean those Banks whose Commitments
aggregate at least 51% of the Commitments of all of the
Banks."
(f) The following definitions of the terms "Servicing Agent,"
"Servicing Agent's Account," and "Servicing Agent Advances" are hereby
inserted immediately preceding the definition of "Servicing Agreement"
appearing in such Section:
"'Servicing Agent' shall mean such Person then acting in such
capacity hereunder. The initial Servicing Agent hereunder shall
be PNC Bank."
"'Servicing Agent's Account' shall mean the Servicing Agent's
bank account at PNC, Account No. 13076-156, for the account of
the Loan Suspense Account, or such other account as may be
designated by the Servicing Agent from time to time by notice to
the Borrower, the Agent and the Banks."
"'Servicing Agent Advance' shall have the meaning assigned to
such term in Section 2.1(d)(ii) hereof."
(g) The definition of "Swap Rate" is hereby amended to insert the
following sentence immediately preceding the final sentence thereof:
"The Agent shall notify the Servicing Agent of such determined
rate with respect to any requested Swap Rate Borrowing or
Conversion prior to 3:00 P.M. (New York City time) on the next
Business Day following the Agent's receipt of notice from the
Servicing Agent of the submission of a Loan Request by the
Borrower."
(h) The following definition of the term "Weekly Settlement Date"
is hereby inserted immediately preceding the definition of "Weighted
Average Maturity" appearing in such Section:
"'Weekly Settlement Date' shall mean, with respect to any week
ending prior to the election of the Daily Settlement Option, (i)
Monday of the immediately succeeding week, or, if such Monday is
not a Business Day, the next Business Day thereafter and (ii) the
last Business Day of any Interest Period for any Loan bearing
interest at the Fixed Rate Option."
-3-
2.2. Articles 2 and 3 of the Agreement are hereby amended and restated
in their entirety as set forth on Exhibit F hereto;
2.3. Each reference in Sections 4.3(a) and 4.3(c) of the Agreement to
"Bank or the Agent" or "Bank and the Agent" is hereby amended to be a
reference to "Banks, the Servicing Agent, or the Agent" or with such
variations in syntax and grammar as necessary to properly include the
Servicing Agent as an obligee of the Borrower's duties thereunder;
2.4. For purposes of Sections 4.3(e), 4.3(f) and 4.3(g) of the
Agreement, each reference to "Bank" or "Banks" shall be deemed to refer to
the Servicing Agent as well as to the applicable Bank or Banks;
2.5. The reference in the third line of Section 5.1(n) of the
Agreement to "the Agent or the Banks" is hereby amended to read "the Agent,
the Servicing Agent, or the Banks;"
2.6. Section 6.1 of the Agreement is hereby amended to replace the
word "and" appearing in the second line of such Section with the following
text:
", the making of any Servicing Agent Advances by the Servicing Agent,
and;"
2.7. Section 6.2 of the Agreement is hereby amended to delete the word
"and" appearing in the fourth line thereof, and to insert the following
text immediately preceding the word "shall" appearing in the fifth line of
such Section:
"and the making of any Servicing Agent Advances by the Servicing
Agent;"
2.8. The reference in the first line of Section 6.2(d) of the
Agreement to "The Agent" is hereby amended to read "The Servicing Agent;"
2.9. The reference in the third line of Section 6.2(f) of the
Agreement to the "Agent or any Bank" is hereby amended to read "Agent, the
Servicing Agent, or any Bank;"
2.10. Section 7.1(i) of the Agreement is hereby amended to insert the
following text at the end of clause (e) thereof:
-4-
"(and the Agent, upon receipt of any such loss payment, shall remit
such payment to the Servicing Agent, (i) if the Agent has not
exercised its Daily Settlement Option, on the next Weekly Settlement
Date after receipt thereof, or (ii) if the Agent has exercised its
Daily Settlement Option, promptly upon receipt thereof);"
2.11. The reference in Section 9.1(a)(ii) to the Agreement to "the
Banks or the Agent" is hereby amended to read "the Banks, the Servicing
Agent, or the Agent;"
2.12. The reference in Section 9.2(b)(ii) of the Agreement to "the
Agent and the Banks" is hereby amended to read "the Agent, the Servicing
Agent, and the Banks;"
2.13. Section 9.2 of the Agreement is hereby amended to insert the
following text after Section 9.2(c) as a new Section 9.2(d) to the
Agreement:
"(d) Upon the occurrence of the Commitment Termination Date, the
Servicing Agent shall cease to make any further Servicing Agent
Advances to the Borrower;"
2.14. Section 10.14 of the Agreement is hereby amended and restated in
its entirety to read as follows:
"10.14 Sharing of Payments. If any Bank, other than the Servicing
Agent in its capacity as the Servicing Agent at any time prior to the
election of the Daily Settlement Option, shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans made by it (other than
pursuant to Sections 2.3 or 11.3, or to Article 4) in excess of its
Ratable Share of payments on account of the Loans obtained by all the
Banks, such Bank shall promptly notify each of the other Banks of such
receipt and, in accordance with the periodic settlement procedures
then in effect, purchase from each of the other Banks participations
in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment ratably with each such
other Bank; provided, however, that, if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such
purchase from each of the other Banks shall be rescinded and such
Banks shall repay to the purchasing Bank the purchase price of such
purchased
-5-
participations to the extent of such recovery together with an amount
equal to such other Bank's ratable share (according to the proportion
of (i) the amount of such Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 10.14 may, to
the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the
Borrower in the amount of such participation."
2.15. The Agreement is hereby amended to insert the terms and
provisions set forth on Exhibit G hereto immediately following Article 10
of the Agreement as a new Article lOA of the Agreement;
2.16. Section 11.1 is hereby amended to insert the following text at
the end thereof:
"and provided further that no amendment, waiver, or consent shall,
unless in writing and signed by the Servicing Agent in addition to the
Banks required above to take such action, affect the rights or duties
of the Servicing Agent under this Agreement."
2.17. For purposes of Section 11.2 of the Agreement, each reference to
"Bank" or "Banks" shall be deemed to refer to the Servicing Agent as well
as to the applicable Bank or Banks;"
2.18. Each reference in the first proviso in Section 11.6 of the
Agreement to "the Agent" is hereby amended to read "the Agent or the
Servicing Agent, as applicable;" and the reference to "the Banks' or the
Agent's" in the second to last line of such Section is hereby amended to
read "the Banks', the Servicing Agent's or the Agent's;"
2.19. Section 11.6 is hereby further amended to insert the following
text after the words "Assumption Agreement" appearing in the third
parenthetical of such Section:
"or such other agreement;"
-6-
2.20. The reference in the first sentence of Section 11.10 of the
Agreement to "the Agent or the Banks" is hereby amended to read "the Agent,
the Servicing Agent, or the Banks;"
2.21. The reference in the first sentence of Section ll.ll(a) of the
Agreement to "the Banks, the Agent" is hereby amended to read "the Banks,
the Servicing Agent, the Agent;"
2.22. Section ll.ll(c) of the Agreement is hereby amended to insert
the following sentence following the end thereof:
"The Agent shall provide information regarding such assignments to the
Servicing Agent as is necessary to allow the Servicing Agent to
properly fulfill its duties and obligations hereunder, and the
Servicing Agent shall be entitled to rely on such information provided
by the Agent without any independent investigation or analysis."
2.23. Section ll.ll(d) of the Agreement is hereby amended to delete
the word "and" immediately preceding clause (vi) thereof and to add the
following text at the end thereof:
"; and (vii) such assignee appoints and authorizes the Servicing Agent
to take such action as servicing agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are
delegated to the Servicing Agent by the terms hereof and thereof."
2.24. The reference in the second sentence of Section ll.ll(e) of the
Agreement to "the Borrower, the Agent and the Banks" is hereby amended to
read "the Borrower, the Agent, the Servicing Agent and the Banks;"
2.25. Section ll.ll(e) of the Agreement is hereby further amended to
insert the following sentence at the end thereof:
"The Agent and the Servicing Agent shall provide such information to
the other, from the Register, as applicable, or otherwise, as
necessary to allow each of the Agent and the Servicing Agent to
properly fulfill its duties and obligations hereunder, including,
without limitation, the amounts due to or from any Bank with respect
to its Ratable Share of any Loans or payments by the
-7-
Borrower, and each of the Agent and the Servicing Agent shall be
entitled to rely on such information provided by the other without any
independent investigation or analysis."
2.26. Each reference in Section 11.12 of the Agreement to "the Agent
and the Banks" and the like is hereby amended to read "the Agent, the
Servicing Agent, and the Banks" or with such variations in syntax and
grammar such that the Servicing Agent undertakes the confidentiality
provisions contained therein; and
2.27. All references to the "Agent," any "Bank," or any of the
"Parties" in Sections 11.14 and 11.15 shall be deemed to include and be a
reference to any such Person and/or the Servicing Agent, and THE SERVICING
AGENT HEREBY AGREES TO BE BOUND BY ALL OF THE CONSENTS AND WAIVERS GIVEN BY
THE BANKS AND THE AGENT IN SECTIONS 11.14 AND 11.15 OF THE AGREEMENT AS IF
EXPRESSLY AGREED TO THEREIN BY THE SERVICING AGENT.
2.28. Exhibit B-2 to the Agreement, the form of
Conversion/Continuation Request, is hereby amended and restated in its
entirety to read as set forth on Exhibit D hereto.
2.29. Exhibit B-1 to the Agreement, the form of Loan Request, is
hereby amended and restated in its entirety to read as set forth on Exhibit
E hereto.
SECTION 3. Conditions Precedent. This Amendment shall become effective upon
the satisfaction of the following conditions precedent:
3.1. The Agent shall have received copies of each of the following
instruments, documents and agreements, in form and substance and in such
number of copies as, in each case, shall be satisfactory to the Agent:
(a) five fully-executed original copies of this Amendment;
(b) five fully-executed copies of a Note Modification and
Substitution Agreement in substantially the form attached hereto as
Exhibit A;
(c) a fully executed copy of each of the Revolving Notes attached
to the above-described Note Modification and Substitution Agreement as
Exhibits A and B thereto; and
-8-
(d) five fully executed copies of the Consents and Reaffirmations
attached hereto as Exhibits B and C.
3.2. No event or condition has occurred and is continuing, or would
result from the execution, delivery or performance of this Amendment, which
would constitute an Event of Default or Potential Default.
3.3. All of the representations and warranties of the Borrower and the
General Partner set forth in Section 4 of this Amendment are true and
correct in all material respects.
SECTION 4. Representations and Warranties of the Borrower and the General
Partner. Upon the effectiveness of this Amendment, each of the Borrower and the
General Partner hereby remakes and reaffirms as of the date hereof all
covenants, representations and warranties made by it (or deemed made by it) in
the Agreement (except to the extent such covenants, representations or
warranties expressly speak as to another date).
SECTION 5. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 6. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 7. Reference to and Effect on the Agreement. Upon the effectiveness
of this Amendment, each reference in the Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and references to the
Agreement in any other document, instrument or agreement executed and/or
delivered in connection with the Agreement, shall in each case, mean and be a
reference to the Agreement as amended hereby. Except as expressly otherwise
amended by this Amendment, the Agreement shall continue in full force and effect
and is hereby ratified and confirmed.
SECTION 8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
-9-
SECTION 9. Fees and Expenses. The Banks hereby agree to share, pro rata as
based upon each Bank's respective Commitment Percentage, the obligation to pay
all costs and expenses in connection with the preparation, execution and
delivery of this Amendment and any of the other instruments, documents and
agreements to be executed and/or delivered in connection herewith, provided,
however, that each Bank shall pay its own attorneys' fees and expenses in
connection herewith.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
X. X. XXXXXXXXX MFC
ASSOCIATES, L.P.
By: X. X. XXXXXXXXX FUNDING CORP.,
Its sole General Partner
By:
--------------------------------------
Xxxx Xxxxxxx
Chairman and Secretary
X. X. XXXXXXXXX FUNDING CORP.
By:
--------------------------------------
Xxxx Xxxxxxx
Chairman and Secretary
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL MARKETS, INC., individually
and as Agent
By:
--------------------------------------
Its:
By:
--------------------------------------
Its:
PNC BANK, NATIONAL ASSOCIATION,
individually and as Servicing Agent
By:
--------------------------------------
Its:
-00-
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF )
Before me on this _______ day of March, 1996 appeared Xxxx Xxxxxxx, who executed
this Second Amendment in his aforementioned capacity as an officer of X.X.
Xxxxxxxxx Funding Corp. executing such Second Amendment on behalf of such
corporation individually and as the General Partner of X.X. Xxxxxxxxx MFC
Associates, L.P., and acknowledged that he did so as his own free act and deed.
---------------------------------
Notary Public
My commission expires
------------
-12
EXHIBIT A
TO
SECOND AMENDMENT
FORM OF NOTE MODIFICATION AND SUBSTITUTION AGREEMENT
----------------------------------------------------
Attached.
