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AUGUST 11, 1999
TENTH AMENDMENT TO LOAN AGREEMENT
THIS TENTH AMENDMENT TO LOAN AGREEMENT (this "TENTH AMENDMENT"), is
dated for reference purposes only as of August 11, 1999 by and among lenders
party hereto from time to time ("LENDERS"), FirstCity Financial Corporation
("BORROWER"), a Delaware corporation, with its principal place of business at
0000 Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxx, Xxxxx 00000, and Bank of Scotland
("AGENT"), acting through its branch in New York, New York, a foreign banking
corporation incorporated under the laws of Scotland with its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as administrative
agent, managing agent and collateral agent on behalf of Lenders.
RECITALS:
A. Borrower and Bank of Scotland have entered into that certain Loan
Agreement dated as of April 8, 1998, as amended by First Amendment to Loan
Agreement by and between Borrower and Bank of Scotland, as amended by Second
Amendment to Loan Agreement dated as of August 12, 1998 by and among Borrower,
Bank of Scotland, individually, Lenders and Agent, as amended by Third
Amendment to Loan Agreement dated as of September 29, 1998, as amended by
Fourth Amendment to Loan Agreement dated as of November 17, 1998, as amended by
Fifth Amendment to Loan Agreement dated as of February 17, 1999, as amended by
Sixth Amendment to Loan Agreement dated as of April 30, 1999, as amended by
Seventh Amendment to Loan Agreement dated as of June 30, 1999, as amended by
Eighth Amendment to Loan Agreement dated as of July 30, 1999, as amended by
Ninth Amendment to Loan Agreement dated as of August 6, 1999 (collectively, the
"EXISTING LOAN AGREEMENT") pursuant to which Lenders have agreed to provide
Borrower with a revolving credit facility.
B. Borrower and Lenders have agreed to amend the Existing Loan
Agreement to, inter alia, (i) extend the maturity date, (ii) increase the
maximum principal amount of the loans, (iii) adjust the Interest Rate, and (iv)
provide for an additional fee.
NOW THEREFORE, in consideration of any loan, advance, extension of
credit and/or other financial accommodation at any time made by Lenders to or
for the benefit of Borrower, and of the promises set forth herein, the parties
hereto agree as follows:
1. RECITALS, INCORPORATION.
(a) Recital Representations. Borrower hereby represents and warrants
to Lenders that the foregoing Recitals are (a) true and accurate and (b) an
integral part of this Tenth Amendment. Borrower, Lenders and Agent hereby agree
that all of the Recitals of this Tenth Amendment are hereby incorporated into
this Tenth Amendment and made a part hereof.
(b) Incorporation of Existing Loan Agreement. Any term not otherwise
defined herein shall have the meaning set forth in the Existing Loan Agreement.
2. AMENDMENTS TO EXISTING LOAN AGREEMENT. The Existing Loan Agreement is
hereby amended as follows:
(a) The definition of "COMMITMENT PERCENTAGE" in the Existing Loan
Agreement is hereby deleted in its entirety and the following is substituted
therefor:
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"COMMITMENT PERCENTAGE" SHALL HAVE THE MEANING SET FORTH IN
SECTION 2.3, AND SHALL BE COMPRISED OF THE TRANCHE A LOAN
COMMITMENT PERCENTAGE, THE TRANCHE B LOAN COMMITMENT PERCENTAGE
AND THE TRANCHE C LOAN COMMITMENT PERCENTAGE.
(b) The definition of "ELIGIBLE NOTES" in the Existing Loan Agreement
is hereby deleted in its entirety and the following is substituted therefor:
"ELIGIBLE NOTE" SHALL MEAN ANY ONE OR MORE NEGOTIABLE PROMISSORY
NOTES MADE BY A PRIMARY OBLIGOR PAYABLE TO THE ORDER OF BORROWER,
IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT, IN ITS SOLE AND
EXCLUSIVE DISCRETION, WHICH NOTE: (A) HAS BEEN PLEDGED TO AGENT
PURSUANT TO THE NOTE PLEDGE AGREEMENT BY AND BETWEEN BORROWER AND
AGENT; (B) HAS BEEN DELIVERED TO AGENT BY BORROWER; (C) HAS BEEN
ENDORSED BY BORROWER PAYABLE TO THE ORDER OF AGENT; (D) FOR WHICH
BORROWER HAS DELIVERED TO AGENT AN AGREEMENT AND ESTOPPEL
CERTIFICATE FROM THE MAKER THEREOF, ALL IN FORM AND SUBSTANCE
ACCEPTABLE TO AGENT IN ITS SOLE AND EXCLUSIVE DISCRETION; AND (E)
THE REPRESENTATIONS AND WARRANTIES WITH RESPECT TO WHICH MADE IN
THE APPLICABLE NOTE PLEDGE AGREEMENT ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS.
(c) The definition of "MATURITY DATE" in the Existing Loan Agreement
is hereby deleted in its entirety and the following is substituted therefor:
"MATURITY DATE": JUNE 30, 2000, OR SUCH EARLIER DATE AS ALL OF
BORROWER'S OBLIGATIONS SHALL BE DUE AND PAYABLE BY ACCELERATION OR
OTHERWISE.
(d) The definition of "PRIME INTEREST RATE" in the Existing Loan
Agreement is hereby deleted in its entirety and the following is substituted
therefor:
"PRIME INTEREST RATE": MEANS (I) ON ALL AMOUNTS OUTSTANDING UNDER
TRANCHE A LOANS, A VARIABLE INTEREST RATE EQUAL TO THE PRIME RATE
PLUS ONE AND ONE-HALF PERCENT (1.5%) PER ANNUM, AND (II) ON ALL
AMOUNTS OUTSTANDING UNDER THE TRANCHE B LOANS AND/OR THE TRANCHE C
LOANS, A VARIABLE INTEREST RATE EQUAL TO THE PRIME RATE PLUS FOUR
PERCENT (4%) PER ANNUM.
(e) Section 1.1 of the Existing Loan Agreement is hereby amended by
adding the following definitions:
"AMENDED AND RESTATED NOTED PLEDGE AGREEMENT": THAT CERTAIN NOTE
PLEDGE AGREEMENT BY AND BETWEEN BORROWER AND AGENT DATED AS OF
AUGUST 11, 1999.
"CONSUMER NOTE": THAT CERTAIN REVOLVING PROMISSORY NOTE MADE BY FC
CONSUMER LENDING, PAYABLE TO THE ORDER OF BORROWER IN THE AMOUNT
OF $5,000,000, AS SAID NOTE MAY HEREAFTER BE AMENDED, RESTATED,
MODIFIED, SUPPLEMENTED, EXTENDED OR REPLACED.
"EXTRAORDINARY TRANSACTION" SHALL MEAN: (A) A SALE, CONVEYANCE,
LEASE, OR OTHER TRANSFER BY BORROWER, ANY PRIMARY OBLIGOR, OR ANY
SECONDARY OBLIGOR OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS, NOT
IN THE ORDINARY COURSE OF ITS BUSINESS; (B) A SALE, CONVEYANCE, OR
OTHER TRANSFER OF ANY EQUITY INTERESTS (INCLUDING STOCK,
PARTNERSHIP INTERESTS, MEMBERSHIP INTERESTS, TRUST INTERESTS,
WARRANTS, OPTIONS OR DEBENTURES) IN ANY AFFILIATE BY BORROWER,
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ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR; (C) ANY SALE,
CONVEYANCE OR OTHER TRANSFER OF ANY INDEBTEDNESS DUE TO BORROWER,
ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR FROM ANY AFFILIATE,
INCLUDING BUT NOT LIMITED TO BONDS, NOTES, NOTE PURCHASE
AGREEMENTS OR ANY OTHER INDEBTEDNESS, HOWSOEVER EVIDENCED; (D) ANY
INDEBTEDNESS PERMITTED BY AGENT AND LENDERS (IN THEIR SOLE AND
EXCLUSIVE DISCRETION) TO BE INCURRED BY BORROWER, ANY PRIMARY
OBLIGOR OR ANY SECONDARY OBLIGOR, EXCEPT FOR (I) INDEBTEDNESS TO
BE INCURRED BY ANY SUBSIDIARY OF FC COMMERCIAL (WHICH SHALL ONLY
HAVE RECOURSE TO THE PURCHASING ENTITY) IN CONNECTION WITH
PURCHASE MONEY FINANCING (WHETHER SECURED OR UNSECURED) TO PARTIES
(OTHER THAN AFFILIATES) AND (II) INDEBTEDNESS INCURRED UNDER THE
EXISTING FACILITIES LISTED UNDER SCHEDULE 5.1(T) ATTACHED HERETO,
INCURRED IN THE ORDINARY COURSE OF BUSINESS; (E) THE ISSUANCE OF
ANY SECURITIES OF BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY
OBLIGOR; (F) THE SALE OR RETENTION OF IN EXCHANGE FOR CREDIT
THEREFORE BY NOMURA SECURITIES (BERMUDA) LTD. ("NOMURA") OF ANY
PURCHASED SECURITIES, AS DEFINED IN AND PURSUANT TO THE TERMS THE
MASTER REPURCHASE AGREEMENT BY AND BETWEEN FC CAPITAL CORP. AND
NOMURA (THE "FC CAPITAL REPURCHASE AGREEMENT") AND THE MASTER
REPURCHASE AGREEMENT BY AND BETWEEN FIRSTCITY CONSUMER LENDING
CORPORATION AND NOMURA (THE "FCCLC REPURCHASE AGREEMENT" AND,
TOGETHER WITH THE FC CAPITAL REPURCHASE AGREEMENT, THE "REPURCHASE
AGREEMENTS") ("SECURITIES SALE").
"EXTRAORDINARY TRANSACTION PROCEEDS" SHALL MEAN THE CONSIDERATION
PAID WITH RESPECT TO ANY EXTRAORDINARY TRANSACTION OR THE PROCEEDS
OF ANY LOAN RECEIVED FROM ANY EXTRAORDINARY TRANSACTION, MINUS
ONLY AMOUNTS FOR NECESSARY AND COMMERCIALLY REASONABLE EXPENSES
INCURRED WITH RESPECT TO SUCH EXTRAORDINARY TRANSACTION, INCLUDING
ATTORNEY'S FEES AND PAYMENT OF ANY INDEBTEDNESS SECURED TO BY
ASSETS BEING CONVEYED PAYABLE TO ANY INDEPENDENT THIRD PARTY
LENDER TO SECURE A RELEASE OF LIEN ON SUCH ASSETS BEING CONVEYED.
"TENTH AMENDMENT": THE TENTH AMENDMENT TO LOAN AGREEMENT DATED FOR
REFERENCE PURPOSES ONLY AS OF AUGUST 11, 1999 BY AND AMONG AGENT,
LENDERS AND BORROWER.
"TRANCHE A COMMITMENT": THE COMMITMENT OF LENDERS TO MAKE TRANCHE
A LOANS, AS FURTHER DESCRIBED IN SECTION 2.3(a), AS MAY BE REDUCED
PURSUANT TO THE TERMS OF SECTION 2.3(b).
