1
Exhibit 10.2(a)
==============================================================
U.S. $50,000,000
CREDIT AGREEMENT
Dated as of March 29,l996
among
CHICAGO TITLE AND TRUST COMPANY
as the Company,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS
as the Lenders,
and
THE CHASE MANHATTAN BANK, N.A.
as Administrative Agent for the Lenders.
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dared as of March 29, 1996, among CHICAGO TITLE AND
TRUST COMPANY, an Illinois corporation (the "Company"), the various financial
institutions as are or may become parties hereto (collectively, the "Lenders"),
and THE CHASE MANHATTAN BANK, N.A., as Administrative agent (the "Administrative
Agent") for the Lenders.
W I T N E S E T H:
WHEREAS, the Company is engaged directly and through its various
Subsidiaries in the business of issuing title insurance; and
WHEREAS, the Company is party to an Amended and Restated Credit Agreement.
dazed as of December 30, 1993 (the "Existing Credit Agreement"), among the
Company, the various financial institutions party thereto, The Continental Bank
N.A., as agent and United States National Bank of Oregon, Bank of America
National Trust and Savings Association and Xxxxxx Trust and Savings Bank, as
Co-Agents, pursuant to which the Company borrowed $71,000,000 in certain term
loans (the "Existing Loans") and
WHEREAS, the Company wishes to refinance the $50,000,000 of Existing Loans
currently outstanding under the Existing Credit Agreement, and the Lenders and
the Administrative Agent wish to make available to the Company the loans
provided for herein to effect such refinancing, in each case on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, the parties hereto,
intending to be bound hereby, further agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.1 Defined Terms. The following terms (whether or not
underscored) when used In this Agreement, including its Preamble and Recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
Additional Capital Contributions shall mean all capital contributions made
to the Company by or on behalf of its parent corporation subsequent to December
31, 1989.
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TABLE OF CONTENTS
Page
SECTION 1. DEFINTTIONS ................................................ 1
1.1 Defined Terms ............................................... 1
1.2 Use of Defined Terms ........................................ 12
1.3 Cross-References ............................................ 12
1.4 Accounting Terms; Financial Statements ...................... 12
SECTION 2. COMMITMENT OF THE LENDERS; CONDITIONS ...................... 12
2.1 Commitment .................................................. 12
2.2 Borrowing Procedure ......................................... 12
2.3 Conditions to the Loan ...................................... 13
SECTION 3. NOTES EVIDENCING THE LOAN .................................. 13
3.1 Notes ....................................................... 13
3.2 Maturity of Notes ........................................... 13
3.3 Prepayment .................................................. 13
SECTION 4. INTEREST ................................................... 14
4.1 Continuation and Conversion Elections ....................... 14
4.2 Funding ..................................................... 14
4.3 Interest Provisions ......................................... 14
4.3.1 Rates ................................................ 14
4.3.2 Post-Maturity Rates .................................. 15
4.3.3 Payment Dates ........................................ 15
SECTION 5. FEES ....................................................... 15
5.1 Fees ........................................................ 15
5.2 Administrative Agent's Fee .................................. 15
SECTION 6. CERTAIN LIBO RATE AND OTHER PROVISIONS ..................... 16
6.1 Fixed Rate Lending Unlawful ................................. 16
6.2 Deposits Unavailable ........................................ 16
6.3 Increased LIBO Rate Loan Costs, etc ......................... 16
(i)
4
Page
6.4 Funding Losses .............................................. 17
6.5 Increased Capital Costs ..................................... 17
6.6 Taxes ....................................................... 18
6.7 Payments, Computations, etc ................................. 19
6.8 Sharing of Payments ......................................... 20
6.9 Setoff ...................................................... 20
6.10 Use of Proceeds ............................................ 21
SECTION 7. WARRANTIES ................................................. 21
7.1 Organization, etc ........................................... 21
7.2 Authorization; No Conflict .................................. 21
7.3 Validity and Binding Nature ................................. 21
7.4 Financial Statements ........................................ 21
7.5 Litigation and Contingent Liabilities ....................... 22
7.6 Liens ....................................................... 22
7.7 Subsidiaries ................................................ 22
7.8 Investment Company Act ...................................... 23
7.9 Public Utility Holding Company Act .......................... 23
7.10 Regulation U ............................................... 23
7.11 Ownership of Properties .................................... 23
7.12 Taxes ...................................................... 23
7.13 Pension and Welfare Plans .................................. 23
7.14 Accuracy of Information .................................... 24
SECTION 8. COMPANY'S COVENANTS ........................................ 24
8.1 Reports, Certificates and Other Information ................. 24
8.1.1 Company Audit Report ................................ 24
8.1.2 Annual Company Unaudited Statements ................. 25
8.1.3 Company Interim Reports ............................. 25
8.1.4 Certificates ........................................ 25
8.1.5 Annual Statement Blanks ............................. 25
8.1.6 Quarterly Statement Blanks .......................... 25
8.1.7 Notice of Default and Litigation .................... 25
8.1.8 Subsidiaries ........................................ 26
8.1.9 ERISA ............................................... 26
8.1.10 Additional Information ............................. 26
8.2 Books, Records and Inspections .............................. 26
8.3 Insurance ................................................... 26
8.4 Taxes ....................................................... 26
8.5 Consolidated Net Worth ...................................... 27
8.6 Statutory Surplus ........................................... 27
(ii)
5
Page
8.7 Interest Expense Coverage Ratio ............................ 27
8.8 Liquidity .................................................. 27
8.9 Loss Reserve Ratio ......................................... 27
8.l0 Restricted Payments ....................................... 27
8.11 Indebtedness .............................................. 28
8.l2 Liens ..................................................... 28
8.13 Mergers, Consolidations, Purchases ........................ 29
8.14 Asset Dispositions ........................................ 30
8.15 Debt-to-Equity Ratio ...................................... 30
8.16 Existing Business ......................................... 30
8.17 Other Agreements .......................................... 30
8.l8 Xxxxxxx Xxxxx Lease ....................................... 30
SECTION 9. CONDITIONS OF LENDING ................................... 31
9.1 Documents .................................................. 31
9.1.1 Notes ............................................... 31
9.1.2 Corporate Documents ................................. 31
9.1.3 Payoff Letter ....................................... 31
9.1.4 Incumbency and Signatures ........................... 31
9.1.5 Opinion of Counsel for the Company .................. 31
9.1.6 Confirmatory Certificate ............................ 32
9.1.7 Other ............................................... 32
9.2 Further Conditions ......................................... 32
SECTION 10. EVENTS OF DEFAULT AND THEIR EFFECT ........................ 32
10.1 Events of Default ......................................... 32
10.1.1 Non-Payment of Notes, etc .......................... 32
10.1.2 Non-Payment of Other Indebtedness .................. 32
10.1.3 Bankruptcy, Insolvency, etc ........................ 33
10.1.4 Non-Compliance with this Agreement ................. 33
10.1.5 Warranties ......................................... 33
10.1.6 Change of Control .................................. 33
10.1.7 Judgments .......................................... 34
10.1.8 Pension Plans ...................................... 34
10.2 Effect of Event of Default ................................ 34
SECTION 11. THE ADMINISTRATIVE AGENT .................................. 34
11.1 Actions ................................................... 34
11.2 Funding Reliance, etc ..................................... 35
11.3 Exculpation ............................................... 35
11.4 Successor ................................................. 36
(iii)
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Page
11.5 Loans by Chase ........................................... 36
11.6 Credit Decisions ......................................... 36
11.7 Copies, etc .............................................. 36
SECTION 12. MISCELLANEOUS PROVISIONS ................................. 37
12.1 Waivers, Amendments, etc ................................. 37
12.2 Notices .................................................. 38
12.3 Costs, Expenses and Taxes ................................ 38
12.4 Indemnification .......................................... 39
12.5 Survival ................................................. 39
12.6 Severability ............................................. 40
12.7 Captions ................................................. 40
12.8 Execution in Counterparts, Effectiveness, etc ............ 40
12.9 Governing Law ............................................ 40
12.10 Successors and Assigns .................................. 40
12.11 Sale and Transfer of Notes; Participations in Notes ..... 40
12.11.1 Assignments ..................................... 41
12.11.2 Participations .................................. 42
12.12 Other Transactions ...................................... 43
12.13 Forum Selection and Consent to Jurisdiction ............. 43
12.14 Waiver of Jury Trial .................................... 44
12.15 Confidentiality ......................................... 44
EXHIBITS
Exhibit A - Note
Exhibit B - Continuation/Conversion Notice
Exhibit C - Lender Assignment Agreement
Exhibit D - Scheduled Properties
SCHEDULES
Schedule 7.5 - Litigation and Contingent Claims
Schedule 7.6 - Liens
Schedule 7.7 - Subsidiaries
Schedule 7.13 - ERISA
Schedule 8.11 - Indebtedness
(iv)
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Adjusted Total Assets shall mean for any fiscal year the total assets of
the Company and its Subsidiaries on a consolidated basis as at the commencement
of such fiscal year, as shown on a consolidated balance sheet of the Company
prepared as at the end of the preceding fiscal year in accordance with generally
accepted accounting principles consistently applied, less any amounts shown on
such consolidated balance sheet representing Unrestricted Assets.
Administrative Agent is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 11.4.
Affiliate of any Person shall mean a corporation which controls, is
controlled by or is under common control with such Person.
Agreement shall mean, on any date, this Credit Agreement as the same may,
from time to time, be amended, supplemented, amended and restated, or otherwise
modified and in effect.
Alternate Reference Rate shall mean, on any date and with respect to all
Reference Rate Loans, a fluctuating rate of interest per annum equal to the
higher of
(a) the rate of interest most recently announced by Chase at its Domestic
Office as its prime lending rate; and
(b) the Federal Funds Effective Rate most recently determined by the Agent
plus 0.50%.
The Alternate Reference Rate is not necessarily intended to be the lowest rate
of interest determined by Chase in connection with extensions of credit. Changes
in the rate of interest on the Notes while maintained as Reference Rate Loans
will take effect simultaneously with each change in the Alternate Reference
Rate. The Agent will give notice promptly to the Company and the Lenders of
changes in the Alternate Reference Rate.
Annual Payment Date shall mean each regularly scheduled date for the
payment of principal pursuant to Section 3.2.
Annual Statement Blank shall mean the annual statement of the conditions
and affairs of each Title Insurance Subsidiary in the form prescribed by its
applicable State regulatory authority for title insurance companies and prepared
in accordance with applicable statutory accounting principles.
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Approved Investments shall mean investments (i) in direct obligations of,
or obligations the principal of and interest on which are fully guaranteed by,
the United States of America, (ii) in obligations issued or guaranteed by any
agency or instrumentality of the United States of America, (iii) in certificates
of deposit of, and time deposits in, any bank organized under the laws of the
United States of America or any State thereof whose short-term commercial paper
rating from Standard & Poor's Corporation is at least A-1 or the equivalent
thereof or from Xxxxx'x Investors Service, Inc. is at least P-1 or the
equivalent thereof (or in the event that neither such company is providing such
service, any other similar nationally recognized rating service), or (iv) in
short-term notes or other obligations rated P-1 by Xxxxx'x investors Service,
Inc. or A-1 by Standard and Poor's Corporation (or in the event that neither
such company is providing such service, any other similar nationally recognized
rating service); provided that all Investments in the obligations of any single
issuer (other than pursuant to clauses (i) and (ii) above) shall not exceed the
greater of (x) $60,000,000 and (y) 20% of all Approved Investments.
Assignee Lender is defined in Section 12.11.1
Business Day shall mean
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in Chicago,
Illinois and New York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day on which dealings in Dollars are carried on in the
London interbank market
Capitalized Lease Obligations shall mean the present value (determined in
accordance with generally accepted accounting principles) of obligations to pay
future rentals under a lease, under which lease the obligations of the lessee
are required under generally accepted accounting principles to be shown as a
liability on the balance sheet of such lessee; provided that in the event the
Xxxxxxx Xxxxx Lease is required to be treated as a capitalized lease for
accounting purposes, the term "Capitalized Lease Obligations" shall not include
the Xxxxxxx Xxxxx Lease Obligations.
Cash and Marketable Securities shall mean as at the end of any fiscal
quarter (i) with respect to the Title Insurance Subsidiaries all assets on a
combined basis for the Title Insurance Subsidiaries which are included on page
2, lines 1, 2.1, 2.2, 6.1 and 6.2 (excluding preferred stock and common stock of
Affiliates) of the Form 9 Annual Statement Blank and the Quarterly Statement
Blank of the Title Insurance Subsidiaries as at such date (or the equivalent
items if the forms of said Annual Statement Blank or Quarterly Statement Blank
shall be amended) and (ii) with respect to the Company, all assets which would
be
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included on page 2, lines 1,2.1,2.2, 6.1 and 6.2 (excluding preferred stock and
common stock of Affiliates) of the Form 9 Annual Statement Blank of the Company
(or the equivalent items if the form of said Annual Statement Blank shall be
amended) if the Company was filing such form based on applicable statutory
accounting principles applied on a basis consistent with those applied on
12/31/95.
Chase shall mean The Chase Manhattan Bank, N.A., and any successor
corporation thereto by merger, consolidation or otherwise.
Commitment shall mean, relative to any Lender, such Lender's obligation to
make Loans pursuant to Section 2.1.
Commitment Amount shall mean, on any date $50,000,000, or such lesser
amount as is borrowed by the Company on the Loan Date.
Company - see Preamble.
Consolidated Net Income shall mean consolidated total revenues of the
Company and its Subsidiaries, less all consolidated charges which should be
deducted before arriving at net income, as determined in accordance with
generally accepted accounting principles.
Consolidated Net Worth shall mean the sum of the capital stock, additional
paid-in capital and retained earnings accounts of the Company and its
Subsidiaries as shown on the Company's consolidated balance sheet prepared in
accordance with generally accepted accounting principles; provided, however that
Consolidated Net Worth shall be reduced by the face amount of any debt
instruments of Affiliates which are not Subsidiaries of the Company owned by the
Company or its Subsidiaries, The Company implemented at December 31,1993, the
provisions of Statement of Financial Accounting Standards Bulletin Number 115.
Under this statement, the Company's investments in certain marketable securities
are valued at fair values, with the changes in such values being recorded
directly in stockholder's equity. The Company and the Lenders agree that for
purposes of the computation of Consolidated Net Worth, the changes resulting
from revaluations, either increases or decreases, shall be excluded from such
computations.
Continuation/Conversion Notice shall mean a notice of continuation or
conversion and certificate duly executed by the Company, substantially in the
form of Exhibit B hereto.
Controlled Group shall mean all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414(b) or 414(c) of the
Internal Revenue Code or Section 4001 of ERISA.
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CTI shall mean Chicago Title Insurance Company, a Missouri corporation and
Subsidiary of the Company.
Debt Service shall mean, for any fiscal period, the sum of (i) Interest
Expense for such period, plus (ii) all amounts of principal paid or payable on
all indebtedness for borrowed money or for the deferred purchase price of
property (including the Notes for such period, plus (iii) any reductions from
time to time in Capitalized Lease Obligations appearing as indebtedness on the
liability side of a balance sheet in accordance with generally accepted
accounting principles; provided that the term "Debt Service" shall not include
any obligation to the extent such obligation is permitted by Section 8.11(v),
8.11(vii) or 8.11(x); and provided further, that in the event the Xxxxxxx Xxxxx
Lease is required to be treated as a capital lease for accounting purposes, the
term "Debt Service" shall not include the Xxxxxxx Xxxxx Lease Obligations.
Dollar and $ shall mean lawful money of the United States.
Domestic Office shall mean, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
Earnings Before Interest and Taxes shall mean, for any fiscal period, the
sum of (i) Consolidated Net Income of the Company for such period, plus (ii) all
Interest Expense of the Company and its Subsidiaries deducted in determining
Consolidated Net Income for such period, plus (iii) any provision for Federal
income taxes deducted in determining Consolidated Net Income for such period, as
determined in accordance with generally accepted accounting principles.
Environmental Laws shall mean all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
Event of Default shall mean any of the events described in Section 10.1.
Existing Credit Agreement - see Recitals.
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Existing Loans - see Recitals.
Federal Funds Effective Rate shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on transactions in an amount
equal to the outstanding principal amount of the Notes received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
Indemnified Liabilities is defined in Section 12.4.
Indemnified Parties is defined in Section 12.4.