NOTE MODIFICATION AND SUBSTITUTION AGREEMENT
THIS NOTE MODIFICATION AND SUBSTITUTION AGREEMENT ("Agreement") is made
this 20th day of March, 1996 by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a
Pennsylvania limited partnership (the "Borrower"), INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL MARKETS, INC., in its individual capacity (in such capacity
"ING") and as agent (in such capacity, the "Agent") for itself and the other
Banks under (and as such term is defined in) the Credit Agreement referred to
below, and PNC BANK, NATIONAL ASSOCIATION, in its individual capacity (in such
capacity, "PNC") and as servicing agent (in such capacity, the "Servicing
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent, ING, PNC, and X.X. Xxxxxxxxx Funding
Corp., a Pennsylvania corporation and the sole general partner of the Borrower
("Funding"), have entered into a certain Credit Agreement dated as of May 26,
1995 (as the same has been and may hereafter be amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Credit Agreement);
WHEREAS, concurrently with its execution of the Credit Agreement, the
Borrower executed and delivered a certain Revolving Loan Note dated as of May
26, 1995 (the "Original Note") payable to ING in a maximum principal amount of
$90,000,000, the amount of ING's Commitment under the Credit Agreement;
WHEREAS, upon PNC's becoming a party to the Credit Agreement, the Old Note
was amended and restated by two other Revolving Loan Notes each dated as of
September 25, 1995 made by the Borrower, the first being in the maximum original
principal amount of $72,000,000 payable to ING and the second being in the
maximum original principal amount of $18,000,000 payable to PNC (collectively,
the "Interim Notes," and together with the Old Note, being the "Replaced
Notes");
WHEREAS, concurrently herewith, ING, PNC, the Agent, the Borrower and
Funding are entering into a Second Amendment of even date herewith (the
"Amendment"), pursuant to which the Maximum Facility Amount under the Agreement
is to be reduced from $90,000,000 to $80,000,000 and, correspondingly, ING's and
PNC's Commitments shall be reduced to $64,000,000 and $16,000,000, respectively;
WHEREAS, in connection with such Amendment, the Borrower shall be required
to execute and deliver substitute Revolving Loan Notes (the "Substitute Notes")
to each of ING and
PNC, in the forms attached hereto as Exhibit A and B, respectively, in exchange
for (but not in satisfaction or novation of) the Replaced Notes, each of which
Substitute Notes shall be made in a maximum principal amount equal to the
applicable Bank's Commitment under the Credit Agreement (as so amended);
NOW, THEREFORE, in consideration of the foregoing premises and subject to
the terms and conditions contained herein, the parties hereto agree as follows:
1. To the extent that the indebtedness heretofore evidenced by the Replaced
Notes shall remain outstanding as of the date on which the Amendment becomes
effective, such indebtedness shall continue to be secured, pursuant to the terms
of the Security Agreement. The Substitute Notes (i) shall, in part, re-evidence
all of the indebtedness of the Borrower outstanding under the Replaced Notes for
any and all loans or other financial accommodations made to the Borrower by ING
and/or PNC, as applicable, (ii) shall, in part, evidence any loans or other
financial accommodations hereafter made by any of the Banks to the Borrower,
(iii) shall be given in substitution for, but not as payment of or in
satisfaction of the Replaced Notes, and (iv) is no way intended to constitute or
otherwise effect a novation of the outstanding indebtedness owing under, and
evidenced by, the Replaced Notes.
2. Each of the Banks and the Borrower agree that on the date on which this
Agreement becomes effective, the repayment terms contained in the Replaced Notes
shall be superseded by the repayment terms contained in the Substitute Notes.
3. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
4. This Agreement shall be binding upon, and inure to the benefit of, the
Borrower and its successor and assigns and each of the Banks and its respective
successors and assigns.
5. This Agreement shall be interpreted, and the rights and liabilities of
the parties hereto determined, in accordance with the internal laws (as
distinguished from the conflicts of law provisions) of the State of New York.
--2--
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. Xxxxxxxxx Funding Corp.,
its sole general partner
By:
------------------------------------
Title:
-------------------------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL MARKETS, INC., individually
and as Agent
By:
------------------------------------
Title:
-------------------------------
By:
------------------------------------
Title:
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
individually and as Servicing Agent
By:
------------------------------------
Title:
--3--
EXHIBIT A
to
Note Modification and Substitution Agreement
Dated March 20, 1996
Form of Substitute Note for ING
-------------------------------
Attached.
REVOLVING LOAN NOTE
$64,000,000 Dated: March 20, 1996
FOR VALUE RECEIVED, the undersigned, X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a
Pennsylvania limited partnership (the "Borrower"), HEREBY PROMISES TO PAY to the
order of INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL MARKETS, INC. (the "Lender")
the principal sum of SIXTY-FOUR MILLION AND 00/100 DOLLARS ($64,000,000), or, if
less, the aggregate unpaid principal amount of all of the Loans (as defined in
the Credit Agreement referred to below) made by the Lender to the Borrower
pursuant to the Credit Agreement (as hereinafter defined). Terms used herein and
not otherwise defined are used as defined in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until the principal amount
thereof is paid in full in accordance with the provisions of the Credit
Agreement dated as of May 26, 1995 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, X.X. Xxxxxxxxx Funding Corp., certain
financial institutions party thereto (the "Banks"), Internationale Nederlanden
(U.S.) Capital Markets, Inc., as Agent for the Banks, and PNC Bank, National
Association, as Servicing Agent (the "Servicing Agent").
Both principal and interest are payable in lawful money of the United
States of America to the Servicing Agent at the Servicing Agent's Account or
such other account as the Agent may designate from time to time in same-day
funds. All Loans made by the Lender to the Borrower pursuant to the Credit
Agreement and all payments made on account of principal hereof shall be recorded
by the Lender on its books and records; provided, however, that the failure to
so record any Loans or payments shall not affect the validity of such Loans or
payments.
This Revolving Loan Note is one of the Notes referred to in the Credit
Agreement and is entitled to the benefits and subject to the terms of the Credit
Agreement. This Revolving Loan Note is one of the Substitute Notes executed and
delivered by the Borrower pursuant to that certain Note Modification and
Substitution Agreement of even date herewith among the Borrower, the Agent, the
Servicing Agent and the Banks in exchange for the then outstanding Revolving
Loan Notes executed by the Borrower pursuant to Credit Agreement (the "Replaced
Notes") and payable
to the Banks. It is expressly acknowledged and agreed that this Revolving Loan
Note (i) shall, in part, re-evidence all of the indebtedness of the Borrower to
the Lender outstanding under the Replaced Notes for any and all loans or other
financial accommodations heretofore made to the Borrower by the Lender under the
Credit Agreement, (ii) shall, in part, evidence any loans or other financial
accommodations hereafter made by the Lender to the Borrower under the Credit
Agreement, (iii) shall be given in substitution for, but not as payment of or in
satisfaction of the Replaced Notes, and (iv) is no way intended to constitute or
otherwise effect a novation of the outstanding indebtedness owing under, and
evidenced by, the Replaced Notes.
The Credit Agreement provides for certain mandatory and voluntary
prepayments of principal and interest due hereunder, which prepayments may, in
certain cases, be subject to prepayment premiums or penalties.
Upon and after the occurrence of an Event of Default described in Sections
9.01(f) or 9.01(s) of the Credit Agreement, this Revolving Loan Note, in
accordance with the terms of the Credit Agreement, may be declared, and
immediately shall become, due and payable, without demand, notice or legal
process of any kind.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
--2--
THIS REVOLVING LOAN NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. XXXXXXXXX FUNDING CORP.,
its sole general partner
By:
----------------------------------
Name:
Title:
Exhibit B
to
Note Modification and Substitution Agreement
Dated March 20, 1996
Form of Substitute Note for PNC
-------------------------------
Attached.
REVOLVING LOAN NOTE
$16,000,000 Dated: March 20, 1996
FOR VALUE RECEIVED, the undersigned, X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a
Pennsylvania limited partnership (the "Borrower"), HEREBY PROMISES TO PAY to the
order of PNC BANK, NATIONAL ASSOCIATION (the "Lender") the principal sum of
SIXTEEN MILLION AND 00/100 DOLLARS ($16,000,000), or the aggregate unpaid
principal amount of all of the Loans (as defined in the Credit Agreement
referred to below) made by the Lender (as a Lender or as Servicing Agent) to the
Borrower pursuant to the Credit Agreement (as hereinafter defined). Terms used
herein and not otherwise defined are used as defined in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until the principal amount
thereof is paid in full in accordance with the provisions of the Credit
Agreement dated as of May 26, 1995 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, X.X. Xxxxxxxxx Funding Corp., certain
financial institutions party thereto (the "Banks"), Internationale Nederlanden
(U.S.) Capital Markets, Inc., as Agent for the Banks and PNC Bank, National
Association, as Servicing Agent (the "Servicing Agent").
Both principal and interest are payable in lawful money of the United
States of America to the Servicing Agent at the Servicing Agent's Account or
such other account as the Agent may designate from time to time in same-day
funds. All Loans made by the Lender to the Borrower pursuant to the Credit
Agreement and all payments made on account of principal hereof shall be recorded
by the Lender on its books and records; provided, however, that the failure to
so record any Loans or payments shall not affect the validity of such Loans or
payments.
This Revolving Loan Note is one of the Notes referred to in the Credit
Agreement and is entitled to the benefits and subject to the terms of the Credit
Agreement. This Revolving Loan Note is one of the Substitute Notes executed and
delivered by the Borrower pursuant to that certain Note Modification and
Substitution Agreement of even date herewith among the Borrower, the Agent, the
Servicing Agent and the Banks in exchange for the then outstanding Revolving
Loan Notes executed by the Borrower pursuant to Credit Agreement (the "Replaced
Notes") and payable to the Banks. It is expressly acknowledged and agreed that
this
Revolving Loan Note (i) shall, in part, re-evidence all of the indebtedness of
the Borrower to the Lender outstanding under the Replaced Notes for any and all
loans or other financial accommodations heretofore made to the Borrower by the
Lender under the Credit Agreement, (ii) shall, in part, evidence any loans or
other financial accommodations hereafter made by the Lender to the Borrower
under the Credit Agreement, (iii) shall be given in substitution for, but not as
payment of or in satisfaction of the Replaced Notes, and (iv) is no way intended
to constitute or otherwise effect a novation of the outstanding indebtedness
owing under, and evidenced by, the Replaced Notes.
The Credit Agreement provides for certain mandatory or voluntary
prepayments of principal and interest due hereunder, which prepayments may, in
certain cases, be subject to prepayment premiums or penalties.
Upon and after the occurrence of an Event of Default described in Sections
9.01(f) or 9.01(s) of the Credit Agreement, this Revolving Loan Note, in
accordance with the terms of the Credit Agreement, may be declared, and
immediately shall become, due and payable, without demand, notice or legal
process of any kind.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
--2--
THIS REVOLVING LOAN NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. XXXXXXXXX FUNDING CORP.,
its sole general partner
By:
----------------------------------
Name:
Title:
--3--
EXHIBIT B
TO
SECOND AMENDMENT
CONSENT AND REAFFIRMATION
-------------------------
Xxxx Xxxxxxx hereby consents to the foregoing Second Amendment dated as of
March 20, 1996 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and PNC Bank, National Association, as servicing agent, and reaffirms its
obligations under that certain Guaranty and Surety Agreement ("Guaranty")
executed by him, dated as of May 26, 1995, which Guaranty remains in full force
and effect.
------------------------------
By: Xxxx Xxxxxxx
Dated: March __, 0000
--0--
XXXXX XX XXXXXXXXXXXX )
) SS
COUNTY OF __________ )
Before me on this _______ day of March, 1996 appeared Xxxx Xxxxxxx, who executed
this Consent and Reaffirmation and acknowledged that he did so as his own free
act and deed.
-----------------------------
Notary Public
My commission expires _______
--1--
EXHIBIT C
TO
SECOND AMENDMENT
CONSENT AND REAFFIRMATION
-------------------------
Xxxxx XxXxxxx hereby consents to the foregoing Second Amendment dated as of
March 20, 1996 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and PNC Bank, National Association, as servicing agent, and reaffirms its
obligations under that certain Guaranty and Surety Agreement ("Guaranty")
executed by him, dated as of May 26, 1995, which Guaranty remains in full force
and effect.
------------------------------
By: Xxxxx XxXxxxx
Dated: March __, 0000
--0--
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF ___________ )
Before me on this ______ day of March, 1996 appeared Xxxxx XxXxxxx, who executed
this Consent and Reaffirmation and acknowledged that he did so as his own free
act and deed.
-----------------------------
Notary Public
My commission expires _______
--1--
EXHIBIT D
TO
SECOND AMENDMENT
Replacement Form of Conversion/Continuation Request
---------------------------------------------------
Attached.
EXHIBIT B-2
TO
CREDIT AGREEMENT
Form of Conversion/Continuation Request
---------------------------------------
PNC Bank, National Association
Land Title Building
Broad & Chestnut Streets
Philadelphia, PA 19101
Attention: Xxxxxx Xxxxxx
Re: X.X. Xxxxxxxxx MFC Associates, L.P.
Ladies and Gentlemen:
The undersigned, X. X. Xxxxxxxxx MFC Associates, L.P., refers to the Credit
Agreement dated as of May 26, 1995 (as amended, and as the same may be further
amended, restated, supplemented or otherwise modified, the "Credit Agreement")
(capitalized terms being used herein as therein defined), among the undersigned,
X. X. Xxxxxxxxx Funding Corp., certain financial institutions party thereto as
Banks, PNC Bank, National Association, as Servicing Agent, and Internationale
Nederlanden (U.S.) Capital Markets, Inc., as Agent for the Banks, and hereby
gives you notice, irrevocably, pursuant to Section 2.2 of the Credit Agreement
that the undersigned hereby requests [the Continuation of an Interest Rate
Option] [the Conversion of an Interest Rate Option] as follows:
1. The proposed Borrowing/Conversion Date is _____________, 19__.
2. The Borrowing Tranche to be [Continued] [Converted] consists of Loans to
which the [Euro-Rate] [Swap Rate] [Base-Rate Option] currently applies, and, the
Interest Period for such Loans comprising the Borrowing Tranche, if applicable,
ends on ___________, 19__.