"TRANCHE A LOANS": LOANS TO BE MADE BY LENDERS TO BORROWER, MADE
PURSUANT TO SECTION 2.1(a).
"TRANCHE A NOTES": THOSE CERTAIN REVOLVING PROMISSORY NOTES OF
BORROWER EXECUTED AND DELIVERED UNDER THIS AGREEMENT, PAYABLE TO
THE RESPECTIVE LENDERS, ON OR BEFORE JUNE 30, 2000, EVIDENCING
TRANCHE A LOANS MADE BY LENDERS TO BORROWER PURSUANT TO SECTION
2.1(a), AS SAID NOTES MAY HEREAFTER BE AMENDED, RESTATED,
MODIFIED, SUPPLEMENTED, EXTENDED OR REPLACED.
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"TRANCHE B COMMITMENT": THE COMMITMENT OF BANK OF SCOTLAND TO MAKE
TRANCHE B LOANS, AS FURTHER DESCRIBED IN SECTION 2.3(a).
"TRANCHE B LOANS": LOANS TO BE MADE BY BANK OF SCOTLAND TO
BORROWER, IN THE MAXIMUM AMOUNT OF $5,000,000, MADE PURSUANT TO
SECTION 2.1(b).
"TRANCHE B NOTE": THAT CERTAIN REVOLVING PROMISSORY NOTE MADE BY
BORROWER PAYABLE TO THE ORDER OF BANK OF SCOTLAND, EVIDENCING
TRANCHE B LOANS MADE PURSUANT TO SECTION 2.1(b), AS SAID NOTE MAY
HEREAFTER BE AMENDED, RESTATED, MODIFIED, SUPPLEMENTED, EXTENDED
OR REPLACED.
"TRANCHE C COMMITMENT" : THE COMMITMENT OF BANK OF SCOTLAND TO
MAKE TRANCHE C LOANS, AS FURTHER DESCRIBED SECTION 2.3.
"TRANCHE C LOANS ": LOANS TO BE MADE BY BANK OF SCOTLAND PURSUANT
TO SECTION 2.1(c).
"TRANCHE C NOTE": THAT CERTAIN REVOLVING PROMISSORY NOTE OF
BORROWER EXECUTED AND DELIVERED UNDER THIS AGREEMENT, PAYABLE TO
THE ORDER OF BANK OF SCOTLAND, EVIDENCING TRANCHE C LOANS MADE BY
BANK OF SCOTLAND TO BORROWER PURSUANT TO SECTION 2.1(c), AS SAID
NOTE MAY HEREAFTER BE AMENDED, RESTATED, MODIFIED, SUPPLEMENTED,
EXTENDED OR REPLACED.
"WARRANT AGREEMENT": THAT CERTAIN WARRANT AND REGISTRATION
AGREEMENT DATED AS OF AUGUST 11, 1999 GRANTING BANK OF SCOTLAND,
AS HOLDER, THE RIGHT TO PURCHASE 250,000 SHARES OF BORROWER'S
COMMON STOCK.
(f) Articles 2 and 3 of the Existing Loan Agreement are hereby deleted
in their entirety and the following is substituted therefor:
2. LOANS - GENERAL TERMS
2.1. CREDIT FACILITIES.
(a) TRANCHE A LOANS. SUBJECT TO THE TERMS AND CONDITIONS
HEREOF AND RELYING UPON THE REPRESENTATIONS AND WARRANTIES HEREIN
SET FORTH, EACH LENDER, SEVERALLY AND NOT JOINTLY, AGREES TO MAKE
TRANCHE A LOANS TO BORROWER AT ANY TIME OR FROM TIME TO TIME AFTER
THE DATE HEREOF TO BUT NOT INCLUDING THE MATURITY DATE. THE
COMMITMENT OF ALL LENDERS TO MAKE TRANCHE A LOANS SHALL BE THE
AMOUNT SET FORTH IN SECTION 2.3. A LENDER SHALL HAVE NO OBLIGATION
AT ANY TIME TO MAKE ANY TRANCHE A LOANS IN EXCESS OF SUCH LENDER'S
COMMITMENT SET FORTH IN SECTION 2.3. SUBJECT TO THE TERMS HEREOF,
BORROWER MAY BORROW, REPAY AND REBORROW THE TRANCHE A LOANS;
PROVIDED THAT, AT NO TIME SHALL THE OUTSTANDING PRINCIPAL BALANCE
OF THE TRANCHE A LOANS EXCEED THE MAXIMUM PRINCIPAL AMOUNT OF
TRANCHE A LOANS DETERMINED IN ACCORDANCE WITH SECTION 2.2(a) NOR
SHALL THE UNPAID PRINCIPAL BALANCE OF THE
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TRANCHE A LOANS EXCEED THE OTHER LIMITATIONS SET FORTH HEREIN. THE
OBLIGATION OF BORROWER TO REPAY THE UNPAID PRINCIPAL BALANCE OF THE
TRANCHE A LOANS MADE TO IT BY EACH LENDER AND TO PAY INTEREST
THEREON IS FURTHER EVIDENCED, IN PART, BY THE TRANCHE A NOTES.
(b) TRANCHE B LOANS. SUBJECT TO THE TERMS AND CONDITIONS
HEREOF AND RELYING UPON THE REPRESENTATIONS AND WARRANTIES HEREIN
SET FORTH, BANK OF SCOTLAND AGREES TO MAKE TRANCHE B LOANS TO
BORROWER AT ANY TIME OR FROM TIME TO TIME AFTER THE DATE HEREOF TO
BUT NOT INCLUDING THE MATURITY DATE, IN AN AMOUNT NOT TO EXCEED
$5,000,000. SUBJECT TO THE TERMS HEREOF, BORROWER MAY BORROW,
REPAY AND REBORROW THE TRANCHE B LOANS; PROVIDED THAT, AT NO TIME
SHALL THE OUTSTANDING PRINCIPAL BALANCE OF THE TRANCHE B LOANS
EXCEED THE MAXIMUM PRINCIPAL AMOUNT OF TRANCHE B LOANS DETERMINED
IN ACCORDANCE WITH SECTION 2.2(a), NOR SHALL THE UNPAID PRINCIPAL
BALANCE OF THE TRANCHE B LOANS EXCEED THE OTHER LIMITATIONS SET
FORTH HEREIN. THE OBLIGATION OF BORROWER TO REPAY THE UNPAID
PRINCIPAL BALANCE OF THE TRANCHE B LOANS MADE TO IT BY BANK OF
SCOTLAND AND TO PAY INTEREST THEREON IS FURTHER EVIDENCED, IN
PART, BY THE TRANCHE B NOTE. THE PROCEEDS OF THE TRANCHE B LOANS
SHALL BE USED SOLELY TO FUND ADVANCES BY BORROWER TO FC CONSUMER
PURSUANT TO THE CONSUMER NOTE.
(c) TRANCHE C LOANS. SUBJECT TO THE TERMS AND CONDITIONS
HEREOF AND RELYING UPON THE REPRESENTATIONS AND WARRANTIES HEREIN
SET FORTH, BANK OF SCOTLAND AGREES TO MAKE TRANCHE C LOANS TO
BORROWER AT ANY TIME OR FROM TIME TO TIME AFTER THE DATE HEREOF TO
BUT NOT INCLUDING THE MATURITY DATE, IN AN AMOUNT NOT TO EXCEED
$7,000,000. SUBJECT TO THE TERMS HEREOF, BORROWER MAY BORROW,
REPAY AND REBORROW THE TRANCHE C LOANS; PROVIDED THAT, AT NO TIME
SHALL THE OUTSTANDING PRINCIPAL BALANCE OF THE TRANCHE C LOANS
EXCEED THE MAXIMUM PRINCIPAL AMOUNT OF TRANCHE C LOANS DETERMINED
IN ACCORDANCE WITH SECTION 2.2(a), NOR SHALL THE UNPAID PRINCIPAL
BALANCE OF THE TRANCHE C LOANS EXCEED THE OTHER LIMITATIONS SET
FORTH HEREIN. THE OBLIGATION OF BORROWER TO REPAY THE UNPAID
PRINCIPAL BALANCE OF THE TRANCHE C LOANS MADE TO IT BY BANK OF
SCOTLAND AND TO PAY INTEREST THEREON IS FURTHER EVIDENCED, IN
PART, BY THE TRANCHE C NOTE.
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2.2. MAXIMUM PRINCIPAL AMOUNT.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN OR IN ANY OTHER LOAN DOCUMENT, BUT SUBJECT TO THE
LIMITATIONS SET FORTH IN OTHER PROVISIONS OF THIS AGREEMENT, THE
PRINCIPAL PORTION OF BORROWER'S LIABILITIES OUTSTANDING SHALL NOT
EXCEED THE FOLLOWING AMOUNTS (THE "MAXIMUM PRINCIPAL AMOUNT"): (i)
THE MAXIMUM PRINCIPAL AMOUNT OF TRANCHE A LOANS SHALL NOT EXCEED
AT ANY TIME AND FROM TIME TO TIME AN AMOUNT EQUAL TO EACH LENDER'S
COMMITMENT FOR TRANCHE A LOANS DETERMINED IN ACCORDANCE WITH
SECTION 2.3; (ii) THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE B
LOANS SHALL NOT EXCEED, AT ANY ONE TIME, THE LESSER OF (a)
$5,000,000 OR (b) THE OUTSTANDING PRINCIPAL AMOUNT OF THE CONSUMER
NOTE; AND (iii) UNPAID PRINCIPAL BALANCE OF THE TRANCHE C LOANS
SHALL NOT EXCEED, AT ANY ONE TIME, $7,000,000. THE UNPAID
PRINCIPAL BALANCE PLUS ALL ACCRUED BUT UNPAID INTEREST, FEES AND
ALL OTHER SECURED OBLIGATIONS SHALL BE DUE AND PAYABLE IN FULL ON
THE MATURITY DATE.
(b) IN THE EVENT THAT THE OUTSTANDING PRINCIPAL BALANCE OF
THE TRANCHE A LOANS, TRANCHE B LOANS OR TRANCHE C LOANS EXCEED THE
MAXIMUM PRINCIPAL AMOUNT THEREOF (INDIVIDUALLY AND NOT IN THE
AGGREGATE) DETERMINED IN ACCORDANCE WITH SECTION 2.2(a), BORROWER
SHALL PAY THE AMOUNT OF SUCH EXCESS TO AGENT (i) WITH RESPECT TO
AMOUNTS BORROWED FROM TRANCHE A LOANS FOR THE RATABLE BENEFIT OF
LENDERS AND (ii) WITH RESPECT TO AMOUNTS BORROWED UNDER TRANCHE B
LOANS AND/OR TRANCHE C LOANS FOR THE SOLE BENEFIT OF BANK OF
SCOTLAND, WITHOUT NOTICE OR DEMAND, AND ANY AMOUNT NOT SO PAID
SHALL BEAR INTEREST AT THE DEFAULT RATE UNTIL PAID. THIS IS AN
ABSOLUTE OBLIGATION TO PAY TO AGENT THE AMOUNT OF THE UNPAID
PRINCIPAL BALANCE OF THE LOANS IN EXCESS OF SAID MAXIMUM PRINCIPAL
AMOUNT, REGARDLESS OF THE CAUSE OF SUCH EXCESS.
