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DEPOSITARY AGREEMENT
First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
Fremont General Corporation (the "Offeror"), is offering to exchange up to
$200,000,000 principal amount of its Series B 7.70% Senior Notes due 2004 and up
to $225,000,000 principal amount of its Series B 7.70% Senior Notes due 2009
(collectively, the "Exchange Notes") for up to $200,000,000 principal amount of
its 7.70% Senior Notes due 2004 and up to $225,000,000 principal amount of its
7.875% Senior Notes due 2009 (collectively, the "Initial Notes") upon the terms
and conditions set forth in the Prospectus and the Letter of Transmittal annexed
as Exhibits A and B, respectively (collectively the "Offer"). The Offeror hereby
appoints you to act as Depositary in connection with the Offer.
The Offer is being made by the Offeror to holders of the Initial Notes (the
"Holders") on or about _____, 1999. The Letter of Transmittal that will
accompany the Offer, which is addressed to you, is to be used by the Holders to
accept the Offer, and contains instructions with respect to the delivery of
certificates for Initial Notes tendered.
In carrying out your duties as Depositary, you are to act in accordance with the
following instructions:
1. The Offer shall expire at 5:00 p.m., New York City Time on _________, 1999
(the "Initial Expiration Date"), or at any subsequent time to which the
Offeror may extend the Offer. The Offeror expressly reserves the right to
extend the Offer from time-to-time and may extend the Offer by giving
written notice to you before 9 a.m., on the business day following the
scheduled expiration date. The later of the Initial Expiration Date or the
latest time and date to which the Offer may be so extended is herein
referred to as the "Expiration Date".
2. You will establish a Book Entry Account with the various Depositories for
purposes of the Offer by ______, 1999 and any financial institution that
is a participant in any of the Depositories may make book-entry delivery
of the Initial Notes by causing the Depository to transfer such Initial
Notes into the account maintained by you pursuant to this Paragraph in
accordance with procedures for such transfer.
3. You are to examine the Letters of Transmittal and Initial Notes delivered
or mailed to you to ascertain whether the Letters of Transmittal are
completed and executed in accordance with instructions set forth therein.
In each case where the Letter of Transmittal has been improperly completed
or executed or, for any other reason, is not in proper form, or some other
irregularity in connection with the acceptance of the Offer exists, you
will endeavor to take such action as may be necessary to cause such
irregularity to be corrected. With the written approval of an authorized
officer of the Offeror (the names of whom are set forth on Exhibit C), or
any party designated by the Offeror, you are authorized to waive
irregularities in connection with the acceptance of the Offer.
4. If a Holder desires to tender Initial Notes pursuant to the Offer and such
Holder's Initial Notes are not immediately available or time will not
permit all required documents to reach you on or prior to
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the Expiration Date or the procedure for book-entry tender cannot be
completed on a timely basis, such Initial Notes may nevertheless be
tendered if all the following conditions are satisfied:
(i) a properly completed and duly executed Notice of
Guaranteed Delivery is received by you as provided
below on or prior to the Expiration Date; and
(ii) all tendered Initial Notes, in proper form for
transfer (or a Book-Entry Confirmation), together
with a properly completed and duly executed Letter of
Transmittal or facsimile thereof and any other
documents required by the Letter of Transmittal are
received by you within two business days after the
date of execution of the Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to you and must include a
guarantee by an Eligible Institution in the form set forth in such Notice
of Guaranteed Delivery.
Notwithstanding any other provisions hereof, exchange of Initial Notes
pursuant to the Offer will, in all cases, be made only after timely
receipt by you of such Initial Notes (or a Book-Entry Confirmation), a
properly completed and duly executed Letter of Transmittal or a facsimile
thereof and any other documents required by the Letter of Transmittal.
5. The Offeror will exchange Initial Notes duly tendered on the terms and
subject to the conditions set forth in the Offer and the Letter of
Transmittal. Exchange Notes issuable in exchange for Initial Notes
tendered shall be delivered as soon as practicable after notice of
acceptance of said Initial Notes by the Offeror is received by you.
6. Except as otherwise described in the Prospectus, tenders of Initial Notes
may be withdrawn at any time prior to 5:00 p.m., New York City time, on
the Expiration Date.