3. The principal amount of Loans comprising the Borrowing Tranche to be
[Continued] [Converted] is ____________________.
4. The [Euro-Rate] [Swap Rate] [Base-Rate Option] shall apply to the Loans
comprising the [Converted] [Continued] Borrowing Tranche.
5. The Interest Period for the Loans comprising the [Converted] [Continued]
Borrowing Tranche, if applicable, is _______ months, commencing on _________ and
ending on ________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the Borrowing/Conversion Date:
(a) the representations and warranties contained in each Loan Document
are true and correct in all material respects, before and after giving
effect to the Loans comprising the Borrowing Tranche and to the application of
the proceeds thereof, as though made on and as of such date, except to the
extent that any such representation or warranty expressly speaks to another
date;
(b) no event has occurred and is continuing, or would result from the
making of such Loans or from the application of the proceeds thereof, that
constitutes an Event of Default or a Potential Default; and
(c) each of the conditions precedent contained in Section 6.02 of the
Credit Agreement are satisfied.
Very truly yours,
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By:
--------------------------------
Name:
Title:
B-2-2
EXHIBIT E
TO
SECOND AMENDMENT
Replacement Form of Loan Request
--------------------------------
Attached.
EXHIBIT B-1
TO
CREDIT AGREEMENT
Form of Loan Request
--------------------
PNC Bank, National Association
Land Title Building
Broad & Chestnut Streets
Philadelphia, PA 19101
Attention: Xxxxxx Xxxxxx
Re: X.X. Xxxxxxxxx MFC Associates, L.P.
Ladies and Gentlemen:
The undersigned, X. X. Xxxxxxxxx MFC Associates, L.P., refers to the Credit
Agreement dated as of May 26, 1995 (as amended, and as the same may be further
amended, restated, supplemented or otherwise modified, the "Credit Agreement")
(capitalized terms being used herein as therein defined), among the undersigned,
X. X. Xxxxxxxxx Funding Corp., certain financial institutions party thereto as
Banks, PNC Bank, National Association, as Servicing Agent, and Internationale
Nederlanden (U.S.) Capital Markets, Inc., as Agent for the Banks, and hereby
gives you notice, irrevocably, pursuant to Section 2.1 of the Credit Agreement
that the undersigned hereby requests Loans as follows:
1. The proposed Borrowing Date is _____________, 19__.
2. The aggregate amount of the proposed Loans is ____________________.
3. The proposed Loans shall be allocated to the following Borrowing
Tranches and, in the case of any Borrowing Tranche to which the Fixed Rate
Option is to be applicable, Interest Periods:
Interest Period
---------------
Borrowinq Tranche Interest Rate Option Commence End Duration
----------------- -------------------- -------- --- --------
$_________________ ________ ____ ___ ____
$_________________ ________ ____ ___ ____
$_________________ ________ ____ ___ ____
$_________________ ________ ____ ___ ____
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the Borrowing Date:
(a) the representations and warranties contained in each Loan Document
are true and correct in all material respects, before and after giving
effect to the Loans comprising the Borrowing Tranche and to the application of
the proceeds thereof, as though made on and as of such date, except to the
extent that any such representation or warranty expressly speaks to another
date;
(b) no event has occurred and is continuing, or would result from the
making of such Loans or from the application of the proceeds thereof, that
constitutes an Event of Default or a Potential Default; and
(c) each of the conditions precedent contained in Section 6.02 of the
Credit Agreement are satisfied.
Very truly yours,
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By:
--------------------------------
Name:
Title:
B-1-2
EXHIBIT F
TO
SECOND AMENDMENT
Amended and Restated Articles 2 and 3 to the Agreement
------------------------------------------------------
Attached.
ARTICLE 2. THE LOANS
2.1 Loans.
(a) Upon the terms and subject to the conditions hereinafter set forth,
each Bank, severally and not jointly with any other Bank, agrees to make to the
Borrower, from time to time during the period from the date hereof to, but not
including, the Commitment Termination Date, Loans in an aggregate principal
amount up to such Bank's Commitment (except for a Bank in its capacity as the
Servicing Agent with respect to any Servicing Agent Advance, which advance may,
in the absolute discretion of the Servicing Agent, exceed such Commitment);
provided, however, that the aggregate outstanding principal balance of all such
Loans (including any outstanding Servicing Agent Advances) shall at no time
exceed the Maximum Available Facility Amount at such time. Within such limits of
time and amount and subject to the other provisions of this Agreement, the
Borrower may borrow, repay without premium or penalty, except as provided in
Section 4.4, and reborrow pursuant to this Section 2.1.
(b) Except as otherwise provided herein, the Borrower may from time to time
prior to the Commitment Termination Date request the Banks to make Loans to the
Borrower by the delivery to the Servicing Agent, not later than 10:00 A.M. New
York City time (i) three (3) Business Days prior to the proposed Borrowing/
Conversion Date with respect to the making of Loans to which a Fixed Rate Option
is requested to apply and (ii) on the proposed Borrowing/Conversion Date with
respect to the making of a Loan to which the Base Rate Option applies, in either
case, of a duly completed Loan Request therefor, or a request by telephone
immediately confirmed in writing (including by any teletransmission) signed by
an Authorized Officer in such form. The Servicing Agent shall have no duty to
verify the authenticity of the signature appearing on any Loan Request and, with
respect to any telephonic request for a Loan, the Servicing Agent shall have no
duty to verify the identity of any individual representing himself as an
Authorized Officer. Any Loan Request received by the Servicing Agent after the
time specified in the immediately preceding sentence shall be deemed to have
been received by the Servicing Agent on the next Business Day, and the date
specified in any such Loan Request as the proposed Borrowing/Conversion Date
shall be deemed to be the Business Day immediately succeeding the proposed
Borrowing/Conversion Date specified in such Loan Request.
(c) Each Loan Request shall be (x) irrevocable, (y) shall specify (i) the
proposed Borrowing Date; (ii) the aggregate amount of such Borrowing, which, in
the case of a Borrowing to which the Base Rate Option shall be applicable,
1
shall be in a minimum amount of $2000, and, in the case of a Borrowing to which
the Fixed Rate Option shall be applicable, shall be in a minimum amount of
$500,000 and in integral multiples of $100,000 in excess of such amount; (iii)
which Interest Rate Options shall be applicable and the allocation of the
Borrowing Tranches with respect thereto, and (iv) with respect to any such Loans
to which a Fixed Rate Option is to be applicable, an appropriate Interest Period
for each Borrowing Tranche of such Borrowing, and (z) shall be accompanied by a
fully completed Borrowing Base Certificate.
(d) (i) Upon the receipt by the Servicing Agent of a Loan Request from the
Borrower, the Servicing Agent shall, in its absolute discretion (except as
provided below with respect to a requested Borrowing at the Fixed Rate Option),
elect (1) to have the terms of Section 2.1(d)(iii) hereof apply to such
requested Borrowing, or (2) to the extent the Agent shall not have previously
exercised its Daily Settlement Option, to make a Servicing Agent Advance with
respect to such requested Borrowing under the terms of Section 2.1(d)(ii)
hereof, except that no Servicing Agent Advance shall be made in respect of any
requested Borrowing at the Fixed Rate Option, and the terms of Section
2.1(d)(iii) hereof shall apply to such requested Borrowing.
(ii) (A) If the Servicing Agent shall have elected under Section
2.1(d)(i) hereof to make a Servicing Agent Advance with respect to a
requested Borrowing at the Base Rate Option, then, subject to the
satisfaction of the conditions precedent set forth in Sections 6.1 and 6.2
hereof, the Servicing Agent shall fund such requested Borrowing (any such
advance solely by the Servicing Agent to the Borrower being hereinafter
referred to as a "Servicing Agent Advance" and all such outstanding
advances to the Borrower being hereinafter referred to collectively as
"Servicing Agent Advances") by transferring the amount requested in the
Loan Request (subject to the maximum amounts specified in Section 2.1(a)
hereof), in U.S. Dollars and immediately available funds, to the Borrower's
Account No. 085-435-214-90 maintained with PNC Bank, National Association,
Land Title Building, Broad and Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, ABA No. 031 0000 53 (the "Borrower's Account") prior to 2:00 P.M.
New York City time on the Borrowing/Conversion Date specified or deemed
specified in such Loan Request. Each Servicing Agent Advance is a Loan
hereunder and shall be evidenced by the Note in favor of the Servicing
Agent and subject to all of the terms and conditions and entitled to all of
the benefits applicable to other Loans except that all payments thereon
shall be payable to the Servicing Agent solely for its own account until
such time as such non-ratable portion of such Servicing Agent Advance is
repaid in accordance with Sections 2.1(d)(ii)(B)(l) or 2.l(d)(ii)(B)(2).
2
(B) (1) The Servicing Agent shall request settlement with respect to
the previous week's Servicing Agent Advances by notifying the Agent and the
Banks by telecopy, telephone or other similar form of transmission no later
than 11:00 a.m. New York City time on the Weekly Settlement Date applicable
to such Servicing Agent Advances of the amount due from such Bank. Each
Bank (except the Bank which made the Servicing Agent Advances with respect
to which settlement is requested in its capacity as Servicing Agent) shall
make such Bank's Ratable Share (calculated on the basis of all Banks,
including the Bank that made the Servicing Agent Advance) of the
outstanding principal amount of the previous week's Servicing Agent
Advances, minus any amounts received by the Servicing Agent as payment or
prepayment of the Loans prior to such Weekly Settlement Date, to the
Servicing Agent, in same day funds, to the Servicing Agent's Account not
later than 2:00 p.m. New York City time on such Weekly Settlement Date.
Such amounts made available to the Servicing Agent shall be applied against
the amount of the applicable Servicing Agent Advances and shall constitute
the Loans of such Banks making such payments.
(2) If any Bank fails under Section 2.1(d)(ii)(B)(l) hereof to make
available to the Servicing Agent its Ratable Share of such applicable
Servicing Agent Advance on the applicable Weekly Settlement Date, such
defaulting Bank shall be liable to pay the Servicing Agent the amount
thereof immediately upon the Servicing Agent's demand therefor, together
with interest thereon from the date such amount is advanced until paid in
full at a rate equal to the Federal Funds Effective Rate. Until such amount
is paid to the Servicing Agent by such Bank or by the Borrower (the
interest rate applicable thereto if paid by the Borrower being that
selected by the Borrower in the applicable Loan Request, and not the
Federal Funds Effective Rate), such advance shall be deemed for all
purposes to be a Loan made by the Servicing Agent to the Borrower, and the
Servicing Agent shall for all purposes hereunder be deemed a "Bank" and
shall be entitled to all rights, remedies and benefits as such hereunder
and under the other Loan Documents. Upon the payment of the principal and
interest of any such Servicing Agent Advance by such Bank to the Servicing
Agent, such payment shall be treated (to the extent of the principal
amount thereof) as the payment of the Servicing Agent Advance under Section
2.1(d)(ii)(B)(1) hereof. No such payment by the Borrower shall prejudice
its rights in respect of any default by such Bank hereunder. The failure of
any Bank to fulfill its Commitment to fund any Loan or to pay the related
Servicing Agent Advance on any Weekly Settlement Date shall not relieve any
other Bank of its Commitment to fund any such Loan or to pay its Ratable
Share
3
of the Servicing Agent Advance on such date, but no Bank shall be
responsible for the failure of any other Bank to fulfill such Commitment of
any other Bank.