(c) LIMITATIONS ON TRANCHE B LOANS AND TRANCHE C LOANS.
(i) IN ADDITION TO THE LIMITATIONS SET FORTH IN
SECTION 2.2(a), NO PROCEEDS OF THE TRANCHE B LOANS OR THE
TRANCHE C LOANS SHALL BE ADVANCED AT ANY TIME THAT LENDERS HAVE
NOT FUNDED THEIR TOTAL TRANCHE A COMMITMENTS AND THAT THE
OUTSTANDING PRINCIPAL BALANCE OF THE TRANCHE A LOANS IS NOT THE
MAXIMUM OUTSTANDING PRINCIPAL BALANCE PERMITTED HEREUNDER.
(ii) NO ADVANCES OF THE TRANCHE B LOANS OR THE TRANCHE
C LOANS, IN THE AGGREGATE, SHALL BE MADE IN AN AMOUNT IN EXCESS
OF $3,000,000 DURING ANY ONE CALENDAR MONTH.
(iii) NO ADVANCES OF TRANCHE B LOANS OR THE TRANCHE C
LOANS IN EXCESS OF THE PRINCIPAL AMOUNT OF $3,000,000 SHALL BE
MADE AT ANY TIME THAT THE OUTSTANDING PRINCIPAL BALANCE
(DETERMINED IN DOLLAR EQUIVALENTS) UNDER THE INTERNATIONAL
FACILITY EXCEEDS $4,000,000. AS USED HEREIN, THE "INTERNATIONAL
FACILITY" MEANS THAT CERTAIN AMENDED AND RESTATED LOAN
AGREEMENT DATED AS OF DECEMBER 9, 1998 BY AND AMONG BANK OF
SCOTLAND, FIRST CITY INTERNATIONAL CORPORATION, AND CRINOLINE
INVESTMENTS, B.V., OF WHICH BORROWER IS A GUARANTOR OF PAYMENT
AND PERFORMANCE OF ALL LIABILITIES AND OBLIGATIONS THEREUNDER.
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2.3. LENDER'S COMMITMENTS.
(a) ON THE DATE HEREOF THE TOTAL COMMITMENT OF LENDERS IS
$93,000,000. THE TRANCHE A COMMITMENT, AS OF THE DATE HEREOF IS
$81,000,000, OF WHICH BANK OF SCOTLAND'S COMMITMENT IS $48,000,000 AND
NATIONSBANK'S COMMITMENT IS $33,000,000. THE TRANCHE B COMMITMENT IS
$5,000,000, AND THE TRANCHE C COMMITMENT IS $7,000,000. BANK OF
SCOTLAND'S COMMITMENT PERCENTAGE RELATING TO TRANCHE A LOANS SHALL BE
59.259% AND NATIONSBANK'S COMMITMENT PERCENTAGE RELATING TO TRANCHE A
LOANS SHALL BE 40.741%. BANK OF SCOTLAND'S COMMITMENT PERCENTAGE
RELATING TO THE TRANCHE B LOANS AND THE TRANCHE C LOANS SHALL BE 100%
AND NATIONSBANK SHALL HAVE NO COMMITMENT PERCENTAGE RELATING TO
TRANCHE B LOANS OR TRANCHE C LOANS. THE COMMITMENT PERCENTAGE OF EACH
LENDER MAY BE ADJUSTED IF A TRANSFER OCCURS IN ACCORDANCE WITH SECTION
9.27. LENDERS' COMMITMENTS ARE SUBJECT TO THE MANDATORY REDUCTIONS SET
FORTH IN SECTION 2.3(b).
(b) THE PAYMENT OF ANY EXTRAORDINARY TRANSACTION PROCEEDS PAID
PURSUANT TO SECTION 3.3 SHALL PERMANENTLY REDUCE THE LENDER'S
COMMITMENTS RELATING TO THE TRANCHE A LOANS, THE TRANCHE B LOANS OR
THE TRANCHE C LOANS, AS APPLICABLE, SUCH AMOUNT MAY NOT BE REBORROWED
AND THE MAXIMUM PRINCIPAL AMOUNT OF THE TRANCHE A LOANS, THE TRANCHE B
LOANS, OR THE TRANCHE C LOANS, AS APPLICABLE, SHALL BE PERMANENTLY
REDUCED BY SUCH AMOUNT.
2.4. MATURITY DATE; TERMINATION OF LOANS. LENDERS' RESPECTIVE
OBLIGATIONS TO MAKE ANY ADVANCE TO BORROWER PURSUANT TO THE PROVISIONS
HEREOF SHALL BE IN EFFECT UNTIL THE MATURITY DATE, UNLESS SOONER
TERMINATED BY LENDERS UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, AN
UNMATURED DEFAULT, OR PURSUANT TO THE TERMS HEREOF.
2.5. AUTHORIZED DISBURSEMENT OF PROCEEDS. BORROWER HEREBY
AUTHORIZES AND DIRECTS EACH LENDER AND AGENT TO DISBURSE, FOR AND ON
BEHALF OF BORROWER AND FOR BORROWER'S ACCOUNT, THE PROCEEDS OF ANY
LOANS TO SUCH PERSON AS BORROWER OR ANY DESIGNATED PERSON SHALL
DIRECT. IN ADDITION TO ADVANCES OF LOAN PROCEEDS MADE PURSUANT TO A
BORROWING REQUEST MADE BY BORROWER FROM TIME TO TIME, BORROWER HEREBY
IRREVOCABLY AUTHORIZES EACH LENDER AND AGENT TO DISBURSE PROCEEDS OF
THE LOANS TO PAY: (a) INTEREST WHICH IS ACCRUED BUT UNPAID AND WHICH
IS DUE AND PAYABLE PURSUANT TO THE TERMS HEREOF AND OF THE NOTES UNTIL
THE LOANS ARE PAID IN FULL; AND (b) FOR ANY AND ALL COSTS. THE
EXECUTION OF THIS AGREEMENT BY BORROWER SHALL, AND HEREBY DOES,
CONSTITUTE AN IRREVOCABLE DIRECTION AND AUTHORIZATION TO EACH LENDER
AND AGENT SO TO DISBURSE SUCH FUNDS DESCRIBED IN THIS SECTION AND TO
TREAT SUCH ADVANCES AS MONEY LOANED PURSUANT TO THIS AGREEMENT AND AS
INDEBTEDNESS EVIDENCED BY THE NOTES. NO FURTHER DIRECTION OR
AUTHORIZATION FROM BORROWER SHALL BE NECESSARY FOR LENDERS TO MAKE
SUCH ADVANCES, AND ALL SUCH ADVANCES SHALL SATISFY, TO THE EXTENT SO
DISBURSED, THE OBLIGATIONS OF BORROWER HEREUNDER AND SHALL BE
EVIDENCED BY THE NOTES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, LENDERS ARE UNDER NO DUTY OR OBLIGATION TO MAKE SUCH
ADVANCES AND FAILURE TO MAKE SUCH ADVANCES SHALL NOT BE DEEMED TO BE A
DEFAULT BY LENDERS OR IMPAIR ANY OF LENDERS' RIGHTS OR REMEDIES
HEREUNDER.
2.6. BORROWING PROCEDURE.
(a) BORROWING REQUEST. IN ORDER TO REQUEST AN ADVANCE,
BORROWER SHALL HAND DELIVER OR TELECOPY TO AGENT A DULY COMPLETED
BORROWING REQUEST NOT LATER THAN 11:00 A.M. NEW YORK TIME AT
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LEAST ONE (1) BUSINESS DAY BEFORE A PROPOSED ADVANCE. EACH BORROWING
REQUEST SHALL BE IRREVOCABLE AND SHALL SPECIFY: (w) THE NUMBER AND
LOCATION OF THE ACCOUNT TO WHICH FUNDS ARE TO BE DISBURSED; (x) THE
DATE SUCH ADVANCE IS TO BE MADE (WHICH SHALL BE A BUSINESS DAY); (y)
THE AMOUNT OF SUCH ADVANCE; AND (z) WHETHER THE ADVANCE IS TO BE
TRANCHE A LOANS, TRANCHE B LOANS OR TRANCHE C LOANS; PROVIDED THAT
BORROWER MAY NOT MAKE A BORROWING REQUEST FOR ANY TRANCHE B LOANS OR
ANY TRANCHE C LOANS IF THE OUTSTANDING PRINCIPAL AMOUNT OF THE TRANCHE
A LOANS IS LESS THAN THE MAXIMUM PRINCIPAL AMOUNT OF THE TRANCHE A
LOANS, DETERMINED IN ACCORDANCE WITH SECTION 2.2(a). EACH BORROWING
REQUEST RELATING TO A TRANCHE B LOANS SHALL BE ACCOMPANIED BY A
CERTIFICATE SETTING FORTH THE THEN OUTSTANDING PRINCIPAL BALANCE OF
THE CONSUMER NOTE.
(b) PRO RATA TREATMENT OF TRANCHE A LOANS. EACH BORROWING OF
TRANCHE A LOANS SHALL BE MADE FROM EACH LENDER PRO RATA IN ACCORDANCE
WITH ITS TRANCHE A LOAN COMMITMENT PERCENTAGE, DETERMINED IN
ACCORDANCE WITH SECTION 2.3.
(c) FAILURE TO LOAN. THE FAILURE OF ANY LENDER TO MAKE A LOAN
SHALL NOT RELIEVE ANY OTHER LENDER OF ITS OBLIGATION TO LEND ANY
HEREUNDER, BUT NEITHER AGENT NOR ANY LENDER SHALL BE RESPONSIBLE FOR
THE FAILURE OF ANY OTHER LENDER TO MAKE A LOAN.
2.7. INTEREST RATE. THE UNPAID PRINCIPAL BALANCE OF THE LOANS SHALL
BEAR INTEREST AT THE PRIME INTEREST RATE APPLICABLE THERETO. INTEREST
ON ALL PRIME RATE ADVANCES SHALL BE COMPUTED ON A 365-DAY YEAR FOR THE
ACTUAL NUMBER OF DAYS ELAPSED. AFTER THE OCCURRENCE OF AN EVENT OF
DEFAULT AND DURING THE CONTINUATION THEREOF, ALL LOANS SHALL BEAR
INTEREST AT THE DEFAULT RATE. THE UNPAID PRINCIPAL BALANCE OF EACH
ADVANCE SHALL BEAR INTEREST AT THE INTEREST RATE APPLICABLE THERETO,
DETERMINED BY AGENT IN ACCORDANCE WITH THE PROVISIONS HEREOF, WHICH
DETERMINATION SHALL BE BINDING UPON BORROWER, ABSENT MANIFEST ERROR.