Interest Expense shall mean, for any fiscal period, all amounts paid or
payable by the Company and its Subsidiaries on a consolidated basis as interest
expense on all indebtedness for borrowed money or for the deferred purchase
price of property or as the implicit interest expense on all obligations which
are regarded as capital leases for accounting purposes, as determined in
accordance with generally accepted accounting principles, provided that the term
"Interest Expense" shall not include any interest on any obligation to the
extent such obligation is permitted by Section 8.11(v), 8.11(vii) or 8.11(x);
provided further that in the event the Xxxxxxx Xxxxx Lease is required to be
treated as a capital lease for accounting purposes, the term "Interest Expense"
shall not include any interest on the Xxxxxxx Xxxxx Lease Obligation.
Interest Period shall mean, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or continued into, a LIBO Rate Loan pursuant to Section 4.1 and
shall end on (but exclude) the day which numerically corresponds to such date
one, three or six months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), in either case as
the Company may select in its relevant notice pursuant to Section 4.1; provided,
however, that
(a) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day unless such next following Business Day is the first Business Day
of a calendar month, in which
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case such Interest Period shall end on the Business Day next preceding such
numerically corresponding day; and
(b) no Interest Period may end later than the next occurring Annual
Payment Date.
Investment Borrowings shall mean indebtedness of the Company or a
Subsidiary having a maturity of 92 days or less representing borrowings from a
bank or banks with which the Company or such Subsidiary has a depositary
relationship, which borrowings shall be fully secured by Approved Investments
purchased by the Company with the proceeds of such borrowings.
Lender Assignment Agreement shall mean a Lender Assignment Agreement
substantially in the form of Exhibit C hereto.
Lenders - see Preamble.
LIBO Rate shall mean, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/100 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to Chase's LIBOR Office in the London
interbank market as at or about 11:00 a.m. (London time) two Business Days prior
to the beginning of such Interest Period for delivery on the first day of such
Interest Period, and in an amount approximately equal to the amount of the Notes
and for a period approximately equal to such Interest Period.
LIBO Rate Loan shall mean the Notes while bearing interest, at all times
during the applicable Interest Period, at a fixed rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
LIBO Rate (Reserve Adjusted) shall mean, relative to any LIBO Rate Loan
for any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula
LIBO Rate = LIBO Rate
---------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Chase, two Business Days before the
first day of such Interest Period.
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"LIBOR Office" shall mean, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to the Company and the Administrative Agent,
whether or not outside the United States, which shall be making or maintaining
LIBO Rate Loans of such Lender hereunder.
LIBOR Reserve Percentage shall mean a percentage equal to the daily
average during each period the Note bears interest at the LIBO Rate (Reserve
Adjusted) of the percentages in effect on each day of such period, as prescribed
by the Federal Reserve Board, for determining the aggregate maximum reserve
requirements (including all basic, supplemental, marginal and other reserves)
applicable to "Eurocurrency liabilities" pursuant to Regulation D or any other
then applicable regulation of the Federal Reserve Board which prescribes
requirements applicable to "Eurocurrency liabilities," as presently defined in
Regulation D. Without limiting the effect of the foregoing, the LIBOR Reserve
Percentage shall reflect any other reserves required to be maintained against
any category of liabilities that includes deposits by reference to which the
LIBO Rate (Reserve Adjusted) is to be determined. The Notes shall be deemed to
be "Eurocurrency liabilities," as defined in Regulation D, and, as such, shall
be deemed to be subject to such reserve requirements without the benefit of, or
credit for, proration, exceptions or offsets which may be available to any
Lender from time to time under Regulation D.
Loans is defined in Section 2.1.
Loan Date is defined in Section 2.1.
Loan Documents shall mean this Agreement, the Notes and each
Continuation/Conversion Notice.
Long-Term Indebtedness shall mean all indebtedness of the Company and its
Subsidiaries for borrowed money or on account of deposits (other than trust and
escrow balances) or advances, all indebtedness of the Company and its
Subsidiaries for the deferred purchase price of property and services to the
extent provided in Section 8.11, all indebtedness of others assumed or
guaranteed by the Company or any of its Subsidiaries or in respect of which the
Company or any Subsidiary is secondarily or contingently liable (other than (x)
by endorsement of negotiable instruments in the course of collection, and (y)
other indebtedness of others guaranteed by the Company or any of its
Subsidiaries or in respect of which the Company or any Subsidiary is secondarily
or contingently liable not exceeding at any one time an aggregate of $5,000,000)
and all Capitalized Lease Obligations of the Company and its Subsidiaries, which
indebtedness or obligation is in each case by its terms payable more than one
year after the date of such determination; provided that the term "Long-Term
Indebtedness" shall not include any obligation which
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is permitted by Section 8.11(vii), 8.11(viii) or 8.12 nor shall it include any
obligation to the extent such obligation is permitted by Section 8.11(x);
provided further that in the event the Xxxxxxx Xxxxx Lease is required to be
treated as a capital lease for accounting purposes, the term "Long-Term
Indebtedness" shall not include the Xxxxxxx Xxxxx Lease Obligation.
Loss Reserves shall mean as at the end of any fiscal quarter all amounts
for the Title Insurance Subsidiaries on a combined basis which are shown as
"Reserve for undetermined title losses of which notice has been received" on
line 1(b), page 3 of the Form 9 Annual Statement Blank and the Quarterly
Statement Blank of the Title Insurance Subsidiaries as at such date (or the
equivalent item if the forms of said Annual Statement Blank or Quarterly
Statement Blank shall be amended).
Xxxxxxx Xxxxx Lease shall mean that certain Lease Agreement dated as of
December 29, 1988, as amended and restated as of March 3, 1989 between SRS
Funding, Inc., as lessor, and the Company, as lessee, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time and any and all replacements or refinancings thereof, provided that such
replacements or refinancings would not have been treated as a Capitalized Lease
Obligation if such replacement or refinancing had been entered into on or before
January 1, 1991.
Xxxxxxx Xxxxx Lease Obligations shall mean the obligations of the Company
from time to time outstanding under the Xxxxxxx Xxxxx Lease in an amount not to
exceed $30,000,000; or such lesser amount as is permitted pursuant to Section
8.18.
Net Asset Sales shall mean, for any fiscal year, the excess, if any, of
(i) sales or other dispositions of assets in such fiscal year, over (ii)
purchases or other acquisitions of assets in such fiscal year; provided,
however, that Net Asset Sales shall not include sales or purchases of
Unrestricted Assets. Repayments by third parties to the Company or any
Subsidiary of loans and other amounts receivable shall not be deemed to be sales
or other dispositions of assets for purposes of the foregoing definition.
Note shall mean a promissory note of the Company payable to any Lender, in
the form of Exhibit A hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate indebtedness
of the Company to such Lender resulting from outstanding Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
Obligations shall mean all obligations (monetary or otherwise) of the
Company arising under and In connection with this Agreement, the Notes or any
other Loan Document.
Participant is defined in Section 12.11.
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PBGC shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Company or any corporation, trade or business that is, along with the Company, a
member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
Percentage shall mean, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Agreement,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 12.11.
Person shall mean any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
Plan shall mean any Pension Plan or Welfare Plan.
Quarterly Payment Date shall mean the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
Quarterly Statement Blank shall mean the quarterly statement of the
conditions and affairs of each Title Insurance Subsidiary in the form prescribed
by its applicable State regulatory authority for title insurance companies and
prepared in accordance with applicable statutory accounting principles.
Reference Rate Loan shall mean the Notes while bearing interest at a
fluctuating rate determined by reference to the Alternate Reference Rate.
Required Lenders shall mean, at any time, Lenders holding at least 64% of
the then aggregate outstanding principal amount of the Notes then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 64% of the Commitments.
Restricted Payments is defined in Section 8.10.
Scheduled Properties shall mean the real property listed on Exhibit D
hereto.
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Security Union shall mean Security Union Title Insurance Company, a
California corporation.
Statutory Premium Reserve shall mean as at the end of any fiscal quarter
all amounts on a combined basis for the Title Insurance Subsidiaries which would
be shown as "statutory premium reserve" on line 2(a), page 3 of the Form 9
Annual Statement Blank and the Quarterly Statement Blank of the Title Insurance
Subsidiaries as at such date (or the equivalent item if the forms of said Annual
Statement Blank or Quarterly Statement Blank shall be amended).
Statutory Surplus shall mean as at the end of any fiscal quarter the
combined surplus of all Title insurance Subsidiaries, computed for them in the
same manner as the item that is required to be filed as "Surplus as Regards
Policy Holders" on line 22, page 3 of the Form 9 Annual Statement Blank and the
Quarterly Statement Blank of the Title Insurance Subsidiaries as at such date
(or the equivalent item if the forms of said Annual Statement Blank or Quarterly
Statement Blank shall be amended).
Subsidiary shall mean a corporation of which the Company and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of directors.
Taxes is defined in Section 6.6.
Title Insurance Subsidiaries shall mean CTI, Security Union and TT;
provided, that in the event a Subsidiary of CTI, Security Union or TT in
existence on the date of execution and delivery hereof subsequently becomes a
direct Subsidiary of the Company, the term "Title Insurance Subsidiaries" shall
mean CTI, Security Union, TT and such Subsidiary. In determining compliance by
the Title Insurance Subsidiaries with the various covenants applicable to them
in Section 8, such determinations shall be based on applicable statutory
accounting principles applied on a basis consistent with those at the time in
effect. It is understood and agreed that statutory accounting principles require
that all Subsidiaries of Title Insurance Subsidiaries be carried on the books of
such Title Insurance Subsidiaries on a statutory equity basis.
TT shall mean Ticor Title Insurance Company, a California corporation.
Unmatured Event of Default shall mean any event which if it continues
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
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Unrestricted Assets shall mean cash and marketable securities (including,
without limitation, assets pledged to secure trust and escrow deposits),
mortgages and non-operating real estate (including, without limitation, claims
acquired properties).
Welfare Plan shall mean a "welfare plan", as such term is defined in
section 3(1) of ERISA.
SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each Note, Continuation/Conversion Notice,
notice and other communication delivered from time to time in connection with
this Agreement.
SECTION 1.3 Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Section are references to
such Section of this Agreement.
SECTION 1.4 Accounting Terms; Financial Statements. All accounting terms
used herein but not expressly defined in this Agreement have the respective
meanings given to them in accordance with generally accepted accounting
principles. Unless otherwise provided herein, all computations and
determinations for purposes of determining compliance with the financial
requirements of this Agreement shall be made in accordance with generally
accepted accounting principles on a basis consistent with those at the time in
effect.
SECTION 2. COMMITMENT OF THE LENDERS; CONDITIONS.
SECTION 2.1 Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make a loan (individually a "Loan"
and collectively the "Loans") on or before March 29, 1996 (the "Loan Date"), as
the Company may request, in an amount equal to such Lender's Percentage times
the aggregate amount requested by the Company from all Lenders. The aggregate
principal amount of the Loans which all Lenders shall be committed to make to
the Company shall not exceed $50,000,000. Each Lender's Loan shall be disbursed
in a single drawing, and once repaid may not be reborrowed.
SECTION 2.2 Borrowing Procedure. The Administrative Agent shall receive on
or before 11:00 a.m. (New York time) at least three Business Days' prior notice
from the Company of the proposed borrowing hereunder, which shall be confirmed
promptly in writing. On or before 12:00 p.m. (New York time) on the Loan Date,
each Lender shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Loan. Such deposit
will be made to an account which the Administrative Agent shall specify by
notice to the Lenders. To the extent funds are
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received from the Lenders, the Administrative Agent shall make such funds
available to the Company by wire transfer to the account the Company shall have
specified. No Lender's obligation to make its Loan hereunder shall be affected
by any other Lender's failure to make its Loan.
SECTION 2.3 Conditions to the Loan.. Notwithstanding any other provision
of this Agreement, no Lender shall be required to make the Loans provided for
hereunder if the conditions precedent to the making of the Loans specified in
Section 9 have not been satisfied.
SECTION 3. NOTES EVIDENCING THE LOAN.
SECTION 3.1 Notes. Each Lender's Loan shall be evidenced by a Note with
appropriate insertions, dated the date hereof and payable to the order of such
Lender in the original principal amount equal to such Lender's Percentage of the
Commitment Amount. The Company hereby irrevocably authorizes each Lender to make
(or cause to be made) appropriate notations on the grid attached to such
Lender's Note (or on any continuation of such grid) or in such Lender's books
and records, which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal of, and the interest rate and Interest Period
applicable to the Loan evidenced thereby. Such notations shall be conclusive and
binding on the Company absent manifest error; provided, however, that the
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Company.
SECTION 3.2 Maturity of Notes. The Company shall, on each Annual Payment
Date set forth below, make a scheduled repayment of the aggregate outstanding
principal amount of the Notes in the amount shown below opposite such Annual
Payment Date:
12/31/96 $10,500,000
12/31/97 $10,500,000
12/31/98 $ 9,666,666
12/31/99 $ 9,666,666
12/31/00 $ 9,666,668
SECTION 3.3 Prepayments. The Company may prepay the Notes in whole or in
part at any time upon not less than three Business Days' notice to the
Administrative Agent on any Quarterly Payment Date provided the Company makes
any payments required by Section 6.4. Such prepayment may also be made on any
other date upon not less than three Business Days'. notice to the Administrative
Agent and payment of all accrued interest thereon and any payments required by
Section 6.4. Any partial prepayment shall, at the option of the Company, be
applied either pro rata to the 1998, 1999 and 2000 installments
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or pro rata to the then remaining installments. Any amount so prepaid may not be
reborrowed.
SECTION 4. INTEREST.
SECTION 4.1 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m. (New York time) on a Business Day, the Company may from time to time
irrevocably elect on not less than three nor more than five Business Days'
notice before the end of the then current Interest Period that the Notes be, in
the case of a Reference Rate Loan, converted into a LIBO Rate Loan or, in the
case of a LIBO Rate Loan, be converted into a Reference Rate Loan or continued
as a LIBO Rate Loan. In the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days before
the last day of the then current Interest Period with respect thereto, such LIBO
Rate Loan shall, on such last day, automatically convert to a Reference Rate
Loan; provided, however, that no Loan may be continued as, or be converted into
a LIBO Rate Loan when any Event of Default has occurred and is continuing.
SECTION 4.2 Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert a LIBO Rate Loan hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender. and the obligation of the Company to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Company hereby consents and agrees that, for purposes of any determination to be
made for purposes of Sections 6.1, 6.2, 6.3 or 6.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing, as
the case may be, Dollar certificates of deposit in the U.S. or Dollar deposits
in its LIBOR Office's interbank eurodollar market.
SECTION 4.3 Interest Provisions Interest on the outstanding principal
amount of the Notes shall accrue and be payable in accordance with this Section
4.3.
SECTION 4.3.1 Rates. Pursuant to an appropriately delivered
Continuation/Conversion Notice, the Company may elect that the Notes accrue
interest at a rate per annum:
(a) during any period maintained from time to time as a Reference
Rate Loan, equal to the Alternate Reference Rate from time to time in effect;
and
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(b) during any period maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus a margin of 0.40%.
SECTION 4.3.2 Post-Maturity Rates. After the date any principal amount of
the Notes is due and payable (whether on the Annual Payment Date, upon
acceleration or otherwise), or after any other monetary Obligation of the
Company shall have become due and payable, the Company shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Reference Rate plus a margin
of 2%.
SECTION 4.3.3 Payment Dates. Interest accrued on each Note shall be
payable, without duplication:
(a) on the date of any payment or prepayment of principal
outstanding on the Notes;
(b) with respect to Reference Rate Loans, on each Quarterly Payment
Date occurring after the Loan Date;
(c) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed 90 days. on the 90th
day of such Interest Period);
(d) with respect to any Reference Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable pursuant
to clause (b), on the date of such conversion; and
(e) on that portion of the Notes the Annual Payment Date of which is
accelerated pursuant to Section 10.2 immediately upon such acceleration.
Interest accrued on the Notes or other monetary Obligations arising under this
Agreement or any other Loan Documents after the date such amount is due and
payable (whether on the Annual Payment Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 5. FEES.
SECTION 5.1 Fees. The Company agrees to pay the fees set forth in this
Section 5. All such fees shall be non-refundable.
SECTION 5.2 Administrative Agent's Fee, The Company agrees to pay to the
Administrative Agent for its own account fees in the respective amounts equal to
the
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amounts previously agreed to in separate writings by the Company and the
Administrative Agent.
SECTION 6. CERTAIN LIBO RATE AND OTHER PROVISIONS.