(iii) If either (x) the Servicing Agent shall have elected under Section
2.1(d)(i) to have the terms of this Section 2.1(d)(iii) apply to a requested
Borrowing, or (y) the Agent shall have exercised its Daily Settlement Option,
the Servicing Agent shall promptly (but in any event by 11:00 A.M. on the date
of its deemed receipt of a Loan Request for a Loan) notify the Agent and the
Banks of its receipt of such Loan Request and shall specify: (A) the proposed
Borrowing/Conversion Date and the time and method of disbursement of such Loan;
(B) the amount of such Loan and the allocation of the Borrowing Tranches thereof
among the applicable Interest Periods and/or the Base Rate Option as requested
by the Borrower; and (C) each Bank's Ratable Share of such Loan. Each Bank
shall, subject to the satisfaction of the conditions precedent set forth in
Sections 6.1 and 6.2 hereof, remit its Ratable Share of the principal amount of
each Loan to the Servicing Agent's Account by no later than 1:00 P.M. (New York
City time) on the Borrowing Date specified or deemed specified in such Loan
Request, and the Servicing Agent shall, to the extent the Banks have made funds
available to it for such purpose, fund such Loan to the Borrower in U.S. Dollars
and immediately available funds to the Borrower's Account prior to 2:00 P.M. New
York City time on the Borrowing/Conversion Date specified or deemed specified in
such Loan Request; provided, that if any Bank fails to remit such funds to the
Servicing Agent in a timely manner, the Servicing Agent may, but shall not be
required to, advance on behalf of any such Bank, such Bank's Ratable Share of
the Loans on the applicable Borrowing/Conversion Date unless such Bank shall
have notified the Servicing Agent and the Agent prior to such
Borrowing/Conversion Date that it does not intend to make available its Ratable
Share of such Loans on such date. If the Servicing Agent makes such advance,
each of the Borrower and such defaulting Bank severally, but not jointly, shall
be liable to repay the Servicing Agent the amount thereof immediately upon the
Servicing Agent's demand therefor, together with interest thereon from the date
such amount is advanced until repaid in full at a rate equal to, in the case of
such Bank, the Federal Funds Effective Rate and, in the case of the Borrower,
the interest rate applicable to the Interest Rate Option applicable to the
Borrowing Tranche to which such Loan was allocated. Until such amount is repaid
to the Servicing Agent by such Bank or the Borrower, such advance shall be
deemed for all purposes to be a Loan made by the Servicing Agent to the
Borrower, and the Servicing Agent shall for all purposes hereunder be deemed a
"Bank" and shall be entitled to all rights, remedies and benefits as such
hereunder and under the other Loan Documents. Upon the repayment of the
principal and interest of any such Loan by such Bank to the Servicing Agent,
such repayment shall be treated (to the extent of the principal amount thereof)
4
as the funding of such Bank's Ratable Share of the Loans to which such amounts
relate. No such repayment or payment by the Borrower shall prejudice its rights
in respect of any default by such Bank hereunder. The failure of any Bank to
fulfill its Commitment to fund any Loan on any Borrowing/Conversion Date shall
not relieve any other Bank of its Commitment to fund any such Loan on such date,
but no Bank shall be responsible for the failure of any other Bank to fulfill
such Commitment of any other Bank.
(e) The Borrower shall only use the proceeds of the Loans (i) to refinance
the Indebtedness evidenced by the PNC Documents and the CoreStates Documents on
the Closing Date, (ii) to purchase additional Eligible Claims, (iii) to pay the
Obligations, (iv) to pay the fees and expenses of the Claim Servicer under and
in accordance with the terms of the Servicing Agreement, and (v) for any other
legal purpose to the extent permitted hereunder and under the other Loan
Documents.
(f) At any time upon notice by the Agent (either on its own or at the
direction of the Required Banks) to the Servicing Agent, the Agent may, at its
option (the "Daily Settlement Option") declare that the Servicing Agent shall
cease to make Servicing Agent Advances and that the provisions of Section
2.1(d)(ii) shall cease to be applicable, whereupon all settlements and fundings
as among the Banks, the Agent, and the Servicing Agent, and any requested
Borrowing hereunder shall be governed by the terms of Section 2.1(d)(iii).
2.2 Voluntary Conversion and Continuation of Loans.
(a) Prior to the Facility Termination Date, the Borrower shall have the
option with respect to each Borrowing Tranche and on any Weekly Settlement Date,
(i) to Convert all or any portion of the Borrowing Tranche accruing interest at
the Base Rate Option to Borrowing Tranches accruing interest at a Fixed Rate
Option; (ii) to Convert all or any portion of any outstanding Borrowing Tranches
accruing interest at a Fixed Rate Option to a Borrowing Tranche accruing
interest at a different Fixed Rate Option or at the Base Rate Option, in either
case, upon the expiration date of the Interest Period applicable to such Fixed
Rate Portions being Converted; or (iii) upon the expiration of the applicable
Interest Periods applicable to any outstanding Borrowing Tranches accruing
interest at a Fixed Rate, to Continue all or any portion of such Borrowing
Tranches at such Fixed Rate for an additional Interest Period to be selected by
the Borrower in accordance with the terms and conditions hereof. The Borrower's
right to Convert or Continue Loans pursuant to this Section 2.2 shall be
understood to include the right (i) to divide any Borrowing Tranche into two or
more Borrowing Tranches having aggregate principal equal to the aggregate
principal of such initial Borrowing Tranche or (ii) to combine any two or more
5
Borrowing Tranches into a single Borrowing Tranche having aggregate principal
equal to the aggregate principal of such initial Borrowing Tranches; provided,
that with respect to any Borrowing Tranche accruing interest at the Euro-Rate,
such divisions or combinations may only be made upon the expiration of the
Interest Periods to which such Borrowing Tranche is allocated; and provided
further, that no Conversion shall occur except on a Weekly Settlement Date.
(b) To Convert or Continue any Borrowing Tranche under Section 2.2(a), the
Borrower shall deliver a written Conversion/Continuation Request signed by an
Authorized Officer or telephonic notice (confirmed immediately thereafter in
writing (including by any tele-transmission) signed by an Authorized Officer in
such form) to the Servicing Agent not later than 10:00 A.M. (New York City time)
(i) on the third Business Day prior to the proposed Borrowing/Conversion Date
with respect to the proposed Conversion or Continuation if the Borrowing Tranche
is to be Converted into or Continued at a Fixed Rate Option and (ii) on the
proposed Borrowing/Conversion Date with respect to a proposed Conversion from a
Fixed Rate Option to the Base Rate Option and, in either case, such
Borrowing/Conversion Date must also be a Weekly Settlement Date. The Servicing
Agent shall then give the Agent and each Bank prompt (and in any event not later
than 11:00 A.M. on such day) notice thereof by telephone, facsimile or telex.
Each such notice by the Borrower shall specify (i) the proposed
Borrowing/Conversion Date of such proposed Conversion/Continuation (which shall
be a Weekly Settlement Date), (ii) the Borrowing Tranches to be Converted and/or
Continued, (iii) the principal amount of the Loans to be Converted and/or
Continued, (iv) whether such Borrowing Tranche is to be Converted or Continued
and (v) in the case of any Conversion to or Continuation of any Loans at a Fixed
Rate, the requested Interest Period for such Converted and/or Continued
Borrowing Tranche. Any Conversion/Continuation Request (or telephonic notice
thereof) shall be irrevocable, and the Borrower shall be bound to Convert or to
Continue the Loans in accordance therewith. The Servicing Agent shall have no
duty to verify the authenticity of the signature appearing on any
Conversion/Continuation Request and, with respect to any telephonic request for
a Conversion/Continuation, the Servicing Agent shall have no duty to verify the
identity of any individual representing himself as an Authorized Officer. Any
Conversion/Continuation Request received by the Servicing Agent after the time
specified in the immediately preceding sentence shall be deemed to have been
received by the Servicing Agent on the next Business Day.
2.3 Notes. The Loans payable to each Bank shall be evidenced by a Note of
the Borrower dated the Closing Date payable to the order of such Bank in a
maximum principal face amount equal to the Commitment of such Bank.
6
2.4 Fees. (a) The Borrower shall pay to the Agent, for the account of the
Banks in such proportions as the Agent and each such Bank shall agree, a fee
(the "Unused Commitment Fee") on the average daily excess of the Maximum
Facility Amount over the aggregate outstanding principal balance of the Loans at
the per annum rate set forth in that certain letter agreement of even date
herewith (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Fee Letter") among the Agent, ING and the
Borrower. The Unused Commitment Fee shall be calculated on the basis of a
360-day year and the actual number of days elapsed and shall be payable, in
arrears, on the first Business Day of each calendar month commencing after the
date hereof and on the Commitment Termination Date.
(b) The Borrower shall pay to the Servicing Agent, commencing on the date
such Servicing Agent shall commence its duties as the Servicing Agent hereunder
and ending upon the effective date of the resignation or termination of such
Servicing Agent as Servicing Agent hereunder, a fee (the "Servicing Agent Fee")
equal to $5000.00 per quarter-year, payable quarterly in arrears.
2.5 Reductions of the Maximum Facility Amount; Termination of the
Commitments. (a) The Borrower shall have the option, upon not less than 5 days'
prior written notice to the Agent (which shall promptly thereafter notify the
Servicing Agent and each of the Banks thereof), to reduce, in whole or in part,
any unused portion of the Maximum Facility Amount; provided, that any such
reduction shall be in a minimum amount of $1,000,000 and in integral multiples
of $100,000 in excess of such amount. Any such reduction in the Commitments
pursuant to the immediately preceding sentence shall reduce the Commitment of
each Bank ratably in accordance with their respective Commitment Percentages.
Any such notice of reduction given by the Borrower to the Agent shall be
irrevocable when given.
(b) In addition, the Borrower shall have the option to terminate the
Commitments in their entirety, upon not less than 5 days' prior written notice
thereof to the Agent (who shall promptly thereafter notify the Servicing Agent
and each of the Banks thereof) and the payment in full, in cash, of all then
outstanding interest and principal on the Loans, any breakage fees then owing or
resulting from such prepayment pursuant to Section 4.4, and all other
Obligations then outstanding (and whether or not then otherwise due and
payable). Any such notice of termination given by the Borrower to the Agent
shall be irrevocable when given.
7
ARTICLE 3. INTEREST RATES; PAYMENTS
3.1 Interest Rate Option; Computation of Interest; Maximum Interest Rate.
(a) The Borrower shall pay to the Servicing Agent for the account of each
Bank, subject to the terms and provisions of Section 3.7 hereof, interest on the
unpaid principal amount of each Loan made by the Bank from the date of such Loan
until such principal amount shall be paid in full, at the following rates per
annum:
(i) with respect to each Borrowing Tranche of the Euro-Rate Portion, a
rate per annum at all times during the Interest Period to which such
Borrowing Tranche is allocated equal to the Euro-Rate for such Interest
Period;
(ii) with respect to each Borrowing Tranche of the Swap Rate Portion,
a rate per annum at all times during the Interest Period to which such
Borrowing Tranche is allocated equal to the Swap Rate for such Interest
Period; and
(iii) with respect to the Base Rate Portion, a rate per annum equal at
all times to the Base Rate in effect from time to time;
it being understood that, subject to the provisions of this Agreement, the
Borrower may select different Interest Rate Options and different Interest
Periods to apply simultaneously to the Loans comprising different Borrowing
Tranches and may Convert to or Continue one or more Interest Rate Options with
respect to all or any portion of the Loans, comprising any Borrowing Tranche.
(b) All interest accruing hereunder (other than interest at the Base Rate
Option) shall be computed on the basis of a year of 360 days and the actual
number of days elapsed. Interest accruing at the Base Rate Option shall be
computed on the basis of a year of 365 or 366 days, as applicable, and the
actual number of days elapsed.
(c) The Agent's determination of a rate of interest and any change therein
shall, in the absence of manifest error, be conclusive and binding upon all
parties hereto.
(d) In no event shall any interest rate exceed the maximum rate permissible
for business borrowers such as the Borrower under applicable Law (the "Maximum
Rate"). If, in any month, any interest rate, absent such limitation, would have
exceeded the Maximum Rate, then the interest rate for that month
1
shall be the Maximum Rate, and, if in future months, that interest rate would
otherwise be less than the Maximum Rate, then that interest rate shall remain at
the Maximum Rate until such time as the amount of interest paid hereunder equals
the amount of interest which would have been paid if the same had not been
limited by the Maximum Rate. In the event that, upon payment in full of the
Obligations under this Agreement, the total amount of interest paid or accrued
under the terms of this Agreement is less than the total amount of interest
which would have been paid or accrued if the interest rates set forth in this
Agreement had at all times been in effect, then the Borrower shall, to the
extent permitted by applicable law, pay the Servicing Agent, for the benefit of
the affected Banks, an amount equal to the difference between (a) the lesser of
(i) the amount of interest which would have been charged if the Maximum Rate
had, at all times, been in effect or (ii) the amount of interest which would
have accrued had the interest rates set forth in this Agreement, at all times,
been in effect and (b) the amount of interest actually paid or accrued under
this Agreement. In the event that a court determines that any Bank has received
interest and other charges hereunder in excess of the Maximum Rate, such excess
shall be deemed received on account of, and shall automatically be applied to
reduce, the Obligations other than interest, in the inverse order of maturity,
and if there are no Obligations outstanding, such Bank shall refund such excess
to the Borrower.
(e) The Borrower may call the Agent on or before the date on which a Loan
Request or Conversion/Continuation Request is to be delivered to the Servicing
Agent to receive an indication of the rates then in effect, but it is
acknowledged and agreed that such projection shall not be binding on the Agent,
the Servicing Agent or the Banks nor affect the rate of interest which
thereafter is actually in effect when the election is made.
3.2 Interest After Default. To the extent permitted by Law, upon the
occurrence and during the continuation of an Event of Default, any principal,
interest, fee or other amount payable hereunder shall bear interest for each day
thereafter until paid in full (before and after judgment) at the Default Rate as
in effect from time to time. The Borrower acknowledges that such increased
interest rate reflects, among other things, the fact that such Loans or other
Obligations have become a substantially greater risk given their default status
and that the Banks are entitled to additional compensation for such risk.