2.8. CHANGE OF LAWS. IF AGENT OR ANY LENDER SHALL DETERMINE AT ANY
TIME AFTER THE DATE HEREOF THAT THE ADOPTION OF ANY LAW, RULE OR
REGULATION REGARDING CAPITAL ADEQUACY, OR ANY CHANGE THEREIN OR IN THE
INTERPRETATION OR ADMINISTRATION THEREOF BY ANY GOVERNMENTAL
AUTHORITY, CENTRAL BANK OR COMPARABLE AGENCY CHARGED WITH THE
INTERPRETATION OR ADMINISTRATION THEREOF OR COMPLIANCE BY AGENT OR ANY
LENDER WITH ANY REQUEST OR DIRECTIVE REGARDING CAPITAL ADEQUACY
(WHETHER OR NOT HAVING THE FORCE OF LAW) FROM ANY SUCH AUTHORITY,
CENTRAL BANK OR COMPARABLE AGENCY, HAS OR WOULD HAVE THE EFFECT OF
REDUCING THE RATE OF RETURN ON AGENT'S OR ANY LENDER'S CAPITAL AS A
CONSEQUENCE OF ITS OBLIGATIONS HEREUNDER TO A LEVEL BELOW THAT WHICH
AGENT OR THE APPLICABLE LENDER COULD HAVE ACHIEVED BUT FOR SUCH
ADOPTION, CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION AGENT'S OR
SUCH LENDER'S POLICIES WITH RESPECT TO CAPITAL ADEQUACY) BY AN AMOUNT
DEEMED BY AGENT OR SUCH LENDER TO BE MATERIAL, AGENT OR SUCH LENDER,
AS APPLICABLE, SHALL GIVE NOTICE THEREOF TO BORROWER OF SUCH
DETERMINATION (AND ANY LENDER GIVING SUCH NOTICE SHALL NOTIFY AGENT),
IN WHICH EVENT BORROWER SHALL PAY TO AGENT FOR THE BENEFIT OF THE
APPLICABLE LENDER UPON DEMAND SUCH AMOUNT OR AMOUNTS, IN ADDITION TO
THE AMOUNTS PAYABLE UNDER ANY OTHER PROVISION OF THIS AGREEMENT OR THE
OTHER AGREEMENTS, AS WILL COMPENSATE AGENT OR SUCH LENDER, AS
APPLICABLE, FOR SUCH REDUCTION. DETERMINATIONS BY AGENT OR SUCH LENDER
FOR PURPOSES OF THIS SECTION OF THE ADDITIONAL AMOUNT OR AMOUNTS
REQUIRED TO COMPENSATE AGENT OR SUCH LENDER WITH RESPECT TO THE
FOREGOING SHALL BE CONCLUSIVE IN THE ABSENCE OF
9
MANIFEST ERROR. IN DETERMINING SUCH AMOUNT OR AMOUNTS, AGENT OR SUCH
LENDER MAY USE ANY REASONABLE AVERAGING OR ATTRIBUTION METHODS.
NOTWITHSTANDING THE FOREGOING, NO AMOUNTS SHALL BE PAYABLE BY BORROWER
TO AGENT OR SUCH LENDER UNDER THE TERMS OF THIS SECTION 2.8 IF THE
SECURED OBLIGATIONS ARE PAID IN FULL ON OR BEFORE TEN (10) DAYS AFTER
THE DATE ON WHICH AGENT OR SUCH LENDER, AS APPLICABLE, SHALL HAVE
NOTIFIED BORROWER THAT AMOUNTS WILL BE DUE UNDER THIS SECTION 2.8.
2.9. FEES.
(a) FACILITY FEE. IN THE EVENT BORROWER REPAYS IN FULL THE
UNPAID PRINCIPAL BALANCE OF THE LOANS MADE TO IT AND ANY ACCRUED
INTEREST THEREON AND LENDERS' COMMITMENTS ARE CANCELLED (THE
"CANCELLATION DATE"), BORROWER SHALL PAY TO LENDERS A FACILITY FEE TO
BE ALLOCATED AMONG LENDERS' PRO RATA IN ACCORDANCE WITH THEIR
RESPECTIVE COMMITMENT PERCENTAGES WITH RESPECT TO AMOUNTS DISBURSED AS
TRANCHE A LOANS. THE AMOUNT OF THE FACILITY FEE IS DEPENDENT UPON THE
DATE OF THE CANCELLATION DATE AND SHALL BE PAID IN ACCORDANCE WITH THE
FOLLOWING SCHEDULE:
IF THE CANCELLATION DATE IS: FACILITY FEE SHALL BE:
---------------------------- ----------------------
ON OR BEFORE NOVEMBER 9, 1999 $0
ON OR BEFORE FEBRUARY 8, 2000 $500,000
ON OR BEFORE MAY 8, 2000 $1,650,000
AT ANY TIME THEREAFTER $2,500,000
(b) UNUSED COMMITMENT. BORROWER SHALL PAY AN UNUSED COMMITMENT
FEE IN AN AMOUNT EQUAL TO .125% (ON AN ANNUAL BASIS, BASED ON THE
NUMBER OF DAYS ELAPSED ON A 365-DAY YEAR) OF THE DIFFERENCE BETWEEN
TOTAL COMMITMENT DETERMINED IN ACCORDANCE WITH SECTION 2.3 AND THE
DAILY OUTSTANDING PRINCIPAL BALANCE OF THE LOAN. SUCH FEE SHALL BE
PAYABLE QUARTERLY IN ARREARS ON THE LAST BUSINESS DAY OF EACH CALENDAR
QUARTER.
(c) INTEREST ON FEES. ANY FEE PAYABLE UNDER THIS SECTION 2.9
WHICH NOT PAID WHEN DUE SHALL BEAR INTEREST AT THE DEFAULT RATE.
2.10. USURY. THE PROVISIONS OF THIS SECTION SHALL GOVERN AND
CONTROL OVER ANY IRRECONCILABLY INCONSISTENT PROVISION CONTAINED IN
THIS AGREEMENT OR IN ANY OTHER DOCUMENT EVIDENCING OR SECURING THE
LOAN. NONE OF LENDERS OR AGENT SHALL BE ENTITLED TO RECEIVE, COLLECT,
OR APPLY AS INTEREST HEREON (FOR PURPOSES OF THIS SECTION, THE WORD
"INTEREST" SHALL BE DEEMED TO INCLUDE ANY SUMS TREATED AS INTEREST
UNDER APPLICABLE LAW GOVERNING MATTERS OF USURY AND UNLAWFUL
INTEREST), ANY AMOUNT IN EXCESS OF THE HIGHEST LAWFUL RATE
(HEREINAFTER DEFINED) AND, IN THE EVENT LENDERS OR AGENT EVER
RECEIVES, COLLECTS, OR APPLIES AS INTEREST ANY SUCH EXCESS, SUCH
AMOUNT WHICH WOULD BE EXCESSIVE INTEREST SHALL BE DEEMED A PARTIAL
PREPAYMENT OF PRINCIPAL AND SHALL BE TREATED HEREUNDER AS SUCH; AND,
IF THE PRINCIPAL OF THIS AGREEMENT IS PAID IN FULL, ANY REMAINING
EXCESS SHALL
10
FORTHWITH BE PAID TO BORROWER. IN DETERMINING WHETHER OR NOT THE
INTEREST PAID OR PAYABLE, UNDER ANY SPECIFIC CONTINGENCY, EXCEEDS THE
HIGHEST LAWFUL RATE, BORROWER, LENDERS AND AGENT SHALL, TO THE MAXIMUM
EXTENT PERMITTED UNDER APPLICABLE LAW; (i) CHARACTERIZE ANY
NON-PRINCIPAL PAYMENT AS AN EXPENSE, FEE OR PREMIUM RATHER THAN AS
INTEREST; (ii) EXCLUDE VOLUNTARY PREPAYMENTS AND THE EFFECTS THEREOF,
AND (iii) SPREAD THE TOTAL AMOUNT OF INTEREST THROUGHOUT THE ENTIRE
CONTEMPLATED TERM OF THIS AGREEMENT, PROVIDED, THAT IF THIS AGREEMENT
IS PAID AND PERFORMED IN FULL PRIOR TO THE END OF THE FULL
CONTEMPLATED TERM HEREOF, AND IF THE INTEREST RECEIVED FOR THE ACTUAL
PERIOD OF EXISTENCE HEREOF EXCEEDS THE HIGHEST LAWFUL RATE, LENDERS
AND/OR AGENT SHALL REFUND TO BORROWER THE AMOUNT OF SUCH EXCESS AND,
IN SUCH EVENT, LENDERS AND/OR AGENT SHALL NOT BE SUBJECT TO ANY
PENALTIES PROVIDED BY ANY LAWS FOR CONTRACTING FOR, CHARGING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE. "HIGHEST
LAWFUL RATE" SHALL MEAN THE MAXIMUM RATE OF INTEREST WHICH LENDERS
AND/OR AGENT IS ALLOWED TO CONTRACT FOR, CHARGE, TAKE, RESERVE OR
RECEIVE UNDER APPLICABLE LAW AFTER TAKING INTO ACCOUNT, TO THE EXTENT
REQUIRED BY APPLICABLE LAW, ANY AND ALL RELEVANT PAYMENTS OR CHARGES
HEREUNDER.
3. PAYMENT TERMS.
3.1. LOAN ACCOUNT; METHOD OF MAKING PAYMENTS. AGENT SHALL MAINTAIN
A LOAN ACCOUNT ON ITS BOOKS IN WHICH SHALL BE RECORDED: (i) ALL LOANS
MADE BY LENDERS TO BORROWER PURSUANT TO THIS AGREEMENT; (ii) ALL
PAYMENTS MADE BY BORROWER ON ALL LOANS; AND (iii) ALL OTHER
APPROPRIATE DEBITS AND CREDITS AS PROVIDED IN THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ALL FEES, CHARGES, EXPENSES AND
INTEREST. ALL ENTRIES IN THE LOAN ACCOUNT SHALL BE MADE IN ACCORDANCE
WITH AGENT'S CUSTOMARY ACCOUNTING PRACTICES, IN EFFECT FROM TIME TO
TIME. THE FAILURE OF AGENT TO RECORD ANY OF THE FOREGOING SHALL NOT IN
ANY WAY LIMIT BORROWER'S LIABILITIES OR BORROWER'S OBLIGATIONS UNDER
THIS AGREEMENT.
3.2. INTEREST PAYMENTS. ACCRUED INTEREST ON ALL LOANS SHALL BE
PAYABLE MONTHLY, IN ARREARS, ON THE LAST BUSINESS DAY OF EACH MONTH
DURING THE TERM HEREOF, WITHOUT NOTICE OR DEMAND.
3.3. PRINCIPAL PAYMENTS. BORROWER SHALL PAY MANDATORY PRINCIPAL
PAYMENTS AT THE FOLLOWING TIMES AND IN THE FOLLOWING AMOUNTS:
(a) THE UNPAID PRINCIPAL BALANCE, PLUS ALL ACCRUED BUT UNPAID
INTEREST, SHALL BE DUE AND PAYABLE TO AGENT, FOR THE RATABLE BENEFIT
OF LENDERS, IN FULL ON THE MATURITY DATE, WITHOUT NOTICE OR DEMAND.