SECTION 6.1 Fixed Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Company, the
Administrative Agent and the Lenders, be conclusive and binding on the Company)
that the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for such Lender to make, continue or maintain any Loan as,
or to convert its Notes into, a LIBO Rate Loan, the obligations of all Lenders
to make, continue, maintain or convert their LIBO Rate Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Administrative Agent. that the circumstances causing such suspension no longer
exist, and all LIBO Rate Loans shall automatically convert into Reference Rate
Loans at the end of the then current Interest Period with respect thereto or
sooner, if required by such law or assertion, In the event of a determination
pursuant to this Section 6.1, the Lenders agree to discuss alternate funding
options with the Company.
SECTION 6.2 Deposits Unavailable. If the Administrative Agent shall have
been informed by either Chase or Lenders holding 51% of the then aggregate
outstanding principal amount of the Notes that
(a) Dollar deposits in the relevant amount and for the relevant Interest
Period are not available in the relevant market; or
(b) by reason of circumstances affecting Chase's relevant market, adequate
means do not exist for ascertaining the interest rate applicable hereunder to
LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Company and the Lenders,
the obligations of all Lenders under Section 4.1 to make or continue any Loans
as, or to convert any Loans into, LIBO Rate Loans shall forthwith be suspended
until the Administrative Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 6.3 Increased LIBO Rate Loan Costs, etc.
(a) The Company agrees to reimburse each Lender for any increase in
the cost to such Lender of, or any reduction in the amount of any sum receivable
by such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) its Notes as, or of converting (or of
its obligation to convert) its Notes into, a LIBO Rate Loan. Such Lender shall
promptly notify the Administrative
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Agent and the Company in writing of the occurrence of any such event, such
notice to state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate such Lender for such increased cost or
reduced amount. Such additional amounts shall be payable by the Company directly
to such Lender within five days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Company.
(b) Each Lender agrees, to the extent practicable, to designate a
different office of such Lender as its LIBOR Office or take such other
appropriate action if such designation or other action would effect compliance
with the law or regulation or interpretation thereof or the request, directive,
guideline or policy invoking provisions of this Section 6.3 or Section 6.1;
provided, however, that such designation need not be made and such other action
need not be taken, if it would result in any material additional costs, expenses
or risks to such Lender that are not reimbursed or indemnified by the Company or
if it would be in any other material respect contrary to sound banking practice.
SECTION 6.4 Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain its Notes as, or to convert its Notes into, a LIBO Rate
Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.2 or
otherwise; or
(b) the Notes not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Company (with a copy to the
Administrative Agent), the Company shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Company.
SECTION 6.5 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation. reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority (Including, without limitation, any law, rule,
regulation, guideline, interpretation, directive or policy heretofore or
hereafter made or issued by any government or governmental or supervisory
authority implementing the proposals for a risk-based capital framework
described by the Basle
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Committee on Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards" dated
July, 1988) affects or would affect the amount of capital required or expected
to be maintained by any Lender or any Person controlling such Lender, and such
Lender determines (in its sole and absolute discretion) that the rate of return
on its or such controlling Person's capital as a consequence of its Commitment
or the Loans made by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from time to time by
such Lender to the Company, the Company shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Company. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 6.6 Taxes. All payments by the Company of principal of, and
interest on, the Notes and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made by the Company
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Company will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing such
payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Company will promptly pay such additional amounts (including any
penalties, interest or expenses)
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as is necessary in order that the net amount received by such Person after the
payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount such Person would have received had not such Taxes been
asserted.
If the Company fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Company shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 6.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Company.
Upon the request of the Company or the Administrative Agent, each Lender
that is organized under the laws of a jurisdiction other than the United States
shall, prior to the due date of any payments under the Notes. execute and
deliver to the Company and the Administrative Agent, on or about the first
scheduled payment date in each fiscal year, one or more. (as the Company or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes.
SECTION 6.7 Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Company pursuant to this Agreement or the Notes
shall be made by the Company to the Administrative Agent for the pro rata
account of the Lenders entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 12:00 p.m. (New York time) on the date
due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Company;
provided that such payment shall not be a waiver by the Company of any right of
setoff, deduction or counterclaim. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds to
each Lender its share, if any, of such payments received by the Administrative
Agent for the account of such Lender. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of (i) in the case of LIBO Rate Loans, 360 days
and (ii) in the case of Reference Rate Loans or fees, 365 days. Whenever any
payment to be made shall otherwise be due on a day which is not a Business Day,
such payment shall (except as otherwise required by clause (a) of the definition
of the term "Interest Period" with respect to LIBO Rate Loans) be made on the
next succeeding
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Business Day and such extension of time shall be included in computing interest
and fees, if any, in connection with such payment.
SECTION 6.8 Sharing of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
6.3, 6.4 and 6.5) in excess of its pro rata share of payments then or therewith
obtained by all Lenders, such Lender shall purchase from the other Lenders such
participations in their Notes as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The. Company agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 6.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Company in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 6.9 Setoff. Each Lender shall, upon the occurrence of any Default
described in Section 10.1.3 or any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) the Company hereby grants
to each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Company (other than accounts held in a
fiduciary capacity) then or thereafter maintained with such Lender; provided,
however, that any such appropriation and application shall be subject to the
provisions of Section 6.8. Each Lender agrees promptly to notify the
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Company and the Administrative Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 6.10 Use of Proceeds, The Company will apply the proceeds of the
Loans to refinance the Existing Loans; without limiting the foregoing, no
proceeds of any Loan will be used to acquire any equity security of a class
which is registered pursuant to Section 12 of the Securities Exchange Act of
1934 or any "margin stock", as defined in Regulation U of the Board of Governors
of the Federal Reserve System.
SECTION 7. WARRANTIES. To induce the Lenders and the Administrative Agent
to enter into this Agreement and to make the Loans hereunder, the Company
represents and warrants unto the Administrative Agent and each Lender that:
SECTION 7.1 Organization, etc. The Company is a corporation duly existing
and in good standing under the laws of the State of Illinois; each Subsidiary is
a corporation duly existing and in good standing under the laws of the state of
its respective incorporation; the Company and each Subsidiary is duly qualified
and in good standing as a foreign corporation authorized to do business in each
jurisdiction where the failure to be so qualified would have a material adverse
effect on the operation of the Company or such Subsidiary; and the Company has
full power and authority and holds all requisite governmental licenses, permits
and other approvals to own and hold its properties and to conduct its business
substantially as currently conducted by it.
SECTION 7.2 Authorization: No Conflict. The execution and delivery of this
Agreement, the borrowing hereunder, the execution and delivery of the Notes, and
the performance by the Company of its obligations under this Agreement and the
Notes, are within the Company's corporate powers, have been duly authorized by
all necessary corporate action on the part of the Company, and do not and will
not contravene or conflict with any provision of law, governmental regulation or
court decree or order to which the Company is subject or of the charter or
by-laws of the Company or of any agreement binding upon the Company, or result
in or require the imposition of, a lien on any of the Company's or its
Subsidiaries properties.
SECTION 7.3 Validity and Binding Nature. This Agreement is, and the Notes
when duly executed and delivered will be, legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their
respective terms.
SECTION 7.4 Financial Statements. The Company's audited consolidated
financial statements as at December 31, 1995, copies of which have been
furnished to the Lenders,
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have been prepared in conformity with generally accepted accounting principles
applied on a basis consistent with that of the preceding fiscal year, and
present fairly the financial condition of the Company and its Subsidiaries as at
December 31, 1995 and the results of their operations for the fiscal year ended
December 31, 1995; and since December 31, 1995 there has been no material
adverse change in their financial condition or operations. Each of the Annual
Statement Blank for CTI and Security Union as at December 31, 1995, copies of
which have been furnished to the Lenders, has been prepared in conformity with
applicable statutory accounting principles applied on a basis consistent with
that of the preceding fiscal year, and presents fairly the financial condition
of CTI or Security Union, as the case may be, as at such date and the results of
their operations for the period then ended, and since such date there has been
no material adverse change in their statutory condition as reflected in such
Annual Statement Blank.
SECTION 7.5 Litigation and Contingent Liabilities. Schedule 7.5 hereto
sets forth a list, as of the date specified, of all pending, litigation,
including, without limitation, title insurance claims and claims arising under
Environmental Laws, which, if adversely determined, are likely to result in a
judgment in any one case against the Company or any Subsidiary of $100,000 or
more over and above any applicable insurance coverage. All pending litigation,
including, without limitation, title insurance claims and claims arising under
Environmental Laws, which, if adversely determined, is likely to result in a
judgment in any one case against the Company or any Subsidiary of less than
$100,000 over and above any applicable insurance coverage does not exceed
$50,000,000 in the aggregate. Except as set forth in such Schedule, no
litigation (including, without limitation, derivative actions), arbitration
proceedings or governmental proceedings are pending or, to the best knowledge of
the Company, threatened against the Company or any Subsidiary which would, if
adversely determined, materially and adversely affect the financial condition or
continued operations of the Company and its Subsidiaries, taken as a whole.
Other than any liability incident to such litigation or proceedings and
contingent liabilities of the Title Insurance Subsidiaries incurred in the
ordinary course of their business, neither the Company nor its Subsidiaries have
any contingent liabilities which would have a material adverse effect on the
financial condition or operations of the Company and its Subsidiaries, taken as
a whole, which are not provided for or disclosed in the financial statements
referred to in Section 7.4.
SECTION 7.6 Liens. None of the assets of the Company or any Subsidiary is
subject to any mortgage, pledge, title retention lien, or other lien,
encumbrance or security interest, except as permitted under Section 8.12.
SECTION 7.7 Subsidiaries. The Company has no Subsidiaries except those
listed in Schedule 7.7.
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SECTION 7.8 Investment Company Act. The Company is not an "investment
company" or a company "controlled" by an Investment company, within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 7.9 Public Utility Holding Company Act. Neither the Company nor
any Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate", of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 7.10 Regulation U. The Company is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System).
SECTION 7.11 Ownership of Properties. The Company and each of its
Subsidiaries owns good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 8.12. The Company and each of its Subsidiaries is in compliance with all
material requirements of law, including Environmental Laws, and all terms and
provisions of all contracts and other instruments binding upon the Company or
any of its properties or other assets, the failure to comply with which would
have a material adverse effect on the ability of the Company to perform its
obligations under or with respect to this Agreement or the other Loan Documents.
SECTION 7.12 Taxes. The Company and its Subsidiaries have filed all tax
returns and reports required by law to have been filed by it and has paid all
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on its books.
SECTION 7.13 Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the Loan Date, no steps have been taken to
terminate any plan, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a lien under section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by the Company or any member
of the Controlled Group of any material liability, fine or penalty. Except as
disclosed in Schedule 7.13, neither the Company nor any member of the Controlled
Group has any
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contingent liability with respect to any post-retirement benefit under a Welfare
Plan, other than liability for continuation coverage described in Part 6 of
Title I of ERISA.
SECTION 7.14 Accuracy of Information. All factual information heretofore
or contemporaneously furnished by or on behalf of the Company in writing to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Company to the
Administrative Agent or any Lender will be, true and accurate in every material
respect on the date as of which such information is dated or certified and as of
the date of execution and delivery of this Agreement by the Administrative Agent
and such Lender, and such information is not, or shall not be, as the case may
be, incomplete by omitting to state any material fact necessary to make such
information not misleading.
SECTION 8. COMPANY'S COVENANTS.
Until the expiration or termination of the Commitment and thereafter until
all obligations of the Company hereunder are performed and all obligations under
the Notes are paid in full, the Company agrees that it will:
SECTION 8.1 Reports, Certificates and Other Information. Furnish to the
Administrative Agent (with sufficient copies for the Lenders):
SECTION 8.1.1 Company Audit Report. Within 90 days after each fiscal year
of the Company, a copy of an annual audit report of the Company and its
Subsidiaries prepared on a consolidated basis and in conformity with generally
accepted accounting principles applied on a basis consistent (to the extent
possible) with the audited consolidated financial statements of the Company and
its Subsidiaries as at December 31, 1995, duly certified by independent
certified public accountants of recognized standing selected by the Company,
together with (i) a certificate from such accountants containing a computation
(prepared either by such accountants or the Company) of, and showing compliance
with, each of the financial ratios and restrictions contained in this Section 8
and to the effect that, in making the examination necessary for the signing of
such annual audit report by such accountants, they have not become aware of any
Event of Default or Unmatured Event of Default that has occurred and is
continuing, or if they have become aware of any such event, describing it and
the steps, if any, being taken by the Company to cure it and (ii) a letter
addressed to the Company, the Administrative Agent and the Lenders from such
accountants stating that such accountants have been informed that a primary
intent of the Company was that the professional services performed by such
accountants in preparing their audit report was to benefit or influence the
Administrative Agent and Lenders, and that the Administrative Agent and the
Lenders will be entitled to rely upon the services provided by such accountants
to the Company.
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SECTION 8.1.2 Annual Company Unaudited Statements. Within 90 days after
each fiscal year of the Company, a copy of its unaudited balance sheet as at the
end of such fiscal year and a statement of earnings for such fiscal year,
prepared on an unconsolidated basis and signed by a proper accounting officer of
the Company.
SECTION 8.1.3 Company Interim Reports. Within 60 days after each quarter
(except the last quarter) of each fiscal year of the Company, a copy of
unaudited financial statements of the Company and its Subsidiaries prepared in
the same manner as the audit report referred to in Section 8.1.1, subject to
normal recurring year-end adjustments, signed by a proper accounting officer of
the Company and consisting of at least a balance sheet as at the close of such
quarter and statements of earnings and statement of cash flows for the period
from the beginning of such fiscal year to the close of such quarter; provided,
however, that such unaudited financial statements need not be more detailed than
what would be required for a quarterly report to the Securities and Exchange
Commission on Form 10-Q.
SECTION 8.1.4 Certificates. Contemporaneously with the furnishing of a
copy of each annual Company audit report and of each set of quarterly Company
statements provided for in this Section 8.1, a certificate dated the date of
such annual report or such set of quarterly statements and signed by the
President, the chief financial officer or the Treasurer of the Company, to the
effect that no Event of Default, or Unmatured Event of Default, has occurred
and is continuing, or, if there is any such an event, describing it and the
steps, if any, being taken to cure it and containing (except in the case of the
certificate dated the date of such annual report) a computation of, and showing
compliance with, each of the financial ratios and restrictions contained in this
Section 8 and a statement of the maximum amount of any Investment Borrowings
during such quarter and that the security therefor consisted of Approved
Investments.
SECTION 8.1.5 Annual Statement Blanks. Within 90 days after each fiscal
year of each Title Insurance Subsidiary, a copy of its Annual Statement Blank
filed with its applicable State regulatory commission for such fiscal year and
prepared in accordance with applicable statutory accounting requirements from
time to time in effect.
SECTION 8.1.6 Quarterly Statement Blanks. Within 60 days after each
quarter (except the last quarter) of each fiscal quarter of each Title Insurance
Subsidiary, a copy of its Quarterly Statement Blank filed with its applicable
State regulatory commission for such fiscal quarter and prepared in accordance
with applicable statutory accounting requirements from time to time in effect.
SECTION 8.1.7 Notice of Default and Litigation. Forthwith upon learning of
the occurrence of any of the following, written notice thereof, describing the
same and the steps being taken by the Company or the Subsidiary affected with
respect thereto: (i) the
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occurrence of an Event of Default or an Unmatured Event of Default, or (ii) the
institution of, or any adverse determination in, any litigation, arbitration
proceeding or governmental proceeding which would have, or has, a material
adverse effect on the financial condition or operations of the Company and its
Subsidiaries taken as a whole.
SECTION 8.1.8 Subsidiaries. Contemporaneously with the furnishing of a
copy of each annual audit report of the Company pursuant to Section 8.1.1, a
written report of any changes in the list of Subsidiaries.
SECTION 8.1.9 ERISA. Immediately upon becoming aware of the institution of
any steps by the Company or any other Person to terminate any Pension Plan, or
the failure to make a required contribution to any Pension Plan if such failure
is sufficient to give rise to a lien under section 302(f) of ERISA, or the
taking of any action with respect to a Pension Plan which could result in the
requirement that the Company furnish a bond or other security to the PBGC or
such Pension Plan, which could result in the incurrence by the Company of any
material liability, fine or penalty, or any material increase in the contingent
liability Welfare Plan benefit, notice thereof and copies of all documentation
relating thereto.
SECTION 8.1.10 Additional Information. Such other information respecting
the conditions or operations, financial or otherwise, of the Company or any of
its Subsidiaries as any Lender through the Administrative Agent may from time to
time reasonably request.