3.3 Euro-Rate Unascertainable.
(a) If (x) on any date on which a Euro-Rate would otherwise be determined,
the Agent shall have determined (which determination shall be conclusive absent
manifest error) that:
2
(i) adequate and reasonable means do not exist for ascertaining such
Euro-Rate; or
(ii) a contingency has occurred which materially and adversely affects
the London interbank market relating to the Euro-Rate; or
(y) at any time any Bank shall have determined (which determination shall be
conclusive absent manifest error) that:
(i) the making, maintenance or funding of any Loan to which a Euro-Rate
applies has been made impracticable or unlawful by compliance by such Bank in
good faith with any Law or any interpretation or application thereof by any
Governmental Authority or with any request or directive of any such Governmental
Authority (whether or not having the force of Law); or
(ii) such Euro-Rate will not adequately and fairly reflect the cost to
such Bank of the establishment or maintenance of any such Loan; or
(iii) after making all reasonable efforts, that deposits of the relevant
amount in Dollars for the relevant Interest Period for a Loan to which a
Euro-Rate applies are not available to such Bank at the effective cost of
funding such Loan in the London interbank market;
then, in the case of any event specified in subclause (x)(i) or (x)(ii) above,
the Agent shall promptly so notify the Servicing Agent, the Banks and the
Borrower thereof and in the case of an event specified in subclause (y)(i), (ii)
or (iii) above, such Bank shall promptly so notify the Agent and endorse a
certificate to such notice as to the specific circumstances of such notice and
the Agent shall promptly send copies of such notice and certificate to the
Servicing Agent, the other Banks and the Borrower. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given) the obligation of (A) the Banks in the case of such notice given by
the Agent or (B) such Bank in the case of such notice given by such Bank to
allow the Borrower to select, Convert to or Continue a Loan accruing interest at
the Euro-Rate Option shall be suspended until the Agent shall have later
notified the Servicing Agent and the Borrower or such Bank shall have later
notified the Agent, of the Agent's or such Bank's, as the case may be,
determination (which determination shall be conclusive absent manifest error)
that the circumstances giving rise to such previous determination no longer
exist.
(b) If at any time the Agent makes a determination under Section 3.3(a) and
the Borrower has previously notified the Servicing Agent (who has previously
notified the Agent) of its
3
selection of, any Conversion to or Continuation of a Loan to accrue interest at
the Euro-Rate and such Interest Rate Option has not yet gone into effect, such
notification shall be deemed to provide for selection of, Conversion to or
Continuation of such Loan to the Base Rate Option. If any Bank notifies the
Agent of a determination under subclause (y)(i), (ii) or (iii) of Section
3.3(a), the Borrower shall, subject to the Borrower's indemnification
obligations under Section 4.4, as to any Loan of the Bank to which a Euro-Rate
applies, on the date specified in such notice either Convert such Loan to the
Base Rate Option or pay such Loan in full.
3.4 Selection of Interest Rate Options. If the Borrower fails to select an
Interest Period in accordance with the provisions of Section 2.2 in the case of
a Continuation of a Borrowing Tranche accruing interest at a Fixed Rate Option,
the Borrower shall be deemed to have Converted such Loan or portion thereof to
the Base Rate Option, commencing upon the last day of the current Interest
Period. If an Event of Default shall occur and be continuing, the Agent may in
its discretion limit the Borrower to the Base Rate Option hereunder.
3.5 Payments.
(a) All of the Obligations shall be full recourse obligations of the
Borrower and shall be due and payable at the times set forth herein and in the
Notes. Notwithstanding anything contained in this Agreement, the Notes or the
other Loan Documents to the contrary, all outstanding principal, interest and
other Obligations of the Borrower owing hereunder and under the other Loan
Documents shall be due and payable on the Facility Termination Date. The
Obligations may be prepaid at the option of the Borrower, in whole or in part,
at any time without notice; provided that any such prepayment of less than all
of the outstanding Obligations at such time shall be applied as set forth in
Section 3.5(b). In addition, the Obligations shall be mandatorily prepaid in
accordance with Section 3.5(b). The principal amount of any Loan which is
prepaid may, subject to the limitations set forth Section 2.1(a), be reborrowed.
(b) (i) The Borrower shall instruct all Obligors to make all payments in
respect of the Purchased Claims to be sent to a Lock-Box under the exclusive
ownership and control of the Agent pursuant to the Lock Box Agreement relating
to such Lock-Box. All such payments received in a Lock-Box shall be deposited on
a daily basis to a Lock-Box Account, whereupon, upon such funds becoming
available (in accordance with the applicable Lock-Box Bank's schedule of
availability), they shall be transferred (by electronic transfer of immediately
available funds) to the Servicing Agent's Account. All such amounts received by
the Servicing Agent in the Servicing Agent's Account as aforesaid (as well as
any other amounts deposited therein in accordance
4
herewith, other than to the extent specifically designated by the Borrower for
the payment of a specific Obligation (other than interest or principal due
hereunder) shall be credited, first, to the payment of interest, if any, which
is then due and payable with respect to the Loans in accordance with Section
3.7, second, to any breakage costs which is then due and owing (including any
such amounts which would become due and payable after giving effect to any
prepayment of principal in accordance with clauses third and fourth below) in
accordance with Section 4.4, third, to the prepayment and reduction of the
outstanding principal amount of any Servicing Agent Advances, fourth, to the
prepayment and reduction of the outstanding principal amount of any other Loans,
fifth, to the payment of all other fees, expenses and indemnities due and
payable hereunder, including without limitation, to the Unused Commitment Fee,
and sixth, with respect to any excess, remit such amounts to the Borrower's
Account for the account of the Borrower.
(ii) If, on any day, the aggregate outstanding principal balance of the
Loans shall exceed the Maximum Available Facility Amount (after giving effect to
the application of any Collections available for application in accordance with
subclause (b)(i) immediately above), the Borrower shall be required on such day
to make a prepayment of the Loans and the other Obligations by payment thereof
by wire transfer to the Servicing Agent's Account of immediately available funds
in such an amount that, when applied in accordance with subclause (b)(i)
immediately above, will be sufficient to eliminate such excess. In addition, all
such proceeds of the Purchased Claims, other Collateral and other payments
received from or on behalf of the Borrower (including any such payments required
to be turned over to the Agent in respect of damaged, destroyed or condemned
Collateral pursuant to the terms of the Security Agreement) in respect of the
Obligations shall be applied in the manner set forth in Section 3.5(b)(i). Any
such proceeds, other Collateral or other payments received by the Agent shall be
remitted to the Servicing Agent on the next Business Day after the Agent's
receipt thereof.
(iii) Unless otherwise specified by the Borrower or otherwise specified
herein (including in clauses third and fourth of Section 3.5(b)(i) hereof), all
prepayments of principal made in accordance with this Section 3.5(b) shall be
applied first to the Base Rate Portion of the outstanding Loans and then to the
Fixed Rate Portion of such Loans. Without limiting the foregoing in any way, all
prepayments applied to the principal of any Fixed Rate Portion shall be subject
to Section 4.4 hereof to the extent applicable.
(c) (i) All payments and prepayments to be made in respect of principal,
interest, expenses, indemnities, Servicing Agent Fees, any other fees or other
Obligations (except Unused
5
Commitment Fees and other fees due to the Agent) due from the Borrower
hereunder shall be made to the Servicing Agent's Account prior to 11:00 A.M.
(New York City time) on the date when due without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived by the Borrower,
and without setoff, counterclaim or other deduction of any nature, and an action
therefor shall immediately accrue. The Borrower hereby authorizes and directs
the Servicing Agent to charge the Servicing Agent's Account for each payment of
principal and interest when due on the Loans and for all fees, expenses,
indemnities and other Obligations (except Unused Commitment Fees and other fees
due to the Agent) due from the Borrower hereunder when due. The Borrower agrees
that, to the extent there are insufficient funds in the Servicing Agent's
Account or such other accounts to make any payment when due, the Borrower shall
immediately pay to the Servicing Agent all amounts due that remain unpaid.
(ii} All payments to be made in respect of Unused Commitment Fees or other
fees due to the Agent from the Borrower hereunder shall be made to the Agent's
Account prior to 11:00 A.M. (New York City time) on the date when due without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and without setoff, counterclaim or other
deduction of any nature, and an action therefor shall immediately accrue. The
Borrower hereby authorizes and directs each of the Agent and the Servicing Agent
to charge either or both of the Agent's Account and the Servicing Agent's
Account, respectively, for all such fees due from the Borrower hereunder when
due and the Servicing Agent agrees to charge such account for such amounts at
the direction of the Agent and to remit such amounts to the Agent. The Borrower
agrees that, to the extent there are insufficient funds in the Agent's Account,
the Servicing Agent's Account or such other accounts to make any payment when
due, the Borrower shall immediately pay to the Agent all amounts due that remain
unpaid. The Agent shall allocate and distribute Unused Commitment Fees to each
Bank (as a Bank, and to the extent applicable, as Servicing Agent) in accordance
with such Bank's daily average unused Commitment.
(d) (i) If the Agent shall not have exercised the Daily Settlement Option,
on each Weekly Settlement Date, the Servicing Agent shall distribute to the
Agent and the Banks in immediately available funds all payments and prepayments
received during the previous week by the Servicing Agent in respect of
principal, interest and other amounts received and available for distribution as
of the opening of business on such date, net of any principal amount that the
Agent or such Bank would be required to remit to the Servicing Agent under
Sections 2.1(d)(ii) or 2.1(d)(iii), as applicable, of this Agreement. The
Servicing Agent's, the Agent's and each Bank's statement of
6
account, ledger or other relevant record shall, in the absence of manifest
error, be conclusive as the statement of the amount of principal of and interest
on the Loans and other amounts owing by the Borrower under this Agreement and
shall be deemed an "account stated." The Borrower shall have no liability to the
Servicing Agent, the Agent or any Bank for any loss or expense incurred as a
result of the failure by the Servicing Agent to comply with the provisions of
this Section 3.5(d)(i).
(ii) If the Agent has exercised its Daily Settlement Option, on each
Business Day thereafter, the Servicing Agent shall distribute to the Agent and
the Banks in immediately available funds all payments and prepayments received
by the Servicing Agent in respect of principal, interest and other amounts
received and available for distribution as of the opening of business on such
date, net of any principal amount that the Agent or such Bank would be required
to remit to the Servicing Agent under Sections 2.1(d)(ii) or 2.1(d)(iii), as
applicable, of this Agreement. The Servicing Agent's, the Agent's and each
Bank's statement of account, ledger or other relevant record shall, in the
absence of manifest error, be conclusive as the statement of the amount of
principal of and interest on the Loans and other amounts owing by the Borrower
under this Agreement and shall be deemed an "account stated." The Borrower shall
have no liability to the Servicing Agent, the Agent or any Bank for any loss or
expense incurred as a result of the failure by the Servicing Agent to comply
with the provisions of this Section 3.5(d) (ii).
(e) The Borrower hereby transfers and conveys to the Agent, for its and the
Banks' benefit, exclusive ownership and control of each of the Lock-Boxes and
the Lock-Box Accounts. If, notwithstanding the requirements of Section
3.5(b)(i), the Borrower receives any Collections of any Purchased Claims or any
other proceeds of Collateral which are required to be paid to the Servicing
Agent or the Agent, each for the benefit of the Banks, it shall receive such
payments as the Agent's trustee, and shall promptly (and, in any event, within
one (1) Business Day after its receipt thereof) deliver such payments to a
Lock-Box Account, or to the Servicing Agent, in each case, in their original
form duly endorsed in blank. All Collections received in the Lock-Boxes or the
Lock-Box Accounts and all amounts on deposit in the Agent's Account shall be
the sole property of the Agent, for the benefit of itself and the Banks, and
subject to the Agent's sole control. All amounts on deposit in the Servicing
Agent's Account shall be the sole property of the Servicing Agent, for the
benefit of itself, the Agent, and the Banks, and subject to the Servicing
Agent's sole control. At the Agent's request, the Borrower shall execute and
deliver to the Agent such documents as the Agent shall require to grant the
Agent access to, and exclusive dominion and control over, any lock-boxes and/or
bank
7
accounts (including, without limitation, the Lock-Boxes and Lock-Box
Accounts) to which Collections are remitted.
3.6 Pro Rata Treatment of Banks. Subject to the weekly settlement
procedures contained in Section 2.1(d)(ii) and Section 3.5(d)(i) to this
Agreement prior to the exercise by the Agent of the Daily Settlement Option,
each Borrowing, and each selection of, Conversion to or Continuation of any
Interest Rate Option and each payment or prepayment by the Borrower with respect
to principal and other amounts (except interest) due from the Borrower hereunder
to the Banks (other than any such amounts of the type described in Section 2.3,
Article 4, Section 10.6 or Section 11.3) shall be made and distributed in
proportion to the Ratable Shares of each Bank (except with respect to the terms
and provisions of Section 3.7 dealing with the distribution by the Servicing
Agent to the Banks of interest payments).
3.7 Interest Payment Dates. (i) Interest on Loans to which the Base Rate
Option applies shall be due and payable in arrears on the first Business Day of
each month after the date hereof and on the date (following the Commitment
Termination Date) on which all such Loans shall be paid in full. Interest shall
be allocated to each Bank based on its average daily outstanding balance of all
Base Rate Loans during such preceding month.
(ii) Interest on Loans to which a Fixed Rate Option applies shall be due
and payable on the last day of each Interest Period for those Loans; provided,
that with respect to any Interest Period which is more than one (1) month long,
the accrued interest thereon shall also be due and payable thereon on the last
day of each month during which such Loans are outstanding; and provided,
further, that from and after the occurrence of the Commitment Termination Date
for any reason whatsoever, the Agent may, in its sole discretion, instruct the
Servicing Agent to apply Collections to the payment of accrued but unpaid
interest on the Loans (including Loans allocated to any Fixed Rate Options) at
such other times as it, in its sole discretion, may designate, which may be
daily. With respect to any Fixed Rate Portion, interest shall be allocated to
each Bank based on its average daily outstanding balance of each such Loan
allocated to any such Fixed Rate Option during the Interest Period (or portion
thereof) applicable to each such Loan.