SAID AMOUNT SHALL BE DUE AND PAYABLE, NOTWITHSTANDING ANY SEEMINGLY
CONTRADICTORY PROVISIONS IN THIS AGREEMENT.
(b) IN THE EVENT OF A PRINCIPAL PAYMENT ON ANY PLEDGED NOTE IN
AN AMOUNT IN EXCESS, IN THE AGGREGATE, OF $100,000, BORROWER AND THE
APPLICABLE LOAN PARTY SHALL GIVE IMMEDIATE NOTICE THEREOF TO AGENT AND
BORROWER SHALL PAY TO AGENT PRINCIPAL IN AN AMOUNT EQUAL TO THE AMOUNT
OF SUCH PRINCIPAL PAYMENT ON SAID PLEDGED NOTE; PROVIDED THAT THE
PARTIES HEREBY ACKNOWLEDGE THAT SUCH PRINCIPAL PAYMENT SHALL NOT
REDUCE THE TOTAL COMMITMENT.
(c) IF AT ANY TIME THE OUTSTANDING PRINCIPAL AMOUNT EXCEEDS
THE MAXIMUM PRINCIPAL AMOUNT OF THE TRANCHE A LOAN, THE TRANCHE B LOAN
OR THE TRANCHE C LOAN, AS APPLICABLE, DETERMINED IN
11
ACCORDANCE WITH SECTION 2.2, BORROWER SHALL PAY PRINCIPAL IN AN AMOUNT
NECESSARY TO REDUCE THE THEN OUTSTANDING PRINCIPAL AMOUNT TO AN AMOUNT
LESS THAN THE MAXIMUM PRINCIPAL AMOUNT OF THE APPLICABLE LOAN AND SAID
PAYMENT SHALL BE APPLIED TO THE TRANCHE A LOAN, THE TRANCHE B LOAN OR
THE TRANCHE C LOAN, AS APPLICABLE, TO REDUCE SUCH LOAN TO AN AMOUNT
BELOW THE MAXIMUM PRINCIPAL AMOUNT THEREOF DETERMINED IN ACCORDANCE
WITH SECTION 2.2.
(d) BORROWER SHALL PAY TO AGENT, FOR THE BENEFIT OF LENDERS,
100% OF ALL EXTRAORDINARY TRANSACTION PROCEEDS, TO BE APPLIED TO THE
SECURED OBLIGATIONS IN THE ORDER OF PRIORITY DETERMINED IN ACCORDANCE
WITH SECTION 3.6.
3.4. PLACE OF PAYMENT. ALL PAYMENTS TO AGENT HEREUNDER AND UNDER
THE OTHER AGREEMENTS SHALL BE PAYABLE IN IMMEDIATELY AVAILABLE FUNDS
ON OR BEFORE NOON NEW YORK TIME AT THE PLACE DESIGNATED ON EXHIBIT A,
OR SUCH PLACE OR PLACES AS AGENT MAY DESIGNATE IN WRITING TO BORROWER.
ALL OF SUCH PAYMENTS TO PERSONS OTHER THAN AGENT SHALL BE PAYABLE AT
SUCH PLACE OR PLACES AS AGENT MAY DESIGNATE IN WRITING TO BORROWER.
BORROWER'S LIABILITIES AND THE OTHER SECURED OBLIGATIONS WILL BE
PAYABLE AS SET FORTH IN THE NOTES, THIS AGREEMENT, AND THE OTHER
AGREEMENTS.
3.5. PAYMENT ON MATURITY AND PREPAYMENT. ON THE MATURITY DATE,
WHETHER BY ACCELERATION OR OTHERWISE, BORROWER SHALL PAY TO AGENT, IN
FULL, IN CASH OR OTHER IMMEDIATELY AVAILABLE FUNDS, THE OUTSTANDING
AMOUNT OF THE LOAN. THE LOANS MAY BE PREPAID IN FULL OR IN PART,
WITHOUT PREMIUM OR PENALTY, EXCEPT FOR THE FEES SET FORTH IN SECTION
2.9.
3.6. APPLICATION OF PAYMENTS.
(a) AGENT SHALL APPLY PAYMENTS MADE TO AGENT, FOR THE BENEFIT
OF LENDERS, FROM ANY SOURCE OTHER THAN EXTRAORDINARY TRANSACTION
PROCEEDS (THE "ORDINARY COURSE PREPAYMENTS") IN THE FOLLOWING ORDER OF
PRIORITY: (i) FIRST TO COSTS, INCLUDING THE PAYMENT OF ANY COSTS AND
EXPENSES INCURRED BY AGENT AND/OR LENDERS TO ENFORCE ANY RIGHTS
HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS; (ii) THEN TO ACCRUED BUT
UNPAID INTEREST AND OTHER FEES AND EXPENSES THEN DUE AND PAYABLE
HEREUNDER; (iii) THEN TO THE PRINCIPAL AMOUNT OF THE TRANCHE C LOAN;
(iv) THEN TO THE PRINCIPAL AMOUNT OF THE TRANCHE B LOAN, AND (v) THEN
TO THE PRINCIPAL AMOUNT OF THE TRANCHE A LOAN IN ACCORDANCE WITH THE
FOLLOWING PROPORTIONS: 59.295% TO BANK OF SCOTLAND AND 40.741% TO
NATIONSBANK.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
AGENT SHALL APPLY EXTRAORDINARY TRANSACTION PROCEEDS RECEIVED IN
CONNECTION WITH A SALE OF THE STOCK OR OTHER EQUITY INTERESTS OF FC
CONSUMER LENDING OR ANY OF FC CONSUMER LENDING'S ASSETS FIRST TO (i)
COSTS RELATING TO THE TRANCHE B LOAN; (ii) THEN TO INTEREST UNDER THE
TRANCHE B LOAN; (iii) THEN TO THE UNPAID PRINCIPAL AMOUNT OF THE
TRANCHE B LOAN; (iv) THEN TO ALL OTHER COSTS, INCLUDING THE PAYMENT OF
COSTS AND EXPENSES INCURRED BY AGENT AND/OR LENDERS TO ENFORCE ANY
RIGHTS HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS; (v) THEN TO
ACCRUED BUT UNPAID INTEREST ON ALL OTHER LOANS; (vi) THEN TO PAYMENT
OF THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE A LOANS AND THE
REDUCTION OF LENDERS' COMMITMENTS IN ACCORDANCE WITH THE FOLLOWING
PROPORTIONS: 62.50% TO BANK OF SCOTLAND AND 37.50% TO NATIONSBANK,
UNTIL BANK OF SCOTLAND IS
12
PAID IN FULL ALL AMOUNTS DUE TO BANK OF SCOTLAND WITH RESPECT TO THE
TRANCHE A LOANS; (vii) THEN TO THE UNPAID PRINCIPAL BALANCE OF THE
TRANCHE A LOANS UNTIL NATIONSBANK IS PAID IN FULL, AND (viii) THEN TO
THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE C LOANS.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
BUT SUBJECT TO THE PROVISIONS OF SECTION 3.6(b), THE AGENT SHALL APPLY
EXTRAORDINARY TRANSACTION PROCEEDS, INCLUDING BUT NOT LIMITED TO
EXTRAORDINARY TRANSACTION PROCEEDS RECEIVED IN CONNECTION WITH A
SECURITIES SALE, AS FOLLOWS: (i) TO COSTS INCLUDING PAYMENT OF ANY
COSTS AND EXPENSES INCURRED BY AGENT AND/OR LENDERS TO ENFORCE ANY
RIGHTS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT; (ii) THEN TO
ACCRUED BUT UNPAID INTEREST THEN DUE AND PAYABLE, (iii) THEN TO THE
REPAYMENT OF THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE A LOANS AND
THE REDUCTION OF LENDERS' TRANCHE A COMMITMENTS IN ACCORDANCE WITH THE
FOLLOWING PROPORTIONS: 64.52% TO BANK OF SCOTLAND AND 35.48% TO
NATIONSBANK, UNTIL BANK OF SCOTLAND IS PAID IN FULL ALL AMOUNTS DUE TO
BANK OF SCOTLAND WITH RESPECT TO THE TRANCHE A LOANS; (iv) THEN TO THE
UNPAID PRINCIPAL BALANCE OF THE TRANCHE A LOANS UNTIL NATIONSBANK IS
PAID IN FULL, (v) THEN TO THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE
C LOANS, AND (vi) THEN TO THE UNPAID PRINCIPAL BALANCE OF THE TRANCHE
B LOANS.
(d) THE PROVISIONS OF THIS SECTION 3.6 SHALL CONTROL OVER ANY
INCONSISTENT PROVISION IN THIS AGREEMENT, INCLUDING THE PROVISIONS OF
SECTION 10.5.
3.7. ADVANCES TO CONSTITUTE ONE LOAN. ALL ADVANCES, LOANS,
INCLUDING TRANCHE A LOANS, TRANCHE B LOANS AND TRANCHE C LOANS, AND
ANY OTHER FINANCIAL ACCOMMODATIONS PROVIDED PURSUANT TO THE TERMS
HEREOF BY LENDERS TO BORROWER SHALL CONSTITUTE ONE LOAN AND ALL
INDEBTEDNESS AND OBLIGATIONS OF BORROWER TO LENDERS AND/OR AGENT UNDER
THIS AGREEMENT, THE OTHER AGREEMENTS OR OTHERWISE SHALL CONSTITUTE ONE
GENERAL OBLIGATION SECURED BY THE COLLATERAL.
3.8. REAPPLICATION OF PAYMENTS. TO THE EXTENT THAT AGENT RECEIVES
ANY PAYMENT ON ACCOUNT OF THE SECURED OBLIGATIONS, AND ANY SUCH
PAYMENT(S) AND/OR PROCEEDS OR ANY PART THEREOF ARE SUBSEQUENTLY
INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE,
SUBORDINATED AND/OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR
ANY OTHER PERSON UNDER ANY BANKRUPTCY ACT, STATE OR FEDERAL LAW,
COMMON LAW OR EQUITABLE CAUSE, THEN, TO THE EXTENT OF SUCH PAYMENT(S)
OR PROCEEDS RECEIVED, THE SECURED OBLIGATIONS OR PART THEREOF INTENDED
TO BE SATISFIED SHALL BE REVIVED AND CONTINUE IN FULL FORCE AND
EFFECT, AS IF SUCH PAYMENT(S) AND/OR PROCEEDS HAD NOT BEEN RECEIVED BY
AGENT AND APPLIED ON ACCOUNT OF THE SECURED OBLIGATIONS.