SECTION 8.2 Books, Records and Inspections. Maintain, and cause each
Subsidiary to maintain, complete and accurate books and records; permit, and
cause each Subsidiary to permit, access by the Administrative Agent and each
Lender to the books and records of the Company and of any Subsidiary; provided,
however, that such access shall not unreasonably interfere with the normal
business operations of the Company or such Subsidiary.
SECTION 8.3 Insurance. Maintain, and cause each Subsidiary to maintain,
such insurance as may be required by law and such other insurance, to such
extent as is reasonably available (as determined by the Company) and against
such hazards and liabilities, as is customarily maintained by companies
similarly situated; provided, however, that, in lieu of or supplemental to any
insurance referred to in this Section 8.3, the Company may adopt such other plan
or method of protection in respect of its properties or other risks, whether by
establishment of an insurance fund or reserve or by otherwise conforming to the
practices of similar companies maintaining systems of self-insurance, as may be
determined by the Company in its reasonable business judgment.
SECTION 8.4 Taxes. Pay, and cause each Subsidiary to pay, when due all
taxes, assessments, and other governmental charges or levies imposed upon it, as
well as all
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lawful claims for labor, materials, and supplies or otherwise which, if unpaid,
might give rise to liens or charges upon its property, except as contested in
good faith and by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been set
aside on its books.
SECTION 8.5 Consolidated Net Worth. Not permit Consolidated Net Worth at
the close of any fiscal quarter to be less than $200,000,000.
SECTION 8.6 Statutory Surplus. Not permit Statutory Surplus of the Title
Insurance Subsidiaries at the close of any fiscal quarter to be less than
S160,000,000.
SECTION 8.7 Interest Expense Coverage Ratio. Not permit the ratio during
any period of six consecutive fiscal quarters of Earnings Before Interest and
Taxes to Interest Expense to be less than 2.5 to 1.0.
SECTION 8.8 Liquidity. Not permit Cash and Marketable Securities of the
Title Insurance Subsidiaries at the close of any fiscal quarter plus Cash and
Marketable Securities of the Company on an unconsolidated basis at the close of
any fiscal quarter to be less than the Statutory Premium Reserve of the Title
Insurance Subsidiaries plus the next twelve months of Debt Service.
SECTION 8.9 Loss Reserve Ratio. Not permit the ratio as at the close of
any fiscal quarter of Loss Reserves of the Title Insurance Subsidiaries to their
Statutory Surplus to be greater than 0.9 to 1.0.
SECTION 8.10 Restricted Payments. Not purchase or redeem any shares of the
capital stock of the Company, declare or pay any dividends thereon (other than
stock dividends), make any distribution to stockholders or set aside any funds
for any such purpose, or make any loans or advances to Affiliates which are not
Subsidiaries of the Company (all of which purchases, redemptions, declarations,
payments, distributions or loans and advances hereinabove referred to being
collectively called "Restricted Payments"); provided, however, that so long as
no Event of Default, or Unmatured Event of Default, has occurred and is
continuing (or would occur as the result of a Restricted Payment hereinbelow
permitted), the Company may (i) make Restricted Payments to its parent
corporation or purchase debt instruments of Affiliates which are not
Subsidiaries of the Company in amounts in the aggregate equal to the difference
between its Consolidated Net Worth as at December 31, 1990 and $200,000,000;
(ii) make Restricted Payments to its parent corporation or purchase debt
instruments of Affiliates which are not Subsidiaries of the Company from time to
time in an aggregate amount equal to all Additional Capital Contributions,
together with all dividends, interest and earnings thereon; (iii) make
Restricted Payments to its parent corporation of an amount which represents the
income taxes that would have been payable by the Company and the Subsidiaries of
the Company
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forming part of the affiliated group for income tax purposes if the Company had
not filed consolidated income tax returns as part of an affiliated group with
Alleghany Corporation; and (iv) make Restricted Payments to its parent
corporation from Consolidated Net Income for periods subsequent to December 31,
1990.
SECTION 8.11 Indebtedness. Not, and not permit any Subsidiary to, incur or
permit to exist any indebtedness for borrowed money, or for the deferred
purchase price of any property, or for the deferred purchase price of any
services the obligations for which would be reflected on an audited consolidated
balance sheet of the Company and its Subsidiaries (or which contract would be
reflected in the footnotes thereto, but excluding all leases accounted for as
operating leases) prepared in accordance with generally accepted accounting
principles, or under capitalized leases, except (i) the Notes, (ii) short term
indebtedness of the Company and its Subsidiaries in an aggregate amount not in
excess of $25,000,000 for working capital purposes, provided that no such
indebtedness referred to in this clause (ii) shall be outstanding for a period
of at least 2 consecutive months in each fiscal year, (iii) indebtedness of
Subsidiaries to the Company and to other Subsidiaries and of the Company to
Subsidiaries, (iv) current accounts payable arising in the ordinary course of
business, (v) Investment Borrowings, (vi) other Long-Term Indebtedness of the
Company and any Subsidiary to the extent permitted by Section 8.15; provided,
however any such Long-Term Indebtedness of any Subsidiary shall not exceed an
aggregate amount of $25,000,000, (vii) indebtedness incurred by Subsidiaries
engaged in the title insurance business in the ordinary course of business in
aid of recoupment or reduction or settlement of title claims and losses,
provided that the principal amount of all such indebtedness outstanding plus the
then remaining Loss Reserves, if all treated as Loss Reserves, would not result
in a violation of Section 8.9, (viii) Capitalized Lease Obligations of the
Company and its Subsidiaries which at any one time in the aggregate do not
exceed an amount equal to (x) $15,000,000, minus (y) the aggregate outstanding
principal amount of indebtedness in connection with which liens permitted by
Section 8.12(i) exist, (ix) other indebtedness outstanding on the date hereof
and listed in Schedule 8.11 or hereafter incurred in connection with liens
permitted by Section 8.12, (x) indebtedness incurred by the Company in
connection with any sale and leaseback involving only Scheduled Properties or
any indebtedness secured only by a lien on Scheduled Properties, to the extent
such lease or other indebtedness is either non-recourse to the Company or the
present value of such lease payments or the principal amount of such
indebtedness, as the case may be does not exceed 75% of the appraised value of
such Scheduled Properties and (xi) in the event the Xxxxxxx Xxxxx Lease is
required to be treated as a capital lease for accounting purposes, the Xxxxxxx
Xxxxx Lease Obligations.
SECTION 8.12 Liens. Not, and not permit any Subsidiary to, create or
permit to exist any mortgage, pledge, title retention lien, or other lien,
encumbrance or security interest with respect to any assets now owned or
hereafter acquired, except (i) in connection with the acquisition of real or
personal property after the date hereof, and attaching only
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to the real or personal property being acquired, if the indebtedness of the
Company and all Subsidiaries secured thereby does not exceed in the aggregate at
any one time outstanding an amount equal to (x) $15,000,000, minus (y) the then
aggregate amount of Capitalized Lease Obligations permitted by Section
8.11(viii); (ii) for current taxes, assessments and governmental charges or
levies not delinquent or being contested in good faith and by appropriate
proceedings for which adequate reserves have been made; (iii) liens incurred or
pledges or deposits made in connection with worker's compensation, unemployment
insurance, old-age pensions, social security and public liability and similar
legislation; (iv) liens, pledges or deposits to secure the performance of bids,
tenders, leases, contracts (other than for the repayment of borrowed money),
statutory and regulatory obligations, surety and appeal bonds and other
obligations of like nature, incurred as an incident to the ordinary course of
business; (v) statutory liens of landlords and other liens imposed by law, such
as carriers', warehousemen's, mechanics', materialmen's and vendors' liens,
incurred in good faith in the ordinary course of business; (vi) liens arising in
the ordinary course of business for sums not due or sums being contested in good
faith and by appropriate proceedings and not involving any deposits or advances
or borrowed money or the deferred purchase price of property or services; (vii)
liens granted by any Subsidiary to secure indebtedness of such Subsidiary to the
Company or to any other Subsidiary or liens granted by the Company to secure
indebtedness of the Company to any Subsidiary; (viii) liens in connection with
Investment Borrowings; (ix) liens existing or incurred on claims acquired
property in the ordinary course of business of Subsidiaries engaged in the title
insurance business, (x) any other liens securing indebtedness or obligations
which in the aggregate do not exceed $3,000,000; (xi) liens existing on the date
hereof and disclosed on Schedule 7.6 or in the financial statements delivered
pursuant to Section 7.4 and (xii) liens granted in connection with indebtedness
permitted Section 8.11(x).
SECTION 8.13 Mergers, Consolidations, Purchases. Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, or purchase or
otherwise acquire all or substantially all of the assets or stock of any class
of, or any partnership or joint venture interest in, any other person or entity,
except for (i) any such merger or consolidation by any wholly-owned Subsidiary
into the Company or into, with or to any other wholly-owned Subsidiary and any
such purchase or other acquisition by the Company or any wholly-owned Subsidiary
of the assets or stock of any wholly-owned Subsidiary and (ii) any such merger,
consolidation, purchase, or other acquisition of assets or stock by the Company
or any Subsidiary if (x) in the case of a merger or consolidation involving the
Company, the surviving corporation shall be the Company, (y) as of the date of
the execution of the agreement providing for such merger, consolidation,
purchase, or other acquisition, the fair value of the consideration to be paid
in connection therewith shall not exceed $50,000,000 (or, if at such time the
claims paying rating assigned to the Company by Xxxxx'x Investors Service, Inc.
or Standard & Poor's Corporation is below A-, $35,000,000), and (z) no Event of
Default or Unmatured Event of Default shall have occurred and be continuing at
the time of such merger, consolidation, purchase, or other
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acquisition, or shall occur as a result of such merger, consolidation, purchase,
or other acquisition. For the purposes of this Section 8.13, the consideration
to be paid in connection with any merger, consolidation, purchase, or other
acquisition shall be valued in accordance with generally accepted accounting
principles.
SECTION 8.14 Asset Dispositions. Not, and not permit any Subsidiary to
sell, transfer, convey or lease all or any substantial part of its assets except
in the ordinary course of business; provided, however, there shall be excluded
from the restrictions of this Section 8.14 (i) sales or other dispositions of
the stock or assets of the Company or a Subsidiary required by governmental or
regulatory authorities; (ii) Net Asset Sales in an amount not exceeding 10% of
Adjusted Total Assets in each fiscal year; (iii) sales or other dispositions of
Unrestricted Assets; and (iv) sales or other dispositions of assets by a
Subsidiary to the Company or another Subsidiary, or by the Company to a
Subsidiary. For purposes of this Section 8.14, sales of Scheduled Properties
shall be included in computing Net Asset Sales but the Company shall not be in
default hereunder if Net Asset Sales exceed the amount permitted by Section
8.14(ii) solely as a result of such inclusion.
SECTION 8.15 Debt-to-Equity Ratio. Not permit the ratio as at the close of
any fiscal quarter of Long-Term Indebtedness to Consolidated Net Worth to be
greater than 0.45 to 1.0.
SECTION 8.16 Existing Business. Carry on, and cause each Subsidiary to
carry on, the title insurance, escrow and trust company businesses in
substantially the same manner as presently being conducted.
SECTION 8.17 Other Agreements. Not enter into any agreement containing any
material provision which would be violated or breached in a material way by the
performance of its obligations hereunder or under any instrument or document
delivered or to be delivered by it hereunder or in connection herewith.
SECTION 8.18 Xxxxxxx Xxxxx Lease. In the event (i) the Xxxxxxx Xxxxx Lease
is being treated as a capital lease for accounting purposes and (ii) the Company
elects to refinance all or any portion of the Xxxxxxx Xxxxx Lease with
indebtedness of the type referred to in Section 8.11(viii) and Section 8.12(i),
then (x) the dollar amount in Section 8.11(viii) and Section 8.12(i) shall be
increased by an amount equal to the lesser of $15,000,000 or the amount of such
refinancing and (y) the dollar amount in the definition of Xxxxxxx Xxxxx Lease
Obligations shall be reduced by an amount equal to such refinancing or such
greater amount such that from and after such refinancing, the aggregate amount
of indebtedness referred to in Section 8.11(viii) and the definition of Xxxxxxx
Xxxxx Lease Obligations does not exceed $30,000,000.
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SECTION 9. CONDITIONS OF LENDING.
The obligation of each Lender to make its Loan is subject to the following
conditions precedent:
SECTION 9.1 Documents. The obligation of each Lender to make its Loan is,
in addition to the conditions precedent specified in Section 9.2, subject to the
condition precedent that the Administrative Agent shall have received all of the
following, each duly executed and dated as of the Loan Date, in form and
substance satisfactory to the Administrative Agent
SECTION 9.1.1 Notes. The Administrative Agent shall have received, for the
account of each Lender, its Note duly executed and delivered by the Company.
SECTION 9.1.2 Corporate Documents. Certified copies of the articles of
incorporation and bylaws of the Company and certified copies of resolutions of
the Executive Committee of the Board of Directors of the Company authorizing the
execution, delivery and performance, respectively, of this Agreement, the Notes,
and other documents provided for in this Agreement.
SECTION 9.1.3 Payoff Letter. A payoff letter from Continental Bank, N.A.
setting forth the unpaid obligations of the Company under the Existing Credit
Agreement and the Company shall make arrangements satisfactory to the
Administrative Agent as to payment in full of the Existing Credit Agreement and
the Existing Loans on or before the Loan Date.
SECTION 9.1.4 Incumbency and Signatures. A certificate of the Secretary or
an Assistant Secretary of the Company certifying the names of the officer or
officers of the Company authorized to sign this Agreement and the Notes and
other documents provided for in this Agreement, together with a sample of the
true signature of each such officer.
SECTION 9.1.5 Opinion of Counsel for the Company. The opinion of Xxxxxx X.
Xxxxx, General Corporate Counsel for the Company, addressed to the
Administrative Agent and the Lenders, to the effect that: (a) each of the
Company and its Subsidiaries is a corporation duly existing and in good standing
under the laws of the jurisdiction of its incorporation; (b) the Company has
full corporate power to execute, deliver and perform this Agreement, to borrow
moneys hereunder, and to execute, deliver and perform its obligations under the
Notes; (c) the execution and delivery of this Agreement and the Notes, the
borrowing hereunder, and the performance by the Company of its obligations under
this Agreement and the Notes, have been duly authorized by all necessary
corporate action, have received all governmental approvals which to counsel's
knowledge, after due inquiry, are required, and do not and will not contravene
or conflict with any provision of
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law to which the Company is, to counsel's knowledge, after due inquiry, subject
or of the charter or by-laws of the Company or, to the knowledge of such
counsel, after due inquiry, of any agreement binding upon the Company; and (d)
this Agreement and the Notes have been duly executed and delivered by the
Company and are legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights in general from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 9.1.6 Confirmatory Certificate. A certificate signed by the
President, the Chief Financial Officer or the Treasurer of the Company as to the
matters set out in Section 9.2.
SECTION 9.1.7 Other. Such other documents as the Administrative Agent or
any Lender may reasonably request.
SECTION 9.2 Further Conditions. The obligation of each Lender to make its
Loan is subject to the following further conditions precedent: (a) no Event of
Default, or Unmatured Event of Default, has occurred and is continuing or will
result from the making of the Loan, (b) the warranties of the Company contained
in Section 7 are true and correct as of the Loan Date, with the same effect as
though made on the Loan Date, (except for the warranties made as of a specific
date, which were true and correct as of such date), and (c) all governmental
approvals and court orders that are necessary for the Company to consummate the
transactions contemplated by this Agreement and the Notes and to perform its
obligations thereunder have been received.
SECTION 10. EVENTS OF DEFAULT AND THEIR EFFECT.
SECTION 10.1 Events of Default. Each of the following shall constitute an
Event of Default under this Agreement:
SECTION 10.1.1. Non-Payment of Notes, etc. Default, and the continuance
thereof for 1 day, in the payment when due of any principal of the Notes or
default, and continuance thereof for 5 days, in the payment when due of any
interest on the Notes or any fees payable by the Company hereunder.
SECTION 10.1.2 Non-Payment of Other Indebtedness. Default in the payment
when due (subject to any applicable grace period), whether by acceleration or
otherwise, of any other indebtedness for borrowed money or the deferred purchase
price of property of, or guaranteed by, the Company or any Subsidiary (except
any such indebtedness of any Subsidiary to the Company or to any other
Subsidiary) in excess of $5,000,000 or default
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in the performance or observance of any obligation or condition with respect to
any such other indebtedness if the effect of such default is to accelerate the
maturity of any such indebtedness or to permit the holder or holders thereof, or
any trustee or agent for such holders, to cause such indebtedness to become due
and payable prior to its expressed maturity, and such default shall not have
been remedied or discharged within any applicable grace period.