8
EXHIBIT G
TO
SECOND AMENDMENT
New Article 10A to the Agreement
--------------------------------
Attached.
ARTICLE l0A. THE SERVICING AGENT
l0A.1 Appointment. Each of the Banks and the Agent hereby designates,
appoints and authorizes the Servicing Agent to act for the Agent and the Banks
in the capacities set forth in this Agreement. Each of the Banks and the Agent
hereby further appoints, designates, and authorizes PNC Bank to act as the
initial Servicing Agent hereunder. Each Bank and the Agent hereby authorizes,
and each holder of any Note by the acceptance of a Note shall be deemed to
authorize, the Servicing Agent to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and any other
instruments, documents and/or agreements referred to herein, and to exercise
such powers and to perform such duties hereunder as are specifically delegated
to or required of the Servicing Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. PNC Bank agrees to act as the
Servicing Agent on behalf of the Agent and the Banks to the extent provided in
this Agreement. The appointment and authority of the Servicing Agent hereunder
shall terminate on the date upon which the Obligations shall have been fully and
indefeasibly paid in cash. The Servicing Agent shall not delegate any of its
powers or duties hereunder except to an authorized officer or employee of the
Servicing Agent.
l0A.2 Actions in Discretion of Servicing Agent; Instructions from the
Banks. The Servicing Agent shall, upon the written request of the Required
Banks, take or refrain from taking any action of the type specified as being
subject to direction by the Required Banks and otherwise the Servicing Agent, in
its sole discretion, shall take or refrain from taking any action of the type
specified as being within the Servicing Agent's rights, powers or discretion
herein; provided that the Servicing Agent shall not be required to take any
action which exposes the Servicing Agent to personal liability or which is
contrary to this Agreement, any other Loan Document or applicable Law.
l0A.3 Reimbursement and Indemnification of Servicing Agent by the Borrower.
The Borrower shall unconditionally pay or reimburse the Servicing Agent and save
the Servicing Agent harmless against:
(a) liability for the payment of all reasonable out-of-pocket costs,
expenses and disbursements, including, but not limited to, fees and expenses of
counsel incurred by the Servicing Agent:
1
(i) in connection with the interpretation, performance and
administration of this Agreement and the other Loan Documents; and
(ii) relating to any requested amendments, waivers or consents pursuant
to the provisions hereof.
(b) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Servicing Agent in its capacity as such, or any of its directors, employees,
officers or agents, acting on its behalf in such capacity, in any way relating
to or arising out of this Agreement or any other Loan Documents or any action
taken or omitted by the Servicing Agent or such other foregoing Persons
hereunder or thereunder; provided that the Borrower shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results solely
from the Servicing Agent's (or such director's, employee's, officer's or
agent's, as applicable) gross negligence or willful misconduct as determined by
a court of competent jurisdiction by final and non-appealable judgment (or
settlement tantamount to a final judgment).
l0A.4 Exculpatory Provisions. Neither the Servicing Agent, nor any of its
directors, officers, employees, agents, attorneys or Affiliates shall be liable
to the Borrower, the General Partner, any Guarantor, any Affiliate of any of the
foregoing, the Agent, or any Bank for consequential damages resulting from any
breach of contract, tort or other wrong in connection with the negotiation,
documentation, administration or collection of the Loans or any of the Loan
Documents, whether or not it knew or was made aware of the possibility of the
occurrence thereof.
l0A.5 Reliance by Servicing Agent. The Servicing Agent shall be entitled to
rely upon any writing, telegram, telex or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Servicing Agent. The Servicing Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Agent and 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.
l0A.6 Notices. The Servicing Agent shall send to the Agent and each Bank a
copy of all notices received from the
2
Borrower pursuant to the provisions of this Agreement or the other Loan
Documents promptly upon receipt thereof.
l0A.7 The Servicing Agent in its Individual Capacity. With respect to its
Commitment and the Loans made by any Bank, to the extent it is also acting as
the Servicing Agent, such Bank shall have the same rights and powers hereunder
as any other Bank and may exercise the same as though it were not the Servicing
Agent, and the term "Banks" shall, unless the context otherwise indicates,
include such Bank in its individual capacity. Any such Bank and its Affiliates
may, except as prohibited herein, make Loans to, accept deposits from, discount
drafts for, act as trustee under indentures of, and generally engage in any kind
of banking or trust business with, the Borrower and its Affiliates as though it
were not acting as Servicing Agent hereunder.
l0A.8 Holders of Notes. The Servicing Agent may deem and treat any payee of
any Note as the owner thereof for all purposes hereof unless and until written
notice of the assignment or transfer thereof shall have been received by the
Servicing Agent.
l0A.9 Successor Servicing Agent. The Servicing Agent may resign as
Servicing Agent upon not less than forty-five days' prior written notice to the
Agent, the Borrower and the Banks. In addition, the Agent may terminate PNC Bank
or any successor thereof as Servicing Agent at any time with or without cause.
If the Servicing Agent shall resign or be terminated under this Agreement, then
the Agent shall appoint a successor servicing agent (which may be itself) for
the Agent and the Banks. Upon its acceptance of its appointment, such successor
servicing agent shall succeed to the rights, powers and duties of the Servicing
Agent and the term "Servicing Agent" shall mean such successor servicing agent,
effective upon its appointment, and the former Servicing Agent's rights, powers
and duties as Servicing Agent shall be terminated without any other or further
act or deed on the part of such former Servicing Agent or any of the parties to
this Agreement. Notwithstanding such resignation, the provisions of this Article
lOA shall continue to inure to the benefit of such former Servicing Agent in
respect of the period during which it acted as Servicing Agent hereunder.
l0A.10 Calculations. In the absence of gross negligence or willful
misconduct, the Servicing Agent shall not be liable for any error in computing
the amount payable to the Agent or any Bank whether in respect of the Loans,
fees or any other amounts due to Agent or the Banks under this Agreement. In the
event an error in computing any amount payable to the Agent or any Bank is made,
the sole recourse of the Agent or any such Bank shall be to collect the
misallocated portion of any such payment from the Servicing Agent, the other
Banks or the Borrower that received or otherwise holds such misallocated
payment, with,
3
in the case of any such amounts to be collected from the Borrower, interest
thereon to be calculated at the Base Rate Option.
10A.ll Beneficiaries. Except with respect to Sections lOA.3 and 10A.10, the
provisions of this Article 10A are solely for the benefit of the Servicing
Agent, the Agent and the Banks, and the Borrower shall have no rights to rely on
or enforce any of the provisions hereof. In performing its functions and duties
under this Agreement the Servicing Agent shall act solely as servicing agent of
the Agent and the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for the
Borrower, the General Partner, any Guarantor or any Affiliate of any of the
foregoing.
4
THIRD AMENDMENT
THIS THIRD AMENDMENT (the "Amendment") dated as of May 24, 1996 is
entered into by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a Pennsylvania
limited partnership (the "Borrower"), X.X. XXXXXXXXX FUNDING CORP., a
Pennsylvania corporation (the "Parent"), THE FINANCIAL INSTITUTIONS PARTIES
HERETO (collectively, the "Banks"), PNC BANK, NATIONAL ASSOCIATION ("PNC") and
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL MARKETS, INC. ("ING"), individually
and as agent for the Banks (in such capacity as agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Banks and the Agent
have entered into that certain Credit Agreement dated as of May 26, 1995 (as
amended prior to the date hereof, and as further amended, restated,
supplemented, or otherwise modified, the "Agreement"; the terms defined therein
being used herein as therein defined unless otherwise defined herein), pursuant
to which the Banks and the Agent have made and may from time to time hereafter
make certain loans, advances and other financial accommodations to the Borrower;
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Agreement as set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment of the Agreement. Upon the satisfaction of the
conditions precedent set forth in Section 2 of this Amendment, the Agreement is
hereby amended to (x) delete the date "May 24, 1996" appearing in clause (iii)
of the definition of "Commitment Termination Date" appearing in Section 1.01 of
the Agreement and (y) substitute the date "May 23, 1997" therefor.
SECTION 2. Conditions Precedent. This Amendment shall become effective
upon the satisfaction of the following conditions precedent:
2.1. The Agent shall have received five fully- executed (and, in
the case of the Borrower, the General Partner and the Guarantors,
notarized) copies of this Amendment and each of the Consents and
Reaffirmations attached hereto as Exhibits A and B;
2.2. No event or condition has occurred and is continuing, or
would result from the execution, delivery or performance of this Amendment,
which would constitute an Event of Default or Potential Default.
2.3. All of the representations and warranties of the Borrower
and the General Partner set forth in Section 3 of this Amendment are true
and correct in all material respects.
SECTION 3. Representations and Warranties of the Borrower and the
General Partner. Upon the effectiveness of this Amendment, each of the Borrower
and the General Partner hereby remakes and reaffirms as of the date hereof all
covenants, representations and warranties made by it (or deemed made by it) in
the Agreement (except to the extent such covenants, representations or
warranties expressly speak as to another date).
SECTION 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 6. Reference to and Effect on the Agreement. Upon the
effectiveness of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and
references to the Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Agreement, shall in each case,
mean and be a reference to the Agreement as amended hereby. Except as expressly
otherwise amended by this Amendment, the Agreement shall continue in full force
and effect and is hereby ratified and confirmed.
SECTION 7. Counterparts. This Amendment may be exe cuted in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SECTION 8. Fees and Expenses. The Borrower and the General Partner each
hereby jointly and severally agrees to pay all costs and expenses of the Agent
and the Banks in connection with the preparation, execution and delivery of this
Amendment and any of the other instruments, documents and agreements to be
executed and/or delivered in connection herewith, including, without limitation,
the reasonable attorneys' fees and expenses of each such Person incurred in
connection herewith.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
X. X. XXXXXXXXX MFC
ASSOCIATES, L.P.
By: X. X. XXXXXXXXX FUNDING CORP.,
Its sole General Partner
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
X. X. XXXXXXXXX FUNDING CORP.
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL MARKETS, INC., individually
and as Agent
By:________________________________
Its:
By:________________________________
Its:
PNC BANK, NATIONAL ASSOCIATION,
individually and as Servicing Agent
By:________________________________
Its:
-3-
STATE OF PENNSYLVANIA )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1996 appeared Xxxx Xxxxxxx, who executed this
Third Amendment in his aforementioned capacity as an officer of X.X. Xxxxxxxxx
Funding Corp. executing such Third Amendment on behalf of such corporation
individually and as the General Partner of X.X. Xxxxxxxxx MFC Associates, L.P.,
and acknowledged that he did so as his own free act and deed.
____________________________
Notary Public
My commission expires_______
-4-
EXHIBIT A
TO
THIRD AMENDMENT
CONSENT AND REAFFIRMATION
Xxxx Xxxxxxx hereby consents to the foregoing Third Amendment dated as
of May __, 1996 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and PNC Bank, National Association, as servicing agent, and reaffirms its
obligations under that certain Guaranty and Surety Agreement ("Guaranty")
executed by him, dated as of May 26, 1995, which Guaranty remains in full force
and effect.
___________________________
By: Xxxx Xxxxxxx
Dated: May ___, 0000
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1996 appeared Xxxx Xxxxxxx, who executed this
Consent and Reaffirmation and acknowledged that he did so as his own free act
and deed.
____________________________
Notary Public
My commission expires_______
EXHIBIT B
TO
THIRD AMENDMENT
CONSENT AND REAFFIRMATION
Xxxxx XxXxxxx hereby consents to the foregoing Third Amendment dated as
of May __, 1996 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, Internationale Nederlanden (U.S.) Capital Markets, Inc., as
agent, and PNC Bank, National Association, as servicing agent, and reaffirms its
obligations under that certain Guaranty and Surety Agreement ("Guaranty")
executed by him, dated as of May 26, 1995, which Guaranty remains in full force
and effect.
___________________________
By: Xxxxx XxXxxxx
Dated: May __, 0000
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1996 appeared Xxxxx XxXxxxx, who executed
this Consent and Reaffirmation and acknowledged that he did so as his own free
act and deed.