3.9. MONTHLY STATEMENTS. ALL ADVANCES TO BORROWER AND ALL OTHER
DEBITS AND CREDITS PROVIDED FOR IN THIS AGREEMENT SHALL BE EVIDENCED
BY ENTRIES MADE BY EACH LENDER AND AGENT IN ITS INTERNAL DATA CONTROL
SYSTEMS SHOWING THE DATE, AMOUNT AND REASON FOR EACH SUCH DEBIT OR
CREDIT. UNTIL SUCH TIME AS EACH LENDER AND AGENT SHALL HAVE RENDERED
TO BORROWER WRITTEN STATEMENTS OF ACCOUNT AS PROVIDED HEREIN, THE
BALANCE IN THE LOAN ACCOUNT, AS SET FORTH ON EACH LENDER'S AND AGENT'S
RESPECTIVE MOST RECENT STATEMENTS, SHALL BE REBUTTABLY PRESUMPTIVE
EVIDENCE OF THE AMOUNTS DUE AND OWING TO EACH LENDER AND/OR AGENT BY
BORROWER. AT EACH LENDER'S AND AGENT'S OPTION, EACH LENDER AND AGENT
SHALL RENDER A
13
MONTHLY STATEMENT TO BORROWER SETTING FORTH THE BALANCE OF THE LOAN
ACCOUNT, INCLUDING PRINCIPAL, INTEREST, COSTS, PENALTIES, CHARGES AND
OTHER FEES. EACH SUCH STATEMENT SHALL BE SUBJECT TO SUBSEQUENT
ADJUSTMENT BY EACH LENDER AND AGENT AND EACH LENDER'S AND AGENT'S
RIGHT TO REAPPLY PAYMENTS IN ACCORDANCE WITH SECTION 3.7(b), BUT
SHALL, AS TO STATEMENTS OF PRINCIPAL AND INTEREST THEN DUE OR HAVING
BEEN PAID, ABSENT MANIFEST ERRORS OR OMISSIONS, BE PRESUMED CORRECT
AND BINDING UPON BORROWER AND SHALL CONSTITUTE AN ACCOUNT STATEMENT
UNLESS, WITHIN THIRTY (30) DAYS AFTER RECEIPT OF ANY STATEMENT FROM
ANY LENDER AND/OR AGENT, BORROWER SHALL DELIVER TO THE APPROPRIATE
LENDER AND/OR AGENT WRITTEN OBJECTION THERETO, SPECIFYING THE ERROR OR
ERRORS, IF ANY, CONTAINED IN SUCH STATEMENT.
3.10. TIME OF PAYMENT OF EXTRAORDINARY TRANSACTION PROCEEDS. ANY
PAYMENT DUE PURSUANT TO THE TERMS OF SECTION 3.3(d) SHALL BE MADE ON
THE DATE OF CLOSING OF SUCH TRANSACTION AND BORROWER SHALL DIRECT
PURCHASER AND/OR LENDER TO MAKE PAYMENT BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS DIRECTLY TO AGENT. NO PORTION OF THE
CONSIDERATION PAID FOR SUCH TRANSFER SHALL BE MADE IN KIND, IN
SECURITIES, OR BY DELIVERY OF PROMISSORY NOTE OR OTHER FORM OF
INDEBTEDNESS OR OBLIGATION, WITHOUT, IN EACH INSTANCE THE PRIOR
WRITTEN CONSENT OF LENDERS, WHICH CONSENT MAY BE WITHHELD BY LENDERS
IN THEIR SOLE AND EXCLUSIVE DISCRETION.
(g) The following Section 4.5 is hereby added to the Existing Loan
Agreement:
4.5 WARRANT AGREEMENT. CONCURRENTLY HEREWITH, BORROWER SHALL ENTER
INTO AND DELIVER TO BANK OF SCOTLAND THAT CERTAIN WARRANT AND
REGISTRATION AGREEMENT, GRANTING WARRANTS IN THE STOCK OF BORROWER TO
BANK OF SCOTLAND. NATIONSBANK SHALL HAVE NO INTEREST THEREIN.
(h) Sections 6.3(k), (l), (m), (n) and (o) of the Existing Loan Agreement
are hereby deleted in their entirety and the following is substituted therefor:
(k) INDEBTEDNESS. NEITHER BORROWER NOR ANY PRIMARY OBLIGOR SHALL
CONTRACT, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY INDEBTEDNESS;
EXCEPT FOR (w) THE LOANS, (x) INDEBTEDNESS EXISTING ON THE DATE HEREOF
AND REFLECTED ON THE FINANCIALS OF BORROWER DELIVERED ON SUCH DATE,
(y) INDEBTEDNESS DISCLOSED ON SCHEDULES 5.1(s) AND (t), AND (z)
UNSECURED TRADE PAYABLES AND UNSECURED INDEBTEDNESS OF BORROWER TO AN
AFFILIATE, INCURRED IN THE ORDINARY COURSE OF BUSINESS .
(l) LOAN; GUARANTY DEBT. BORROWER SHALL NOT MAKE ANY LOAN TO ANY
PERSON, OTHER THAN LOANS TO PRIMARY OBLIGORS PURSUANT TO THE TERMS OF
THE ELIGIBLE NOTES. EXCEPT AS SET FORTH ON SCHEDULE 6.3(l), NEITHER
BORROWER, NOR ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR SHALL ENTER
INTO ANY GUARANTY EQUIVALENTS.
(m) PAY INDEBTEDNESS. EXCEPT IN THE ORDINARY COURSE OF BUSINESS,
NEITHER BORROWER, NOR ANY PRIMARY OBLIGOR NOR ANY SECONDARY OBLIGOR
SHALL DEFEASE, PREPAY, REPAY, PURCHASE, REDEEM OR OTHERWISE ACQUIRE
ANY OF ITS INDEBTEDNESS FOR BORROWED MONEY.
(n) ISSUE POWER OF ATTORNEY. EXCEPT PURSUANT TO THIS AGREEMENT AND
THE OTHER AGREEMENTS, NEITHER BORROWER, NOR ANY PRIMARY OBLIGOR NOR
ANY SECONDARY OBLIGOR SHALL ISSUE ANY POWER OF ATTORNEY OR OTHER
CONTRACT OR AGREEMENT GIVING ANY PERSON POWER OR CONTROL OVER THE
14
DAY-TO-DAY OPERATIONS OF BORROWER'S, ANY PRIMARY OBLIGOR'S OR ANY
SECONDARY OBLIGOR'S BUSINESS, OTHER THAN IN CONNECTION WITH PERMITTED
LIENS OR INDEBTEDNESS EXPRESSLY PERMITTED PURSUANT TO THE TERMS OF
THIS AGREEMENT.
(o) AMENDMENT OF CREDIT AGREEMENTS. EXCEPT IN THE ORDINARY COURSE
OF BUSINESS, NEITHER BORROWER, NOR ANY PRIMARY OBLIGOR OR ANY
SECONDARY OBLIGOR, SHALL AMEND, MODIFY OR EXTEND ANY NOTE, CREDIT
AGREEMENT, SECURITY AGREEMENT OR OTHER DOCUMENT, INSTRUMENT OF
AGREEMENT EVIDENCING OR SECURING INDEBTEDNESS OF SUCH ENTITY, WITHOUT
IN EACH CASE LENDERS' PRIOR WRITTEN CONSENT.
(i) Section 7.1 is hereby deleted in its entirety and the following is
substituted therefor:
7.1. EVENTS OF DEFAULT. THE OCCURRENCE OF ANY ONE OF THE FOLLOWING
EVENTS SHALL CONSTITUTE A DEFAULT ("EVENT OF DEFAULT") UNDER THIS
AGREEMENT:
(a) IF BORROWER FAILS OR NEGLECTS TO PERFORM, KEEP OR OBSERVE
ANY OF BORROWER'S OBLIGATIONS OR IF BORROWER FAILS OR NEGLECTS TO
CAUSE ANY PRIMARY OBLIGOR, SECONDARY OBLIGOR OR ANY OTHER LOAN PARTY
(FOR ANY REASON WHATSOEVER) TO KEEP OR OBSERVE ANY COVENANT WITH
RESPECT TO SUCH ENTITY SET FORTH HEREIN AND THE SAME IS NOT CURED
WITHIN FIVE (5) DAYS AFTER AGENT GIVES BORROWER NOTICE OF SUCH
DEFAULT; PROVIDED THAT A BREACH OF ANY OF THE PROVISIONS, TERMS,
CONDITIONS OR COVENANTS CONTAINED IN SECTIONS 6.2(d), 6.3 AND 6.4
SHALL AUTOMATICALLY BE AN EVENT OF DEFAULT WITHOUT ANY NOTICE OR CURE
PERIOD.
(b) IF ANY REPRESENTATION, WARRANTY OR MATERIAL STATEMENT,
REPORT OR CERTIFICATE MADE OR DELIVERED BY ANY LOAN PARTY, OR ANY OF
ITS DIRECTORS, OFFICERS, AUTHORIZED EMPLOYEES OR AGENTS, TO AGENT IS
NOT TRUE AND CORRECT;
(c) IF BORROWER FAILS TO PAY ANY OF THE SECURED OBLIGATIONS,
WHEN DUE AND PAYABLE OR DECLARED DUE AND PAYABLE;
(d) IF BORROWER SHALL DEFAULT UNDER THE TERMS OF ANY
INDEBTEDNESS INSTRUMENT, OTHER THAN THE LOAN DOCUMENTS.
(e) EXCEPT AS PROVIDED IN ANY OTHER SECTION OF THIS SECTION
7.1 AND EXCEPT FOR THOSE DEFAULTS BY HARBOR FINANCIAL MORTGAGE
CORPORATION LISTED ON EXHIBIT B ATTACHED HERETO WHICH SHALL CONSTITUTE
AN IMMEDIATE EVENT OF DEFAULT FOR WHICH THE TEN DAY CURE PERIOD
REFERENCED BELOW SHALL NOT BE APPLICABLE IF SUCH DEFAULTS ARE NOT
CURED ON OR BEFORE SEPTEMBER 15, 1999, IF ANY SUBSIDIARY OF BORROWER
SHALL DEFAULT UNDER THE TERMS OF ANY INDEBTEDNESS INSTRUMENT AND SUCH
DEFAULT IS NOT CURED WITHIN TEN (10) DAYS AFTER THE OCCURRENCE
THEREOF; PROVIDED THAT SUCH CURE PERIOD SHALL NOT APPLY IF: (i) A
DEFAULT OCCURS BY SUCH SUBSIDIARY UNDER THE TERMS OF ANY OTHER
INDEBTEDNESS INSTRUMENT SECURING OR EVIDENCING A DIFFERENT BORROWING,
OR (ii) IF ANY OTHER SUBSIDIARY DEFAULTS UNDER THE TERMS OF ANY
INDEBTEDNESS INSTRUMENT DURING SUCH TEN (10) DAY CURE PERIOD.
NOTWITHSTANDING THE FOREGOING, IF ANY TWO OR MORE SUCH PERSONS ARE
OBLIGATED FOR THE SAME INDEBTEDNESS AND A DEFAULT OCCURS THEREUNDER,
IT SHALL BE DEEMED TO BE A DEFAULT BY A SINGLE PERSON FOR THE PURPOSES
OF THIS SECTION 7.1(e).