SECTION 10.1.3 Bankruptcy, Insolvency, etc. The Company or any Subsidiary
admits in writing its inability to pay debts as they become due; or the Company
or any Subsidiary applies for, consents to, or acquiesces in the appointment of,
a trustee, receiver or other custodian for the Company or such Subsidiary or any
property thereof, or makes a general assignment for the benefit of creditors;
or, in the absence of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for the Company or any Subsidiary or
for a substantial part of the property of any thereof and is not discharged
within 60 days; or any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary other than a Title Insurance
Subsidiary), is commenced in respect of the Company or any Subsidiary, and if
such case or proceeding is not commenced by the Company or such Subsidiary, it
is consented to or acquiesced in by the Company or such Subsidiary or remains
for 60 days undismissed; or the Company or any Subsidiary takes any corporate
action to authorize, or in furtherance of, any of the foregoing.
SECTION 10.1.4 Non-Compliance with this Agreement. Failure by the Company
to comply with or to perform any provision of this Agreement (and not
constituting an Event of Default under any of the preceding provisions of this
Section l0) and continuance of such failure for 30 days after notice thereof to
the Company from the Administrative Agent, or from any Lender.
SECTION 10.1.5 Warranties. Any warranty made by the Company herein is
breached or is false or misleading in any material respect, or any schedule,
certificate, financial statement, report, notice, or other writing furnished by
the Company to the Administrative Agent or the Lenders is false or misleading in
any material respect, in each case on the date as of which the facts therein set
forth are stated or certified.
SECTION 10.1.6 Change of Control. Alleghany Corporation, or a Subsidiary
of Alleghany Corporation, shall not own, directly or indirectly, 51% or more of
the issued and outstanding voting capital stock of the Company.
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SECTION 10.1.7 Judgments. Any judgment or order for the payment of money
in excess of $5,000,000 shall be rendered against the Company or any of its
Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION 10.1.8 Pension Plans. Any of the following events shall occur with
respect to any Pension Plan
(a) the institution of any steps by the Company, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a result
of such termination, the Company or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a lien under Section 302(f) of ERISA.
SECTION 10.2 Effect of Event of Default. If any Event of Default described
in Section 10.1.3 shall occur, the Notes shall become immediately due and
payable, all without notice of any kind; and in the case of any other Event of
Default, the Administrative Agent, upon the direction of the Required Lenders,
shall by written notice to the Company, declare the Notes to be due and payable,
whereupon the Notes shall become immediately due and payable, all without any
other notice of any kind.
SECTION 11. THE ADMINISTRATIVE AGENT
SECTION 11.1 Actions. Each Lender hereby appoints Chase as its
Administrative Agent under and for purposes of this Agreement, the Notes and
each other Loan Document. Each Lender authorizes the Administrative Agent to act
on behalf of such Lender under this Agreement, the Notes and each other Loan
Document and, in the absence of other written instructions from the Required
Lenders received from time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall
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40
survive any termination of this Agreement) the Administrative Agent, pro rata
according to such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, the Administrative Agent in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which the Administrative Agent is not reimbursed by
the Company; provided, however, that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, claims, costs
or expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Administrative Agent's gross
negligence or wilful misconduct. The Administrative Agent shall not be required
to take any action hereunder, under the Notes or under any other Loan Document,
or to prosecute or defend any suit in respect of this Agreement, the Notes or
any other Loan Document, unless it is indemnified hereunder to its satisfaction.
If any indemnity in favor of the Administrative Agent shall be or become, in the
Administrative Agent's determination, inadequate, the Administrative Agent may
call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION 11.2 Funding Reliance. etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m. (New York time) on the day prior to the initial borrowing hereunder that
such Lender will not make available the amount which would constitute its
Percentage of such borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Company a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender and
the Company severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the Company
to the date such amount is repaid to the Administrative Agent, at the Federal
Funds Effective Rate applicable at the time.
SECTION 11.3 Exculpation. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor to make any inquiry
respecting the performance by the Company of its obligations hereunder or under
any other Loan Document. Any such inquiry which may be made by the
Administrative Agent shall not obligate it to make any further inquiry or to
take any action. The Administrative Agent shall be entitled to rely upon advice
of
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41
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine and
to have been presented by a proper Person.
SECTION 11.4 Successor. Administrative Agent may resign as such at any
time upon at least 30 days' prior notice o the Company and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may appoint
another Lender as a successor Administrative Agent which shall thereupon become
the Administrative Agent hereunder. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be one of the
Lenders or, with the approval of the Company (such approval not to be
unreasonably withheld), a commercial banking institution organized under the
laws of the U.S. (or any State thereof) or a U.S. branch or agency of a
commercial banking institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of
(a) this Section 11 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 11.5 Loans by Chase. Chase shall have the same rights and powers
with respect to (x) the Loans made by it or any of its Affiliates, and (y) the
Notes held by it or any of its Affiliates as any other Lender and may exercise
the same as if it were not the Administrative Agent. Chase and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Company or any Subsidiary or Affiliate of the Company as if
Chase were not the Administrative Agent hereunder.
SECTION 11.6 Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender's review of the financial information of the Company, this
Agreement, the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed
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appropriate, made its own credit decision to extend its Commitment. Each Lender
also acknowledges that it will, independently of the Administrative Agent and
each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 11.7 Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Company pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Company). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received, by the
Administrative Agent from the Company for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 12. MISCELLANEOUS PROVISIONS
SECTION 12.1 Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Company and the Required Lenders; provided, however, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective unless
consented to by each Lender;
(b) modify this Section 12.1, change the definition of "Required
Lenders" increase the Commitment Amount or the Percentage of any Lender or
reduce any fees described in Section 5 shall be made without the consent of each
Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on the Notes (or reduce the
principal amount of or rate of interest on the Notes) shall be made without the
consent of the holder of that Note; or
(d) affect adversely the interests, rights or obligations of the
Administrative Agent qua the Administrative Agent shall be made without the
consent of the Administrative Agent.
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43
No failure or delay on the part of the Administrative Agent, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Company in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Administrative
Agent, any Lender or the holder of any Note under this Agreement or any other
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 12.2 Notices. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by Telex or by facsimile and addressed, delivered or transmitted to such
party at its address, Telex or facsimile number set forth below its signature
hereto or set forth in the Lender Assignment Agreement or at such other address,
Telex or facsimile number as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage prepaid
or if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by Telex or facsimile, shall be
deemed given when transmitted (answerback confirmed in the case of Telexes).
SECTION 12.3 Costs, Expenses and Taxes. The Company agrees to pay on
demand all out-of-pocket costs and expenses of the Administrative Agent
(including the reasonable fees and out-of-pocket expenses of White & Case,
counsel for the Administrative Agent and of local counsel, if any, who may be
retained by said counsel) in connection with the preparation, execution,
delivery, administration, syndication and marketing of this Agreement, the Notes
and all other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith, in the case of the foregoing
subject to limitations previously agreed by the Company and the Administrative
Agent, and all out-of-pocket costs and expenses (including reasonable attorneys'
fees and legal expenses) incurred by the Agent in connection with the
enforcement of this Agreement, the Notes, any such other instruments or
documents or any collateral security. In addition, the Company agrees to pay,
and to save the Administrative Agent and the Lenders harmless from all liability
for, any stamp or other taxes (excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts) which may be payable in
connection with the execution or delivery of this Agreement, the borrowing
hereunder, or the issuance of the Notes or of any other instruments or documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith. The Company also agrees to reimburse the Administrative Agent and each
Lender upon demand for all reasonable out-of-pocket expenses (including
attorneys' fees and legal expenses including the allocated time charges of each
Lender's legal departments, as their respective
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44
internal counsel) incurred by the Administrative Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out, whether
or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 12.4 Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Company hereby indemnifies, exonerates and holds the Administrative Agent
and each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the Notes; or
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of the Company as the result of any determination by the
Required Lenders pursuant to Section 9 not to fund the Loans);
except for (i) any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct or (ii) any such Indemnified Liabilities
resulting from claims by the Administrative Agent or any Lender against any
other Lender or any Lender against the Administrative Agent that are not
attributable to the Company's actions and for which the Company otherwise has no
liability. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. Each Indemnified Party
agrees to notify the Company of any event which could give rise to any
Indemnified Liabilities and to consult with the Company to determine the best
defense with respect to the same.
SECTION 12.5 Survival. The obligations of the Company under Sections 6.3,
6.4, 6.5, 6.6, 12.3 and 12.4, and the obligations of the Lenders under Section
11.1, shall in each case survive any termination of this Agreement, the payment
in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Company in this Agreement and in each
other Loan Document shall survive the execution and delivery of this Agreement
and each such other Loan Document.
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SECTION 12.6 Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 12.7 Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
SECTION 12.8 Execution in Counterparts, Effectiveness, etc. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Company and each Lender (or notice
thereof satisfactory to the Administrative Agent) shall have been received by
the Administrative Agent and notice thereof shall have been given by the
Administrative Agent to the Company and each Lender.
SECTION 12.9 Governing Law. THIS AGREEMENT AND THE NOTES SHALL EACH BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
All obligations of the Company and the rights of the Administrative Agent and
any Lender expressed herein or in the Notes shall be in addition to and not in
limitation of those provided by applicable law. This Agreement, the Notes and
the other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 12.10 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Company may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative Agent and all
Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 12.11.
SECTION 12.11 Sale and Transfer of Notes; Participations in Notes. Each
Lender may assign, or sell participations in, its Note and Commitment to one or
more other Persons in accordance with this Section 12.11.
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46
SECTION 12.11.1 Assignments. Any Lender,
(a) with the written consents of the Company and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld and which
consent, in the case of the Company, shall be deemed to have been given in the
absence of a written notice delivered by the Company to the Administrative
Agent, on or before the tenth Business Day after receipt by the Company of such
Lender's request for consent, stating, in reasonable detail, the reasons why the
Company proposes to withhold such consent) may at any time assign and delegate
to one or more commercial banks or other financial institutions, and
(b) with notice to the Company and the Administrative Agent, but
without the consent of the Company or the Administrative Agent, may assign and
delegate to any of its Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's Note and
Commitment (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Note and Commitment) in a
minimum aggregate amount of $4,000,000; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in the
penultimate sentence of Section 6.6 and further, provided, however, that, the
Company and the Administrative Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Company and the
Administrative Agent by such Lender and such Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered to the
Company and the Administrative Agent a Lender Assignment Agreement,
accepted by the Administrative Agent, and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other
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47
Loan Documents, and (y) the assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in connection with
such Lender Assignment Agreement, shall be released from its obligations
hereunder and under the other Loan Documents. Within five Business Days after
its receipt of notice that the Administrative Agent has received an executed
Lender Assignment Agreement, the Company shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) a new Note
evidencing such Assignee Lender's assigned Note and Commitment and, if the
assignor Lender has retained a portion of its Note and its Commitment hereunder,
a replacement Note in the principal amount of the portion of the Note and
Commitment retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, that Note then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Note. The
assignor Lender shall xxxx the predecessor Note "exchanged" and deliver it to
the Company. Accrued interest on that part of the predecessor Note evidenced by
the new Note shall be paid as provided in the Lender Assignment Agreement.
Accrued interest on that part of the predecessor Note evidenced by the
replacement Note shall be paid to the assignor Lender. Accrued interest shall be
paid at the same time or times provided in the predecessor Note and in this
Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,000. Any attempted assignment and
delegation not made in accordance with this Section 12.11.1 shall be null and
void.
SECTION 12.11.2 Participations. Any Lender may at any time sell to one or
more financial institutions (each of such financial institution being herein
called a "Participant") participating interests in its Note or Commitment, or
other interests of such Lender hereunder; provided, however, that
(a) no participation contemplated in this Section 12.11 shall
relieve such Lender from its Commitment or its other obligations hereunder or
under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations,
(c) the Company and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to take
or refrain from taking any action hereunder or under any other Loan Document,
except that such Lender may
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48
agree with any Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c) of Section
12.1, and
(e) the Company shall not be required to pay any amount under
Section 6.6 that is greater than the amount which it would have been required to
pay had no participating interest been sold.
The Company acknowledges and agrees that each Participant, for purposes of
Section 6.3, 6.4, 6.5, 6.6, 6.8, 6.9, 12.3 and 12.4, shall be considered a
Lender.
SECTION 12.12 Other Transactions. Nothing contained herein shall preclude
the Administrative Agent or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Affiliates in which the Company or such Affiliate
is not restricted hereby from engaging with any other Person.
SECTION 12.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE COMPANY SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
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49
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 12.14 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS
AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THE
COMPANY. THE COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 12.15 Confidentiality. The Administrative Agent and each Lender
shall hold nonpublic information obtained pursuant to the requirements of this
Agreement other than information (a) that is, or generally becomes, available to
the public, (b) that was or becomes available to the Administrative Agent or any
Lender on a nonconfidential basis, or (c) that becomes available to the
Administrative Agent or any Lender from a Person or other source that is not to
the knowledge of Administrative Agent or such Lender (as the case may be),
otherwise bound by a confidentiality obligation to the Company, in accordance
with its customary procedures for treatment of confidential information and in
accordance with safe and sound banking practices and in any event, may make
disclosure reasonably required by any bona fide transferee or participant in
connection with the contemplated transfer of any Loan or Note or participation
therein or as required or requested by any governmental agency or representative
thereof pursuant to legal process.
* * *
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50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CHICAGO TITLE AND TRUST COMPANY
By: /s/ A. Xxxxx Xxxx
------------------------------
Its: Vice President & Treasurer
By: /s/ Xxxx X. Xxxxxx
------------------------------
Its: Senior Vice President
and Chief Financial Officer
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No: (000) 000-0000
Telex No: N/A
Answerback: N/A
Attention: A. Xxxxx Xxxx
THE CHASE MANHATTAN BANK, N.A.,
as Administrative Agent
By:
------------------------------
Its:
-----------------------------
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Telex No: N/A
Answerback: N/A
Attention: Xxxxxxx Xxxxx
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51
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CHICAGO TITLE AND TRUST COMPANY
By:
------------------------------
Its:
-----------------------------
By:
------------------------------
Its:
-----------------------------
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No: (000) 000-0000
Telex No: N/A
Answerback: N/A
Attention: A. Xxxxx Xxxx
THE CHASE MANHATTAN BANK, N.A.,
as Administrative Agent
By: /s/ [Illegible]
------------------------------
Its: Vice President
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Telex No: N/A
Answerback: N/A
Attention: Xxxxxxx Xxxxx
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52
PERCENTAGE LENDERS
---------- -------
30% THE CHASE MANHATTAN BANK, N.A.
By /s/
---------------------------------------
Title:
Domestic
Office: Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telex No.:
Answerback:
Attention: Xxxxxxx Xxxxx
LIBOR Office: Same as above
40% UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
Domestic
Office: 000 X.X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 360549
Answerback USNATLBANK PTL
Attention: Xxxxx Xxxxxxxx
LIBOR
Office: Same as Above
53
PERCENTAGE LENDERS
---------- -------
30% THE CHASE MANHATTAN BANK, N.A.
By
---------------------------------------
Title:
Domestic
Office: Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telex No.:
Answerback:
Attention: Xxxxxxx Xxxxx
LIBOR Office: Same as above
40% UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: XXXXXX X. XXXXXXXX
VICE PRESIDENT
Domestic
Office: 000 X.X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 360549
Answerback USNATLBANK PTL
Attention: Xxxxx Xxxxxxxx
LIBOR
Office: Same as Above
54
PERCENTAGE LENDERS
---------- -------
20% XXXXXX TRUST AND SAVINGS BANK
By /s/ [Illegible]
------------------------------------
Title:
Domestic
Office: 000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 254 157
Answerback: XXXXXX TRCGO
Attention: Xxx Xxxxxx
LIBOR
Office: Same as above
10% TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By
---------------------------------------
Title:
Domestic
Office: 000 Xxxxxx Xxxxxx (0-XXX-X00)
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 166053
Answerback TCB HOU
Attention: Xxx Xxxxxx
LIBOR
Office: Same as Above
55
PERCENTAGE LENDERS
---------- -------
20% XXXXXX TRUST AND SAVINGS BANK
By
------------------------------------
Title:
Domestic
Office: 000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 254 157
Answerback: XXXXXX TRCGO
Attention: Xxx Xxxxxx
LIBOR
Office: Same as above
10% TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By /s/ Xxx Xxxxxx
---------------------------------------
Title: Vice President
Domestic
Office: 000 Xxxxxx Xxxxxx (10 TCBS-343)
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Telex No.: 166053
Answerback TCB HOU
Attention: Xxx Xxxxxx
LIBOR
Office: Same as Above
56
EXHIBIT A
TERM NOTE
$________ Due: December 31, 0000
Xxx Xxxx, Xxx Xxxx
March ___, 1996
The undersigned, for value received, promises to pay to the order of
________________________________________________________________ ("the Lender"),
the principal sum of __________Dollars ($____________), which principal shall be
payable in accordance with the provisions of Section 3.2 of the Credit Agreement
hereinafter referred to.