____________________________
Notary Public
My commission expires_______
Draft 05/08/95
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (the "Amendment") dated as of May 22, 1997 is
entered into by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a Pennsylvania
limited partnership (the "Borrower"), X.X. XXXXXXXXX FUNDING CORP., a
Pennsylvania corporation (the "Parent"), THE FINANCIAL INSTITUTIONS PARTIES
HERETO (collectively, the "Banks"), ING (U.S.) CAPITAL CORPORATION (as successor
to ING Barings (U.S.) Capital Markets, Inc. (formerly known as Internationale
Nederlanden (U.S.) Capital Markets, Inc., ("ING")), individually and as agent
for the Banks (in such capacity as agent, the "Agent"), and PNC BANK, NATIONAL
ASSOCIATION, as servicing agent (in such capacity, the "Servicing Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Banks, the Agent and the
Servicing Agent are parties to that certain Credit Agreement dated as of May 26,
1995 (as the same has been amended prior to the date hereof, the "Agreement";
the terms defined therein being used herein as therein defined unless otherwise
defined herein), pursuant to which the Banks, the Agent and the Servicing Agent
have made, and may from time to time hereafter make, certain loans, advances and
other financial accommodations to the Borrower;
WHEREAS, the parties hereto have agreed to modify certain terms and
provisions of the Agreement as set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment of the Agreement. Upon the satisfaction
of the conditions precedent set forth in Section 2 of this Amendment, the
Agreement is hereby amended as follows:
1.1. The definition of "Base Rate Option" set forth in Section 1.1 of
the Agreement is hereby amended and restated in its entirety to read as
follows:
"'Base Rate Option' shall mean, for any date during any calendar month
or any such shorter period ending on the Commitment Termination Date, a
per annum rate determined as of the last day of such calendar month or
on the Commitment Termination Date, as applicable, equal to the daily
average of the higher of (i) the Base Rate as in effect on such date
minus 1.50% and (ii) the sum of (a) the daily average during such
period (as determined on the last day of such period) of the Euro-Rates
which would have been in effect on each Business Day during such period
for one-month Interest Periods commencing on each such day, as such
rate is determined without giving effect to clause (a) of the
definition of "Euro-Rate", and (b) 1.50%;"
1.2. The definition of "Commitment Termination Date" set forth in
Section 1.1 of the Agreement is hereby amended to (i) delete the date "May
23, 1997" set forth therein and (ii) substitute the date "May 20, 1998"
therefor;
1.3. The definition of "Maximum Facility Amount" set forth in Section
1.1 of the Agreement is hereby amended to (i) delete the amount
"$80,000,000" set forth therein and (ii) substitute the amount
"$20,000,000" therefor;
1.4. Section 7.1(b) is hereby amended to (i) delete the amount
"$1,000,000" set forth in clause (x) thereof and (ii) substitute the amount
"$500,000" therefor; and
1.5. The respective "Commitments" of each of ING and PNC for purposes
of the Agreement shall be reduced from "$64,000,000" and "$16,000,000", as
respectively set forth on Schedule I to the most recent Assignment and
Assumption Agreement to which such Person were parties, to "$16,000,000"
and "$4,000,000," respectively.
SECTION 2. Conditions Precedent. This Amendment shall become effective
upon the satisfaction of the following conditions precedent:
(a) The Agent shall have received copies of each of the following
instruments, documents and agreements, in form and substance and in such
number of copies as, in each case, shall be satisfactory to the Agent:
(i) fully-executed original copies of this Amendment;
(ii) fully-executed copies of a Note Modification and Substitution
Agreement in substantially the form attached hereto as Exhibit A;
(iii) a fully executed copy of each of the Amended and Restated
Revolving Notes attached to the above-described Note Modification and
Substitution Agreement as Exhibits A and B thereto;
(iv) fully executed copies of the Consents and Reaffirmations attached
hereto as Exhibits B and C; and
(v) fully-executed copies of the UCC-3 Amendments and UCC-1 Financing
Statements described on Exhibit D attached hereto; and
(b) No event or condition has occurred and is continuing, or would
result from the execution, delivery or performance of this Amendment, which
would constitute an Event of Default or Potential Default.
SECTION 3. Representations and Warranties of the Seller. Upon the
effectiveness of this Amendment, the Borrower hereby remakes and reaffirms all
covenants, representations and warranties made by it (or deemed made by it) in
the Agreement (except to the extent such covenants, representations or
warranties expressly speak as to another date).
SECTION 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 6. Reference to and Effect on the Agreement. Upon the
effectiveness of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and
references to the Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Agreement, shall in each case,
mean and be a reference to the Agreement as amended hereby. Except as
-2-
expressly otherwise amended by this Amendment, the Agreement shall continue in
full force and effect and is hereby ratified and confirmed.
SECTION 7. Counterparts. This Amendment may be exe cuted in one or more
counterparts, each of which shall be deemed to be an original, and all of which
when taken together shall constitute one and the same instrument.
SECTION 8. Fees and Expenses. The Borrower hereby confirms its
agreement to pay on demand all reasonable costs and expenses in connection with
the preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in
connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel to the Agent and the Banks with respect
thereto.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
X. X. XXXXXXXXX MFC
ASSOCIATES, L.P.
By: X. X. XXXXXXXXX FUNDING CORP.,
Its sole General Partner
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
X. X. XXXXXXXXX FUNDING CORP.
By:________________________________
Xxxx Xxxxxxx
Chairman and Secretary
ING (U.S.) CAPITAL CORPORATION,
individually and as Agent
By:________________________________
Its:
By:________________________________
Its:
PNC BANK, NATIONAL ASSOCIATION,
individually and as Servicing Agent
By:________________________________
Its:
-4-
STATE OF PENNSYLVANIA )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1997 appeared Xxxx Xxxxxxx, who executed this
Fourth Amendment in his aforementioned capacity as an officer of X.X. Xxxxxxxxx
Funding Corp. executing such Fourth Amendment on behalf of such corporation and
as the General Partner of X.X. Xxxxxxxxx MFC Associates, L.P., and acknowledged
that he did so as his own free act and deed.
____________________________
Notary Public
My commission expires_______
-5-
EXHIBIT A
TO
FOURTH AMENDMENT
FORM OF NOTE MODIFICATION AND SUBSTITUTION AGREEMENT
Attached.
-6-
NOTE MODIFICATION AND SUBSTITUTION AGREEMENT
THIS NOTE MODIFICATION AND SUBSTITUTION AGREEMENT ("Agreement") is made
this ____ day of May, 1997 by and among X.X. XXXXXXXXX MFC ASSOCIATES, L.P., a
Pennsylvania limited partnership (the "Borrower"), ING (U.S.) CAPITAL
CORPORATION, in its individual capacity (in such capacity "ING") and as agent
(in such capacity, the "Agent") for itself and the other Banks under (and as
such term is defined in) the Credit Agreement referred to below, and PNC BANK,
NATIONAL ASSOCIATION, in its individual capacity (in such capacity, "PNC") and
as servicing agent (in such capacity, the "Servicing Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent, X.X. Xxxxxxxxx Funding Corp., a
Pennsylvania corporation and the sole general partner of the Borrower
("Funding"), the Banks, the Agent and the Servicing Agent are parties to a
certain Credit Agreement dated as of May 26, 1995 (as the same has been and may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement);
WHEREAS, concurrently with its execution of the Credit Agreement, the
Borrower executed and delivered a certain Revolving Loan Note dated as of May
26, 1995 (the "Original Note") payable to ING in a maximum principal amount of
$90,000,000, the amount of ING's Commitment under the Credit Agreement;
WHEREAS, upon PNC's becoming a party to the Credit Agreement, the
Original Note was amended and restated by two other Revolving Loan Notes each
dated as of September 25, 1995 made by the Borrower, the first being in the
maximum principal amount of $72,000,000 payable to ING and the second being in
the maximum principal amount of $18,000,000 payable to PNC (collectively, the
"First Amended Notes");
WHEREAS, on March 20, 1996, the Credit Agreement was amended to reduce
the Maximum Facility Amount thereunder from $90,000,000 to $80,000,000 and, in
connection therewith, new Revolving Loan Notes were executed and delivered by
the Borrower to ING and PNC in substitution for the First Amended Notes, which
notes were in the respective maximum principal amounts of $64,000,000 and
$16,000,000 (collectively, the "Second Amended
-7-
Notes"; and together with the Original Note and the First Amended
Notes, being the "Replaced Notes");
WHEREAS, concurrently with the execution hereof, the Borrower, the
Parent, the Banks, the Agent and the Servicing Agent are entering into a certain
Fourth Amendment (the "Amendment") to the Credit Agreement pursuant to which the
Maximum Facility Amount is being further reduced to $20,000,000 and the
respective Commitments of ING and PNC are being reduced to $16,000,000 and
$4,000,000;
WHEREAS, in connection with such Amendment, the Borrower shall be
required to execute and deliver substitute Revolving Loan Notes (the "Substitute
Notes") to each of ING and PNC, in the forms attached hereto as Exhibit A and B,
respectively, in exchange for (but not in satisfaction or novation of) the
Replaced Notes, each which Substitute Note shall be in a maximum principal
amount equal to the applicable Bank's Commitment under the Credit Agreement (as
so amended);
NOW, THEREFORE, in consideration of the foregoing premises and subject
to the terms and conditions contained herein, the parties hereto agree as
follows:
1. To the extent that the indebtedness heretofore evidenced by the
Replaced Notes shall remain outstanding as of the date on which the Amendment
becomes effective, such indebtedness shall continue to be secured, pursuant to
the terms of the Security Agreement. The Substitute Notes (i) shall, in part,
re-evidence all of the indebtedness of the Borrower outstanding under the
Replaced Notes for any and all loans or other financial accommodations made to
the Borrower by ING and/or PNC, as applicable, (ii) shall, in part, evidence any
loans or other financial accommodations hereafter made by any of the Banks to
the Borrower, (iii) shall be given in substitution for, but not as payment of or
in satisfaction of the Replaced Notes, and (iv) is no way intended to constitute
or otherwise effect a novation of the outstanding indebtedness owing under, and
evidenced by, the Replaced Notes.
2. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
3. This Agreement shall be binding upon, and inure to the benefit of,
the Borrower and its successor and assigns and each of the Banks and its
respective successors and assigns.
-8-
4. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS (AS
DISTINGUISHED FROM THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
-9-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. Xxxxxxxxx Funding Corp.,
its sole general partner
By:________________________________
Title:__________________________
ING (U.S.) CAPITAL CORPORATION,
individually and as Agent
By:________________________________
Title:__________________________
By:________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION,
individually and as Servicing Agent
By:________________________________
Title:
-10-
EXHIBIT A
to
Note Modification and Substitution Agreement
Dated May __, 1997
Form of Substitute Note for ING
Attached.
-11-
REVOLVING LOAN NOTE
$16,000,000 Dated: May __, 1997
FOR VALUE RECEIVED, the undersigned, X.X. XXXXXXXXX MFC ASSOCIATES,
L.P., a Pennsylvania limited partnership (the "Borrower"), HEREBY PROMISES TO
PAY to the order of ING (U.S.) CAPITAL CORPORATION (the "Lender") the principal
sum of SIXTEEN MILLION AND 00/100 DOLLARS ($16,000,000), or, if less, the
aggregate unpaid principal amount of all of the Loans (as defined in the Credit
Agreement referred to below) made by the Lender to the Borrower pursuant to the
Credit Agreement (as hereinafter defined). Terms used herein and not otherwise
defined are used as defined in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until the principal amount
thereof is paid in full in accordance with the provisions of the Credit
Agreement dated as of May 26, 1995 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, X.X. Xxxxxxxxx Funding Corp., certain
financial institutions party thereto (the "Banks"), ING (U.S.) Capital
Corporation, as agent (in such capacity, the "Agent"), and PNC Bank, National
Association, as servicing agent (in such capacity, the "Servicing Agent").
Both principal and interest are payable in lawful money of the United
States of America to the Agent at the Agent's Account or such other account as
the Agent may designate from time to time in same-day funds. All Loans made by
the Lender to the Borrower pursuant to the Credit Agreement and all payments
made on account of principal hereof shall be recorded by the Lender on its books
and records; provided, however, that the failure to so record any Loans or
payments shall not affect the validity of such Loans or payments.
This Revolving Loan Note is one of the Notes referred to in the Credit
Agreement and is entitled to the benefits and subject to the terms of the Credit
Agreement. This Revolving Loan Note is one of the Substitute Notes executed and
delivered by the Borrower pursuant to that certain Note Modification and
Substitution Agreement of even date herewith among the Borrower, the Agent and
the Banks in exchange for the then outstanding
-13-
Revolving Loan Notes executed by the Borrower pursuant to Credit Agreement (the
"Replaced Notes") and payable to the Banks. It is expressly acknowledged and
agreed that this Revolving Loan Note (i) shall, in part, re-evidence all of the
indebtedness of the Borrower to the Lender outstanding under the Replaced Notes
for any and all loans or other financial accommodations heretofore made to the
Borrower by the Lender under the Credit Agreement, (ii) shall, in part, evidence
any loans or other financial accommodations hereafter made by the Lender to the
Borrower under the Credit Agreement, (iii) shall be given in substitution for,
but not as payment of or in satisfaction of the Replaced Notes, and (iv) is no
way intended to constitute or otherwise effect a novation of the outstanding
indebtedness owing under, and evidenced by, the Replaced Notes.
The Credit Agreement provides for certain mandatory and voluntary
prepayments of principal and interest due hereunder, which prepayments may, in
certain cases, be subject to prepayment premiums or penalties.
Upon and after the occurrence of an Event of Default described in
Sections 9.01(f) or 9.01(s) of the Credit Agreement, this Revolving Loan Note,
in accordance with the terms of the Credit Agreement, may be declared, and
immediately shall become, due and payable, without demand, notice or legal
process of any kind.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
-13-
THIS REVOLVING LOAN NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW PROVISIONS) OF THE STATE OF NEW
YORK.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. XXXXXXXXX FUNDING CORP.,
its sole general partner
By: ________________________________
Name:
Title:
-14-
Exhibit B
to
Note Modification and Substitution Agreement
Dated May __, 1997
Form of Substitute Note for PNC
Attached.