15
(f) IF THERE IS A TRIGGER EVENT, A SEQUENTIAL TRIGGER EVENT, A
TERMINATION EVENT, A DEFAULT, AN EVENT OF DEFAULT AND/OR ANY OTHER
OCCURRENCE HAVING A SIMILAR RESULT AS ANY OF THE FOREGOING, AS
APPLICABLE, AS DEFINED IN AND/OR UNDER THE TERMS OF ANY ONE OR MORE OF
THE AGREEMENTS LISTED ON EXHIBIT A ATTACHED HERETO.
(g) IF BORROWER FAILS OR NEGLECTS TO PERFORM, KEEP OR OBSERVE
ANY OF BORROWER'S OBLIGATIONS OR TO CAUSE ANY PRIMARY OBLIGOR OR
SECONDARY OBLIGOR TO KEEP OR OBSERVE ANY REPRESENTATION, WARRANTY OR
COVENANT, CONTAINED IN SECTION 6.2(e) AND THE SAME IS NOT CURED WITHIN
TEN (10) DAYS AFTER AGENT GIVES BORROWER NOTICE OF SUCH DEFAULT.
(h) A BREACH OF THE REPRESENTATION, WARRANTY AND COVENANT SET
FORTH IN SECTION 6.2(i).
(i) IF ANY OF BORROWER'S ASSETS OR THE ASSETS OF ANY PRIMARY
OBLIGOR, OR SECONDARY OBLIGOR OR ANY PORTION THEREOF ARE ATTACHED,
SEIZED, SUBJECTED TO A WRIT OF DISTRESS WARRANT, OR ARE LEVIED UPON,
OR COME WITHIN THE POSSESSION OF ANY RECEIVER, TRUSTEE, CUSTODIAN OR
ASSIGNEE FOR THE BENEFIT OF CREDITORS;
(j) IF A PETITION UNDER ANY SECTION OR CHAPTER OF THE UNITED
STATES BANKRUPTCY CODE OR ANY SIMILAR LAW OR REGULATION SHALL BE FILED
BY BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR, OR IF
BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR SHALL MAKE AN
ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS OR IF ANY CASE OR
PROCEEDING IS FILED BY BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY
OBLIGOR FOR ITS DISSOLUTION OR LIQUIDATION;
(k) IF BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR
IS ENJOINED, RESTRAINED OR IN ANY WAY PREVENTED BY COURT ORDER FROM
CONDUCTING ALL OR ANY MATERIAL PART OF ITS BUSINESS AFFAIRS OR IF A
PETITION UNDER ANY SECTION OR CHAPTER OF THE UNITED STATES BANKRUPTCY
CODE OR ANY SIMILAR LAW OR REGULATION IS FILED AGAINST BORROWER, ANY
PRIMARY OBLIGOR OR ANY SECONDARY OBLIGOR OR IF ANY CASE OR PROCEEDING
IS FILED AGAINST BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY
OBLIGOR FOR ITS DISSOLUTION OR LIQUIDATION;
(l) IF AN APPLICATION IS MADE BY BORROWER, ANY PRIMARY
OBLIGOR, ANY SECONDARY OBLIGOR OR ANY PLEDGED ENTITY FOR THE
APPOINTMENT OF A RECEIVER, TRUSTEE OR CUSTODIAN FOR ANY OF ITS ASSETS
OTHER THAN A CUSTODIAN PURSUANT TO A VOLUNTARY CUSTODIAL AGREEMENT
ENTERED INTO TO PERFECT A SECURITY INTEREST;
(m) IF AN APPLICATION IS MADE BY ANY PERSON OTHER THAN A LOAN
PARTY FOR THE APPOINTMENT OF A RECEIVER, TRUSTEE, OR CUSTODIAN FOR ANY
OF THE ASSETS OF BORROWER, ANY PRIMARY OBLIGOR OR ANY SECONDARY
OBLIGOR OR ANY PLEDGED ENTITY;
(n) EXCEPT AS EXPRESSLY PERMITTED PURSUANT TO SECTION 6.2(e),
(i) IF A NOTICE OF ANY CHARGE IS FILED OF RECORD WITH RESPECT TO ALL
OR ANY OF BORROWER'S, ANY PRIMARY OBLIGOR'S, OR ANY SECONDARY
OBLIGOR'S ASSETS, OR (ii) IF ANY CHARGE BECOMES A LIEN OR ENCUMBRANCE
UPON ANY OF ITS ASSETS;
16
(o) THE OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT OR
UNMATURED DEFAULT UNDER ANY AGREEMENT, INSTRUMENT AND/OR DOCUMENT
EXECUTED AND DELIVERED BY ANY GUARANTOR TO AGENT, WHICH IS NOT CURED
WITHIN THE TIME, IF ANY, SPECIFIED THEREFOR IN SUCH AGREEMENT,
INSTRUMENT OR DOCUMENT OR ANY OF THE LOAN DOCUMENTS SHALL FAIL TO
GRANT TO AGENT ON BEHALF OF LENDERS THE LIEN OR OTHER SECURITY
INTEREST (IF ANY) INTENDED TO BE CREATED THEREBY OR ANY LOAN PARTY
THERETO SHALL ASSERT THAT IT IS NOT LIABLE WITH RESPECT THERETO; OR
ANY GUARANTOR SHALL ASSERT THAT IT IS NOT LIABLE AS A GUARANTOR OR
OTHERWISE UNDER ITS GUARANTEE AGREEMENT EXECUTED IN CONNECTION
HEREWITH;
(p) THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER ANY OF THE
OTHER AGREEMENTS, WHICH IS NOT CURED WITHIN THE TIME, IF ANY,
SPECIFIED THEREFOR IN SUCH OTHER AGREEMENT;
(q) EXCEPT AS EXPRESSLY PERMITTED PURSUANT TO THE TERMS
HEREOF, IF BORROWER, ANY PRIMARY OBLIGOR, ANY SECONDARY OBLIGOR OR ANY
PLEDGED ENTITY ISSUES TO OR TRANSFERS TO ANY PERSON ANY STOCK OF
BORROWER, ANY PRIMARY OBLIGOR, ANY SECONDARY OBLIGOR OR ANY PLEDGED
ENTITY;
(r) IF ANY FINAL NON-APPEALABLE JUDGMENT FOR THE PAYMENT OF
MONEY IN EXCESS OF $100,000 (AFTER GIVING EFFECT TO ANY AMOUNT COVERED
BY INSURANCE AS TO WHICH THE INSURER SHALL NOT HAVE DENIED OR
QUESTIONED ITS OBLIGATION TO PAY) SHALL BE RENDERED AGAINST BORROWER,
ANY PRIMARY OBLIGOR, OR ANY SECONDARY OBLIGOR; OR FINAL JUDGMENT FOR
THE PAYMENT OF MONEY IN EXCESS OF $100,000 SHALL BE RENDERED AGAINST
BORROWER, ANY PRIMARY OBLIGOR, OR ANY SECONDARY OBLIGOR AND THE SAME
SHALL REMAIN UNDISCHARGED FOR A PERIOD OF THIRTY (30) DAYS DURING
WHICH EXECUTION SHALL NOT BE EFFECTIVELY STAYED OR DILIGENTLY
CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS;
(s) IF BORROWER OR ANY ERISA AFFILIATE (1) SHALL EFFECT A
COMPLETE OR PARTIAL WITHDRAWAL (AS DEFINED IN ERISA SECTIONS 4203 OR
4205) FROM A MULTIEMPLOYER PLAN, IF SUCH WITHDRAWAL COULD SUBJECT
EITHER BORROWER OR ANY ERISA AFFILIATE TO LIABILITY; (2) SHALL FAIL TO
PAY WHEN DUE AN AMOUNT THAT IS PAYABLE BY IT TO THE PBGC OR TO AN
EMPLOYEE BENEFIT PLAN; (3) HAS INSTITUTED AGAINST IT BY A FIDUCIARY OF
ANY MULTIEMPLOYER PLAN AN ACTION TO ENFORCE ERISA SECTION 515 AND SUCH
PROCEEDINGS SHALL NOT HAVE BEEN DISMISSED WITHIN THIRTY (30) DAYS
THEREAFTER; (4) HAS IMPOSED AGAINST IT ANY TAX UNDER CODE SECTION
4980B(A); (5) HAS ASSESSED AGAINST IT BY THE SECRETARY OF LABOR A
CIVIL PENALTY WITH RESPECT TO ANY EMPLOYEE BENEFIT PLAN UNDER ERISA
SECTION 502(c) OR 502(L); (6) SHALL APPLY FOR A WAIVER OF THE MINIMUM
FUNDING STANDARDS OF THE CODE; OR (7) SHALL PERMIT ANY OTHER EVENT OR
CONDITION TO OCCUR OR EXIST WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN
THAT COULD SUBJECT EITHER BORROWER OR ANY ERISA AFFILIATE TO
LIABILITY;
(t) EXCEPT AS SET FORTH IN SECTION 7.1(d) OR (e), A DEFAULT BY
BORROWER, ANY PRIMARY OBLIGOR, OR ANY SECONDARY OBLIGOR SHALL OCCUR
UNDER ANY AGREEMENT, DOCUMENT OR INSTRUMENT (OTHER THAN THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS) NOW OR HEREAFTER EXISTING, TO
WHICH BORROWER, ANY PRIMARY OBLIGOR, OR ANY SECONDARY OBLIGOR IS A
PARTY AND THE EFFECT OF SUCH DEFAULT COULD HAVE A MATERIAL ADVERSE
EFFECT ON THE FINANCIAL CONDITIONS OR BUSINESS OPERATIONS OF SUCH LOAN
PARTY;
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(u) IF BORROWER, ANY PRIMARY OBLIGOR, OR ANY SECONDARY OBLIGOR
DISSOLVES, LIQUIDATES (OTHER THAN WITH RESPECT TO A SECONDARY OBLIGOR
UPON THE DISPOSITION OF ALL OF ITS ASSETS IN THE ORDINARY COURSE OF
ITS BUSINESS), OR FAILS TO MAINTAIN ITS CORPORATE EXISTENCE, WITHOUT
THE PRIOR WRITTEN CONSENT OF AGENT.
(k) Schedules 1.1(xxx), 2.2(c), 4.2, 4.3, 5.1(e), 5.1(f), 5.1(g), 5.1(j),
5.1(l), 5.1(s), 5.1(t), 5.1(u) and 6.3(l) attached to the Existing Loan
Agreement are hereby deleted in their entirety and the Schedules attached
hereto are substituted therefor.
3. ADDITIONAL COVENANTS.
(a) Borrower hereby covenants that no Advances of Loan proceeds made after
the date hereof shall be loaned to, contributed as capital to, used to pay the
debts or obligations of or otherwise expended (either directly or indirectly)
by Borrower, and that Borrower shall not allow any Subsidiary to allow any
Advances of Loan proceeds made after the date hereof to be loaned to,
contributed as capital to, used to pay the debts or obligations of or otherwise
expended (either directly or indirectly) for the benefit of or on behalf of
FirstCity Financial Mortgage Corporation, Harbor Financial Mortgage
Corporation, or New America Financial Inc., or any Subsidiary thereof.