The undersigned further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable at such rate(s) and
at such time(s), as provided in such Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences indebtedness incurred
under, the Credit Agreement dated as of March __, 1996, (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto (the "Credit Agreement"), to which reference is made for a statement of
the terms and conditions on which the Company is permitted and required to make
prepayments and repayments of principal of the indebtedness evidenced by this
Note and on which such indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
This Note is made under and governed by the internal laws of the State of
New York.
CHICAGO TITLE AND TRUST COMPANY
By: __________________________________
Its:__________________________________
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
57
EXHIBIT B
CONTINUATION/CONVERSION NOTICE
[Name of Agent]
[Address]
Attention: [Name]
[Title]
CHICAGO TITLE AND TRUST COMPANY
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 4.1 of the Credit Agreement, dated as of March__, 1996 (together with
all amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Chicago Title and Trust Company, an Illinois corporation (the "Company"),
certain financial institutions and The Chase Manhattan Bank, N.A., as
Administrative Agent (the "Administrative Agent"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
The Company hereby requests that on __________, 19__,
(1) The Notes, all presently being maintained as *[Reference Rate Loans]
[LIBO Rate Loans],
(2) be [converted into] [continued as],
(3) **[LIBO Rate Loans having an Interest Period of __________ months]
[Reference Rate Loans].
----------
* Select appropriate interest rate option.
** Insert appropriate interest rate option.
58
EXHIBIT B
Page 2
The Company hereby:
(a) certifies and warrants that no Event of Default has occurred
and is continuing; and
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Company, each matter certified to herein shall be deemed to be
certified at the date of such continuation or conversion as if then made.
The Company has caused this Continuation/Conversion Notice to be executed
and delivered, and the certification and warranties contained herein to be made,
by an authorized officer this ___ day of _______, 19__.
CHICAGO TITLE AND TRUST COMPANY
By ____________________________________________
Title:
59
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (the "Assignment") is entered into as of this
__, day of _______, 19__ between ____________________________, the assigning
lender (the "Assigning Lender") and ___________________________, the assignee
(the "Assignee"). This Assignment is made pursuant to that certain Credit
Agreement (as amended or modified, called the "Credit Agreement"), dated as of
March ___, 1996, among Chicago Title and Trust Company, an Illinois corporation,
the lenders who are or may become parties thereto (the "Lenders") and The Chase
Manhattan Bank, N.A. as Administrative Agent. Unless the context clearly
indicates otherwise, all terms used in this Assignment shall have the meanings
given them by, and shall be construed as set forth in, the Credit Agreement.
In consideration of the respective representations, covenants and
agreements contained in this Assignment, the Credit Agreement and the Term Note,
if any, and in consideration of the respective undertakings of all of the
parties to the transaction described herein and therein, the Assigning Lender
and the Assignee hereby covenant and agree as follows:
TERMS OF ASSIGNMENT
Section 1. Sale of the Assigned Rights and Obligations. Under the Credit
Agreement, a copy of which has been furnished to the Assignee, and as of the
date hereof, the Lenders have made loans to the Borrower in the aggregate
outstanding principal amount of $ ________ (the "Term Loans"). The Term Loans
are evidenced by a Term Note pursuant to the terms and provisions of the Credit
Agreement. For good and valuable consideration, as of the Effective Date, the
Assigning Lender hereby sells and assigns to the Assignee and the Assignee
hereby purchases and assumes from the Assigning Lender the Assigned Rights and
Obligations (as hereinafter defined). For purposes of this Assignment, the
"Assigned Rights and Obligations" shall mean a portion of the Assigning Lender's
Term Loans in a principal amount of $_________ and a pro rata percentage of all
of the Assigning Lender's rights and obligations under the Credit Agreement and
each Related Document, including its rights in respect of the Term Loans and the
Term Note. The percentage of the rights and obligations of the Lenders under the
Credit Agreement which are being assigned to the
60
EXHIBIT C
Page 2
Assignee shall be ___%. Each assignment shall be pro rata with respect to all
rights and obligations of this the Assigning Lender including the Term Loans and
the Term Note.
Section 2. Effective Date. This Assignment shall become effective (the
"Effective Date") when all of the following have occurred: (i) this Assignment
has been executed by the parties hereto, (ii) the Assignment has been
acknowledged by the Agent and, to the extent required by Section 11.4 by the
Company, and (iii) the Assigning Lender/Assignee has paid a fee of $3,000 to the
Agent. Upon the Assignment becoming effective, the Agent shall forward all
payments of interest, principal, fees and other amounts that would have been
made to the Assigning Lender in proportion to the percentage of the Assigning
Lender's rights transferred, to the Assignee. However, the interest, fees and
other amounts which accrued prior to the Effective Date shall be payable for the
account of the Assigning Lender.
Section 3. Collateral. The Loans (and the resulting Assigned Rights and
Obligations) are secured only to the extent provided in the Credit Agreement and
the Related Documents. The Assignee shall have no interest in any property in
the Assigning Lender's possession or control, or in any deposit held or other
indebtedness owing by the Assigning Lender, which may be or become collateral
for or otherwise available for payment of the Term Loans by reason of the
general description of secured obligations contained in any security agreement
or other agreement or instrument held by the Assigning Lender or by reason of
the right of set-off, counterclaim or otherwise, except that if such interest is
provided for in provisions of the Credit Agreement regarding sharing of set-off,
the assignee shall have the same rights as any other Lender that is a Party to
the Credit Agreement.
Section 4. No Warranty or Recourse. The sale, transfer, assignment and
delegation of the Assigned Rights and Obligations is made without warranty or
recourse against the Assigning Lender of any kind, except that the Assigning
Lender warrants that it has not sold or otherwise transferred any other
interest in the Assigned Rights and Obligations to any other party and that it
is the owner of the interests being sold by it hereunder free and clear of any
adverse claim. The Assigning Lender may, however, have sold and may hereafter
sell participation in, or may have assigned or may hereafter assign, portions of
its interest in the Term Loans and the Credit Agreement that in the aggregate
(together with the portion assigned hereby), do not exceed 100% of the Assigning
Lender's original interest in the Term Loans and the Credit Agreement.
Section 5. Representations, Covenants and Warranties. To induce each other
to enter into this Assignment, the Assigning Lender and the Assignee each
represents and
61
EXHIBIT C
Page 3
warrants to, and covenants and agrees with, the other, and for the benefit of
the Agent, as follows:
a. Existence. Each of the Assigning Lender and the Assignee
warrants that it is an entity duly existing under the laws of the United States
or the jurisdiction of its incorporation, as applicable.
b. Authority. Each of the Assigning Lender and the Assignee
warrants that it is duly authorized to execute, deliver and perform this
Assignment and the Credit Agreement.
c. Valid and Binding. Each of the Assigning Lender and the Assignee
warrants that all acts, conditions and things required to be done and performed
and to have occurred prior to the execution, delivery and performance of this
Assignment, and to constitute the same its legal, valid and binding obligation
enforceable against it in accordance with its terms (subject to bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity), have been done and
performed and have occurred in due and strict compliance with all applicable
laws.
d. Purchasing for Own Interest. The Assignee warrants and covenants
that it is purchasing and assuming all of the Assigned Rights and Obligations
purchased hereunder in the ordinary course of making loans in its commercial
lending business and not with a view to, or for sale in connection with, any
distribution or selling such Assigned Rights and Obligations acquired hereunder,
nor with any present intention of distribution of its Assigned Rights and
Obligations, in each case in any manner which would require registration of any
of the Assigned Rights and obligations under the Securities Act of 1933 or any
"blue sky" laws.
e. Credit Analysis by the Assignee. The Assignee warrants and
covenants that it has, independently and without reliance upon the Agent, the
Assigning Lender or any other Lender, and based upon such financial statements
and other documents and information as it has deemed appropriate, made its own
credit analysis and decision to engage in this Assignment and the transactions
contemplated hereby, and the Assignee expressly acknowledges that the Assigning
Lender has made no representation or warranty, express or implied, as to the
accuracy or completeness of any of such financial statements or other documents
and information. The Assignee further agrees that it will, independently and
without reliance upon the Agent, the Assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
62
EXHIBIT C
Page 4
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement.
f. Enforceability, etc. The Assignee warrants that the Assigning
Lender has made no representation or warranty, and no representation or warranty
shall be implied, as to performance by the Company of any of its obligations
under the Assigned Rights and Obligations or Credit Agreement or as to the
execution, legality, validity, enforceability, genuineness, sufficiency,
collectibility or value of the Assigned Rights and Obligations, Loans and the
Credit Agreement, or any document or instrument purported to be executed and
delivered in connection therewith, other than as set forth in Section 4 hereof.
g. Receipt of Documents. The Assignee warrants that it has received
a copy of the Credit Agreement, the financial statements referred to in the
Credit Agreement and such other documents executed in connection with the Credit
Agreement as it has deemed appropriate to make its own credit analysis and
decisions to enter into this Assignment.
h. Appointment of Agent. The Assignee hereby appoints and
authorizes the Agent, together with any successors or assigns thereof pursuant
to the terms and conditions of the Credit Agreement, to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto.
i. Lending Offices. The Assignee hereby identifies the offices set
forth underneath its signature hereon as its Domestic Office and its LIBOR
Office (together with the appropriate addresses for such offices) for purposes
of the Credit Agreement.
j. Securities Laws. The Assigning Lender and the Assignee each
acknowledges that this Assignment does not constitute the sale of a "security"
for purposes of the Securities Act of 1933 and the Securities and Exchange Act
of 1934.
k. Retained Commitments. The Assignee acknowledges that the
additional loans and commitments, if any, may be retained by the Assigning
Lender for its own account and shall be excluded from the Assigned Rights and
Obligations assigned and sold hereunder.
j. No Conflict. The execution, delivery and performance of this
Assignment does not conflict with any provision of law or of the charter or
by-laws (or equivalent constituent documents) of such party, or of any agreement
binding upon it.
63
EXHIBIT C
Page 5
Section 6. Effectiveness of Sale. This Assignment shall become effective
as of the Effective Date, and the Agent shall record this Assignment in the
register maintained by the Agent (the "Register") to indicate the effectiveness
of such assignment as of the Effective Date. As of the Effective Date: (i) the
Credit Agreement is modified to the extent, and only to the extent, necessary to
reflect the addition of the Assignee; (ii) the Assignee shall be a party to the
Credit Agreement and the documents and instruments executed and delivered in
connection therewith as described herein and therein, and have the rights and
obligations of a Lender thereunder with respect to the Assigned Rights and
Obligations purchased by the Assignee, including, but not limited to, the right
to receive its pro rata share of all fees there after payable to the Lenders;
and (iii) the Assigning Lender shall, to the extent provided herein and in the
Credit Agreement, relinquish its rights and be released from its obligations
under the Credit Agreement and the documents and instruments executed and
delivered in connection therewith with respect to the Assigned Rights and
Obligations, including, without limitation, any related indemnification.
However, the Assigning Lender shall not be released to the extent, if any, that
the Borrower, any other Lender or the Agent has rights against such Assigning
Lender as a result of any default by such Lender under the Credit Agreement.
Section 7. Indemnification. The Assignee agrees to indemnify the Assigning
Lender from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs (including attorneys' fees and
expenses, whether of special, local or in-house legal counsel and staff),
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Assigning Lender in any way relating to
or arising out of the Assigned Rights and Obligations assigned and sold
hereunder, including, without limitation, each and every indemnity of any person
or entity provided in the Credit Agreement. The indemnification set forth herein
shall survive any termination of this Assignment.
Section 8. Withholding Taxes. The Assignee (a) represents and warrants to
the Assigning Lender, the Agent and the Company that under applicable law and
treaties no tax will be required to be withheld by the Assigning Lender with
respect to any payments to be made to the Assignee hereunder, (b) agrees to
furnish (if it is organized under the laws of any jurisdiction other than the
United States or any State thereof) to the Assigning Lender, the Agent and the
Company prior to the time that the Agent or the Company is required to make any
payment of principal, interest or fees hereunder either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein the
Assignee claims entitlement to the benefits of a tax treaty that provides for a
complete exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms 4224 or 1001 upon the expiration of
any previously delivered form
64
EXHIBIT C
Page 6
or comparable statements in accordance with applicable U.S. law and regulations
and amendments thereto, duly executed and completed by the Assignee, and (c)
agrees to comply with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
Section 9. Other Transactions with the Company. The Assigning Lender, the
Assignee and their respective affiliates may accept deposits from, lend money
to, act as trustee under indentures for and generally engage in any kind of
business with the Company, or any of the Company's subsidiaries or affiliates,
and any person who may engage in business with or own securities of the Company,
or any of the Company's subsidiaries or affiliates. Neither the Assigning Lender
nor the Assignee shall have any interest in any property taken as security for
any loans or any credits extended to the Company or any of its Subsidiaries by
the other such party by reason thereof, except security specifically granted
pursuant to the Agreement.
Section 10. Successors and Assigns. This Assignment shall inure to the
benefit of and be binding upon the successors and assigns of the Assigning
Lender and the Assignee.
Section 11. Expenses. In the event of any action to enforce the provisions
of this Assignment against either party hereto, the prevailing party shall be
entitled to recover all costs and expenses incurred in connection therewith,
including, without limitation, attorneys' fees and expenses, whether of special,
local or in-house legal counsel and staff.
Section 12. APPLICABLE LAW. THIS ASSIGNMENT SHALL BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE SET FORTH IN THE CREDIT AGREEMENT, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES. Wherever possible each provision of this
Assignment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Assignment shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Assignment. All
obligations and rights of the parties hereto expressed herein shall be in
addition to and not in limitation of those provided by applicable law.
Section 13. Transfer Instructions. All payments made hereunder shall be
payable by the transfer of immediately available funds on or before 12:00 noon
New York time on the date such payment is due pursuant to the transfer
instructions set forth below, or as the party receiving payment may from time to
time instruct the party rendering payment.
65
EXHIBIT C
Page 7
Section 14. Amendments, Changes, and Modifications. This Assignment may
only be amended, changed, modified, altered, or terminated by an agreement in
writing signed by the Assigning Lender and the Assignee (or their permitted
successors or assigns).
Section 15. Entire Agreement. This Assignment sets forth the entire
understanding of the parties and supersedes any and all prior agreements,
arrangements and understandings relating to the subject matter hereof. No
representation, promise, inducement or statement of intent has been made by
either party which is not embodied in this Assignment, and neither party shall
be bound by or liable for any alleged representation, promise, inducement or
statement of intention not expressly set forth herein.
Section 16. Incorrect Payments. Each of the Assigning Lender and the
Assignee agrees that if it incorrectly receives a payment in respect of the
Credit Agreement which should have been paid to the other such party, it will
promptly return such payment to the Agent for the account of the party to which
such payment should have been made.
Section 17. FORUM SELECTION AND SUBMISSION TO JURISDICTION. ANY CLAIM
ARISING OUT OF OR RELATING TO THIS ASSIGNMENT, THE AGREEMENT OR THE ASSIGNED
RIGHTS AND OBLIGATIONS MAY BE BROUGHT AND MAINTAINED BY THE ASSIGNING LENDER IN
ANY STATE OR FEDERAL COURT HAVING SUBJECT MATTER JURISDICTION AND LOCATED IN
NEW YORK, NEW YORK. FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INSTITUTED WITH
RESPECT TO ANY SUCH CLAIM THE ASSIGNEE HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION AND EXCLUSIVE VENUE OF SUCH COURTS AND AGREES NOT TO INSTITUTE ANY
LEGAL ACTION OR PROCEEDING AGAINST THE ASSIGNING LENDER OR ANY OF ITS DIRECTORS,
OFFICERS, AGENTS OR PROPERTY OF ANY THEREOF, ARISING OUT OF OR RELATING TO THIS
ASSIGNMENT, THE AGREEMENT OR THE ASSIGNED RIGHTS AND OBLIGATIONS, IN ANY COURTS
OTHER THAN SUCH COURTS. NOTHING HEREIN CONTAINED SHALL PRECLUDE THE ASSIGNING
LENDER FROM SERVING LEGAL PROCESS IN ANY MATTER PERMITTED BY LAW OR, AT ITS SOLE
OPTION, FROM BRINGING AN ACTION OR PROCEEDING IN RESPECT THEREOF IN ANY OTHER
COUNTRY, STATE OR PLACE HAVING JURISDICTION OVER SUCH ACTION. THE ASSIGNEE
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER HAVE TO THE LAYING AND MAINTENANCE OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT LOCATED IN NEW YORK, NEW
YORK AND ANY
66
EXHIBIT C
Page 8
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
Section 18. Waiver of Jury Trial. THE ASSIGNEE AND THE ASSIGNING LENDER
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT, THE AGREEMENT OR ANY OTHER
DOCUMENT RELATIVE TO THE ASSIGNED RIGHTS AND OBLIGATIONS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS
OF THE ASSIGNEE OR THE ASSIGNING LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE ASSIGNEE AND THE ASSIGNING LENDER ENTERING INTO THIS ASSIGNMENT.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed
on their behalf by their duly authorized offices as of the day and year
identified above.