-15-
REVOLVING LOAN NOTE
$4,000,000 Dated: May __, 1997
FOR VALUE RECEIVED, the undersigned, X.X. XXXXXXXXX MFC ASSOCIATES,
L.P., a Pennsylvania limited partnership (the "Borrower"), HEREBY PROMISES TO
PAY to the order of PNC BANK, NATIONAL ASSOCIATION (the "Lender") the principal
sum of FOUR MILLION AND 00/100 DOLLARS ($4,000,000), or, if less, the aggregate
unpaid principal amount of all of the Loans (as defined in the Credit Agreement
referred to below) made by the Lender to the Borrower pursuant to the Credit
Agreement (as hereinafter defined). Terms used herein and not otherwise defined
are used as defined in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until the principal amount
thereof is paid in full in accordance with the provisions of the Credit
Agreement dated as of May 26, 1995 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, X.X. Xxxxxxxxx Funding Corp., certain
financial institutions party thereto (the "Banks"), ING (U.S.) Capital
Corporation, as agent (in such capacity, the "Agent"), and PNC Bank, National
Association, as servicing agent (in such capacity, the "Servicing Agent").
Both principal and interest are payable in lawful money of the United
States of America to the Agent at the Agent's Account or such other account as
the Agent may designate from time to time in same-day funds. All Loans made by
the Lender to the Borrower pursuant to the Credit Agreement and all payments
made on account of principal hereof shall be recorded by the Lender on its books
and records; provided, however, that the failure to so record any Loans or
payments shall not affect the validity of such Loans or payments.
This Revolving Loan Note is one of the Notes referred to in the Credit
Agreement and is entitled to the benefits and subject to the terms of the Credit
Agreement. This Revolving Loan Note is one of the Substitute Notes executed and
delivered by the Borrower pursuant to that certain Note Modification and
Substitution Agreement of even date herewith among the Borrower, the Agent and
the Banks in exchange for the then outstanding
-16-
Revolving Loan Notes executed by the Borrower pursuant to Credit Agreement (the
"Replaced Notes") and payable to the Banks. It is expressly acknowledged and
agreed that this Revolving Loan Note (i) shall, in part, re-evidence all of the
indebtedness of the Borrower to the Lender outstanding under the Replaced Notes
for any and all loans or other financial accommodations heretofore made to the
Borrower by the Lender under the Credit Agreement, (ii) shall, in part, evidence
any loans or other financial accommodations hereafter made by the Lender to the
Borrower under the Credit Agreement, (iii) shall be given in substitution for,
but not as payment of or in satisfaction of the Replaced Notes, and (iv) is no
way intended to constitute or otherwise effect a novation of the outstanding
indebtedness owing under, and evidenced by, the Replaced Notes.
The Credit Agreement provides for certain mandatory and voluntary
prepayments of principal and interest due hereunder, which prepayments may, in
certain cases, be subject to prepayment premiums or penalties.
Upon and after the occurrence of an Event of Default described in
Sections 9.01(f) or 9.01(s) of the Credit Agreement, this Revolving Loan Note,
in accordance with the terms of the Credit Agreement, may be declared, and
immediately shall become, due and payable, without demand, notice or legal
process of any kind.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
-17-
THIS REVOLVING LOAN NOTE SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. XXXXXXXXX FUNDING CORP.,
its sole general partner
By: _______________________________
Name:
Title:
-18-
EXHIBIT B
TO
FOURTH AMENDMENT
CONSENT AND REAFFIRMATION
Xxxx Xxxxxxx hereby consents to the foregoing Fourth Amendment dated as
of May __, 1997 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, ING (U.S.) Capital Corporation, as agent, and PNC Bank,
National Association, as servicing agent, and reaffirms its obligations under
that certain Guaranty and Surety Agreement ("Guaranty") executed by him, dated
as of May 26, 1995, which Guaranty remains in full force and effect.
___________________________
By: Xxxx Xxxxxxx
Dated: May __, 0000
-00-
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1997 appeared Xxxx Xxxxxxx, who executed this
Consent and Reaffirmation and acknowledged that he did so as his own free act
and deed.
____________________________
Notary Public
My commission expires_______
-20-
EXHIBIT C
TO
FOURTH AMENDMENT
CONSENT AND REAFFIRMATION
Xxxxx XxXxxxx hereby consents to the foregoing Fourth Amendment dated
as of May __, 1997 to that certain Credit Agreement dated as of May 26, 1995 (as
amended), in each case, among X.X. Xxxxxxxxx MFC Associates, L.P., X.X.
Xxxxxxxxx Funding Corp., certain financial institutions from time to time
parties thereto, ING (U.S.) Capital Corporation, as agent, and PNC Bank,
National Association, as servicing agent, and reaffirms its obligations under
that certain Guaranty and Surety Agreement ("Guaranty") executed by him, dated
as of May 26, 1995, which Guaranty remains in full force and effect.
___________________________
By: Xxxxx XxXxxxx
Dated: May __, 0000
-00-
XXXXX XX XXXXXXXXXXXX )
)SS
COUNTY OF __________ )
Before me on this ____ day of May, 1997 appeared Xxxxx XxXxxxx, who executed
this Consent and Reaffirmation and acknowledged that he did so as his own free
act and deed.
____________________________
Notary Public
My commission expires_______
-22-
EXHIBIT D
TO
FOURTH AMENDMENT
UCC Amendments and UCC Financing Statements to be Executed
[To be added]
-23-
ASSIGNMENT AND ASSUMPTION
Reference is made to the Credit Agreement dated as of May 26, 1995 (the
"Credit Agreement") among X.X. Xxxxxxxxx MFC Associates, L.P., a Pennsylvania
limited partnership (the "Borrower"), X.X. Xxxxxxxxx Funding Corp., a
Pennsylvania corporation (the "General Partner"), certain financial institutions
party thereto (the "Banks") and Internationale Nederlanden (U.S.) Capital
Markets, Inc., as Agent for the Banks (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
Internationale Nederlanden (U.S.) Capital Markets, Inc. (the
"Assignor") and PNC Bank, National Association (the "Assignee") agree as
follows:
1. In consideration of the payment by the Assignee to the Assignor of
$12,157,812.77, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that percentage
specified in Section 1 of Schedule I attached hereto of all of the Assignor's
rights and obligations under the Credit Agreement as of the Effective Date (as
defined in Section 4 hereof), including, without limitation, such percentage of
the Assignor's Commitment and the outstanding Loans owing to the Assignor. After
giving effect to such sale and assignment, the Assignee's Commitment, Commitment
Percentage and the outstanding principal amount of the Loans owing to the
Assignee on the Effective Date will be as set forth in Section 2 of Schedule I
attached hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the Credit Agreement, any
of the other Loan Documents or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty
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and assumes no responsibility with respect to the financial condition of the
Borrower, the General Partner or any Guarantor or the performance or observance
by any of the foregoing Persons of any of their respective obligations under the
Credit Agreement, any of the other Loan Documents or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor 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 decisions in taking or
not taking action under the Credit Agreement or any of the other Loan Documents;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; and (v) specifies
as its address for notices the office set forth beneath its name on the
signature pages hereof.
4. Following the execution of this Assignment and Assumption by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date of this Assignment and Assumption
(the "Effective Date") shall be the date of acceptance thereof by the Agent
unless a later date is specified in Section 3 of Schedule I.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Assumption, have the rights and
obligations of a Bank thereunder including its obligation to comply with the
provisions contained in Section 11.12 of the Credit Agreement and (ii) the
Assignor shall, to the extent provided in this Assignment and Assumption,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement in
respect of the interest
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assigned hereby (including, without limitation, all payments of principal,
interest, and fees hereunder with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. The Assignor hereby agrees (solely in its individual
capacity as a Bank, and not as Agent, under the Credit Agreement) that for so
long as it shall by itself constitute the "Required Banks" under the Credit
Agreement, it will not, without the consent of the Assignee (which consent shall
not unreasonably be withheld; it being understood and agreed by the parties
hereto that (except in the case of clause (g) below) the withholding of any such
consent shall be deemed to be reasonable only to the extent that the Assignee
reasonably determines that the consummation of the action with respect to which
its consent shall be so sought could reasonably be expected to materially and
adversely effect the financial condition of the Borrower, the Collateral (taken
as a whole), the Borrower's performance of its obligations under the Credit
Agreement and the other Loan Documents, or the likelihood of the timely
repayment in full to the Assignee of all of the Obligations owing to it under
the Credit Agreement and the other Loan Documents:
(a) agree to any waiver or modification of the provisions of Section 8.1(a)
of the Credit Agreement with respect to any merger or consolidation by the
Borrower, unless (x) the Borrower shall be the surviving entity thereof,
(y) the net worth of such resulting entity would be greater than or equal
to the Borrower's net worth immediately prior to such merger or
consolidation and (z) no Event of Default or Potential Default would
otherwise occur as a result thereof under any other Section of the Credit
Agreement;
(b) agree to any waiver or modification of the provisions of Section 8.1(b)
of the Credit Agreement that would permit the incurrence by the Borrower of
any Indebtedness or Lien (other than under the Credit Agreement) in excess
of $50,000, in the aggregate, at any time outstanding;
(c) agree to any waiver or modification of the provisions of Section 8.1(c)
of the Credit Agreement that would permit the Borrower to enter into any
Guaranty (other than in favor of the Agent for the benefit of the Banks) of
any amount in excess of $50,000, in the aggregate, at any time outstanding;
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(d) agree to (x) any waiver or modification of the provisions of Section
8.1(f) of the Credit Agreement or (y) the release of the Agent's Lien on
any Collateral, except any such Collateral permitted to be disposed of in
accordance with Section 8.1(f) of the Credit Agreement;
(e) agree to any waiver or modification of the provisions of Section 8.1(k)
of the Credit Agreement;
(f) agree to (x) any modification of the terms of, or (y) any waiver or
forbearance of any Event of Default of which the Assignor has actual
knowledge under, Section 9.1(a), 9.1(b) (solely as it relates to the
covenants set forth in Sections 8.1 and 8.2 of the Credit Agreement,
provided, that this clause (f) shall not be interpreted as limiting in any
way the Assignor's right to modify the terms and provisions of any covenant
set forth in Section 8.1, 8.2 or elsewhere in the Credit Agreement or in
any of the other Loan Documents (to the extent not otherwise expressly
prohibited hereunder) at any time prior to the Assignor's acquiring actual
knowledge of the occurrence of any Event of Default or Potential Default as
a result of the non-compliance of any such covenant by the Borrower or the
General Partner, as applicable), 9.1(h), 9.1(i), 9.1(j), 9.1(k), 9.1(l)
(provided that this clause (f) shall not be deemed to limit the Assignor's
right or discretion to make any determination under Section 9.1(l) of the
Credit Agreement as to the likelihood of a Material Adverse Effect under
such Section or to require any consent of the Assignee with respect to any
such determination by the Assignor), or 9.1(m) of the Credit Agreement; or
(g) agree to any modification of the terms and provision of Article 10
which would adversely effect the Banks.
8. Notwithstanding anything contained herein or in the Agreement to the
contrary, the Assignee shall not be bound by, or make any representation,
warranty or covenant hereunder or under the Agreement as to its compliance with,
the restrictions set forth in Sections 11.11(c)(iii) and Section 11.17 of the
Agreement regarding the Assignee's engaging in financing transactions with
Competitors of the Borrower; it being acknowledged and agreed that the Assignee
currently engages, and may from time to time hereafter engage, in transactions
of such type with Competitors of the Borrower.
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9. This Assignment and Assumption shall be governed by, and construed
in accordance with, the laws of the State of New York.
10. This Assignment and Assumption may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
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Schedule I
to
Assignment and Assumption
Dated September 25, 1995
Section 1.
Commitment Percentage of Assignor prior to giving
effect to this assignment: 100%
Percentage of Assignor's interest in the Credit
Agreement being assigned under this assignment: 20%
Commitment Percentage of Assignor after giving
effect to this assignment: 80%
Commitment of Assignor prior to giving
effect to this assignment: $90,000,000
Commitment of Assignor after giving
effect to this assignment: $72,000,000
Aggregate Outstanding Principal
Amount of Loans Owing to the Assignor
immediately prior to giving effect to
this assignment: $60,789,063.84
Aggregate Outstanding Principal
Amount of Loans Owing to the Assignor
immediately after giving effect to
this assignment: $48,631,251.07
Section 2.
Assignee's Commitment after giving effect
to this assignment: $18,000,000
Commitment Percentage of Assignor after giving
effect to this assignment: 20%
Aggregate Outstanding Principal
Amount of Loans Owing to the Assignee
immediately after giving effect to
this assignment: $12,157,812.77
Section 3.
1
Effective Date: September 25, 1995
2
ASSIGNOR: INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
MARKETS, INC.
By:_______________________
Title:_________________
ASSIGNEE: PNC BANK, NATIONAL ASSOCIATION
By:_________________________
Title:___________________
Address for notices:
Land Title Building
Xxxxx & Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
Accepted this ____ day of ______________, 1995
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL MARKETS, INC.,
as Agent
By:________________________
Title:__________________
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The undersigned each hereby acknowledges and agrees to the provision set forth
in Section 8 of this Assignment and Assumption and with the assignment
contemplated herein on the terms and conditions set forth in such Section.
X.X. XXXXXXXXX MFC ASSOCIATES, L.P.
By: X.X. XXXXXXXXX FUNDING CORP., its
General Partner
By:______________________________
Name:
Title:
X.X. XXXXXXXXX FUNDING CORP.
By:______________________________
Name:
Title:
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