(b) Borrower hereby covenants that it will not, without the prior written
consent of Lenders, pay any dividends, with respect to its equity interests,
including any Preferred Stock.
(c) Borrower shall use its best efforts to and shall fully cooperate with
Agent and Lenders to amend and restate the Existing Loan Agreement on or before
September 15, 1999.
4. MISCELLANEOUS.
(a) This Tenth Amendment is supplementary to the Existing Loan Agreement
and the other Loan Documents as amended by the amendments and assignments
thereto. All of the provisions of the Loan Documents, including without
limitation, the right to declare principal and accrued interest due for any
cause specifically in the Loan Documents, shall remain in full force and
effect, except as herein or concurrently herewith expressly modified. The Loan
Documents and all rights and powers created thereby and thereunder are in all
respects ratified and confirmed. From and after the date hereof, the Existing
Loan Agreement shall be deemed to be amended and modified as herein provided,
but, except as so amended and modified, the Existing Loan Agreement shall
continue in full force and effect and the Existing Loan Agreement and this
Tenth Amendment shall be read, taken and construed as one and the same
instrument. On and after the date hereof, the term "LOAN AGREEMENT" as used in
all of the other Loan Documents and "THIS AGREEMENT" as used in the Existing
Loan Agreement and this Tenth Amendment shall mean the Existing Loan Agreement
as amended hereby.
(b) Representations and Warranties of Borrower. This Tenth Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. To induce Agent and Lenders to enter into
this Tenth Amendment, Borrower hereby represents and warrants to Agent and
Lenders that:
(i) The execution and delivery of this Tenth Amendment, and the
performance by Borrower of its obligations under this Tenth Amendment and the
other Loan Documents, as amended, are within Borrower's corporate powers, have
been duly authorized by all necessary corporate action, have received all
necessary governmental approvals (if any shall be required) and do not and will
not contravene or conflict with any provisions of law, or the Articles of
Incorporation or corporate By-Laws of Borrower or of any other agreement
binding upon Borrower;
(ii) This Tenth Amendment, and each other instrument executed by
Borrower concurrently herewith, is the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforcement thereof may be subject to the effect of applicable
bankruptcy, insolvency,
18
reorganization, moratorium or similar laws affecting creditors' rights
generally, and to the general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
(iii) Except for the existing defaults by Harbor Financial Mortgage
Corporation listed on Exhibit B attached hereto, all of the representations and
warranties of Borrower made in the Loan Documents are true and correct as of
the date hereof, except where such representation or warranty specifically
relates to an earlier date. Borrower hereby expressly remakes and reaffirms
each and every representation, warranty and covenant set forth in the Agreement
and the other Loan Documents to which Borrower is a party to and for the
benefit of Agent and Lenders, as if made on the date herein and fully set forth
herein.
(iv) No Event of Default or Unmatured Default under the Loan Documents
exists and Borrower is in full compliance with all of the terms, conditions and
provisions of the Agreement and the other Loan Documents.
(v) All material agreements relating to auto receivables or home
equity loan receivables to which Borrower or a Subsidiary thereof is a party
are listed on Exhibit A attached hereto.
(c) Reimbursement for Expenses. Upon demand by Agent therefor, Borrower
shall reimburse Bank of Scotland and/or Agent for all reasonable costs, fees
and expenses incurred by Bank of Scotland and/or Agent or for which any Lender
and/or Agent becomes obligated, in connection with the negotiation, preparation
and conclusion of this Tenth Amendment, including without limitation,
reasonable attorney's fees, costs and expenses, search fees, title insurance
policy fees, costs and expenses, filing and recording fees, LIBOR Breakage Fees
and all taxes payable in connection with this Tenth Amendment.
(d) Waiver of Claims. Borrower hereby acknowledges, agrees and affirms
that it possesses no claims, defenses, offsets, recoupment or counterclaims of
any kind or nature against or with respect to the enforcement of the Agreement,
or any other Loan Document or any amendments thereto (collectively, the
"CLAIMS"), nor does Borrower now have knowledge of any facts that would or
might give rise to any Claims. If facts now exist which would or could give
rise to any Claim against or with respect to the enforcement of the Agreement,
or any other Loan Document, as amended by the amendments thereto, Borrower
hereby unconditionally, irrevocably and unequivocally waives and fully releases
any and all such Claims as if such Claims were the subject of a lawsuit,
adjudicated to final judgment from which no appeal could be taken and therein
dismissed with prejudice.
(e) Severability. If any provision (in whole or in part) of this Tenth
Amendment or the other Loan Documents or the application thereof to any person
or circumstance is held invalid or unenforceable, then such provision shall be
deemed modified, restricted, or reformulated to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Tenth Amendment or the other Loan Documents, as the case may require,
and this Tenth Amendment and such other Loan Documents shall be construed and
enforced to the maximum extent permitted by law, as if such provision had been
originally incorporated herein as so modified, restricted, or reformulated or
as if such provision had not been originally incorporated herein or therein, as
the case may be. The parties further agree to seek a lawful substitute for any
provision found to be unlawful. If such modification, restriction or
reformulation is not reasonably possible, the remainder of this Tenth Amendment
and the other Loan Documents and the application of such provision to other
persons or circumstances will not be affected thereby and the provisions of
this Tenth Amendment and the other Loan Documents shall be severable in any
such instance.
(f) Governing Law. THIS TENTH AMENDMENT HAS BEEN DELIVERED FOR ACCEPTANCE
BY AGENT AND LENDERS IN CHICAGO, ILLINOIS AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS) OF THE STATE OF ILLINOIS. TO THE EXTENT PERMITTED BY APPLICABLE
LAW
19
BORROWER HEREBY (a) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN CHICAGO, ILLINOIS OVER ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS TENTH AMENDMENT;
(b) IRREVOCABLY WAIVES THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (c) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN ANY OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW; AND (d) AGREES NOT TO INSTITUTE ANY LEGAL
ACTION OR PROCEEDING AGAINST AGENT, LENDERS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING ANY MATTER
ARISING OUT OF OR RELATING TO THIS TENTH AMENDMENT IN ANY COURT OTHER THAN ONE
LOCATED IN XXXX COUNTY, ILLINOIS. NOTHING IN THIS SECTION SHALL AFFECT OR
IMPAIR AGENT'S OR LENDERS' RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED
BY LAW OR AGENT'S OR LENDERS' RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
BORROWER OR BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
(g) Representation by Counsel. Borrower hereby represents that it has
been represented by competent counsel of its choice in the negotiation and
execution of this Tenth Amendment and the other Loan Documents; that it has
read and fully understood the terms hereof; Borrower and its counsel have been
afforded an opportunity to review, negotiate and modify the terms of this Tenth
Amendment, and that it intends to be bound hereby. In accordance with the
foregoing, the general rule of construction to the effect that any ambiguities
in a contract are to be resolved against the party drafting the contract shall
not be employed in the construction and interpretation of this Tenth Amendment.
(h) Headings. The descriptive headings of the various provisions of this
Tenth Amendment and the other Loan Documents are inserted for convenience of
reference only and shall not be deemed to affect the meaning or construction of
any of the provisions hereof. Section references in the Existing Loan Agreement
shall be deemed to refer to the applicable Section set forth in this Amendment.
(i) Counterparts. This Tenth Amendment and the other Loan Documents may
be executed in any number of counterparts, and by the different parties hereto
and thereto on the same or separate counterparts, each of which when so
executed and delivered shall be deemed to be an original; all the counterparts
for each such Loan Document shall together constitute one and the same
agreement.
(j) Fax Execution. For purposes of negotiating and finalizing this Tenth
Amendment (including any subsequent amendments thereto), any signed document
transmitted by facsimile machine ("FAX") shall be treated in all manner and
respects as an original document. The signature of any party by FAX shall be
considered for these purposes as an original signature. Any such FAX document
shall be considered to have the same binding legal effect as an original
document, provided that an original of the faxed document was mailed by first
class US Mail or personally delivered to the recipient, on the date of its
transmission with proof of the Fax transmission. At the request of either
party, any FAX document subject to this Tenth Amendment shall be re-executed by
both parties in an original form. The undersigned parties hereby agree that
neither shall raise the use of the FAX or the fact that any signature or
document was transmitted or communicated through the use of a FAX as a defense
to the formation of this Tenth Amendment.
(k) No Third Party Beneficiaries. This Tenth Amendment is solely for the
benefit of Agent, Lenders, Borrower and their respective successors and assigns
(except as otherwise expressly provided herein) and nothing contained herein
shall be deemed to confer upon any other Person any right to insist on or to
enforce the performance or observance of any of the obligations contained
herein. All conditions to the obligations of Lenders to make the Loans
hereunder are imposed solely and exclusively for the benefit of Lenders and
their respective successors and assigns and no other Person shall have standing
to require satisfaction of such conditions in accordance with their terms and
no other Persons shall under any circumstances be deemed to be a beneficiary of
such conditions.
(l) Domicile of Loans. Each Lender may make, maintain or transfer any of
its Loans hereunder to, or for the account of, any branch office, subsidiary or
affiliate of such Lender.
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(m) Modification. Borrower expressly agrees that for purposes of this
Tenth Amendment and each and every other Loan Document: (i) this Tenth
Amendment, the Agreement and each and every Loan Document shall be a "credit
agreement" under the Illinois Credit Agreements Act, 815 ILCS 160/1 et. seq.
(the "ACT"); (ii) the Act applies to this transaction including, but not
limited to, the execution of this Tenth Amendment, the Existing Loan Agreement,
as amended hereby, and each and every other Loan Document; and (iii) any action
on or in any way related to this Tenth Amendment, the Existing Loan Agreement,
as amended hereby, and each and every other Loan Document shall be governed by
the Act.
(n) Texas Language.
(i) THIS WRITTEN AGREEMENT (TOGETHER WITH THE OTHER LOAN DOCUMENTS)
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
MATTERS COVERED HEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(ii) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
HERETO.
(o) WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY LAW, BORROWER,
AGENT AND/OR LENDERS EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS TENTH AMENDMENT, THE EXISTING
LOAN AGREEMENT, AS AMENDED HEREBY, OR THE OTHER AGREEMENTS OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF EITHER PARTY IN CONNECTION HEREWITH. BORROWER HEREBY EXPRESSLY ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR LENDERS TO MAKE THE LOAN.
The remainder of this page has been left intentionally blank.
21
IN WITNESS WHEREOF, this Tenth Amendment to Loan Agreement has been
duly executed and dated for reference purposes only as of August 11, 1999.
BORROWER:
FIRSTCITY FINANCIAL CORPORATION,
a Delaware corporation
By:
---------------------------------------
Title:
------------------------------------
LENDERS:
BANK OF SCOTLAND
By:
---------------------------------------
Title:
------------------------------------
NATIONSBANK, N.A.
By:
---------------------------------------
Title:
------------------------------------
AGENT:
BANK OF SCOTLAND
By:
---------------------------------------
Title:
------------------------------------
22
EXHIBIT A
23
EXHIBIT B