[ASSIGNING LENDER]
By:__________________________________________
Title:_______________________________________
[ASSIGNEE]
By:__________________________________________
Title:_______________________________________
67
EXHIBIT D
SCHEDULED PROPERTIES
ADDRESS CITY ST.
------- ---- ---
CHICAGO TITLE INSURANCE CO. & SUBSIDIARIES:
000 X. XXXXXXX DR. WITH PARKING LOTS WHEATON IL
0000 X. XXXXXXXX X. XXXX XXX. XX
000 X. XXXXXX XX. XXXXXX XX
000 X. XXXX XX. XXXXXXXX XX
00 X. XXXXXXXXXX XXXXXXXXXX XX
000 X. XXXX XX. XXXXXXXXXXXX XX
000 X. XXXXXX XX. XXXXXXXXX XX
2200 N. MAIN ST. CROWN POINT IN
0000 XXXXX XX. XXXXXXXX XX
000 0XX XX. XXXXX XXXX XXXXX XX
0000 XXXXXXX XXX. XXXXXX XX
0000 X. XXXXXX XXXXXXX XX
PAJARO AND XXXXXX SALINAS CA
000 XXXX XX. XXXXXX XX
1647 COURT ST. REDDING CA
00 XXXXX XXXXXX XXXXXXXXXX XX
000 XXXX XX. XXXXXXX XX
000 XXXX XX. XXX XXXXX XX
0000 XXXXXXX XXX. XXX XXXXXXXXX XX
000 X. XXXX XX. XXXXX XXXXX XX
0000 XXXXXXXXXX XXX XXXXXXXX XX
000 "X" XX. XXX XXXXX XX
0000 XXXXXX XXXXX XXXXXXXX XX
000 X. XXXXXX XX. XXX XXXX XX
0000 XXXXX XX. XXX XXXX XXXXXX XX
SECURITY UNION & SUBSIDIARIES:
0000 XXXXXXX XX. XXXXX XXXXXXX XX
0000 0XX XXX. XXX XXXXX XX
000 X. XXXXXXXX XXXXXX XX
0000 XXXX XXX. XXXXXXX XX
2425 X. XXXX FRESNO CA
1944 "M" ST. MERCED CA
000 X. XXXX XX. XXXXXX XX
0000 XXXXX XX. XXXXXXXX XX
0000 XXXXXXX XXX. XXXXXXX XX
TICOR & SUBSIDIARIES
000 X. 0XX XX. XXX XXXXXXXXXX XX
000 XXXXXXX XX. XXXXXXXX XX
0000 X. XXXXX XXXX. XXXXXX XXXX XX
68
EXHIBIT D (cont'd)
SCHEDULED PROPERTIES (cont'd)
ADDRESS CITY ST.
------- ---- ---
CLAIMS ACQUIRED:
SANTA XXXX RANCH LIVERMORE CA
XXXXXX CANYON RD. CALABASAS CA
XXX 0 XXXXXXX 0 XXXXXXXX XX
DEERHORN VILLAGE KANSAS CITY MO
GENESEE DEV. GOLDEN CO
TPO S OF APPACHE TULSA OK
TPO N OF APPACHE TULSA OK
TPO SUMMERTREE TULSA OK
WEST END TERRACE NASHVILLE TN
0000 XXXXX XXXXXX XXXXXXXXX XX
OIL & MIN. RIGHTS VARIOUS
OTHER CLAIMS ACQ. VARIOUS
69
CHICAGO TITLE AND TRUST COMPANY AND SUBSIDIARIES
PENDING SUITS OR CONTROVERSIES INVOLVING CORPORATE MATTERS
CORPORATE LITIGATION
DECEMBER 31, 1995
California Bank Consumers Association v. A.E.I., Inc., et al. Superior Court of
California. Los Angeles. Purported class action alleging that the sale to
involuntary purchasers of Trustee Sales Guarantee policies constitutes an
alleged tying arrangement in violation of state antitrust and unfair
competition laws. Plaintiffs filed an amended complaint October 31, 1985
seeking a declaration of rights within punitive "Master Plaintiff Class"
arising out of approximately twelve pending actions involving numerous
defendants.
Counsel: Xxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxx & Regalia
Walnut Creek, California
Xxxx, et al. v. Chicago Title Insurance Company. Superior Court of California,
San Francisco. Several class actions against title companies alleging a
conspiracy to fix prices for Trustee Sale Guarantee policies in violation of
state antitrust and unfair competition laws. The settlement was approved by
order signed by the court on February 17, 1989. The settlement was affirmed by
the First Appellate Court on January 25, 1991. A petition for review was filed
with the California Supreme Court in early March, 1991 and denied. In early
1995, plaintiffs' counsel sought the Court's permission to file a supplemental
complaint regarding alleged failure to comply with the settlement agreements.
The motion was heard on May 12, 1995 and a ruling thereon deferred pending
discovery by the plaintiffs relative to compliance by the defendants.
Counsel: Xxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxx & Regalia
(Walnut Creek, California)
Rating Bureau Litigation. Various private class action cases alleging illegal
state rating bureau activity were filed in 1985 and were consolidated as complex
litigation for limited pre-trial purposes in the Eastern District of
Pennsylvania. A settlement agreement between the parties was approved by the
Court on June 10, 1986. Implementation of the settlement commenced March 26,
1988 and has been completed. Subsequently, the Company successfully defended an
Arizona state antitrust class action regarding state rating bureau activity
brought on behalf of the Tucson Unified School District in Pima County, Arizona
and a Wisconsin state court action (Prentice). One additional case dealing with
the same subject matter is being defended (Xxxxx). The Xxxxxxxx has now been
refiled in District Court in Wisconsin as the Xxxxxx case.
Xxxxx v. Chicago Title Insurance Company. United States District Court of
Arizona. Class action alleging violation of federal antitrust laws with
respect to state rating bureau activity in Arizona and Wisconsin. A motion
for summary
70
judgment by defendants was granted on March 1, 1991 and the case dismissed on
March 5, 1991. Plaintiffs filed an appeal of the order to dismiss on March 13,
1991. In late December, 1992 the Court of Appeals reversed the lower court
holding that the defenses of res judicata, Xxxxxx doctrine and state action did
not bar the Plaintiffs. On March 17, the petition for rehearing en banc was
denied. On October 1, 1993. the parties executed a memorandum of understanding
outlining a basis for settlement of the case. On October 4, 1993 the U.S.
Supreme Court agreed to hear the case and oral argument was heard on March 1,
1994. On April 4, 1994, the U.S. Supreme Court dismissed the case as
improvidently granted. A dispute has arisen with plaintiff's counsel over the
settlement agreement. On March 28, 1995, the Court deferred further action in
the case until mid-May to allow the parties an opportunity to enter into a
global settlement of the Xxxxx and Xxxxxx cases. Plaintiffs in the Xxxxxx case
have moved to intervene in the Xxxxx case. In the Xxxxx case, an amended
complaint was filed May 9, 1995 naming certain additional title insurance
companies as defendants. A global settlement of the Xxxxx and Xxxxxx cases was
executed May 18, 1995. Pursuant to the terms of the proposed settlement, class
members will be provided with a number of benefits, including the option to
receive cash payments from the title insurance companies named in the Arizona
and Wisconsin actions, not to exceed in the aggregate $1,996,613 in Arizona and
$2,070,326 in Wisconsin; an increase in the face amount of title insurance
policies purchased from the title insurance companies reflecting the impact of
inflation since January 1, 1981; and the last $5,000 of future insurance
coverage at no cost on any new title insurance policy for property in Arizona or
Wisconsin purchased from any of such title insurance companies within the
one-year period following final Court approval of the settlement. The settlement
also contemplates that the title insurance companies will pay attorneys' fees of
the plaintiffs and the costs of administering the settlement.
In July, 1995, pursuant to an order of the Court, notice of the settlement
was given to the class by publication. No member of the plaintiff class
commented upon or requested to opt-out of the settlement and the period for such
comment or request closed on September 15, 1995. The plaintiffs filed for their
attorneys' fees and costs on or about September 22, 1995. The Court held a
hearing on October 10, 1995, at which the fairness of the settlement was
considered and members of the plaintiff class were given an opportunity to be
heard. No class member appeared at the hearing. On October 30, 1995, the Court
issued an order certifying the plaintiff class for all purposes.
The parties have affirmed to the Court their support of the settlement
agreement; however, disputes exist regarding the valuation of the settlement
benefits and various matters pertaining to the plaintiffs' petitions for
attorneys' fees and costs. The parties have filed briefs with the Court on
the areas of disagreement; additional briefs may be filed.
Counsel: Xxxx Xxxxxxxx
Xxxx, Xxxx & Xxxxx
Washington, D.C.
Xxxxxx et xx x. Xxxxxxx Title Guaranty Company et al. U.S. District Court,
Eastern District of Wisconsin. Class Action Suit alleges a price fixing
conspiracy in Wisconsin from 1981 through 1986. On October 11, 1994,
plaintiff's motion to consolidate the Xxxxxx case with the Xxxxx case was
granted and the case was moved to the Arizona District Court for pre-trial
purposes.
Counsel: Xxxx Xxxxxxxx
Xxxx, Xxxx & Xxxxx
Washington, D.C.
2
71
Xxxxxxx, et al v. Bank of America, National Trust and Savings Association; et
al [Chicago Title Company]. Superior Court of California, County of Los
Angeles. Purported class action brought on behalf of individuals who paid off
loans secured by deeds of trust and, in connection therewith, are alleged to
have paid fees for services relating to the reconveyance of deeds of trust,
to have paid fees for the preparation and recording of releases with respect
to deeds of trust, and whose deeds of trust were not timely reconveyed or
were not released. Plaintiffs allege claims for breach of contract, consumer
fraud, and conspiracy among members of the real estate industry in
California. Although it is not clear from the complaint, it appears that the
plaintiffs believe that the defendants failed to provide services that they
had agreed to provide. The case is in a very early stage. The Court sustained
defendants' demurrer on October 11, 1994 and granted plaintiffs 60 days to
amend. An amended complaint was filed on December 11, 1994, a second amended
complaint was filed on March 13, 1995, and the Court again granted the
Company's demurrer. A third amended complaint was filed June 13, 1995.
Counsel: Xxxxxxx XxXxxxx
Xxxxx, Raysman & Xxxxxxxxx
Los Angeles, California
Voliner, et ux v. CTI and Professional Abstract and Assurance Corporation.
U.S. District Court, Eastern District of Pennsylvania. Class Action Suit
alleging illegal charges for filing IRS 1099 forms. The case was favorably
decided but was reversed by the Court of Appeals which held that the case
should have proceeded as a state court case without removal. A petition for
rehearing was denied. Subsequently a petition for certiorari was filed with
the U.S. Supreme Court and was denied. State court proceedings have
commenced. Provisional certification of a class action was determined on
September 28, 1995. Settlement discussions are pending.
Counsel: Xxxxxx Xxxxx
Fox, Rothschild, O'Brien, & Xxxxxxx
Philadelphia, Pennsylvania
Oregon Action Threatened. On May 16, 1995, the Company received notice of a
potential class action in Oregon dealing with the same subject matter
(allegation of improper charges for reconveyance deeds) as the Xxxxx case
filed in Idaho and favorably decided August 17, 1995.
Counsel: Xxxx Xxxx
Stoel Xxxxx Xxxxx Xxxxx & Grey
Portland, Oregon
Xxxxxx, et al v. Chicago Title Insurance Company. United States District
Court, District of South Carolina. Suit for breach of agency services
contract in connection with the National Flood acquisition. Report on
September 28, 1995 states plaintiff's motion for Injunctive Relief not be
granted.
Counsel: Xxxx Xxxxxx
Xxxxx, Day
Dallas, Texas
National Lender's Services Inc. v. Chicago Title Insurance Company, Xxxxxxxxx
and Xxxxxx. Superior Court of California, County of Santa Xxxxx. Causes of
Action presently are: (i) accounting, (ii) intentional misrepresentation, (iii)
negligent misrepresentation, (iv) breach of fiduciary duty, (v) breach of
contract, (vi) breach of the implied covenant of good faith and fair dealing,
3
72
(vii) interference with prospective business advantage and (viii) unfair
competition. Plaintiff's complaint arises from plaintiff's performance under a
Service Agreement between CTIC and NLS dated February 4, 1991 that related to
CTIC's PIRT product. CTIC and NLS traded allegations about the other's failure
to perform in accord with the terms of the Service Agreement. CTIC's demurrers
have been sustained. CTIC has cross-complained for breach of contract, unfair
competition, and breach of fiduciary duty, among other causes of action against
NLS and Ray and Xxx Xxxxxxxxx.
Counsel: Xxxxx Xxxxxx Xxxxxxxxx
Manatt, Xxxxxx and Xxxxxxxx
Los Angeles, California
CHICAGO TITLE INSURANCE COMPANY
ADMINISTRATIVE PROCEEDINGS
Other Matters
As of December 31, 1995, the Company had 22 proceedings pending involving
charges filed by former employees with the EEOC or similar administrative
agencies regarding the circumstances of termination of employment. CTI is making
defensive filings in each of these proceedings.
The Company is subject to the FTC Consent Orders described under CT&T
Administrative Proceedings.
Under date of April 22, 1994 following extensive antitrust litigation, Chicago
Title Insurance Company, Security Union Title Insurance Company and Ticor Title
Insurance Company and certain other title insurers became subject to an order
issued by the Federal Trade Commission which places certain conditions on the
title insurers participation in a rating bureau in the states of Arizona,
Connecticut, Montana and Wisconsin. To date none of the title insurers is
participating in a bureau in any of the four states.
Chicago Title Company (Bakersfield, California) has been selected for a
compliance audit by the Internal Revenue Service from January 1, 1993 through
April 30, 1995.
The Company is subject to a Department of Labor area investigation in
Phoenix, Arizona regarding possible overtime pay for escrow closers.
Counsel: Xx Xxxxxxxx
Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
Chicago, Illinois
CHICAGO TITLE INSURANCE COMPANY
HUMAN RESOURCES LITIGATION
Xxxxxxx v. CTC. Superior Court of Los Angeles County, California. Suit alleges
breach of contract, discrimination and violation of public policy. Discovery in
process.
Counsel: Xxxxx Railsbach
Xxxxxx & Xxxxx
Beverly Hills, California
4
73
Xxxxxxxx v. CTI. State Court of Xxxxxx County, Xxxxxx County, Georgia. Suit
alleges defamation, slander and loss of consortium. Citation filed April 19,
1994. Discovery in process.
Counsel: Ben Hathis
Drew, Xxxx & Xxxxxxx
Atlanta, Georgia
Park v. CTI. 000xx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx. Suit alleges
breach of contract, promissory estoppel and fraud. Citation filed October 28,
1993. Discovery in process.
Counsel: Xxxxxxx Xxxxxx
Xxxxxxxxx & Xxxxxxxxx
Houston, Texas
Xxxxxxxx v. Chicago Title Company. Complaint for sexual harassment. Plaintiff, a
former employee of NLS, alleges that CTC failed to take appropriate steps to
stop sexual harassment of plaintiff by an employee and supervisor employed by
CTC.
Counsel: Xxxxx Xxxxxxx
Littler, Mendelson, Fastiff, Xxxxx & Xxxxxxxxx
Stockton, California
Xxxxxxx v. CTI. Thirteenth Judicial District Court, Yellowstone County,
Montana. Suit alleges wrongful discharge, intentional infliction of emotional
distress, negligent infliction of emotional distress and invasion of privacy.