7. The Offeror shall not be required to exchange any Initial Notes tendered
if there shall occur any of the events set forth in the Prospectus under
"The Exchange Offer--Conditions".
8. If, pursuant to the Offer, the Offeror does not accept for exchange all or
part of the Initial Notes tendered, you shall promptly return the
deposited Initial Notes, with any related required documents that are in
your possession, to the persons who deposited same, together with a notice
explaining the reasons for their return.
9. Unexchanged Initial Notes and Exchange Notes shall be forwarded by (a)
first class mail under a blanket surety bond protecting you and the
Offeror from loss or liability arising out of the non-receipt or
non-delivery of such certificates for Initial Notes, or (b) by registered
mail insured separately for the replacement value of such certificates for
Initial Notes.
10. As Depository hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth herein;
(b) will be regarded as making no representations and
having no responsibilities as to the validity,
sufficiency, value or genuineness of the Initial
Notes deposited with you hereunder, and will not be
required to and will make no representation as to the
validity, value or genuineness of the Offer;
(c) shall not be obligated to take any legal action
hereunder which might, in your
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judgement, involve any expense or liability, unless
you shall have been furnished with such indemnity as
shall be reasonably satisfactory to you;
(d) may rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or
security delivered to you and believed by you to be
genuine and to have been signed by the proper party
or parties;
(e) may rely on and shall be protected in acting upon
written instructions from the persons set forth on
Exhibit C, each of whom is an Officer of the Offeror;
(f) may consult counsel satisfactory to you (including
counsel for the Offeror) and the opinion of each
counsel shall be full and complete authorization and
protection in respect to any action taken, suffered
or omitted by you hereunder in good faith and in
accordance with the opinion of such counsel; and
(g) shall not be called upon at any time to advise any
person tendering hereunder as to the wisdom of making
such tender or as to the market value or decline or
appreciation in market value of any share.
11. Please prepare and send daily exchange activity reports, prior to
5:30 p.m., to the following individual:
Xxxxxxx X. Xxxx
Fremont General Corporation
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
Tel: 310/000-0000
Fax: 000-000-0000
12. The Offeror covenants and agrees to indemnify and hold you harmless
against any loss, liability or expense incurred without negligence or bad
faith on your part arising out of or in connection with the administration
of your duties hereunder, including the reasonable cost and expenses of
defending yourself against any claim or liability in the premises.
If you are named in any action or proceeding in respect of which indemnity
may be sought against Offeror, you shall promptly notify Offeror in
writing of the commencement of such action or proceeding and Offeror shall
be permitted to participate in such action or proceeding, and, after
written notice from Offeror to you, to assume the defense of such action
or proceeding with counsel of Offeror's choice at Offeror's expense (in
which case Offeror shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by you). You will cooperate with
Offeror in the defense of any claim for which indemnification is sought.
13. This agreement and appointment as Depositary shall be construed and
enforced in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within such state, and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. THIS
AGREEMENT MAY NOT BE MODIFIED ORALLY.
14. You will arrange to comply with IRS regulations with regard to due
diligence in obtaining a
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certified Tax Identification Number (TIN). We understand that you are
required to deduct 31% on payments (a) to Holders who have not supplied
their correct TIN and the required certification and (b) to Holders who
you have been instructed by the IRS to deduct. You will forward
appropriate funds to the IRS. You are further instructed that a substitute
Form W-9 must be properly completed and delivered to you prior to payment,
otherwise 31% of the gross payment must be deducted as described above.
15. You shall arrange to file any appropriate reports with the IRS (e.g. 1099,
1099B, etc.). Please provide exact IRS Form to be completed with regard to
fair market value. Fair market value must be given to you prior to IRS
filing.
16. For services rendered as Depositary hereunder, your fees are approved as
set forth in Schedule A to this Agreement. Further, payment for invoices
generated will be paid within thirty days of such invoice date.
Please acknowledge receipt of this agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
Sincerely,
FREMONT GENERAL CORPORATION
BY: __________________________
Name:
Title:
AGREED AND ACCEPTED AS OF _______________________, 0000
XXXXX XXXXXXX XXXXX XXXXXXX XX XXX XXXX
BY: __________________________
Xxxxxx X'Xxxxx
Vice President