Citation filed November 17, 1995.
Counsel:
CHICAGO TITLE AND TRUST COMPANY
CORPORATE LITIGATION
Xxxxxxxx x. Xxxxxxxxxxx & Co., Montag & Xxxxxxxx, Inc. and Xxxxxxx Xxxxxxxxx.
State Court of Xxxxxx County, Georgia. Suit alleges negligent/willful conduct on
the part of Xxxxxxxxxxx, Montag and others with respect to the recording and/or
filing of securities transactions which is causing plaintiff emotional distress
and other damages. Punitive damages are prayed for.
Counsel: Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
Atlanta, Georgia
Wu x. Xxxxx Kyun Shin and CT&T as Trustee. Circuit Court of Xxxx County,
Illinois. Suit for unspecified damages alleging breach of obligations in
connection with an exchange trust transaction. Unspecified damages are
requested, First Amended Complaint has been dismissed but plaintiff had until
July 28, 1995 to refile a Second Amended Complaint. To date, nothing has been
filed.
Counsel: Xxxxxx Petaque
Chicago, Illinois
5
74
O'Brien v. National Flood Information Services, Inc. et al. Civil Court of
Xxxxxx County, Texas. Possible claim by Xxxxx and Xxxxxxx X'Xxxxx for erroneous
flood zone services. This is an indemnified item by the sellers of National
Flood.
Counsel: Xxxxx Xxxxxxxxxxxx
Xxxxxxxxxxx & Price, L.L.P.
Dallas, Texas
Xxxxxxx x. Xxxxxxxxxxxx and Chicago Title and Trust Company, as Trustee of the
Chayin Irrevocable Blind Trust. United States Bankruptcy Court, Northern
District of Illinois. Complaint regarding a bankruptcy challenge and the
transfer of stock into a trust. The Company is a stockholder in the litigation.
Counsel: Xxxxxx Xxxxxx
XxXxxxx & Xxxxx
Park Ridge, Illinois
CHICAGO TITLE AND TRUST COMPANY
ADMINISTRATIVE PROCEEDINGS
Until September, 1997 the Company shall remain subject to an Order of the FTC
under the date of September 9, 1987 containing certain reporting and notice
requirements with title plant acquisitions and certain investment activity by
the Company.
Under the date of July 22, 1991, the Company became subject to a second FTC
Consent Order with respect to its acquisition of Ticor Title Insurance Company
of California which closed on March 8, 1991. This Order will remain in place
until July, 2001. The Order provides for the divestiture of certain title plants
and back title plants and further provides for certain reporting and notice
requirements with respect to investment activity and the proposed acquisition of
title plant or other assets. All required divestitures have been approved by the
FTC and have been completed by the Company. In September, 1995, the Company
filed a petition with the FTC for removal of the prior approval provisions in
applicable orders and for modification or removal of the prior notice
provisions. That petition remains pending.
One CT&T employee has filed charges with an administrative agency regarding the
circumstances of termination of employment. CT&T is making defensive filings in
the proceeding.
CHICAGO TITLE AND TRUST COMPANY
HUMAN RESOURCES LITIGATION
Xxxxxxxx v. CT&T and Xxxxxxx Welcome. Circuit Court of XxXxxxx County, Illinois.
Suit for alleged sexual harassment. Damages in amount of $75,000 are requested.
The Company was dismissed from the case but the litigation continued against Mr.
Welcome. Thereafter, an amended complaint was served naming CT&T as defendant on
the same subject matter. Joint Petition For Leave to Appeal filed with Illinois
Superior Court on April 19, 1995 on proper application of Illinois Human Rights
Act and Illinois Workers Compensation Act. Decision is expected in the first
quarter of 1996. Discovery on hold.
Counsel: Xxxxxx Xxxxxxxx
Xxxxxx & Harrow, LTD.
Chicago, Illinois
6
75
SECURITY UNION TITLE INSURANCE COMPANY
CORPORATE LITIGATION
Security Union is party to the consolidated antitrust matter, the Arizona
federal antitrust case, the Wisconsin federal court antitrust case and is
affected by the FTC Consent Orders and the Xxxx cases, all as reported above
under Chicago Title Insurance Company and Chicago Title and Trust Company.
Security Union Title Insurance Company v. Continental Lawyers Title Company.
Superior Court of California, San Diego. Claims for breach of sublease and
violation of the covenant of good faith and fair dealing. This case is related
to the Xxxxxxx case and arises from the conduct of Continental Lawyers in
linking settlement discussions of the Xxxxxxx case to the negotiation of an
extension of a sublease under which Security Union occupies premises in San
Diego. The court granted plaintiff's motion for summary judgment, and
Continental Lawyers seeks over $200,000 in attorney's fees for this unlawful
detainer action arising out of SUTIC's leases of space in San Diego. The trial
court ruled in favor of plaintiff, and the matter has been appealed.
Security Union Title Insurance Company v. Southern California Title Company.
Superior Court of Los Angeles County. Case No. C732102. Suit for breach of title
plant access contract. Counterclaim by Defendant for recision and breach of
contract and unspecified damages. A separate federal court antitrust has been
successfully defended by motion to dismiss. That decision is being appealed by
the plaintiff.
Security Union Title Insurance Company v. Westland Title Company. Claim by
Security Union Title Insurance Company that Westland breached its contract for
title services, and that Westland owes SUTIC in excess of $400,000 for the
breach. Westland has counter-claimed that SUTIC breached its obligations and
that SUTIC defrauded Westland. Westland has filed for receivership and seeks to
wind up and dissolve.
Counsel: Xxxxxxx Xxxxxx
Xxxxxx & Xxxxx
Beverly Hills, California
Xxxxxxx, et al v. Security Union Title Insurance Company at al. District Court,
Dallas County, Texas. Original petition for declaratory judgment, demand for
accounting, suit for fraud upon an agent and suit for libel and slander. Damages
in excess of $25 million are prayed for. Counsel:
SECURITY UNION TITLE INSURANCE COMPANY
ADMINISTRATIVE PROCEEDINGS
Under date of April 22, 1994 following extensive antitrust litigation, Chicago
Title Insurance Company, Security Union Title Insurance Company and Ticor Title
Insurance Company and certain other title insurers became subject to an order
issued by the Federal Trade Commission which places certain conditions on the
title insurers participation in a rating bureau in the states of Arizona,
7
76
Connecticut, Montana and Wisconsin. To date none of the title insurers is
participating in a bureau in any of the four states.
Two former Security Union employees have filed charges with the EEOC or similar
administrative agency regarding the circumstances of termination of employment.
Security Union is making defensive filings in these proceedings.
SECURITY UNION TITLE INSURANCE COMPANY
HUMAN RESOURCES LITIGATION
Xxxxxx x. Security Union Title Insurance Company. Superior Court of Fresno
County, California. Suit alleges sex retaliation. Discovery in process.
Counsel:
TICOR TITLE INSURANCE COMPANY
CORPORATE LITIGATION
Ticor Title is party to the consolidated antitrust cases, the Arizona federal
antitrust case, the Wisconsin federal court antitrust case and is affected by
the FTC Consent Orders and the Xxxx cases. All these matters are listed earlier
by Chicago Title Insurance Company or Chicago Title and Trust Company.
Ticor Title Insurance Company v. Commonwealth of Pennsylvania Board of Finance &
Revenue. Commonwealth Court. Premium tax matter in which Pennsylvania disputes
the base on which Ticor calculated the premium tax due for the years 1984
through 1993. The Board of Finance & Revenue commuted the tax basis on all
charges collected by the agent through whom policies were issued, without regard
to whether the charges were for insurance or for services provided by the
agents. Ticor's position is that it is required to pay gross premium tax under
the applicable statute only on gross premiums received by it excluding services
provided by agents. The estimated potential cumulative liability at December 31,
1995 is $2.3 million. The Company has made a settlement offer of approximately
$300,000 for the years in question plus an agreement on the tax base for 1994
and forward.
Counsel: Xxxxx X. Xxxxx
XxXxxx, Xxxxxxx & Nurick
Harrisburg, Pennsylvania
TICOR TITLE INSURANCE COMPANY
HUMAN RESOURCE LITIGATION
None
TICOR TITLE GUARANTEE COMPANY
CORPORATE LITIGATION
None
TICOR TITLE GUARANTEE COMPANY
HUMAN RESOURCE LITIGATION
8
77
Schedule 7.5
(partical listing)
Claims with Pending Amounts of $100,000 or Greater at 02/29/96
Chicago Title Insurance
Claim # Pending Amount
------- --------------
022632541 2,880,711.63
022640361 1,466,797.75
113077681 1,269,962.64
112625811 1,159,746.94
022636534 931,487.49
025229501 892,824.07
025255738 812,599.10
021419973 784,381.85
021212527 501,653.40
025119645 482,181.67
025372087 476,671.85
021349618 314,900.00
112610391 310,821.09
112610383 310,366.09
112621638 300,000.00
025247289 297,710.18
022487946 285,310.62
112613080 280,002.30
112629813 265,972.56
025107954 265,482.70
021213723 245,855.78
023514037 243,238.46
112956935 238,206.97
112524642 230,472.90
022651145 225,390.17
022467211 216,629.82
022476923 200,556.34
112828633 200,000.00
021511225 199,162.04
022800791 192,044.15
022496681 173,685.10
022634422 166,852.54
022640759 165,775.12
025127473 161,188.04
026312546 150,000.00
021355078 150,000.00
027513845 147,019,83
021344304 148,348.30
021216049 133,542.01
028313502 131,165.95
026307827 127,290.74
021120654 119,682.13
026199562 118,407.26
025226556 115,939.50
026311837 115,000.00
022643191 109.164.33
023640337 107,587.73
026246520 100,000.00
112622305 100,000.00
-------------
19,020,771.14
=============
Claim Count = 49
Ticor Title Insurance
Claim # Pending Amount
------- --------------
125111130 387,366.24
121321675 346,807.91
121410098 331,301.72
123611180 276,355.66
120910163 231,945.08
121321576 187,500.00
121813705 169,215.31
121511150 118,814.69
125229668 100,000.00
------------
2,149,306.61
============
Claim Count = 9
Security Union Title Insurance
Claim # Pending Amount
------- --------------
054003066 633,130.56
055216832 577,555.28
052434727 442,152.28
052633898 215,890.04
052628690 150,564.07
052646908 149,399.50
055213748 122,763.00
052533395 106,495.62
------------
2,397,950.35
============
Claim Count = 8
--------------------------------------------------------------------------------
Claims with Pending Amounts of Less Than $100,000 Totalled, in the aggregate,
Approximately $39.4 million.
--------------------------------------------------------------------------------
78
SCHEDULE 7.6
LIENS
Nature and Description of Amount
Lien Name of Lienholder Secured(1) Maturity
------------------------- ------------------ ---------- --------
Chicago Title Insurance Co.:
Mortgage Great Western Bank $230,845 --
Mortgage Wardon Financial Corporation 34,693 03/97
Mortgage Xxxxxxx Xxxxxxxx 14,762 12/04
--------
Total Chicago Title Insurance: $280,300
Ticor Title Insurance Co.
and Subsidiaries:
Mortgage Xxxx Xxxxxxx Life Insurance Co. (2) 09/01
--------
Total Ticor and Subs:
Chicago Title and Trust Co.
and Subsidiaries:
Grand Total $280,300
========
(1) Amounts secured are as of December 31, 1995.
(2) Ticor has a 1/3 interest in a Partnership holding mortgaged property with an
outstanding balance at 12/31/95 of approximately $8.6 million.
79
Schedule 7.7 - Subsidiaries
80
[ORGANIZATIONAL CHART OMITTED]
81
Alleghany Corporate Organization
[ORGANIZATIONAL CHART OMITTED]
82
SCHEDULE 7.13
ERISA
None.
83
SCHEDULE 8.11
INDEBTEDNESS
Amount
Description Maturity as of 12/31/95
----------- -------- --------------
Chicago Title and Trust Company:
A Consortium of Lenders and Bank of
America Illinois as Agent for the Lenders 12/00 $50,000,000
Hampton Roads Title Corp.
Xxxxx Xxxxxx 12/96 550,000
Xxxxxx Xxxxx Firma, Inc. 08/97 1,333,333
CTA of Central Ohio:
5 noteholders 07/96 562,149
National Flood Information Service:
Capital Leases -- 1,961
-----------
Total CT&T 52,447,443
Chicago Title Insurance Company
and Subsidiaries:
Lincoln National Life On Demand 15,439
Baton Rouge:
Xxxxxxxxx X. Xxxx 01/01 1,250,000
Xxxxxxxxx X. Xxxx 01/96(1) 1,250,000
Lompoc Valley 04/96 9,000
JLA Credit Corp 02/96 954
JLA Credit Carp 05/96 785
JLA Credit Corp 07/96 4,188
JLA Credit Corp 09/99 50,630
Alameda -- 14,639
-----------
Total CTI & Subs 2,595,635
-----------
CONSOLIDATED TOTALS $55,043,078
===========
(1) This note was paid in January 1996.
84
TERM NOTE
Due: December 31, 2000
$15,000,000 New York, New York
March 29, 1996
The undersigned, for value received, promises to pay to the order of THE
CHASE MANHATTAN BANK, N.A. (the "Lender"), the principal sum of FIFTEEN MILLION
DOLLARS ($15,000,000), which principal shall be payable in accordance with the
provisions of Section 3.2 of the Credit Agreement hereinafter referred to.
The undersigned further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable at such rate(s) and
at such time(s), as provided in such Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences indebtedness incurred
under, the Credit Agreement dated as of March 29, 1996, (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), to which reference is made for a statement of
the terms and conditions on which the Company is permitted and required to make
prepayments and repayments of principal of the indebtedness evidenced by this
Note and on which such indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
85
This Note is made under and governed by the internal laws of the State of
New York.
CHICAGO TITLE AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: Senior Vice President
and Chief Financial Officer
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
86
TERM NOTE
Due: December 31, 2000
$10,000,000 New York, New York
March 29, 1996
The undersigned, for value received, promises to pay to the order of
XXXXXX TRUST AND SAVINGS BANK (the "Lender"), the principal sum of TEN MILLION
DOLLARS ($10,000,000), which principal shall be payable in accordance with the
provisions of Section 3.2 of the Credit Agreement hereinafter referred to.
The undersigned further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable at such rate(s) and
at such time(s), as provided in such Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences indebtedness incurred
under, the Credit Agreement dated as of March 29, 1996, (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), to which reference is made for a statement of
the terms and conditions on which the Company is permitted and required to make
prepayment and repayments of principal of the indebtedness evidenced by this
Note and on which such indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
87
This Note is made under and governed by the internal laws of the State of
New York.
CHICAGO TITLE AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: Senior Vice President
and Chief Financial Officer
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
88
TERM NOTE
Due: December 31, 2000
$5,000,000 New York, New York
March 29, 1996
The undersigned, for value received, promises to pay to the order of TEXAS
COMMERCE BANK NATIONAL ASSOCIATION (the "Lender"), the principal sum of FIVE
MILLION DOLLARS ($5,000,000), which principal shall be payable in accordance
with the provisions of Section 3.2 of the Credit Agreement hereinafter referred
to.
The undersigned further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable at such rate(s) and
at such time(s), as provided in such Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences indebtedness incurred
under, the Credit Agreement dated as of March 29, 1996, (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), to which reference is made for a statement of
the terms and conditions on which the Company is permitted and required to make
prepayments and repayments of principal of the indebtedness evidenced by this
Note and on which such indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
89
This Note is made under and governed by the internal laws of the State of
New York.
CHICAGO TITLE AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: Senior Vice President
and Chief Financial Officer
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
90
TERM NOTE
Due: December 31, 2000
$20,000,000 New York, New York
March 29, 1996
The undersigned, for value received, promises to pay to the order of
UNITED STATES NATIONAL BANK OF OREGON (the "Lender"), the principal sum of
TWENTY MILLION DOLLARS ($20,000,000), which principal shall be payable in
accordance with the provisions of Section 3.2 of the Credit Agreement
hereinafter referred to.
The undersigned further promises to pay interest on the unpaid principal
amount of this Note from time to time outstanding, payable at such rate(s) and
at such time(s), as provided in such Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences indebtedness incurred
under, the Credit Agreement dated as of March 29, 1996, (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), to which reference is made for a statement of
the terms and conditions on which the Company is permitted and required to make
prepayments and repayments of principal of the indebtedness evidenced by this
Note and on which such indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
91
This Note is made under and governed by the internal laws of the State of
New York.
CHICAGO TITLE AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: Senior Vice President
and Chief Financial Officer
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
